I remember when I first heard of Bikram Yoga, the rigidly prescribed sequence of twenty-six postures set to balmy 105 degrees and 40% humidity:
It was New Year's day some years ago and we were walking with friends -- and kids in strollers -- around Balboa Island in Newport Beach. A woman in our group was a recent convert to Bikram Yoga. Most of us (except for my very well read wife) had never heard of it.
After an explanation of this form of hot yoga, a young physician in the group opined that it sounded dangerous.
Conflict came early to Bikram Yoga.
Bikram Yoga is said to be the most popular – certainly the most well known -- form of hot yoga. Derived from traditional hatha yoga, it was developed and popularized by Bikram Choudury.
By all accounts he has made a mint off of it. According to Wikipedia, Mr. Chodury's owns more than 40 Rolls Royces, including cars owned by the Queen Mother and the Beatles (although probably not at the same time). Wikipedia quotes him saying “I'm making - I don't know - millions of dollars a day, $10 million a month - who knows how much?”
Who knew a yoga franchise could be so profitable? Given that it is, it’s easy to understand why Choudury would want to protect his golden goose by zealously guarding the right to teach the 26 postures in a sauna-like setting.
After first learning of Bikram Yoga, occasionally reemerged in my periphery. At some point, a year or two later, I received a call from the owner of a yoga studio who described a brewing dispute with Bikram. He (or his lawyers) didn’t want her to offer Bikram-style yoga absent Bikram-authorized training and a Bikram-license.
Hey, this may be meditative, but it’s also business. Someone’s got to pay for Chodury’s watch collection that Wikipedia says is valued at more than $1 million.
When I received the call, I thought you probably can't use his name (nomitive use likely would not work as a defense), but how can he protect the sequence? Does it constitute choreography, maybe?
I never answered the question. The caller decided she didn't have the funds or the fortitude for a yoga fight.
Apparently other Bikram disciples were more inclined to go to the yoga-mat on this.
Greg Gumucio is the founder of Yoga to the People, a New York based franchise which offers "Traditional Hot Yoga." He’s a former student of Chodury. Now he’s the defendant in a copyright infringement lawsuit brought by Chodury based on Gumucio having allegedly taught Bikram's sequence of twenty-six postures set to 105 degrees (or there about).
Wow, talk about “Time for you to go, Grasshopper.” “Time for me to squish you like a bug, Grasshopper!”
It seems Bikram used the argument that the sequence of 26 was tantamount to choreography, and thus entitled to protection under the Copyright Act.
Section 102(a)(4) of the Copyright Act includes choreographic works as subject matter in which copyright protection subsists. Of course, the Copyright Act only affords protection to a work that is "fixed", that is, written or recorded on some physical medium. Thus, courts have found protection in a choreographed work where, e.g. the movements were digitized in a video game (Ahn v. Midway Manufacturing, Co., 965 F. Supp. 1134, 1138 (N.D. Ill. 1997); Martha Gram School and Dance Foundation, Inc. v. Martha Gram Center of Contemporary Dance, Inc., 380 F.3d 624, 632 and n. 13 (2d Cir. 2004) (choreographic work may be fixed by being filmed, videotaped or through use of a written system of notation); Horgan v. Macmillan, Inc., 789 F.2d 158, 160, n. 3 (2d Cir. 1986) (same).
Accordingly, Bikram’s argument was that the movements required for the yoga at issue were comparable to a choreographic work thus were protectable under 17 U.S.C. Section 102(a)(4).
Well, the Copyright Office has weighed in on this, and the answer is . . . No.
After conducting a legislative review of the Copyright Act, the Copyright Office determined that exercises, including yoga exercises, are not protected as choreography.
Breath . . . Deeply.
Because the Copyright Office has extensive experience reviewing copyright claims and the authority to interpret the Copyright Act, courts tend to give deference to its decisions. See Batjac Productions Inc. v. GoodTimes Home Video Corp., 160 F.3d 1223, 1230 (9th Cir. 1998) (deferring to Copyright Office’s refusal of registration, stating “the Register has the authority to interpret the copyright laws and [ ] its interpretations are entitled to judicial deference if reasonable”) (citation omitted); Southco, Inc. v. Kanebridge Corp., 390 F.3d 276, 287 (3d Cir. 2004) (“the Copyright Office’s longstanding practice of denying registration to short phrases merits deference”).
I'm not sure what this means to the creators of Jazzercise, Tae Bo or other exercise routines, but this case does seem to add some clarification to the issue of choreography.
By the way, Gumucio is now suing for a recovery of his fees. So exhale . . . at least for now.
Jonathan Pink is an intellectual property attorney in the Los Angeles and Orange County offices of Bryan Cave, LLP. He specializes in copyright, trademark and unfair competition claims. He can be reached at jonathan.pink@bryancave.com.
Tuesday, February 7, 2012
Thursday, February 2, 2012
Copyright Infringement on the Campaign Trail
It’s not just the “very poor” who are ticked off at Mitt Romney these days. NBC has got a beef with him as well.
Mitt’s got a TV ad out in which he uses a clip from NBC’s Nightly News, circa 1997. The clip shows Tom Brokaw reporting that Newt Gingrich was found guilty of various ethics violations.
The ad carries the banner “Paid for by Romney for President, Inc. Approved by Mitt Romney.”
But it doesn’t say licensed by Mitt Romney or used with permission by Mitt Romney. And it doesn’t say “approved by NBC.”
