28 October 2014

Is making art using someone else's IP legal?

The FLAG Art Foundation's Disturbing Innocence exhibit is running through January 31, 2015. 
Image: Is it legal to use trademarks or copyrights without permission?
This exhibit features 50 artists whose modern art distort idealistic childhood images. The pieces in this collection are deliberately shocking. Scrolling through photos of this art, you may notice that the works of art make use of existing trademarks and copyrights that the mark holder may not authorize.
Mummified Barbie art, The FLAG Art Foundation's Disturbing Innocence exhibit       The FLAG Art Foundation's Disturbing Innocence exhibit
Dare Wright art; The FLAG Art Foundation's Disturbing Innocence exhibit        Robert Gober; The FLAG Art Foundation's Disturbing Innocence exhibit
Artwork above = Dare Wright on left and Robert Gober on right.
Jennifer Rubell's Lysa III sculpture; The FLAG Art Foundation's Disturbing Innocence exhibit
Jennifer Rubell's Lysa III sculpture is a nutcracker doll Mattel has yet to make.
Chapman Brothers, Doggy; The FLAG Art Foundation's Disturbing Innocence exhibit   Chapman Brothers, Doggy; The FLAG Art Foundation's Disturbing Innocence exhibit
Chapman Brothers, Doggy
Chapman Brothers, Doggy; The FLAG Art Foundation's Disturbing Innocence exhibit
Is it fair for people to make money using the intellectual property of others? 
Play Date featuring Michael Jackson and Mansen by John Waters, Disturbing Innocence   Play Date featuring Michael Jackson by John Waters, Disturbing Innocence
Play Date by John Waters

Do mummified Barbies or a hairy Ken infringe Mattel's rights? Is it acceptable to use customarily PG works of others in sexualized creations? Or a Nike swoosh along with Nike branded sneakers in art?

For questions like these concerning infringement, a U.S. court would consider the defenses to infringement.

The Copyright Act allows fair use as a common law defense. Fair use protects secondary works from copyright infringement claims if the works borrow from original works in particular ways. Section 107 of the Copyright Act provides that the fair use of a copyrighted work, for purposes such as criticism, is not an infringement of copyright. Fair use is an affirmative defense, so the burden of proof falls on defendants to justify the alleged copyright infringement.

A 4-factor test can be used to determine whether the use of a work in any particular case is a fair use:
     (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 work as a whole; and
     (4) the effect of the use upon the potential market for or value of the copyrighted work.

According to the Ninth Circuit, the fair use doctrine confers a privilege on people other than the copyright owner, “to use the copyrighted material in a reasonable manner without his consent, notwithstanding the monopoly granted to the owner.” The doctrine is a means of balancing the need to provide individuals with sufficient incentives to create public works with the public’s interest in the dissemination of information.  

A parody is when someone imitates another's work to comment on the original work for comic effect or social commentary. Parody is a defense to trademark infringement. As long as a parody can be reasonably perceived as commenting or critiquing an original work, its original purpose is inconsequential.

Related cases

Mattel, Inc. v. Walking Mountain Prods: In Mattel, the court ruled that works by Forsythe were a parody of Barbie and deemed highly transformative. Here photographer Tom Forsythe, who produces photographs with social and political overtones, developed a photograph series entitled “Food Chain Barbie.” The photographs depicted Barbie dolls in various absurd and often sexualized positions. After four years of litigation, this case was ultimately ruled fair use.

Campbell v. Acuff-Rose Music, Inc.: In Campbell, the court held up the fair use defense. This case concerned a rap song by 2 Live Crew. The rap song, entitled “Pretty Woman” borrowed from the Roy Orbison ballad entitled “Oh, Pretty Woman.” In this case the court held that even though 2 Live Crew’s parody took the first line of lyrics and characteristic opening bass riff from the original and therefore made the heart of the original the heart of the parody, this was purposely done “to purloin a substantial portion of the essence of the original.” By adding misogynistic epithets and explicit sexual demands, juxtaposing and mocking the innocent nature of the original love song, 2 Live Crew’s song had demonstrable parodic elements. There was also a lack of effect on the market for Orbison's song.

SunTrust Bank v. Houghton Mifflin Company: In SunTrust Bank, a copied work was found to be transformative. Here the book “Gone With the Wind” (GWTW) was parodied by an African American author in a work titled “The Wind Done Gone” (TWDG). Here the court stated that “TWDG is more than an abstract, pure fictional work. It is principally and purposefully a critical statement that seeks to rebut and destroy the perspective, judgments, and mythology of GWTW.” When weighed against each other, the two sub-factors ended falling in favor of the new work: it was transformative enough to illustrate a new expression, so the fact that it was made with a commercial value did not preclude it from proving this factor present. The more transformative the new work, the less will be the significance of other factors.  


