Intellectual Property Law
Doing It For The ‘Gram
The law’s stubbornness to bend with trends is not a flaw, but by design. It prevents unnecessary changes and ensures that an adjustment is truly needed. Consequently, the law often struggles to keep up with technology. For an example, look no further than Instagram. The application has become a major platform for advertising and copied content. This article by Scott Alan Burroughs highlights the law’s struggle to adapt…
See, Doing It For The Gram.
‘Dumb Starbucks’ parody shuts down but debate over trademark law & parody continues
I followed this story as it developed over the past week – the author here did a great job summarizing the events thus far.
Here is my response (see original article below):
On the discussion of who has the stronger argument, it gets interesting. First there is the First Amendment and parody vs trademark law. Followed by, dilution by blurring or tarnishment.
The trademark protection argument is weak because it hinges upon the “the likelihood” of consumer confusion. I find it difficult to believe that anyone here is confused. The parody literally attached the word “dumb” to Starbucks name. No one would reasonably believe the two stores are related.
Fielder also has a decent argument against dilution by blurring and tarnishment with §1125(c)(3) of the Lanham Act. In short, the section specifically permits for the parodying of the goods or services of a mark owner. While it protects against injury to the good will and reputation of the mark, here I do not believe Starbucks has suffered much harm. It was fairly clear the act was a prank; it was funny, and the coffee was free!
Over time, if the parody were to remain open (or expand), and a correlation was made with a decline in the public’s perception of Starbucks, then perhaps, an argument may be made for the good will and reputation of Starbucks’ mark. Otherwise, I think it may be considered fair game.
Either way, it will be exciting to see what comes next in this ‘kerfuffle’!
On February 9th, The Huff Post and other media outlets reported the grand opening of a store in the Los Feliz neighborhood of Los Angeles, “Dumb Starbucks”. The clever prankish parody even caught the attention of Forbes:
‘Although it looks like Starbucks, smells like Starbucks and even acts like Starbucks (the super-friendly baristas asking for your name were hired off Craigslist), the whole thing is an elaborate goof on Starbucks culture. A list of Frequently Asked Questions posted on premises compared the place to Weird Al Yankovic’s homage to Michael Jackson’s “Beat It.” Dumb Starbucks, you see, is the “Eat It” of $6 coffee drinks.’ Source: Forbes.com
Amazingly, people stood in line for hours for the Dumb Starbucks java, which reportedly was whatever the local grocery store had on hand for the few days Dumb Starbucks remained open. The locals and media alike seemed to get…
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The Stunt that Keeps on Giving…
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News of the mysterious ‘Dumb Starbucks’ coffee shop that popped up in Los Angeles over the weekend spread like wildfire. As details emerge, it appears the shop was one big stunt. As it turns out, the idea was the brainchild of Comedy Central reality-TV-show host Nathan Fielder. The networks argument against trademark infringement, parody law & free speech…
Despite threats from Starbucks that what Nathan Fielder is doing is a trademark infringement, the network’s parent company says “Dumb Starbucks” constitutes “protected free expression.”
Copyright Law Pop Quiz – News Organizations
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Consider the following scenarios:
- Two high school cheerleaders are suspected of spearheading an elaborate underground gambling ring. Neither the police nor the school will release the students’ photographs, but your reporter was able to obtain several images of the girls on Facebook along with a short video of them performing a cheerleading routine. Can your station use these visuals in its newscast? During a tease? On its website?
- With the gubernatorial election a month away, a story appears overnight on the website of the local alternative weekly newspaper that the incumbent has late-stage cancer and may only have weeks to live. Your political reporter tries, but is unable, to confirm the story overnight. Can your station lead its morning newscast with the story? If so, must you attribute the newspaper as the source of the story?
- Your station’s primary competitor obtains hidden-camera video of the star quarterback for the local NFL team injecting steroids before a big game. Your assignment editor identifies the source of the video, but is unable to negotiate a licensing agreement at a reasonable price. Can your station still broadcast parts of the video on its newscast (using the video recorded from your competitor’s newscast)?