NBC, it seems, is not pleased about this. It has insisted that Romney remove NBC’s copyrighted material from the ad, or face a claim for copyright infringement.
And that’s not all. NBC is also threatening a claim for false endorsement, false designation of origin under the Lanham Act, and (on behalf of Mr. Brokaw) a claim for misappropriation of name and likeness.
I like NBC. If I had a TV, I’d definitely watch their station. My hat’s off to their legal team.
Mr. Romney might have said “I’m not concerned about the Copyright Act.” Or “I’m not concerned about the very [NBC].” His campaign apparently intends to continue running the ad. They’ve taken the position that their use of the news clip falls within the “fair use” doctrine.
Really?
Let’s review: 17 U.S.C. § 107 provides that the “fair use" of a copyrighted work “is not an infringement of copyright," but making the determination as to whether “fair use” applies is a case-by-case analysis.
Generally speaking, in determining whether the fair use defense applies, courts consider “(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work." 17 U.S.C. § 107.
Those factors don’t necessarily bode in favor of the Romney campaign. But then again, maybe what it means by “fair use” is that the Gingrich campaign also engaged in copyright infringement!
You see, Gingrich was sued this week by a former member of the band Survivor for his use of the song “Eye of the Tiger” at campaign events.
Opps. Can’t do that? Public performance? Who knew?
So maybe that’s Romney’s “fair use” defense. Of course, that’s really less of “fair use” and more of a “well he did it!”
But if Romney takes that approach, he’d might also want to pick a couple more wives. Just to make the teams even.
In any event, it helps to know that the leading contenders for the Republican presidential nomination are well versed in copyright laws.
Hint to Romney and Gingrich: it helps to hire a lawyer before using other people’s work. That is, unless the copyright owners are very poor, in which case, we know what Mitt has to say about that.
Jonathan Pink is a copyright and trademark lawyer in the Los Angeles and Orange County offices of Bryan Cave, LLP. His practice focuses on intellectual property and commercial litigation, including arts and entertainment, technology and Internet-related matters. He cam be reached at jonathan.pink@bryancave.com.
Mitt’s got a TV ad out in which he uses a clip from NBC’s Nightly News, circa 1997. The clip shows Tom Brokaw reporting that Newt Gingrich was found guilty of various ethics violations.
The ad carries the banner “Paid for by Romney for President, Inc. Approved by Mitt Romney.”
But it doesn’t say licensed by Mitt Romney or used with permission by Mitt Romney. And it doesn’t say “approved by NBC.”
NBC, it seems, is not pleased about this. It has insisted that Romney remove NBC’s copyrighted material from the ad, or face a claim for copyright infringement.
And that’s not all. NBC is also threatening a claim for false endorsement, false designation of origin under the Lanham Act, and (on behalf of Mr. Brokaw) a claim for misappropriation of name and likeness.
I like NBC. If I had a TV, I’d definitely watch their station. My hat’s off to their legal team.
Mr. Romney might have said “I’m not concerned about the Copyright Act.” Or “I’m not concerned about the very [NBC].” His campaign apparently intends to continue running the ad. They’ve taken the position that their use of the news clip falls within the “fair use” doctrine.
Really?
Let’s review: 17 U.S.C. § 107 provides that the “fair use" of a copyrighted work “is not an infringement of copyright," but making the determination as to whether “fair use” applies is a case-by-case analysis.
Generally speaking, in determining whether the fair use defense applies, courts consider “(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work." 17 U.S.C. § 107.
Those factors don’t necessarily bode in favor of the Romney campaign. But then again, maybe what it means by “fair use” is that the Gingrich campaign also engaged in copyright infringement!
You see, Gingrich was sued this week by a former member of the band Survivor for his use of the song “Eye of the Tiger” at campaign events.
Opps. Can’t do that? Public performance? Who knew?
So maybe that’s Romney’s “fair use” defense. Of course, that’s really less of “fair use” and more of a “well he did it!”
But if Romney takes that approach, he’d might also want to pick a couple more wives. Just to make the teams even.
In any event, it helps to know that the leading contenders for the Republican presidential nomination are well versed in copyright laws.
Hint to Romney and Gingrich: it helps to hire a lawyer before using other people’s work. That is, unless the copyright owners are very poor, in which case, we know what Mitt has to say about that.
Jonathan Pink is a copyright and trademark lawyer in the Los Angeles and Orange County offices of Bryan Cave, LLP. His practice focuses on intellectual property and commercial litigation, including arts and entertainment, technology and Internet-related matters. He cam be reached at jonathan.pink@bryancave.com.
Wednesday, February 1, 2012
A Battle Over the Right to Publish an eBook
Interesting new dispute brewing . . . and this on the heals of the CCIA report (see post of 1/30/2012) no less.
The CCIA report talks about the general health of the global entertainment industry. In a nutshell, it says that revenue generated from, and the production of, movies, books and music is far greater than prior – mostly entertainment-industry – reports. Put another way, the CCIA report suggests that the entertainment industry is sort of a hypochondriac, and its moans and groans really do not portend its imminent death.
Or so the report says. I’m a litigator, so naturally a skeptic. Of course, as many of you know, my background is on the creative side, so I’m also a big proponent of making something out of nothing – film, music, art . . . self-serving report.
In any event, let’s go with it now, because I only mention it to talk about ebooks.
