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Last summer (2008), I went to see Iron Man. I didn't know what to expect, but was pleasantly surprised by the film's story, character development, and huge Michael Bay style action scenes. Admittedly, the film wasn't Atonement. However, it was a superhero film and a fairly good one at that. I imagined the future when I'd sit in a theater and enjoy the further adventures of Iron Man in Iron Man 2 . . . Until today.
Today, Disney purchased Marvel Entertainment for the small sum of $4 billion.1 Being an IP nerd of sorts, the first thing I thought of was, "What happens to the Amazing Adventures of Spider Man ride at Universal Studios?" This question presents the premise for what I intend as a brief foray into probing the questions of what a deal like this means for well known characters.
Of all places, MTV raised an interesting point: Does this mean that Marvel Characters will now cross paths with Disney Characters?2 As an example, MTV points to the moment when Roger Rabbit brought together Daffy and Donald Duck.3. Imagine the combinations possible with the Marvel/Disney family. Will Iron Man patrol the Magic Kingdom in Tomorrowland in the near future? Will the Hulk stalk Epcot Center? Will Spider Man replace the Indiana Jones Stunt Spectacular at MGM Studios (I hope not...)?
MTV raises a point that Marvel does not own all of its characters' film rights (e.g., Fantastic Four, Daredevil). However, this still brings us back to the question of Spidey. The Amazing Adventures of Spider Man ride located at Universal Studios Islands of Adventure constitutes a classic ride according to some.4 Some contend that the sale will have no short term effect on rides of this type: Disney will allow the name and character usage in the ride to stay in place, third party deals may stay in place.5 However, Universal Studios would likely no longer be able to use Marvel characters in themed attractions. In a park such as Islands of Adventure, this presents a problematic situation - the park contains a section devoted to Marvel characters (e.g., The Incredible Hulk roller coaster). If the park cannot add additional rides in this theme, will it eventually have to declare the section outdated, and replace the classic rides with more updated ones to which Universal owns the characters?
This also brings me back to my fears for Iron Man 2. What happens when a movie studio known for fairly conservative, family entertainment takes over the rights to a superhero dynasty? I had a similar concern when Disney took over Pixar - that the Pixar films would lose their uniqueness; however, Ratatouile and UP! have certainly proven me wrong on this number in the recent past. What does this collaboration mean for the direction of Marvel characters? What does it mean for the rights of those that created these characters (cough, cough, Stan Lee), if anything?
I end with the assumption that minds much more familiar with this sort of licensing/copyright/trademark situation have attended to the details and figured them out. However, without seeing the agreement, it still seems a relevant inquiry as to what happens when this sort of a deal occurs. Essentially, what happens when Venom visits the House of Mouse?
1. http://money.cnn.com/2009/8/31/news/companies/disney_marvel/index.htm?postversion=2009083109
2. http://www.mtv.com/movies/news/articles/1620459/story.jhtml
3. Id.
4. http://www2.tbo.com/content/2009/aug/31/311418/disney-buy-comic-book-powerhouse-marvel-4-billion/
5. Id.
6. Id.
All Trademarks and Copyrighted Material Are Owned By Their Respective Owners
All Credit for Sources is Given As Best As Possible
This blog may not be reproduced without permission from the author (which is usually given if asked). (C) 2009 Squishy Mind Property
Monday, August 31, 2009
Friday, August 28, 2009
Graffiti: Expression, Trademark, or Illegal ?
It could certainly be the case that the answer to the above question is "yes."
On the one hand, graffiti is an artist's expression memorialized on a building, roadway or some other public place.1 It meets the prima facie elements for copyrightability.2 There's certainly enough creativity under the "modicum" required by Feist Publications, Incorporated v. Rural Telephone Service Company.3 After all, graffiti is unique to each artist both in style, substance and location.4 The problem may be the fixation, as upon discovery, most graffiti is painted over or washed off with paint thinner by either the local authorities or by the property owner whose property was "defaced" by the work in question.5 But really, how is this different from a pencil drawing on a piece of paper? A person could erase it in the same way graffiti is removed. Arguably then, the copyright lasts as long as the work does (in this case...I don't feel like invoking a copyright term discussion). So the answer to the first part of my query is "yes, probably."
