"Blurred Lines" is clear infringement

Am I the only one in the world who thinks the Blurred Lines judgment is right? From the Internet, it sure seems that way.

Robin Thicke and Pharrell Williams broke into jail here. From a litigator's perspective I have no hesitation in saying they are reaping what they sowed. "Blurred Lines" ended up in court when Pharrell and Thicke sued the estate of Marvin Gaye for a declaratory judgment, which is where you ask a judge to say "this thing you claim isn't true". And from a copyright lawyer's perspective I say this is a judgment that shows you can create a derivative work of something without actually incorporating that work.

And that principle is nothing new.

The California Civil War - first glance at the random thoughts leading to my upcoming book

Up early on New Year's Day. Starting the "outline" (by which I mean random thoughts) for my book that I'll write this year.

The working title, which anyone who took my Entertainment Law class in 2012 or 2013 will recall, is The California Civil War. It's on the desire for entertainment content companies (Southern California) to ensure that the Internet content pipelines (Northern California) behave in the ways that Southern CA has found so mutually profitable in the past, why Northern CA is fighting back (foreshadowing: it's because of their business model), and why the way it's likely to end won't be in the best interests of consumers.

Put another way: it's a view from the inside of both the content creation and distribution industry on why the future of the entertainment content that you want to see won't likely be the one you want to see.

An early hint at what's to come...

Quick thoughts on the Aereo judgment, more to come

I'll give a more full post imminently, but my initial thoughts

1. The majority opinion is policy, not law. It's telling that they never once reference the prior precedent, Cablevision, except to note that it was the prior precedent. That means they're not giving any meaningful guidance, which is what you do when you're trying to reach a targeted result.
2. Justice Scalia is 100% right: the Court's ruling replaces widely-accepted rules for service-provider liability with an improvised standard of "looks like cable TV".
3. There is no reason to limit this reasoning to cable TV. Although the Court takes great pains to say it's not ruling on cloud computing or any other technology, I'm not talking about technology. I'm talking about a method of legal reasoning. If "looks like cable TV therefore is regulated like cable TV" is the test for determining the scope and ambit of a law, then why stop with cable TV? "Uber looks like a taxi therefore it should be regulated like a taxi and be forced to get medallions.". "Food trucks look like a restaurant therefore they should be regulated like a restaurant and be forced to provide restrooms."

Like I said, more to come, but especially #3 concerns me.

SOURCES:
Aereo judgment http://www.supremecourt.gov/opinions/13pdf/13-461_l537.pdf

The final exam question for my Entertainment Law class

As I've mentioned in this space, I teach Entertainment Law at the University of Washington every Spring. This year's final exam question is below the jump. Over the next few posts I'll put up some aspects of the answer that I think might be of interest to those of you who are interested in that kind of thing...

From 12 Years a Slave to collective agreements: one possible explanation for the script controversy

On the weekend, 12 Years a Slave won the Academy Award for Best Adapted Screenplay as well as Best Picture. There has been some controversy around the authorship of the screenplay. Apparently Steve McQueen believed at one point that he should have received a writer credit, John Ridley disagreed, and so Ridley ended up with the credit and therefore the award.

These kinds of things usually don't happen. The Writers' Guild of America has literally over 50 pages in its Collective Bargaining Agreement setting out the criteria for assigning credit and, if there's a dispute between writers, the arbitration method for settling it. So why didn't that happen here?

Believe it or not, the answer may be found in labor law.

Netflix and Comcast enter agreement to speed up streaming: 5 consequences for you and me

I hope you like Netflix. I know I do. Good thing. Because this week the world changed in a way to make Netflix even more likely to be your only real option in streaming media.

Jimi Hendrix merchandise sales shows two risks all creators face when basing characters on real people

Yes, I'll admit it, that title is a horrible and tortured pun. You should never have to experience anything like it again. (Okay, I'll stop.) But one seller of Jimi Hendrix merchandise had an experience in Washington State that teaches two valuable lessons to creators of content using the name, image, or likeness of real people.

(Okay, I promise, I'll really stop now.)

Experience Hendrix is one of two companies formed by the estate of Jimi Hendrix to exploit the rights to his name, image, and likeness through a series of trademarks the company has registered on certain images of Hendrix, his name, and his signature. They use these marks for basically every Jimi Hendrix product you've ever seen: their business is prolific and quite profitable. But of course as with all famous brands Experience Hendrix isn't the only entity trying to profit from Jimi Hendrix. Andrew Pitsicalis owns or has licenses to several works of art either created by Hendrix or showing him in them, and through various websites (including HendrixLicensing.com) he would sell copies of these works of art, onto which he had placed Hendrix's name, signature, and/or headshot.

Experience Hendrix sued Pitiscalis for state and federal trademark infringement, and Pitsicalis countersued seeking a declaration that Washington's right of publicity statute (which gives Experience Hendrix the right to be the only one to benefit from Hendrix's right of publicity even after death) was unconstitutional. At trial the judge held that the Washington right of publicity statute was unconstitutional. Each side appealed to the Ninth Circuit Court of Appeals.

Three points to help you avoid infringing when using popular source material

Every year, new versions of classic tales reappear in popular culture. Sherlock Holmes showed up in both movies and television. 2013's breakout surprise hit TV show was based on Washington Irving's "The Legend of Sleepy Hollow". And since the stories and characters upon which these hits are based are often themselves in the public domain, you might be tempted to create your own retellings of these tales too.

You can, but you need to be careful.

In a prior post on the character of Sherlock Holmes I made two important points about using pre-existing characters:

1. Where there are portions of a character in the public domain and portions that aren't, it's permitted to fork the characters to use only the public domain elements.
2. Forking characters in this way doesn't infringe on the rights of a copyright holder who might own non-public-domain elements to those characters.