Just a little background: ebook technology and the devices themselves have been around since at least the 1990s. It’s just that almost no one had them. They were like the man-purse: just didn’t catch on.
Of course now, they’re ubiquitous. The Nook, the Kindle; I suspect the iPad will serve in this same function by the time I’m finished writing this post. I read the New York Times (and the LA Times) on my iPhone so it’s not much different. [Note: we also get the paper edition of the NY Times. It’s just that I’m not supposed to touch it until Andrea’s through with it. So reading it on line allows me to read it when I like, even if she hasn’t finished with it. Also, reading it on line allows me the opportunity to say something in response when Andrea reads me something aloud from the paper, such as:
Her: (Reading) It’s estimated that the Facebook IPO is valuing the company at $75 billion to $100 . . .
Me: (Nearly quoting from the same article, but tossing it off as if it were my own analysis) Really? Sounds like they’re cashing in on the fuel that powers the engine of Internet commerce: personal data. Why, the company has been busily collecting that data for seven years, compiling the information that its more than 800 million users freely share about themselves and their desires. Facebook’s value will be determined by whether it can leverage this commodity to attract advertisers.
Sometimes it works.
Anyway, back to our story. The CCIA report suggests that while the overall book industry has been relatively stable over many years, the digital books market has been experiencing explosive growth. Some publishers think ebooks will completely replace printed books. Certainly, according to the report, sales revenues for ebooks have now surpassed the $1 billion mark, and that’s expected to triple in coming years.
Now, if you’re a traditional publisher, and you have the right to publish a title in print or in the form of an ebook, perhaps this is all good news. After all, the cost of producing and selling an ebook is considerably less than that of a printed book.
If that’s all there were to this, we could all go on with things more important than reading this blog. But . . . what if the traditional publisher who released the book and built an audience doesn’t have the rights to also publish the work as an ebook
How could this be, you ask? Well, let’s say the work was published forty years ago, and neither the publisher nor the writer ever envisioned such things as an ebook, and thus did not include such technology in their publishing agreement. (Hey, if I were to have told you in 1971 that in 2012 you’d be using your camera as a telephone, and a radio and a compass and a map and . . . well, you get the idea. Who’d of thunk it?)
That’s the situation that gives rise to our lasted tale of woe and litigation.
Direct your attention to: HarperCollins Publishers LLC v. Open Road Integrated Media LLP, (case number 1:11-cv-09499) (SDNY).
HarperCollins is suing to stop Open Road from selling an e-book version of “Julie of the Wolves,” the classic 1972 children’s novel.
HarperCollins alleges that Open Media’s publishing of the ebook version of the book infringes HarperCollins’ copyright because it had a preexisting contract with the works author, Jean Craighead George, granting HarperCollins exclusive rights to publish the book “in book form” (at least in the U.S. and Canada).
So, is an ebook a book? HaperCollins thinks so.
What is a book, anyway? A quick Google defines book (at least the noun form of the word) as “A written or printed work consisting of pages glued or sewn together along one side and bound in covers.” Well that wouldn’t include something on the Kindle, but is that definition too narrow?
That’s what the parties will argue over.
HarperCollins claims that its agreement with the author gives it the right to exploit the work “through computer, computer-stored, mechanical or other electronic means now known or hereafter invented.” Under contract law, that would give them a good argument that the agreement was broad enough to include the technology we currently refer to as an ebook.
However, the case is being litigated in New York, and the Second Circuit has taken a fairly narrow view of similarly expansive language in other literary agreements where ebooks were at issue. But maybe the current, more widespread distribution of ebooks will lead to a different result in this case? It would seem that, as the technology works its way into our lives, the views of the jurists may change. We’ll see.
Certainly, if I were a publisher, I’d want to own the ebook rights to everything I had published in hard copy. Conversely, if I were the author of a successful work, I’d welcome the opportunity to renegotiate the ebook-rights. The issue should be of great importance to both camps (including the estates of the authors who entered into these types of agreements in the past), and a favorable ruling for HarperCollins is certain to trigger additional lawsuits, so stay tuned.
One final question: Who is going to retain electronic publishing rights in the future?
That’s easy: all literary agreements written on a go-forward basis are certain to close this loop hole. Publishers will want to make very clear that “new uses” of old works includes absolutely everything, and that the term “in book form” means something much more expansive than “written or printed work consisting of pages glued or sewn together along one side and bound in covers.”
After all, who knows what things will look like in 40 years? Maybe by then we’ll have telephone shoes.
Jonathan Pink is an intellectual property attorney specializing in copyright, trademark and commercial litigation. He is resident in the Los Angeles and Orange County offices of Bryan Cave, LLP. He can be reached at jonathan.pink@bryancave.com.
The CCIA report talks about the general health of the global entertainment industry. In a nutshell, it says that revenue generated from, and the production of, movies, books and music is far greater than prior – mostly entertainment-industry – reports. Put another way, the CCIA report suggests that the entertainment industry is sort of a hypochondriac, and its moans and groans really do not portend its imminent death.
Or so the report says. I’m a litigator, so naturally a skeptic. Of course, as many of you know, my background is on the creative side, so I’m also a big proponent of making something out of nothing – film, music, art . . . self-serving report.
In any event, let’s go with it now, because I only mention it to talk about ebooks.
Just a little background: ebook technology and the devices themselves have been around since at least the 1990s. It’s just that almost no one had them. They were like the man-purse: just didn’t catch on.