Rather than rely on fair use, you may be better off requesting a license for uses that copyright owners are likely to allow. Otherwise, keep in mind that fair use occurs when someone uses a trademarked term for its primary definition and not its secondary meaning.




23 October 2014

Converse suing Chuck Taylor copycats | Fashion law post

Converse is suing to stop others from copying what it claims are distinctive elements of its design, introduced in 1917: rubber toe cap, rubber bumper, two thin black stripes, and diamond pattern sole
     
Converse Chuck Taylor All Star Sneakers
I tweeted about this Converse fashion law case but decided to expand on it here because articles covering the case have confused copyrights and trademarks. 

A licensing deal with the government is a smart business move. Chuck Taylor All Star shoes not only gained popularity for being the first basketball shoe, but they garnered popularity in the streets as lingering prison attire à la baggy pants: aside from pants and tops or jumpsuits (depending on the coast), white Chuck Taylors were state issued to prisoners.

This month, in the United States District Court in Brooklyn, Converse filed 22 separate lawsuits accusing 31 companies of trademark infringement. Companies named in the suit include Bob's, Kmart, Ralph Lauren, and Tory Burch.

Below are real Converse Chuck Taylor All Star sneakers, starting at $14.98:
Below are some (inspired or infringing depending on court outcome) lookalikes, starting at $12.87:

On sale here and here
You do not need a registered trademark in order to bring a federal lawsuit under 15 U.S.C. 1125(a), but having a federally registered mark makes your case much stronger. A USPTO trademark search does not reveal Converse trademarks for marks claimed to be protected in these lawsuits; however, without filing any document or application you still can retain some trademark rights. Some trademark rights, albeit relatively weak rights, can be established based solely on legitimate use of your original marks.
    
Advantages of a federal trademark registration include:
    • a legal presumption of the registrant’s ownership of the mark and the registrant’s exclusive right to use the mark nationwide in connection with the goods and/or services listed in the registration;
    • constructive notice to the public of the registrant’s claim of ownership of the mark, which can make a court judgment against infringers more likely; and
    • the ability to file U.S. registration with the U.S. Customs to prevent importation of infringing goods, (which Converse is now doing).  

Technically, a trademark lawsuit based on 1125(a) is not a trademark infringement lawsuit, but rather one based on likelihood of confusion, which is a form of unfair business practices.

Anything that is functional (such as a shoe itself), cannot be protected by trademark law. The rubber bumper and toe caps seem functional. Even if these features are found to be decorative rather than functional, they have long been used by other designers so any trademark protection could have lost for failure of Converse to protect or 'police' the trademarks. 

Converse Chuck Taylor All Star Sneakers

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21 October 2014

Why star a femme fatale when you can have a femme légale?

Have you noticed the trend of law ladies in this Fall's TV lineup? 
"Legally Blonde" screenshot of Elle Woods
Given the popularity of "Law & Order" and "Legally Blonde" amongst millennials, it is no surprise more law based entertainment has risen. Although Lifetime recently wrapped up longterm legal comedy-drama "Drop Dead Diva," and "Fairly Legal" was cancelled after a few seasons on the USA Network, more leading legal ladies appeared this Fall.


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Bad Judge TV Show Ad Promo
"Bad Judge" stars Kate Walsh as a Los Angeles County Circuit Court judge with a scattered personal life and an ethically questionable courtroom demeanor. Portraying an otherwise smart and successful character as a promiscuous hot mess is annoyingly overdone. If the show does not amp up the comedy factor or intrigue the audience via some original cases or captivating personal life, it is unlikely to get picked up for another season. A better plot would be a show loosely based on the life of Judge Judy or Judge Milian.

Cristela TV Show Ad Promo
"Cristela" stars Cristela Alonzo in a family sitcom reminiscent of George Lopez and Roseanne. The main character is a Mexican-American woman entering her sixth year of law school (although it takes 3 years of law school in America to earn a JD)In the first episode, Alonzo takes on an unpaid internship at a law firm where during her interview she was mistaken as the help by her boss's daughter/co-worker. This show is one to watch. 

How to Get Away With Murder TV Show Tweet Promo
"How to Get Away With Murder" stars Viola Davis as a criminal law professor who challenges her 1L (first-year) law school students to vie for a position at her law firm. Somehow the best students of the batch get caught up in a murder plot. And if you're reading this there is a very high likelihood you are interested in both fashion and the law, so do not miss this show. From casual clothes to professional attire, this show has it all.

Do you follow any law based TV shows?

Shows like Oprah Winfrey Network's "Staten Island Law" have flopped because it is particularly difficult to capture the thrill of lawyer life. That said, if someone is looking for a fashion lawyer to star in a reality show or as a TV consultant, I volunteer as tribute. 


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