DECEMBER 18, 2008

While Christmas may be a time of giving, for some it’s also a time of receiving – as in receiving a notice that you are being served. Indeed, the Christmas season is an especially busy time for intellectual property attorneys out to protect IP claims related to trademarked holiday traditions.

For example, according to Forbes, the city of Louisville, KY was not allowed to follow through on its plans for a “How the Grinch Stole Christmas” display after receiving a cease-and-desist letter from the estate of Dr. Seuss. Apparently, his estate was not too pleased with the city for trying to exploit the legendary author’s work without his consent.

While it may not be surprising for an author such as Dr. Seuss (or his estate, in this case) to want to protect his life’s work from copyright violations, other holiday-themed copyrights, however, may come as a shock.

For instance, why can’t you make a Kinko’s copy of that cute picture of your child with Santa (from the mall) to send to all of your relatives? Well, because Kinko’s is legally obligated to refuse to make copies of images to which you do not own the rights. Technically, that image – yes, the one with your child in it – belongs to the mall and/or the company who took the photo. You only have the rights to the print you bought from them.

The lesson to be learned is that, in today’s society, copyrights and trademarks are everywhere. Because of all the money that’s at stake, trademark and copyright owners do not want to see other people profit from their work, or, even worse, risk their own personal finances.

So, if you plan to produce anything on a large scale this holiday season, I would advise you to be on the lookout for possible copyright and trademark infringements. Even if your production is on a smaller scale, you should still be mindful of what you are creating. The hassle of litigation, I promise you, is never pleasant.

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DECEMBER 17, 2008

Have you ever left a store and suddenly found yourself singing a song that you don’t remember hearing – perhaps one that you haven’t heard in years? “I got soul, but I’m not a soldier / I got soul, but I’m not a soldier…”

What about in the morning, after you’ve hit the snooze button a dozen times and finally dragged yourself out of bed and into the shower: do you ever start humming a familiar tune, but have no idea why? “I used to rule the world / Seas would rise when I gave the word… Dum, dum, dum de dum dum dum.”

Well, chances are that The Killers’ 2005 hit song, hypothetically speaking, was actually playing in that store you were in - your conscious mind was just too busy searching for a smaller size to take notice. (Meanwhile, your subconscious mind was having a jam-session with itself!) In addition, Coldplay’s latest single was likely one of the first songs your radio/alarm clock played when it first woke you up this morning. You just weren’t quite awake enough to realize it consciously .

Remembering something without being aware that we are remembering it is a consequence of priming and implicit memory- two relatively harmless psychological phenomena. But a problem arises in the artistic world (music, film, literature) when an artist subconsciously adopts someone else’s work while believing it was actually a product of his/her own creative powers.

Earlier this year, for instance, musician Joe Satriani accused Coldplay of lifting elements of his song “If I Could Fly” for Coldplay’s hit song “Viva La Vida.” Immediately, I was inclined to believe that Coldplay’s Chris Martin (creative genius) may have subconsciously copied the beat, chords and melody of Satriani’s song. As Wired’s Eliot Van Buskirk explains, it’s not uncommon for musicians to hear something and “regurgitate” it later without realizing it. Considering all of the songs we have access to in the digital music era, I would have to agree with Van Buskirk.

To complicate things further, however, it appears that videos depicting similarities between the two songs have been disappearing from YouTube, courtesy of Coldplay’s label, EMI, which claims that the videos infringe on its copyright.  (One of only a few surviving videos can be found here.) A legitimate claim on the part of EMI, or a clever attempt at a cover-up? You decide.

Either way, Van Buskirk finds it interesting that EMI is using copyright as a way to remove one version of a Coldplay song while allowing other versions to remain online.

It’s a useful reminder of the ways in which copyright law can be used for purposes other than thwarting the infringement of copyright. In this case, it’s a somewhat useful tool for downplaying plagiarism accusations directed at one of the world’s top acts.

We already know priming agents can influence cravings and the consumer decision-making process - that’s been the aim of marketing and advertising gurus for years. In an over-saturated society, however, I wonder: have priming and implicit memory lost their touch, or are their influential powers yet to be tapped?