See, What Every News Organization Needs to Know About Copyright Law.
Quentin Tarantino Suing Gawker Over Leaked Script
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Quentin Tarantino has filed a copyright lawsuit against Gawker Media for allegedly facilitating the dissemination of copies of his unproduced script, The Hateful Eight.
Last week, the famous director was outraged after details about the Western circulated. He was so irate that he told the media that he wouldn’t be making the picture as his next film.
Soon afterwards, Gawker’s Defamer blog linked to the 146-page script under a post titled, “Here Is the Leaked Quentin Tarantino Hateful Eight Script.”
Who really owns an LLC’s blog entries?
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Though the question presents itself under very unfortunate circumstances, the issue is worth pondering.
Dear Rich: I am part of an LLC that owns a blog. One of our officers was the active blog contributor. She died last year. Some of the other officers would like to publish her blog posts, but we are unsure who owns the copyright – the LLC or her heirs?
‘Blurred Lines’ Lawsuit: Sony/ATV Settles With Marvin Gaye’s Family
Breaking news in one of Hollywood’s top legal disputes of 2013. Definitely a step in the right direction for Sony/ATV, but they are not out of the woods just yet. Parties remaining will likely want to hear why Sony originally concluded that the songs were not similar. See the link below for details.
‘Blurred Lines’ Lawsuit: Sony/ATV Settles With Marvin Gaye’s Family (Exclusive)
Trademark vs. Copyright
Trademark vs. Copyright
Copyrights and Trademarks are important protection devices essential to the growth and success of a business or brand. Without protection your work is free for anyone to use without seeking permission or giving credit. While not protecting your work may result in loss profit, what is sometimes more important to a brand is proper credit.
Not only is it important to protect your work but also to use the proper method of protection. Improper protection will result in the same effect as no protection at all.
- A copyright is used to protect “original works of art” including literary, musical and artistic. Copyrights protect the form of expression rather than the subject matter of the writing. For example, the description of of a machine could be copyrighted, but this would only prevent others from copying the description; it would not prevent others from writing a description of their own or from making and using the machine.
- A trademark is a word, name, symbol or device used commercially to identify the source of the goods and distinguish them from others. Trademarks prevent others from using a confusingly similar mark, but not from making similar goods. Apple’s trademark protection is what prevents another company from using an “apple” or anything that closely resembles such on an electronic device. Those companies however, are free to build and create electronics.
Note: This brief summary is in no way intended to be a complete explanation of copyright and trademark – only a simple illustration of the difference between the two. Patents are a totally different beast within itself.
The Innocent Infringer
Copyright Law is an obscure subject for many. It combines antiquated laws with a myriad of artistic individuals and dares them to gleam from the text its true meaning or intention. The notorious use of mis-leading phrases such as “innocent infringer” furthers the confusion. It leads one to believe that intent is necessary for the infringement of a copyright. When, in actuality, intent is not a determinative element of copyright infringement. In fact, intent in a copyright infringement claim is not a part of the analysis. This article further highlights the misconception.
Section 504(c)(2) of the 1976 Copyright Act provides for an “innocent intent” response to claims of copyright infringement. Its use does not preclude the defendant from being found in violation of copyright infringement, but if found in violation, it allows the court flexibility to reduce statutory damages below the minimum. It is important to note however that proving innocent intent on the part of the defendant is not easy. The Defendant must show that they did not know and that they should not have known that their conduct constituted an infringement. The Defendant’s belief must be both in good faith and reasonable.
A few examples of where “innocent intent” may be found are: 1. Defendant’s work is based upon an infringing work furnished by a third party; and 2. Defendant consciously and intentionally copies from the plaintiff’s work, with a good faith belief that the conduct is not infringing.
The Burgeoning Young Attorney 