In the alternative, if I have not already persuaded you, graffiti could be a trademark. Actually, it probably couldn't be, but let's walk through it regardless.
A trademark is a mark that denotes the source or origin of a good or service.6 Because graffiti is not really a "good"7 and more a mark of a "service,"8 we'll have to go with graffiti as a service mark. What service? Why painting surfaces in a colorful and unique design of course! Some people would term this blight,9 others would call it art.10 To me it makes little difference for the purposes of our discussion. Blight versus art is a discussion of opinion and taste and I'm sure there are plenty of idiots who think Monet's haystacks and bridges are terrible paintings. Luckily, I'm not friends with any of them. For purposes of copyright and trademark, the court doesn't usually delve into valuation of the art itself, only the expression11 (but that leads me back to copyrights...let's stay focused).
The main problem with trademarking a piece (or work) of graffiti is the "use in commerce" requirement.12 Let's be honest, 99% of graffiti artists are not making any money by doing this and they're not really selling any services either. So the real answer to part two of my question is "no."
Ok, two down, one more to go. True, graffiti is probably illegal in most jurisdictions. I don't know, I'm not up on my local ordinances. Probably. This may or may not invalidate any attempt at a copyright13 and by inference possibly trademarking.14 So the ultimate answer to my question about life, the universe and everything (including graffiti) is yes, no, yes, and 42.15
1: See Graffiti, http://en.wikipedia.org/wiki/Graffiti (last visited Aug. 28, 2009).
2: 17 U.S.C. § 102 (2006) (requiring a copyrightable work to be "fixed in any tangible medium of expression").
3: Feist Publ'ns, Inc. Rural Telephone Serv. Co., 499 U.S. 430, 341 (1991).
4: Graffiti, supra note 1; see also Feist, 499 U.S. at 341; (discussing the amount of creativity required to acquire a copyright); Burrow Giles Lithography Co. v. Sarony, 111 U.S. 53, 58-60 (1884) (examining the level of creativity required for copyright and suggesting that even a minimal amount would be sufficient).
5: Graffiti, supra note 1.
6: 15 U.S.C. § 1127 (2006); 4 J. THOMAS MCCARTHY, MCCARTHY ON TRADEMARKS AND UNFAIR COMPETITION § 3:9 (2005).
7: 15 U.S.C. § 1127.
8: Id.
9: Graffiti, supra note 1.
10: Id.
11: Bleistein v. Donaldson Lithographic Co., 188 U.S. 239, 251 (1903) ("It would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of pictorial illustrations, outside of the narrowest and most obvious limits.").
12: 15 U.S.C. § 1127.
13: Cf. Mitchell Brothers Film Grp. v. Cinema Adult Theater, 604 F.2d 852, 854-55 (5th Cir. 1979) (providing copyright protection to a work deemed to contain "obscene" content while not addressing whether the actual nature of the work would affect the copyrightability).
14: See 15 U.S.C. § 1127 (providing that trademarks must relate to "all commerce which may lawfully be regulated by Congress.").
15: See DOUGLAS ADAMS, A HITCHHIKER'S GUIDE TO THE GALAXY (Harmony 2004) (1980).
All Trademarks and Copyrighted Material Are Owned by Their Respective Owners
All Credit for Sources is Given As Best As Possible
This blog may not be reproduced without permission from the author (which is usually given if asked). (C) 2009 Squishy Mind Property
On the one hand, graffiti is an artist's expression memorialized on a building, roadway or some other public place.1 It meets the prima facie elements for copyrightability.2 There's certainly enough creativity under the "modicum" required by Feist Publications, Incorporated v. Rural Telephone Service Company.3 After all, graffiti is unique to each artist both in style, substance and location.4 The problem may be the fixation, as upon discovery, most graffiti is painted over or washed off with paint thinner by either the local authorities or by the property owner whose property was "defaced" by the work in question.5 But really, how is this different from a pencil drawing on a piece of paper? A person could erase it in the same way graffiti is removed. Arguably then, the copyright lasts as long as the work does (in this case...I don't feel like invoking a copyright term discussion). So the answer to the first part of my query is "yes, probably."