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DECEMBER 4, 2008

Batman is not too happy with The Dark Knight and is contemplating a scheme to take back what is rightfully his. No, this isn’t the plot for another Caped Crusader movie, rather, it  seems that the Mayor Huseyin Kalkin of Batman, a small town in southeastern Turkey is crying foul because he never gave The Dark Knight director Christopher Nolan permission to use the name of his city.  According to the Mayor Kalkin:  

The royalty of the name ‘Batman’ belongs to us. There is only one Batman in the world. The American producers used the name of our city without informing us. 

It appears that Mayor Kalkan has plans to sue Nolan for trademark infringement for royalties from the 2008 mega blockbuster. According to The Escapist Magazine, Kalkan’s claims are based on the fictional Batman having a negative affect on the city, blaming the movie on the several unsolved murders in the city, as well as a high suicide rate amongst females in the city. 

Pause.

I’m sorry, but what?!  I realize that intellectual property issues are exploding these days, but this particular case falls into the “ridiculous” category.  Copyrighted music and patented medications have long been an issue, but it seems that the assertion of intellectual property is now showing up where we’d least expect it. Is it simply a matter of respect?  Is it about money?  Or is it that “ownership” is being redefined?  With individuals and companies now staking claim to virtually everything  - from words to images to products - it’s possible consumers have lost a sense of what that means.  

Moving forward, there’s no doubt that the IP arena will be one of the most fundamental challenges of the 21st century.  Big money is at stake; litigation and legislation will impact the definition.  And who will ultimately define the boundaries?  Jurors and consumers. At TMG, we believe that listening to the public – understanding how they think and what they value – is the best place to start when attempting to get a handle on the issue like ownership and IP.

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NOVEMBER 6, 2008

In 2008, New York Mets pitcher Johan Santana earned $16.84 million. Not too shabby for one year’s work. Yet, Santana still has some work to do if he wants to beat out Albert Einstein, who made a whopping $18 million last year from beyond the grave. I’m sure this money was much appreciated by the Hebrew University of Jerusalem, who owns the rights to Einstein’s intellectual property and image, according to Einstein’s will.

Each year, Greenlight (the company Hebrew University hired to manage Einstein’s rights) receives approximately 400 applications requesting the use of his image, and only about 40 of these requests are granted. According to Forbes, these images have a wide range of uses:

Albert Einstein probably never thought he would be earning money from making babies smarter. But Baby Einstein, a majority Disney-owned suite of learning tools for infants, keeps expanding. International licensing with Nestle’s Japanese coffee brand, Charge, and an upcoming sneaker campaign with basketball player Kobe Bryant add to Einstein’s rich portfolio of deals.

I find it interesting just how much money it costs to use the images of dead celebrities. However, given the current debates over intellectual property, I really shouldn’t be surprised. Other celebrities who continue to receive royalties from their intellectual property include Elvis Presley, who raked in $52 million last year and Charles Shultz, whose Peanuts images brought in $33 million.

So this goes to show that, as the Israeli telephone company Pelephone learned, if you want to use a dead celebrity’s name in your advertising, you better make sure to get the appropriate licensing. Pelephone used the slogan “Everyone’s become an Einstein” in its marketing and was asked by Hebrew University to stop using Einstein’s name. The reason? Because the company wouldn’t pay the more than $100,000 sum that Hebrew University wanted to charge for permission.

Who says you can’t take it with you?

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OCTOBER 20, 2008

Should recording artists that make their music available via a “blanket license” from a firm such as ASCAP (the American Society of Composers, Authors and Performers) or BMI (Broadcast Music Inc.) be able to restrict use of their songs if they feel their music is being used to deliver messages they don’t agree with?

In last Monday’s Washington Post, University of Virginia law professors Christopher Sprigman and Silva Vaidhyanathan asked this question in reference to the ongoing controversy concerning the McCain campaign and accusations by artists including Heart, Jackson Browne and John Mellencamp that the campaign is using their songs without first getting consent. They make this claim even though the McCain campaign has a blanket license to use the music.

Sprigman and Vaidhyanathan say that technically the blanket license should cover McCain, but also that McCain should be allowed to use the songs under the First Amendment. They say:

Politicians use songs as a way to tell people what they stand for — or at least what they want us to believe they stand for. Using a song to communicate a political message is just the kind of speech the First Amendment was designed to protect.

Personally, I find it easy to side with the artists in this case. I wouldn’t want my art politicized or used in a way that suggested I endorsed a particular candidate. On an issue as divisive as politics, it’s an easy view to defend. But how far does that argument go?