Of course now, they’re ubiquitous. The Nook, the Kindle; I suspect the iPad will serve in this same function by the time I’m finished writing this post. I read the New York Times (and the LA Times) on my iPhone so it’s not much different. [Note: we also get the paper edition of the NY Times. It’s just that I’m not supposed to touch it until Andrea’s through with it. So reading it on line allows me to read it when I like, even if she hasn’t finished with it. Also, reading it on line allows me the opportunity to say something in response when Andrea reads me something aloud from the paper, such as:
Her: (Reading) It’s estimated that the Facebook IPO is valuing the company at $75 billion to $100 . . .
Me: (Nearly quoting from the same article, but tossing it off as if it were my own analysis) Really? Sounds like they’re cashing in on the fuel that powers the engine of Internet commerce: personal data. Why, the company has been busily collecting that data for seven years, compiling the information that its more than 800 million users freely share about themselves and their desires. Facebook’s value will be determined by whether it can leverage this commodity to attract advertisers.
Sometimes it works.
Anyway, back to our story. The CCIA report suggests that while the overall book industry has been relatively stable over many years, the digital books market has been experiencing explosive growth. Some publishers think ebooks will completely replace printed books. Certainly, according to the report, sales revenues for ebooks have now surpassed the $1 billion mark, and that’s expected to triple in coming years.
Now, if you’re a traditional publisher, and you have the right to publish a title in print or in the form of an ebook, perhaps this is all good news. After all, the cost of producing and selling an ebook is considerably less than that of a printed book.
If that’s all there were to this, we could all go on with things more important than reading this blog. But . . . what if the traditional publisher who released the book and built an audience doesn’t have the rights to also publish the work as an ebook
How could this be, you ask? Well, let’s say the work was published forty years ago, and neither the publisher nor the writer ever envisioned such things as an ebook, and thus did not include such technology in their publishing agreement. (Hey, if I were to have told you in 1971 that in 2012 you’d be using your camera as a telephone, and a radio and a compass and a map and . . . well, you get the idea. Who’d of thunk it?)
That’s the situation that gives rise to our lasted tale of woe and litigation.
Direct your attention to: HarperCollins Publishers LLC v. Open Road Integrated Media LLP, (case number 1:11-cv-09499) (SDNY).
HarperCollins is suing to stop Open Road from selling an e-book version of “Julie of the Wolves,” the classic 1972 children’s novel.
HarperCollins alleges that Open Media’s publishing of the ebook version of the book infringes HarperCollins’ copyright because it had a preexisting contract with the works author, Jean Craighead George, granting HarperCollins exclusive rights to publish the book “in book form” (at least in the U.S. and Canada).
So, is an ebook a book? HaperCollins thinks so.
What is a book, anyway? A quick Google defines book (at least the noun form of the word) as “A written or printed work consisting of pages glued or sewn together along one side and bound in covers.” Well that wouldn’t include something on the Kindle, but is that definition too narrow?
That’s what the parties will argue over.
HarperCollins claims that its agreement with the author gives it the right to exploit the work “through computer, computer-stored, mechanical or other electronic means now known or hereafter invented.” Under contract law, that would give them a good argument that the agreement was broad enough to include the technology we currently refer to as an ebook.
However, the case is being litigated in New York, and the Second Circuit has taken a fairly narrow view of similarly expansive language in other literary agreements where ebooks were at issue. But maybe the current, more widespread distribution of ebooks will lead to a different result in this case? It would seem that, as the technology works its way into our lives, the views of the jurists may change. We’ll see.
Certainly, if I were a publisher, I’d want to own the ebook rights to everything I had published in hard copy. Conversely, if I were the author of a successful work, I’d welcome the opportunity to renegotiate the ebook-rights. The issue should be of great importance to both camps (including the estates of the authors who entered into these types of agreements in the past), and a favorable ruling for HarperCollins is certain to trigger additional lawsuits, so stay tuned.
One final question: Who is going to retain electronic publishing rights in the future?
That’s easy: all literary agreements written on a go-forward basis are certain to close this loop hole. Publishers will want to make very clear that “new uses” of old works includes absolutely everything, and that the term “in book form” means something much more expansive than “written or printed work consisting of pages glued or sewn together along one side and bound in covers.”
After all, who knows what things will look like in 40 years? Maybe by then we’ll have telephone shoes.
Jonathan Pink is an intellectual property attorney specializing in copyright, trademark and commercial litigation. He is resident in the Los Angeles and Orange County offices of Bryan Cave, LLP. He can be reached at jonathan.pink@bryancave.com.
Monday, January 30, 2012
The Sky . . . Isn’t Falling?
Well this is interesting, even if some may not want to hear it.
The Computer & Communications Industry Association released a study today entitled “The Sky is Rising,” in which it states that, economically speaking, the entertainment industry grew by 50 percent over the past decade and that consumer spending on entertainment also increased.
I for one am going to more movies again, but I merely attributed this to the fact that my kids are now old enough to watch themselves while Andrea and I catch a flick. In any event, as to doing my part in connection with the economic up tick in the industry, you’re welcome.
A link to the actual report is here: http://www.ccianet.org/CCIA/files/ccLibraryFiles/Filename/000000000586/TheSkyIsRising7-130.pdf .
