Friday, September 18, 2009

Of Course I Didn't Mean It!

It seems people these days are more copyright savvy. Or at least they think they are. Whether it be Ellen DeGeneres and her TV show stating they won't pay for licenses because they "don't roll that way,"1 or people like person I am about to tell you all about.

One day I happened to scanning my Facebook news feed, when I saw a friend of mine had posted a YouTube video on to their wall. If all this Facebook-speak is confusing, bear with me for a minute. The video they had posted included, in all caps in the description "NO COPYRIGHT INFRINGEMENT INTENDED."


First off, I will say the video in question was almost definitely copyrighted. Second, if you didn't intend copyright infringement, WHY DID YOU DO IT? To be clear, my friend did not write the description, they merely reposted a video. My real thoughts are directed at to the person who uploaded the video with the caveat of "I didn't intend to infringe your copyright (whoever you are)."

In my book, if you're "savvy" enough to put a notice like that on something you're posting online, you're intending it. A disclaimer such as that suggests you're aware you probably shouldn't be posting it online, in violation of the Copyright Act.2 Unfortunately for Mr. Clever on YouTube, Section 501 doesn't require you to 'intend' anything.3 It becomes a question of "did you do it or did you not?"

By the fact that I can find this video (both on YouTube and Facebook) suggests Mr. Clever (as I'm calling the original poster of the video) is in fact a copyright infringer. Whoops.

1: Travis Loller, 'Ellen' Sued for Thousands of Copyright Infringements, HUFFINGTON POST (Sept. 11, 2009), available at
2: 17 U.S.C. §§ 106, 501 (2006).
3: 17 U.S.C. § 501(a) ("Anyone who violates any of the exclusive rights of the copyright owner as provided by sections 106 through 122 [ . . . ], is an infringer of the copyright or right of the author, as the case may be.").

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

Saturday, September 5, 2009


Some people that I know (who shall remain nameless - Jack), are very excited for the upcoming release of the video game The Beatles: Rock Band.1 For those of you who are unaware of the Rock Band line of video game titles, I will briefly explain.

Rock Band is a video game where instead of using controllers in the normal sense, players use mock plastic instruments.2 The players then "play" their instruments using a variety of keys or pads or what have you to emulate the song that the game plays on the screen.3 If they players hit all the "notes" they are required to, the music track plays.4 If they do not, then the particular audio track each player is responsible for (be it drums, guitar, bass, vocals, etc.) "skips" like it would on an old LP.5 The previous two installments of Rock Band used a variety of tracks from artists ranging from the Who to current independent or underground musicians.6

Fast forward to this week. A new edition of Rock Band is due to arrive in stores which allows players to play Beatles tunes (previously unavailable) and "re-enact" key moments in the Beatles career.7 As I mentioned earlier, Jack is very excited.

There is, however, one particular detail about this release that send my antennae all abuzz. Apparently, unlike in other incarnations of Rock Band, The Beatles: Rock Band will not allow players to alter the musical tracks (by use of a "whammy bar"8 or "drum fill"9 which Rock Band 1 & 2 allowed players to use).10 In addition, if the players were to be unable to complete song ("fail"), instead of the usual crowd booing that occurs, the Beatles game simply cuts to black with a "Retry" prompt.11 Allegedly, this is because the two surviving Beatles as well as others involved in licensing the Beatles franchise are concerned about maintaining the integrity of the Beatles brand.12

So what in tarnation does this have to do with this blog? Hopefully you've already figured out where I'm going with this. What stuck out to me was the amount of control the Beatles stakeholders wanted to exert over the development of The Beatles: Rock Band. The limiting the interacivity of the game and the amount of development input (based on the articles I read) seemed to be far above and beyond what other musicians and artists have done. I believe several other bands have done "band-centric" versions of either Rock Band or Guitar Hero (a similar game). The desire to protect your creative lifeblood is understandable, but this concern about brand dilution is possibly a bit far-fetched.

Dilution under the U.S. statute requires a mark to be sufficiently "famous."13 That's all well and good, I'm almost positive the Beatles qualify under the non-exclusive 8 factor test Congress provided. My concern is what you consider "dilution." Section 1125(c) simply says there's a cause of action for the "dilution" of a brand (yes, I'm using mark and brand interchangeably because for purposes of this discussion, they're basically the same thing).14 What does that mean exactly?

The courts are also a little unclear on dilution.15 There's a bit of a misunderstanding over whether it's "famous" or "well-known" marks,16 but that's a whole other blog post. Generally, there has to be an intentional dilution of the quality of the mark and some kind of harm.17 I don't really see it here. Letting a bunch people occasionally "fill" or ever so slightly modify a Beatles recording seems to be a de minimis invasion upon the Beatles brand, and therefore, no big deal.18

I say let the gamers rock on.

1: Jeff Howe, The Beatles Make the Leap to Rock Band, WIRED (Aug. 12, 2009), available at
2: Rock Band (video game),
3: Id.
4: Id.
5: Id.
6: Id.
7: Howe, supra note 1.
8: Daniel Radosh, While My Guitar Gently Beeps, N.Y. TIMES (Aug. 16, 2009) at MM26, available at
9: Id.
10: Id.
11: Id.
12: See Howe, supra note 1; see also Radosh, supra note 8 (discussing the lengths the Rock Band development team took to ensure the Beatles stakeholders were satisfied with the portrayal and use of the Beatles and their music).
13: 17 U.S.C. § 1125(c)(1)(A)-(H) (2006).
14: Id. at § 1125(c)(1).
15: See ITC Ltd. v. Punchgini, Inc., 482 F.3d 135, 156 (2d Cir. 2007), cert. denied, 128 S. Ct. 288 (2007) (confusing "well-known" and "famous" marks).
16: Id.
17: See Mosely v. V. Secret Catalogue, Inc., 537 U.S. 418, 432 (2003).
18: H-D Michigan, Inc. v. Top Quality Service, Inc., 496 F.3d 755, 762 (2007) (stating that a de minimis trademark infringement as non-actionable).

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