In the alternative, if I have not already persuaded you, graffiti could be a trademark. Actually, it probably couldn't be, but let's walk through it regardless.
A trademark is a mark that denotes the source or origin of a good or service.6 Because graffiti is not really a "good"7 and more a mark of a "service,"8 we'll have to go with graffiti as a service mark. What service? Why painting surfaces in a colorful and unique design of course! Some people would term this blight,9 others would call it art.10 To me it makes little difference for the purposes of our discussion. Blight versus art is a discussion of opinion and taste and I'm sure there are plenty of idiots who think Monet's haystacks and bridges are terrible paintings. Luckily, I'm not friends with any of them. For purposes of copyright and trademark, the court doesn't usually delve into valuation of the art itself, only the expression11 (but that leads me back to copyrights...let's stay focused).
The main problem with trademarking a piece (or work) of graffiti is the "use in commerce" requirement.12 Let's be honest, 99% of graffiti artists are not making any money by doing this and they're not really selling any services either. So the real answer to part two of my question is "no."
Ok, two down, one more to go. True, graffiti is probably illegal in most jurisdictions. I don't know, I'm not up on my local ordinances. Probably. This may or may not invalidate any attempt at a copyright13 and by inference possibly trademarking.14 So the ultimate answer to my question about life, the universe and everything (including graffiti) is yes, no, yes, and 42.15
1: See Graffiti, http://en.wikipedia.org/wiki/Graffiti (last visited Aug. 28, 2009).
2: 17 U.S.C. § 102 (2006) (requiring a copyrightable work to be "fixed in any tangible medium of expression").
3: Feist Publ'ns, Inc. Rural Telephone Serv. Co., 499 U.S. 430, 341 (1991).
4: Graffiti, supra note 1; see also Feist, 499 U.S. at 341; (discussing the amount of creativity required to acquire a copyright); Burrow Giles Lithography Co. v. Sarony, 111 U.S. 53, 58-60 (1884) (examining the level of creativity required for copyright and suggesting that even a minimal amount would be sufficient).
5: Graffiti, supra note 1.
6: 15 U.S.C. § 1127 (2006); 4 J. THOMAS MCCARTHY, MCCARTHY ON TRADEMARKS AND UNFAIR COMPETITION § 3:9 (2005).
7: 15 U.S.C. § 1127.
8: Id.
9: Graffiti, supra note 1.
10: Id.
11: Bleistein v. Donaldson Lithographic Co., 188 U.S. 239, 251 (1903) ("It would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of pictorial illustrations, outside of the narrowest and most obvious limits.").
12: 15 U.S.C. § 1127.
13: Cf. Mitchell Brothers Film Grp. v. Cinema Adult Theater, 604 F.2d 852, 854-55 (5th Cir. 1979) (providing copyright protection to a work deemed to contain "obscene" content while not addressing whether the actual nature of the work would affect the copyrightability).
14: See 15 U.S.C. § 1127 (providing that trademarks must relate to "all commerce which may lawfully be regulated by Congress.").
15: See DOUGLAS ADAMS, A HITCHHIKER'S GUIDE TO THE GALAXY (Harmony 2004) (1980).
All Trademarks and Copyrighted Material Are Owned by Their Respective Owners
All Credit for Sources is Given As Best As Possible
This blog may not be reproduced without permission from the author (which is usually given if asked). (C) 2009 Squishy Mind Property
Sunday, August 16, 2009
Sponge-Secret Trade-Pants?
OK, so aside from mangling the name of a popular children's television show, I thought that title was clever.