A brief summary of some of the report’s findings are here:
• Consumer spending on entertainment as a percentage of household income rose 15% between the years of 2000 and 2008;
• Employment in the entertainment industry grew 20% during over the last decade, which apparently includes a large group of individuals – nearly half of the total increase -- who identify themselves as “independent artists”;
• Box office revenue jumped 25% from 2006 to 2010 (talking round numbers, that’s up $6 billion -- from $25.5 billion to $31.8 billion);
• The number movies produced is increasing at a terrific rate: leaping from 5,635 in 2005 to 7,193 in 2009
• The value of the entertainment industry worldwide grew nearly $300 billion between 1998 and 2010, from $449 billion to $745 billion (so nearly $25 B per year); and
• Concert sales in the U.S. went from $1.5 billion to $4.6 billion over the decade from 1999 to 2009. Now that reason to party likes it’s 1999.
As to movies produced, and box office bang, one can only assume that indy films deserve a good deal of credit for this. After all, with the increasing ease with which these films can be made, financed and distributed, many traditional barriers, long faced by film-makers, no longer exist. It’s easier than ever to create a film on a shoestring and actually get it into theaters, or directly into the homes of audience members. This is good news! It means that we’re guaranteed a treasure trove of cinematic gems that never would have seen a screening room 2 decades ago. I can’t see this as anything other than a big win for us all.
But what about the oft-heard dire statements about the death of the entertainment industry at the hands of the Internet? That’s part of what was driving SOPA. Does this mean that Sillywood will not kill Hollywood? Does it mean that Sillywood and Hollywood are on the verge of a new Golden Age, and will wander off, hand-in-hand into the sunset?
Who knows. I for one am encouraged by these figures, but stay tuned. . . .
And in the meantime, stop reading this post and go make a movie, write a film or record a song.
Jonathan Pink is an intellectual property attorney resident in the Los Angeles and Orange County offices of Bryan Cave, LLP. He can be reached at jonathan.pink@bryancave.com.
The Computer & Communications Industry Association released a study today entitled “The Sky is Rising,” in which it states that, economically speaking, the entertainment industry grew by 50 percent over the past decade and that consumer spending on entertainment also increased.
I for one am going to more movies again, but I merely attributed this to the fact that my kids are now old enough to watch themselves while Andrea and I catch a flick. In any event, as to doing my part in connection with the economic up tick in the industry, you’re welcome.
A link to the actual report is here: http://www.ccianet.org/CCIA/files/ccLibraryFiles/Filename/000000000586/TheSkyIsRising7-130.pdf .
A brief summary of some of the report’s findings are here:
• Consumer spending on entertainment as a percentage of household income rose 15% between the years of 2000 and 2008;
• Employment in the entertainment industry grew 20% during over the last decade, which apparently includes a large group of individuals – nearly half of the total increase -- who identify themselves as “independent artists”;
• Box office revenue jumped 25% from 2006 to 2010 (talking round numbers, that’s up $6 billion -- from $25.5 billion to $31.8 billion);
• The number movies produced is increasing at a terrific rate: leaping from 5,635 in 2005 to 7,193 in 2009
• The value of the entertainment industry worldwide grew nearly $300 billion between 1998 and 2010, from $449 billion to $745 billion (so nearly $25 B per year); and
• Concert sales in the U.S. went from $1.5 billion to $4.6 billion over the decade from 1999 to 2009. Now that reason to party likes it’s 1999.
As to movies produced, and box office bang, one can only assume that indy films deserve a good deal of credit for this. After all, with the increasing ease with which these films can be made, financed and distributed, many traditional barriers, long faced by film-makers, no longer exist. It’s easier than ever to create a film on a shoestring and actually get it into theaters, or directly into the homes of audience members. This is good news! It means that we’re guaranteed a treasure trove of cinematic gems that never would have seen a screening room 2 decades ago. I can’t see this as anything other than a big win for us all.
But what about the oft-heard dire statements about the death of the entertainment industry at the hands of the Internet? That’s part of what was driving SOPA. Does this mean that Sillywood will not kill Hollywood? Does it mean that Sillywood and Hollywood are on the verge of a new Golden Age, and will wander off, hand-in-hand into the sunset?
Who knows. I for one am encouraged by these figures, but stay tuned. . . .
And in the meantime, stop reading this post and go make a movie, write a film or record a song.
Jonathan Pink is an intellectual property attorney resident in the Los Angeles and Orange County offices of Bryan Cave, LLP. He can be reached at jonathan.pink@bryancave.com.
Friday, January 27, 2012
A Prince of the Art World
Richard Prince is an artist. At least according to some people. Others have less flattering terms for what he does.
Prince is principally a painter and a photographer. He may be best known for his technique of “appropriating” photographs which he then “rephotographs” to create his works.
One example of this is his work involving photographs from Marlboro cigarette ads of the Marlboro Man. Prince's rephotographed these ads (thus incorporating the works of other photographers) to create his pieces, one of which sold at Christie's in New York for more than $1 million in 2005.
His works have been collected by major institutions, including the Guggenheim.
Shockingly, this practice of “rephotographing” did not sit well with some of photographers whose work appeared in Prince’s pieces. Photographer Patric Cariou is one such photographer.
In December 2008, Cariou filed suit against Prince, the Gagosian Gallery, Lawrence Gagosian and Rizzoli International Publications, asserting copyright infringement in some of the works Prince was showing (and selling) Gagosian’s shop.
Specifically, Cariou alleged that Prince had appropriated 35 of Cariou’s photographs some of which he claimed had barely been changed by Prince. In addition, Cariou alleged that Prince also made more than two dozen paintings that included Cariou’s images.