But what may not be clear is how you can take a public-domain character and make them your own creation such that no one else can use your version of them, and in contrast when you're making too close use of someone else's version of the characters. A recent judgment from Canada gives us 3 good rules to help you make that decision.

The Apple e-books litigation post #1: why did it happen at all?

Although the Apple e-books judgment is a few months old, its consequences haven't yet begun to be fully understood. Tthis judgment starts to rebalance the playing field away from bottlenecks and distributors and toward individual content creators in several fundamental ways.

To understand the significance of the judgment, it's necessary to know what it does (and doesn't) say. And it's 160 pages, so bear with me because I'll have to break this into several parts...

Three not-so-elementary tips for using pre-existing characters, my dear author...

Being the start of a new year, January 1 (yesterday) saw a whole new set of works come into the public domain. And as that happens, some authors may want to use their characters for their own purposes. But if those characters are used in multiple works and not all of them are available, you might think you can't. Certainly the rightsholders for the later works will want you to think so. Are they right? A recent judgment on Sherlock Holmes gives some insight into this far-from-elementary question.

Okay, this time I'm *really* back

You are entitled to disbelieve, but I'm really back this time. 2013 brought a ton of personal stuff: some good, some bad, some great, some awful, all huge. But just like 2013, that's in the past.

Two things became clear to me during the hiatus:

1. Writing these posts was helpful to keep me sharp. Keeping up on topics of interest and figuring out how to explain them to the world made me understand them more deeply. That's something I can build upon...
2. I've taught my Entertainment Law class at the University of Washington for 4 years and it's time to update the curriculum. The thing is, most of the topics I cover here would also be good for my students. And teaching doesn't have to be boring, and textbooks don't have to be boring either.

So here's a marker I'm throwing down right now. In 2014 I will work out first iterations of thoughts on this blog, look for comments and criticisms etc., and use those to assemble the thoughts in longer form that I'll make available as an e-book and through CreateSpace for print.

I need you to keep me honest. So if I don't do these things, hold me to them.

On with the show... and thanks for coming back.

Back after a (too) long hiatus

Wow, that was a much longer hiatus than I had ever wanted. Many apologies to those who've been checking back during the absence, many thanks for coming back now.

I'm going to start posting again, and also start working up a book that could both double as a textbook for my course (Entertainment Law at the University of Washington) and also serve a more general audience. Thoughts, input, topics you'd like to see, things you don't care about etc. requested and welcomed!

In its response to the Plaintiffs' amended complaint, Harlequin has nothing new to say

I've had a copy of the Harlequin response to the Plaintiffs' amended complaint in their motion for a class action in the e-books litigation, and I haven't been able to motivate myself to write about it for one simple reason: they had nothing new to say.

I've only found one item that even bears mentioning, and even that one can be dealt with quickly.

Two reasons museums charge for reproductions (and one consequence)

By way of The Digital Reader, I've just read an interesting article that I think misses a very important point. That point leads to two of the bigger and related themes I'll be exploring here in 2013, as well as one of their consequences.

The article, linked below, laments that many famous works of art aren't available in high-res and so they can't be used in teaching. It sets forth the reason for this as being because museums are overreaching, using their legal rights of control over the environment where these works are stored, or the license terms of their own photos and the websites where they are displayed, as a way to stop otherwise-permitted reproductions of works that would be in the public domain. (I'm oversimplifying but I don't think I'm changing the thrust of the piece; read it and make your own decisions.)

Yes, if it wasn't for copyright and the control it gives over images and reproductions the museums wouldn't be able to stop this kind of thing. But that's putting the cart before the horse.

Harlequin plaintiffs bring new allegations, improve their case

[NOTE TO READERS: It's been a while since I've posted. Thanks for coming back.]

On November 2, 2012, the authors(*) in the Harlequin class action upped their game against Harlequin. If they're wrong, they will lose their class certification request. But if they win, they will find themselves making a point that will have repercussions far beyond just e-publishing and authors.

A bunch of travel recently

I've been on the road but have some interesting topics. Hang tight...

How does the HathiTrust book-scanning judgment affect e-books and audiobooks?

Scanning copyrighted works and making them searchable on the Internet sounds to many authors like it shouldn't be legal. But on October 10, a Federal Court in New York released a judgment holding that may be. That judgment raises significant issues for authors, publishers, and consumers, giving new scope to fair use of copyrighted materials in the USA.

"Is this the worst paragraph in your publishing agreement?"

The Passive Voice, a blog I follow that has tons of information for authors, has a really important post today entitled "Is this the worst paragraph in your publishing agreement?"

The advice in here is good for not just authors. App developers and film/TV producers should know about it too.

Three reasons Harlequin shouldn't get to have the e-books litigation dismissed

On October 19, Harlequin filed a motion seeking to have the e-books litigation dismissed. They make a lot of interesting arguments. Their lawyers are earning their money. But ultimately these arguments collapse onto themselves. This motion should lose.

Why is it so hard to stop patent trolls?

In the right hands, patents are good for inventors and for society. The monopoly they give allows for companies to do R&D work and commercialize that work, creating things that are a net gain for all of us.

The problem is, there are also companies out there that never make anything. They just see an issue, think about what kinds of things might somehow be related that issue, and then file patents based just on the description of how something should work rather than on something they've actually done. They never manufacture anything using that patent. They never even have any intention of doing it. Their definition of "doing business" with their patent is to find people who they think are doing something similar to the things described in their patent, contact them, and offer to license or even sell the patent. Meanwhile the companies that license or buy the patent just keep doing what they were doing, making things to try to help the world.

I have, of course, just described startup pharmaceutical companies.