I only bring this up because the other day I was sitting in my apartment watching television when that show came on. Now, I personally enjoy watching the show, I know some of you may find it juvenile and I won't disagree.
There is, however, an interesting thought that popped into my head while I watched the show this time. For those of you who are unaware, Spongebob Squarepants involves a sea sponge who lives undersea and works at a diner known as the Krusty Krab. The sandwiches at the Krusty Krab, known as Krabby Patties, are apparently extremely delicious and the attempts of the diner's rival owner Plankton to secure the top-secret formula for the Krabby Patties are a recurring theme on the television show.
What does that have to do with this blog you may ask? Quite simple, the formula for a Krabby Patty is a trade secret.
Trade secrets, by definition are secrets used to gain an advantage over one's competitor's.1 They are only safe as long they are secret, once they've been placed in the public domain, there's no recovery of the "secret" status.2 So theoretically, the damages available are limited to the economic harm caused by the revalation of the secret. In this fashion, Mr. Krabs (proprietor of the Krusty Krab) certainly goes to an extreme effort to keep his sandwich formula safe.
I didn't have much on this one today but felt like sharing my observation.
1: See RESTATEMENT (SECOND) OF TORTS § 757; see also Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1001-02 (1984).
2: Ruckelshaus, 467 U.S. at 1001-02.
All Trademarks and Copyrighted Material Are Owned by Their Respective Owners
All Credit for Sources is Given As Best As Possible
This blog may not be reproduced without permission from the author (which is usually given if asked). (C) 2009 Squishy Mind Property
I only bring this up because the other day I was sitting in my apartment watching television when that show came on. Now, I personally enjoy watching the show, I know some of you may find it juvenile and I won't disagree.
There is, however, an interesting thought that popped into my head while I watched the show this time. For those of you who are unaware, Spongebob Squarepants involves a sea sponge who lives undersea and works at a diner known as the Krusty Krab. The sandwiches at the Krusty Krab, known as Krabby Patties, are apparently extremely delicious and the attempts of the diner's rival owner Plankton to secure the top-secret formula for the Krabby Patties are a recurring theme on the television show.
What does that have to do with this blog you may ask? Quite simple, the formula for a Krabby Patty is a trade secret.
Trade secrets, by definition are secrets used to gain an advantage over one's competitor's.1 They are only safe as long they are secret, once they've been placed in the public domain, there's no recovery of the "secret" status.2 So theoretically, the damages available are limited to the economic harm caused by the revalation of the secret. In this fashion, Mr. Krabs (proprietor of the Krusty Krab) certainly goes to an extreme effort to keep his sandwich formula safe.
I didn't have much on this one today but felt like sharing my observation.
1: See RESTATEMENT (SECOND) OF TORTS § 757; see also Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1001-02 (1984).
2: Ruckelshaus, 467 U.S. at 1001-02.
All Trademarks and Copyrighted Material Are Owned by Their Respective Owners
All Credit for Sources is Given As Best As Possible
This blog may not be reproduced without permission from the author (which is usually given if asked). (C) 2009 Squishy Mind Property
Wednesday, August 12, 2009
Skittering
Squishy Mind Property was recently given a thoughtful shout-out by a co-blogger and colleague of ours, Mr. Jack O'Connor over at Skittering. I felt it only appropriate to return the favor. If you're interested in reading Skittering, it is a quirky wine blog that I enjoy. Jack's entries provide guidance that you don't always find in a liquor store and he relates it in "normal people" terms, something some other wine people tend to forget.
Enjoy Skittering and don't forget to come back here once in a while!
All Trademarks and Copyrighted Material Are Owned by Their Respective Owners
All Credit for Sources is Given As Best As Possible
This blog may not be reproduced without permission from the author (which is usually given if asked). (C) 2009 Squishy Mind Property
Enjoy Skittering and don't forget to come back here once in a while!