This is a problem?
Prince argued that his use of the photographs amounted to “fair use.”
As you know, the “fair use” defense is decided on a case-by-case basis. As the Supreme Court noted in its recent ruling in Golan v. Holder (Jan 2012):
[T]he fair use defense, is codified at 17 U. S. C. §107: “[T]he fair use of a copyrighted work, including such use by reproduction in copies . . . , for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.” This limitation on exclusivity “allows the public to use not only facts and ideas contained in a copyrighted work, but also [the author’s] expression itself in certain circumstances.” Eldred, 537 U. S., at 219; see id., at 220 (“fair use defense affords considerable latitude for scholarship and comment, . . . even for parody” (internal quotation marks omitted)).
Well, try as he might to sell the “fair use” defense, the District Court didn’t buy it. In March 2011, US District Judge Deborah A. Batts ruled against Prince, Gagosian Gallery, Inc., and Lawrence Gagosian, finding that Prince’s use of Cariou’s photos was not fair use.
Citing to the case of another pop artist, the court pointed to the 1992 Rogers v. Koons case in which infringement was found (and fair use rejected) in another instance of artistic “appropriation.”
So, what’s an artist to do? Why appeal of course!
This is precisely what Prince did, and now, ladies and gentlemen, the briefs are in and we wait for a ruling from the Second Circuit. (Prince et al. v. Cariou, case number 11-1197.)
Cariou is arguing that fair use does not apply because Prince failed to use his photographs in any transformative way. Prince argues that the pieces were sufficiently transformative because they created something new with a different purpose from the original.
Now interestingly, Prince did not simply rephotograph Cariou’s photos. Prince’s work included collaged, enlarged, cropped, tinted or over-painted images which, he did not deny, had been taken from Cariou's book of photographs “Yes, Rasta.”
However, on the flip side, Prince testified that he “doesn't really have a message” to communicate when he makes art, and that he not transformed Cariou’s images in any way so as to effectively make a comment about them.
I find this a little surprising. I mean, agree with the defense or not, like the work or not, that seems to be precisely what the artist known as Prince is doing. If the artist himself is not make a statement or a comment or an observation, then why does the work itself have any value? It is like Roy Lichtenstein’s famous “comic book” images: if all he’s doing is copying at random images that are not intended to convey something to the viewer, why bother? Why is it art? Certainly, why pay $1M or more for it?
I would expect that turns out to be a tactical error, both in terms of the litigation and in terms of the value of the work.
I’m not taking sides in this one. Having been raised in and around the visual arts, I’m pretty accepting of a wide spectrum of creativity (even when I think it is ridiculously facile, like the works of Damian Hurst), because I’m in favor of encouraging rather than squelching art, artists, creativity, creative effort, etc. It’s all art to me, it just might be shitty art.
This seems to be the view taken by wider artistic community as well. Various museums and others filed amicus briefs arguing that the district court's ruling imperils appropriation art generally. Again, appropriation is nothing new. Look at the works of Warhol, Lichtenstein and Jasper Johns as three well respected examples of this. Are we really going to say artists can’t engage in such activity?
I hope not.
Jonathan Pink is an intellectual property attorney at Bryan Cave, LLP. His is resident in the firm’s Los Angeles and Irvine offices. He represents a wide range of artists (including visual artists, performing artists and musical artists), art galleries and collectors.
Prince is principally a painter and a photographer. He may be best known for his technique of “appropriating” photographs which he then “rephotographs” to create his works.
One example of this is his work involving photographs from Marlboro cigarette ads of the Marlboro Man. Prince's rephotographed these ads (thus incorporating the works of other photographers) to create his pieces, one of which sold at Christie's in New York for more than $1 million in 2005.
His works have been collected by major institutions, including the Guggenheim.
Shockingly, this practice of “rephotographing” did not sit well with some of photographers whose work appeared in Prince’s pieces. Photographer Patric Cariou is one such photographer.
In December 2008, Cariou filed suit against Prince, the Gagosian Gallery, Lawrence Gagosian and Rizzoli International Publications, asserting copyright infringement in some of the works Prince was showing (and selling) Gagosian’s shop.
Specifically, Cariou alleged that Prince had appropriated 35 of Cariou’s photographs some of which he claimed had barely been changed by Prince. In addition, Cariou alleged that Prince also made more than two dozen paintings that included Cariou’s images.
This is a problem?
Prince argued that his use of the photographs amounted to “fair use.”
As you know, the “fair use” defense is decided on a case-by-case basis. As the Supreme Court noted in its recent ruling in Golan v. Holder (Jan 2012):
[T]he fair use defense, is codified at 17 U. S. C. §107: “[T]he fair use of a copyrighted work, including such use by reproduction in copies . . . , for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.” This limitation on exclusivity “allows the public to use not only facts and ideas contained in a copyrighted work, but also [the author’s] expression itself in certain circumstances.” Eldred, 537 U. S., at 219; see id., at 220 (“fair use defense affords considerable latitude for scholarship and comment, . . . even for parody” (internal quotation marks omitted)).
Well, try as he might to sell the “fair use” defense, the District Court didn’t buy it. In March 2011, US District Judge Deborah A. Batts ruled against Prince, Gagosian Gallery, Inc., and Lawrence Gagosian, finding that Prince’s use of Cariou’s photos was not fair use.
