I’ve written about termination rights in the past with respect to John Steinbeck’s works. The issue of termination rights is a complex one, but Shourin Sen at Exclusive Rights has made the subject much simpler with his “Copyright Termination Calculator.” According to Sen, “The calculator will run a user through the questions and permutations necessary to evaluate when and under what conditions and statutory provisions a copyright grant may be terminated.”
2nd Circuit’s Salinger v Colting Decision
The Second Circuit remanded the Salinger v. Colting case, holding that:
eBay abrogated parts of this Court’s preliminary injunction standard in copyright cases, and accordingly, this case must be remanded to the District Court to reevaluate Salinger’s preliminary injunction motion. In light of that holding, we need not decide whether the preliminary injunction issued by the District Court constituted an unconstitutional prior restraint on speech.
As usual, the case brings out a lot of strong feelings. Ray Dowd, of the Copyright Litigation Blog, wrote:
The problem with this case is that we can’t get a copy of the book to see what it actually looks like. I am skeptical that a book written about a 60-year old man named “Mr. C” could really be so likely to be copyright infringement. The testimony of the English professors in favor of the defendant and the degree of Holden Caulfield literature out there, Holden’s iconic status – and the lack of exploitation appear to be factors weighing in his favor.
Though the book is not available in the United States, I think the plaintiffs presented enough evidence of word for word infringement in their brief to warrant the preliminary injunction. See my previous article on the Salinger case here.
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Sam Moore Lawsuit Against Weinstein Company Will Go to Trial
In late 2008, Sam Moore sued the Weinstein Company over the production of its film “Soul Men.” The premise of the film is that “two estranged soul-singing legends agree to participate in a reunion performance at the Apollo Theater.” One of the “soul-singing” legends happened to resemble “Sam & Dave,” an R&B group to which Moore was a member. Moore objected to the film’s content and sued the Weinsten brothers.
A Tennessee court has rejected the Weinstein brother’s motion for summary judgment.
According to the court:
Upon seeing the script of the Movie, Moore’s concerns increased. He noticed, among other things, that music from Sam & Dave was featured in the Movie and that the Real Deal sang Sam & Dave songs (including the popular “Hold On, I’m Comin’”) and also performed alongside individuals with whom Sam & Dave had performed. The plaintiffs claim that, as with earlier pieces that had traded on the “Soul Man” theme, Mr. Moore attempted to get involved in the production of the Movie to ensure that his reputation was not tarnished and that the facts were accurately conveyed. Indeed, in a March 3, 2008 letter, Moore, through counsel, placed TWC on notice of his concerns about the Movie. (Docket No. 1 Ex. 6.)
Moore argued that he owns a trademark in the phrase “soul men,” and that consumers would likely be confused as to the source of the Soul Men film. The court found the assertion dubious, stating that:
It appears very unlikely, and, perhaps, “facially implausible,” that the defendants’ use of the term “Soul Men” is not artistically relevant or that it “explicitly misleads” the consumer as to the source of the mark.
Nevertheless, under a “competing titles” exception found in a footnote to a previous precedent, Moore’s claim was strong enough to survive summary judgment.
The court also made some interesting remarks regarding the the Weinstein’s first amendment defense to Moore’s right of publicity claim. In essence, the court held that where there is an allegation of distortion, there is enough of a claim to survive summary judgment:
when a likeness is exploited in the entertainment context, the court must balance the First Amendment interests with the individual’s interest in protecting his or her property right. …Therefore, it is not enough for the defendants to simply assume that a “life story” about Mr. Moore would be protected speech. The plaintiffs do not allege that the defendants have told Moore’s life story; rather they allege that, through the Movie-related products, they have exploited and distorted Moore’s image for commercial gain. In light of this more nuanced reality, additional discovery and fact gathering is necessary to determine if the plaintiffs’ rights under the TPRPA were violated or whether the defendants’ use of any likenesses of Mr. Moore is protected by the First Amendment.
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The Net Profit Pitfall
Net profit definitions are notorious in the film industry. In on of the most egregious examples, the film Forrest Gump, which is the fourth highest grossing film in history, never turned a “net profit.” It seems that problems relating to net profit definitions are still coming up.
THR is reporting that Marathon Funding, a company that invested in No Country For Old Men, and was entitled to 25% of the net profits, is suing Paramount over a $25 million “deduction” Paramount made, in the form of a payout to star Tommy Lee Jones, from the net profits Marathon was entitled to receive. The payout may be related to an earlier lawsuit between Jones and Paramount, so the issue here might not be “creative accounting,” but who pays for Jones’s award.
