"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.

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

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.

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.

Avoiding option clauses and cross-collateralization by using LLCs

A short post today, but hopefully a helpful one.

I've recently seen people complaining of two standard problems with traditional publishing contracts:

• Option clauses: where publishers require you to give them an option on your next book.
• Cross-collateralization: where publishers won't pay you royalties on your first book until you've paid back the advance on your second.

It seems to me that there's a very easy way around each of these problems.