The Virginia Tech football team regularly enters their home games to the tune of “Hells Bells” by AC/DC. Should we take this to mean that AC/DC is made up of Hokie fans? Likewise, if AC/DC was actually made up of UVA football fans, should they be able to file a cease-and-desist order against Virginia Tech?

Or, what if “Time of Your Life” by Green Day were played over the loudspeaker at a public event celebrating the retirement of a respected teacher. Should Green Day have a right to get a cease-and-desist order against the school system?

Perhaps AC/DC and Green Day should have this right. But when looked at in this light, does this use seem quite as objectionable as Jackson Browne makes it out to be?

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OCTOBER 2, 2008

Intellectual property hits the silver screen this Friday as Greg Kinnear stars in Flash of Genius, the true story of Robert Kearns, a Midwestern college professor/part time inventor who created the intermittent windshield wiper only to get into a patent dispute with Ford. According to the Patent Baristas, the main issue of contention was the uniqueness of the intermittent wiper:

Ford argued that Kearns’ patents were overly broad and therefore invalid…  Ford had contended the patent was invalid because the windshield system contained no new concepts. But Kearns argued a new combination of parts made his invention unique.

When I first heard about this movie, I was shocked that a studio would invest in a movie about intellectual property.  As the Patent Baristas say, “not too many movies have patent infringement as the major plot line.”

I think this goes to show that more people are starting to pay attention to intellectual property claims. Whether it’s patent issues with the Nintendo Wii, disputes between Tiffany and eBay or disputes between artists and the McCain campaign, these issues are out there and garnering public interest.

It will be interesting to see how the public views Ford following this release. Will people display apathy toward the difficult patent dispute or will this be a bad piece of PR news for the company?

According to Ford spokeswoman Jennifer Moore:

Ford sees no value in rehashing the history of a case that has already been resolved in a court of law almost 20 years ago.  . . .  It’s a movie.

However, the question remains to be seen if Ford is alone in this sentiment.

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SEPTEMBER 24, 2008

“The Voice of God” cannot be used to promote the popular John Madden Football video game franchise. The family of the late John Facenda, former voice of NFL Films nicknamed by many fans “The Voice of God,” sued the NFL for briefly using Facenda’s voice in a 22-minute film titled “The Making of Madden” which aired on the NFL Network in 2006.  I remember Facenda from his classic narration of the Super Bowls from the ’70s which I always watched in the week leading up to the Super Bowl, but he is perhaps best known for his recitation of “The Autumn Wind,” a poem by Steve Sabol which has become an anthem to the Oakland Raiders.

According to the complaint:

In or around August 2005, the NFL caused to be broadcast on its NFL Network a program devoted to publicizing and promoting the Madden 2006 football game… The broadcast of “The Making of Madden 2006” was coordinated with the marketing of the Madden 2006 videogame. The program was a blatant commercial for the product; in fact, the broadcast was coordinated to coincide with the release of the game.

The NFL claimed that the film was not a commercial, but an artistic documentary which did not violate Facenda’s contract clause explicitly prohibiting any use that would “constitute an endorsement.” The NFL argued that the game was never directly offered for sale during the program and that they therefore had a First Amendment right to use his voice. However, the U.S. Court of Appeals for the Third Circuit disagreed, and has sent the issue to a jury to decide how much Facenda’s estate should be awarded in damages. In classic Facenda style, family attorney Paul A. Lauricella said:

It’s fourth and long for the NFL and the clock is running out.

The case brings up an interesting question of how past work can be used after an artist’s death. While Facenda’s contract banned commercial endorsement, it allowed NFL Films to use his voice in future film projects. Presumably this would only include future videos documenting the history of the NFL and not commercial products.

However, the 13-seconds in dispute are not endorsing potato chips, but instead a product that some would argue, goes hand-in-hand with the NFL — and may indeed warrant a 22-minute “documentary” on the NFL Network. Nonetheless, EA Sports‘ Madden franchise does have competitors. And, according to the court ruling, the use of Facenda’s voice could be construed as his endorsement.

While I can see that perspective, it’s a little disappointing. Personally, I’m not a fan of Madden’s current in-game announcing and wouldn’t mind if they found a way to have Facenda’s voice provide the play-by-play for the video game.