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The Economist on Copyright Protection
There is an interesting article in The Economist concerning attempts to strengthen copyright protection. The article makes some good points about the arguments for increased protection. For instance, “The notion that lengthening copyright increases creativity is questionable, however. Authors and artists do not generally consult the statute books before deciding whether or not to pick up pen or paintbrush. And overlong copyrights often limit, rather than encourage, a work’s dissemination, impact and influence.” This is more of a anecdotal approach (imagining what motivates a would be artist), but this sentiment is echoed by some who have subjected the idea to a more rigorous, economic approach. In The Economic Structure of Intellectual Property Law (2003), Posner writes:
The economic case for abolishing intellectual property rights has not been made. But neither economic theory nor empirical evidence enables a ringing endorsement of any complete body of intellectual property law…it may come as a surprise to many readers that the economic arguments that we make for intellectual property protection are not based primarily on a belief that without legal protection the incentives to create such property would be inadequate. That belief cannot be defended confidently on the basis of current knowledge. (9-10).
Contract Review By a Computer Program
Will computers replace lawyers one day? I doubt it, but some are already taking steps in that direction.
JavaCoolSoftware has released the “
,” a program that will “analyze license agreements in seconds, and provide a detailed listing of potentially interesting words and phrases.”
Obviously, this is not a full proof method for avoiding license agreements with onerous terms, but in this age, no one could possibly read every contract and license they are given, and even if we could, in most cases we have no bargaining power. See Contracts of Adhesion.
A review on PlagiarismToday found that “All in all, this app is a great idea and, considering that its free, I think it should be on every legally-conscious user’s machine, if nothing else than dealing with those pesky software EULAs.”
At the very least, it’s definitely worth checking out.
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Entertainment Industry Aspirations
Earlier this year Victoria A. Espinel, the government’s Intellectual Property Enforcement Coordinator, requested submissions from the public concerning the future of intellectual property enforecement in the United States. The MPAA and RIAA submitted a brief that is remarkable in its breadth. According to Zero Paid:
Its outline for tackling the problem is truly frightening, and includes all of the very worst possible solutions. Among the proposals are website filtering, search engine keyword blocking, a crackdown on domain name registrars and proxy services, monitoring of social networks for promotion of infringing websites, bandwidth throttling, and “consumer tools” installed on home PCs that detect and delete illegally obtained copyrighted material.
These recommendations raise questions separate from the traditional intellectual property debates. At what point are the means by which intellectual property rights are enforced unreasonable? Certainly in other areas of the law we make choices about the balance between enforcement and conduct. For instance, we have the technology to enforce speed restrictions by camera, and as has been the case in Britain, the fines would probably pay the cost of such systems. Nevertheless, there would probably be an outcry if a state government installed speed cameras. It’s certainly the case that if the police had the power to tap any phone line it would be easier to enforce criminal laws, but would it be worth it?
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Disney Characters Explain Copyright
Via the Licensing Plate — a short video wherein a number of famous Disney characters explain the intricacies of copyright law.
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Current Copyright Disputes
The Copyright Wars continue to be fought in all fronts. Here is a sampling of some current disputes:
(1) Artist Dereck Seltzer has sued the band Green Day for copyright infringement claiming that Green Day used one of Seltzer’s images in their live show without a license. Examiner.
(2) Robert Cabell, the owner of a video called “Pretty Faces, received a takedown notice from the Actors Equity Association (AEA). The takedown notice was ultimately wrongful, and Cabell has retaliated. But in a March 12 decision, a judge in the Southern District of New York decided that AEA was not liable because it didn’t have actual knowledge of the notice’s lack of merit. Copyrights and Campaigns.
(3) Charlie Daniels is trying to take control of the total copyright interest in his music including “The Devil Went Down to Georgia.” Nashville Business Journal.
(4) The Mardi Gras Indians are claiming copyright protection in their elaborate costumes. Generally, clothing is not copyrightable, but the attorney for the Mardi Gras Indians is advancing the novel claim that the uniforms are actually scultpures. TechDirt.
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Suing is Not Always As Easy As It Seems
People rarely understand how costly, time consuming, and grueling a lawsuit can be. In a sense, being right is not enough.
Earlier this month, the U.S. Copyright Group partnered with some independent studios to sue thousands of file-sharers. But Time-Warner is resisting the lawsuits because of the unreasonable burden the suits place on the ISP. According to Ars Technica, Time Warner cannot handle the requests:
Time Warner is also arguing that the U.S. Copyright group should owe separate filing fees in each case, which would amount to $350 per person, a large sum considering there are over 2,000 defendants.