All Trademarks and Copyrighted Material Are Owned by Their Respective Owners
All Credit for Sources is Given As Best As Possible
This blog may not be reproduced without permission from the author (which is usually given if asked). (C) 2009 Squishy Mind Property
Tuesday, August 11, 2009
Trademark v. Copyright - CAGE MATCH
In a recent story, the Carolina Hurricanes™1 got into a spat with a local rapper named Tyrone Banks over a song he wrote in tribute to the Hurricanes. The story goes, that Banks wrote the song, which was subsequently adopted by the Hurricanes as some sort of "official anthem." It was apparently played at games frequently, usually highlighting Mr. Banks in the crowd and giving him the appropriate credits on the video monitor.2 It seemed everything was peachy, until this week. Apparently the Hurricanes didn't care for the way Mr. Jones was promoting himself, making an implied connection between the two seem too strong for their liking.3 The "official anthem" became unofficial on Mr. Banks's website.4 The Hurricanes, however, apparently continued to play the song at games.5 This irritated Mr. Banks, as he had implicitly withdrawn his permission for them to do so.6 So now you have people suing each other over basically the same song but different causes.
The trademark/brand protection claim by the Hurricanes has now tacked on a copyright infringement issue. In the words of Borat, "Very Nice!"
First, to the brand and trademark protection. Be definition, a trademark is a source designator,7 and the Hurricanes hold a trademark in the team, the name, the logo, etc.8 So they are certainly within their rights to control who can make use of the Hurricanes logo or promote their brand. I've seen rap videos where the rappers are wearing sports team paraphernalia, but it's been blurred out to reduce the likelihood that a viewer will assume the team endorses the rapper in question. So far so good (I think) on the likelihood of confusion. I think the Hurricanes probably decided things were getting too cozy and pulled the plug on the connection, totally within their rights as a trademark holder.
Then we get to Mr. Banks's claim, and this is one that certainly has piqued my interest as of late. As a recent attendee to Lollaplooza this summer has reinforced in my mind, performance rights are certainly one that any musician must be aware of and control, as they are currently the basis of his/her livelihood. In general, music copyrights are bifurcated into 1) a musical work and 2) sound recordings.10 The difference between these is significant in their base nature and the rights ultimately afforded them. Musical works are the compositions of the musical songs themselves, an arrangement of notes, melodies, etc. Sound recordings are actual recordings of a person performing the musical work. The Copyright Act provides different rights to each, namely an exclusive public performance right to a composer of a musical work, but only an exclusive digital public performance right to the owners of sound recording copyrights.11 So to me, the ultimate question here is did Mr. Banks write the song? If that's the case and he's a composer (in addition to hip-hop artist), he has that exclusive right to publicly perform AND authorize the performance of12 his musical work that was for a short time the Hurricane's anthem. So if we take it to the logical conclusion (and boy do I love a logical conclusion), if Mr. Banks is the composer, the Hurricanes may have overstepped the bounds by playing his song without his permission. If he is not, the Hurricanes may have still played an unauthorized public performance, but they need to be speaking with someone else. All this could be avoided with a little forthought...
I'll watch this one carefully, as I always enjoy a Trademark/Copyright mix-up. Or is that a mixtape?
1: See http://www.carolinahurricanes.com (last visited Aug. 11, 2009). The Hurricanes are currently North Carolina's NHL® franchise. http://www.nhl.com (last visited Aug. 11, 2009).
2: Mike Baker, A Bad Rap? Hurricanes Sue Hip-Hop Artist over Song, available at http://sports.yahoo.com/nhl/news;_ylt=AhwW9hjTGec1jkGd_o4qltl7vLYF?slug=ap-hurricanes-song&prov=ap&type=lgns.
3: Id.
4: Id.
5: Id.
6: Id.
7: 15 U.S.C. § 1125(a)(1) (2006); see also Anheuser Busch, Inc. v. Stroh Brewery, Co., 750 F.2d 631, 648 (8th Cir. 1984) (discussing the importance of looking to the trademark's purpose as a source designator when analyzing a trademark claim).
8: See http://www.carolinahurricanes.com (last visited Aug. 11, 2009).