Citing to the case of another pop artist, the court pointed to the 1992 Rogers v. Koons case in which infringement was found (and fair use rejected) in another instance of artistic “appropriation.”
So, what’s an artist to do? Why appeal of course!
This is precisely what Prince did, and now, ladies and gentlemen, the briefs are in and we wait for a ruling from the Second Circuit. (Prince et al. v. Cariou, case number 11-1197.)
Cariou is arguing that fair use does not apply because Prince failed to use his photographs in any transformative way. Prince argues that the pieces were sufficiently transformative because they created something new with a different purpose from the original.
Now interestingly, Prince did not simply rephotograph Cariou’s photos. Prince’s work included collaged, enlarged, cropped, tinted or over-painted images which, he did not deny, had been taken from Cariou's book of photographs “Yes, Rasta.”
However, on the flip side, Prince testified that he “doesn't really have a message” to communicate when he makes art, and that he not transformed Cariou’s images in any way so as to effectively make a comment about them.
I find this a little surprising. I mean, agree with the defense or not, like the work or not, that seems to be precisely what the artist known as Prince is doing. If the artist himself is not make a statement or a comment or an observation, then why does the work itself have any value? It is like Roy Lichtenstein’s famous “comic book” images: if all he’s doing is copying at random images that are not intended to convey something to the viewer, why bother? Why is it art? Certainly, why pay $1M or more for it?
I would expect that turns out to be a tactical error, both in terms of the litigation and in terms of the value of the work.
I’m not taking sides in this one. Having been raised in and around the visual arts, I’m pretty accepting of a wide spectrum of creativity (even when I think it is ridiculously facile, like the works of Damian Hurst), because I’m in favor of encouraging rather than squelching art, artists, creativity, creative effort, etc. It’s all art to me, it just might be shitty art.
This seems to be the view taken by wider artistic community as well. Various museums and others filed amicus briefs arguing that the district court's ruling imperils appropriation art generally. Again, appropriation is nothing new. Look at the works of Warhol, Lichtenstein and Jasper Johns as three well respected examples of this. Are we really going to say artists can’t engage in such activity?
I hope not.
Jonathan Pink is an intellectual property attorney at Bryan Cave, LLP. His is resident in the firm’s Los Angeles and Irvine offices. He represents a wide range of artists (including visual artists, performing artists and musical artists), art galleries and collectors.
Thursday, January 26, 2012
Kapow! Holy Batmobile, Batman!
Haven’t written in a while despite some really important rulings on, e.g. finding of personal jurisdiction based on social network activity, but the following has something that even those weighty and intellectually stimulating topics don’t have: Batman.
Cue Batman music. Ok, it was annoying enough then, kill the music (insert sound of needle scraping LP here).
Batman?
Yes, and more particularly, the Batmobile. Quite possibly the coolest car ever invented. Even you Ferrari drivers know it.
Back to our story.
The case is DC Comics v. Mark Towle et al (2:11-cv-03934), before Judge Ronald Lew in the Central District of California.
It seems that a custom carmaker who goes by the name of “Gotham Garage” decided to build replica Batmobiles. Hey, who could blame him? I want one! I like this guy already! Porsche? Who needs a Porsche? I want a Batmobile, too!
(Just a note: Gotham Garage also apparently builds other custom roadsters to look like iconic vehicles from popular TV shows and movies. Thus, if you wanted your ride to be – the beat up old horse drawn wagon from Bonanza, for example – this might be the shop to turn to.)
But alas, not everyone thought his business plan was such a great idea. Enter DC Comics (a hero in their own right, come on, we have to admit it). DC, ahem, owns the copyright to Batman and all his accoutrements. While DC may love the Batmobile as much as the rest of us, they weren’t too hip on Mr. Towle making replicas and selling them to discerning buyers, comme moi.
So they (or was it our Caped Crusaders?) sued. Copyright infringement. And trademark. And trademark counterfeiting. And unfair competition under the Lanham Act, and common law unfair competition. Hey, these guys are not messing around.
The defendant attempted to have the case dismissed on a 12(b)(6) motion (failure to state a claim). A creative argument, he said that useful articles like automobiles are not copyrightable. Judge Lew said no. He sided with the plaintiff which argued that “While automobiles (in their entirety) may be considered useful articles not protected by copyright, defendant’s motion utterly ignores the issue of separability of nonfunctional, artistic elements of plaintiff’s Batmobiles from the underlying vehicle”.
So, point for the Dynamic Duo. The court found the complaint plead sufficient facts, thus allowing it to move forward.
Next Bat-step? Towles will have to answer DC’s allegations that Towles’ full-size, drivable Batmobile replicas — which include both the version from the 60’s TV show (which is the one I want) and the version from the films infringe DC’s rights as the comic book publisher.
I think the time has come for a quote from Rodney King, with a minor addition of my own: “Can’t we all just get along?” And can’t I have one of the Batmobiles after DC takes possession of them? Hey, I was named a Southern California Super Lawyer, but I don’t even have a cape! At the very least, I should get a car!
Stay tuned. Same Bat Channel . . . ok, I’ll spare you that part.
Jonathan Pink is an intellectual property attorney at Bryan Cave, LLP. He is resident in the Los Angeles and Orange County offices and can be reached at jonathan.pink@bryancave.com. In addition to litigating copyright and trademark issues, he really wants a Batmobile.