9: 17 U.S.C. § 101 (2006).
10: See 17 U.S.C. § 106.
11: Id. at 106(4), (6) (providing sound recording copyright holders an exclusive right to public performances only in the instance of digital transmissions, i.e., webcasting).
12: Id. at 106.
All Trademarks and Copyrighted Material Are Owned by Their Respective Owners
All Credit for Sources is Given As Best As Possible
This blog may not be reproduced without permission from the author (which is usually given if asked). (C) 2009 Squishy Mind Property
The trademark/brand protection claim by the Hurricanes has now tacked on a copyright infringement issue. In the words of Borat, "Very Nice!"
First, to the brand and trademark protection. Be definition, a trademark is a source designator,7 and the Hurricanes hold a trademark in the team, the name, the logo, etc.8 So they are certainly within their rights to control who can make use of the Hurricanes logo or promote their brand. I've seen rap videos where the rappers are wearing sports team paraphernalia, but it's been blurred out to reduce the likelihood that a viewer will assume the team endorses the rapper in question. So far so good (I think) on the likelihood of confusion. I think the Hurricanes probably decided things were getting too cozy and pulled the plug on the connection, totally within their rights as a trademark holder.
Then we get to Mr. Banks's claim, and this is one that certainly has piqued my interest as of late. As a recent attendee to Lollaplooza this summer has reinforced in my mind, performance rights are certainly one that any musician must be aware of and control, as they are currently the basis of his/her livelihood. In general, music copyrights are bifurcated into 1) a musical work and 2) sound recordings.10 The difference between these is significant in their base nature and the rights ultimately afforded them. Musical works are the compositions of the musical songs themselves, an arrangement of notes, melodies, etc. Sound recordings are actual recordings of a person performing the musical work. The Copyright Act provides different rights to each, namely an exclusive public performance right to a composer of a musical work, but only an exclusive digital public performance right to the owners of sound recording copyrights.11 So to me, the ultimate question here is did Mr. Banks write the song? If that's the case and he's a composer (in addition to hip-hop artist), he has that exclusive right to publicly perform AND authorize the performance of12 his musical work that was for a short time the Hurricane's anthem. So if we take it to the logical conclusion (and boy do I love a logical conclusion), if Mr. Banks is the composer, the Hurricanes may have overstepped the bounds by playing his song without his permission. If he is not, the Hurricanes may have still played an unauthorized public performance, but they need to be speaking with someone else. All this could be avoided with a little forthought...
I'll watch this one carefully, as I always enjoy a Trademark/Copyright mix-up. Or is that a mixtape?
1: See http://www.carolinahurricanes.com (last visited Aug. 11, 2009). The Hurricanes are currently North Carolina's NHL® franchise. http://www.nhl.com (last visited Aug. 11, 2009).
2: Mike Baker, A Bad Rap? Hurricanes Sue Hip-Hop Artist over Song, available at http://sports.yahoo.com/nhl/news;_ylt=AhwW9hjTGec1jkGd_o4qltl7vLYF?slug=ap-hurricanes-song&prov=ap&type=lgns.
3: Id.
4: Id.
5: Id.
6: Id.
7: 15 U.S.C. § 1125(a)(1) (2006); see also Anheuser Busch, Inc. v. Stroh Brewery, Co., 750 F.2d 631, 648 (8th Cir. 1984) (discussing the importance of looking to the trademark's purpose as a source designator when analyzing a trademark claim).
8: See http://www.carolinahurricanes.com (last visited Aug. 11, 2009).
9: 17 U.S.C. § 101 (2006).
10: See 17 U.S.C. § 106.
11: Id. at 106(4), (6) (providing sound recording copyright holders an exclusive right to public performances only in the instance of digital transmissions, i.e., webcasting).
12: Id. at 106.
All Trademarks and Copyrighted Material Are Owned by Their Respective Owners
All Credit for Sources is Given As Best As Possible
This blog may not be reproduced without permission from the author (which is usually given if asked). (C) 2009 Squishy Mind Property
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