Cue Batman music. Ok, it was annoying enough then, kill the music (insert sound of needle scraping LP here).
Batman?
Yes, and more particularly, the Batmobile. Quite possibly the coolest car ever invented. Even you Ferrari drivers know it.
Back to our story.
The case is DC Comics v. Mark Towle et al (2:11-cv-03934), before Judge Ronald Lew in the Central District of California.
It seems that a custom carmaker who goes by the name of “Gotham Garage” decided to build replica Batmobiles. Hey, who could blame him? I want one! I like this guy already! Porsche? Who needs a Porsche? I want a Batmobile, too!
(Just a note: Gotham Garage also apparently builds other custom roadsters to look like iconic vehicles from popular TV shows and movies. Thus, if you wanted your ride to be – the beat up old horse drawn wagon from Bonanza, for example – this might be the shop to turn to.)
But alas, not everyone thought his business plan was such a great idea. Enter DC Comics (a hero in their own right, come on, we have to admit it). DC, ahem, owns the copyright to Batman and all his accoutrements. While DC may love the Batmobile as much as the rest of us, they weren’t too hip on Mr. Towle making replicas and selling them to discerning buyers, comme moi.
So they (or was it our Caped Crusaders?) sued. Copyright infringement. And trademark. And trademark counterfeiting. And unfair competition under the Lanham Act, and common law unfair competition. Hey, these guys are not messing around.
The defendant attempted to have the case dismissed on a 12(b)(6) motion (failure to state a claim). A creative argument, he said that useful articles like automobiles are not copyrightable. Judge Lew said no. He sided with the plaintiff which argued that “While automobiles (in their entirety) may be considered useful articles not protected by copyright, defendant’s motion utterly ignores the issue of separability of nonfunctional, artistic elements of plaintiff’s Batmobiles from the underlying vehicle”.
So, point for the Dynamic Duo. The court found the complaint plead sufficient facts, thus allowing it to move forward.
Next Bat-step? Towles will have to answer DC’s allegations that Towles’ full-size, drivable Batmobile replicas — which include both the version from the 60’s TV show (which is the one I want) and the version from the films infringe DC’s rights as the comic book publisher.
I think the time has come for a quote from Rodney King, with a minor addition of my own: “Can’t we all just get along?” And can’t I have one of the Batmobiles after DC takes possession of them? Hey, I was named a Southern California Super Lawyer, but I don’t even have a cape! At the very least, I should get a car!
Stay tuned. Same Bat Channel . . . ok, I’ll spare you that part.
Jonathan Pink is an intellectual property attorney at Bryan Cave, LLP. He is resident in the Los Angeles and Orange County offices and can be reached at jonathan.pink@bryancave.com. In addition to litigating copyright and trademark issues, he really wants a Batmobile.
Wednesday, October 12, 2011
36th Annual Intellectual Property Institute in Dana Point
Ok, I usually don't shill for anybody, but this is a worthy event and, if you're wasting time reading my blog (and yes, George, I know you are), then you might as well know about a really good source of IP information. Namely, the 36th Annual Intellectual Property Institute.
This year the festivities will be held on November 10-12, in Dana Point. It does cost something -- but there are no cops at the door, so even if you're flat broke, super cheap, or both, you could still probably listen from hall -- or ask people what was said on their way out for any particular discussion. Will it be annoying if you do so? Yes. Will you be able to nab some free coffee at the same time? Yes? Does that make it worth it? Doesn't it?
In any event, I am inviting one and all to join me at the 36th Annual Intellectual Property Institute at the Marriott Laguna Cliffs Resort, in Dana Point, California, for excellent continuing legal education programs, networking, meals, fun. On top of all that, you can join in the celebration of the IP Section's IP Vanguard Award honorees: Jay Monahan @ Zynga, Adrian Pruetz @ Pruetz Law Group, Hon. Judge Kozinski @ 9th Circuit, and Eric Goldman @ Santa Clara University School of Law. (Side note: Eric is the person who first showed me the Internet -- so in a way, this entire blog is his fault.)
The Institute is a relative bargain according to the people who are trying to get you to by tickets, and there are steeply discounted resort rates (again, according to . . . .) See http://bit.ly/qHY03s for more information.
And please pass this invitation on to your colleagues and friends. Thanks.
This year the festivities will be held on November 10-12, in Dana Point. It does cost something -- but there are no cops at the door, so even if you're flat broke, super cheap, or both, you could still probably listen from hall -- or ask people what was said on their way out for any particular discussion. Will it be annoying if you do so? Yes. Will you be able to nab some free coffee at the same time? Yes? Does that make it worth it? Doesn't it?
In any event, I am inviting one and all to join me at the 36th Annual Intellectual Property Institute at the Marriott Laguna Cliffs Resort, in Dana Point, California, for excellent continuing legal education programs, networking, meals, fun. On top of all that, you can join in the celebration of the IP Section's IP Vanguard Award honorees: Jay Monahan @ Zynga, Adrian Pruetz @ Pruetz Law Group, Hon. Judge Kozinski @ 9th Circuit, and Eric Goldman @ Santa Clara University School of Law. (Side note: Eric is the person who first showed me the Internet -- so in a way, this entire blog is his fault.)
The Institute is a relative bargain according to the people who are trying to get you to by tickets, and there are steeply discounted resort rates (again, according to . . . .) See http://bit.ly/qHY03s for more information.
And please pass this invitation on to your colleagues and friends. Thanks.
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