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SEPTEMBER 8, 2008

Regulators! Mount up!

Those are the lyrics I expected to hear as I sat down for lunch this past Thursday. I was about to enjoy a lovely dish of shish kebobs (I’m on an international food binge) when I heard the bass line to Warren G’s “Regulate”. It was the song all my high school friends couldn’t stop listening to.

The first thought that went through my mind is how cool this little Mediterranean café was for invoking such nostalgic thoughts. However, those thoughts led to confusion as I heard the lyrics that followed the intro:

I keep forgettin’ things will never be the same again
I keep forgettin’ how you made that so clear 

Those weren’t the dope beats from Warren G but instead the passionate prose of Michael McDonald. I realized I wasn’t listening to Warren G’s “Regulate”, but the song “I Keep Forgettin’ (Every Time You’re Near).”

It only took me a second to realize that Warren G’s song wasn’t entirely his original work, but used samples taken from McDonald. It’s become a common practice for musical artists to take samples from older songs and integrate them in their work. Eminem’s “Sing for the Moment” samples Aerosmith; Sean Kingston’s “Beautiful Girls” samples Ben E. King’s “Stand By Me”; and Nelly’s “Heart of a Champion” samples the NBA on NBC theme song.  Sometimes the most obscure samples are the best ones. Amy Winehouse will be using the Wizard of Oz in her next single, proving that nothing is safe from song sampling.

It’s grown to new heights with DJs like Greg Gillis (aka Girl Talk.) He creates entire songs completely out of samples. I can’t stop listening to his latest album “Feed the Animals.” The entire album is 14 songs made up of samples from over 300 songs. I think it’s a terrific album and I think everyone needs to download it (which you can do for free.) 

But here’s the issue at hand: when musical artists start creating songs using other artists’ works, when does it become copyright infringement? Some artists claim fair use, which isn’t a totally ironclad defense, and others point to various international treaties and conventions, but there are no clear laws that regulate song sampling.

What do you think? Is it an infringement of copyright to use a sample in a song? Where is the line in terms of sampling?

All I know is I’ll be listening to Girl Talk in the gym tonight- it’s the greatest thing since sliced bread.

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SEPTEMBER 4, 2008

It must be hard owning a brand these days. Everywhere you turn, you hear about how consumers are taking over, how control has shifted away from the owners of products and brands and into the hands of the people who use those products and brands, regardless of whether they love or hate them.

From a consumer standpoint, however, these are exciting times. Last week, I read on a few blogs(subscription needed) about some Twitterers who had shown up using the names of characters on AMC’s sophomore drama “Mad Men.” For those of us who follow this addictive, intense drama, this was exciting news! Don Draper on Twitter? Never mind that for a show with an obsessive eye to detail and factual accuracy, this made no sense - Don Draper is an advertising executive in the 60s, when the delivery of a new copy machine was met with complete and utter befuddlement. It didn’t matter - the “Mad Men” characters on Twitter were simply a very cool extension of the “Mad Men” franchise into a new medium, one that would only encourage fan intensity for this show.

Well, as it turns out, Don Draper on Twitter wasn’t in fact created by AMC, or the writers of “Mad Men”, or anyone else connected with the show. And AMC’s first reaction was to have the accounts taken down. Luckily, they (thanks to their digital agency) changed their mind a few days later and allowed the accounts to be reinstated. As the Silicon Alley Insider said:

What happened? Deep Focus, the Web marketing group that works for AMC, tells us that they gently nudged their client into rescinding the DMCA takedown notice they’d sent to Twitter. See, in Web marketing parlance, the Twitterers assuming the names of Mad Men characters are actually “brand ambassadors” meant to be cultivated, not thwarted.”Better to embrace the community than negate their efforts,” says a Deep Focus spokesman. We agree!

I can understand AMC’s reticence. They’ve spent millions of dollars creating these complex characters, imagining their wardrobes, their anxieties, their ambitions. Why would they be comfortable with these unknown Twitterers hijacking these finely honed identities and tweeting all over the blogosphere?

On the other hand, though, in an age where mass media is rapidly fading and traditional advertising simply doesn’t work, what could be better than having bunch of people love your programming so much that they want to assume the identities of your characters and spread the word about them over the Internet?

Take a deep breath, AMC. It will be OK. Just roll with it. If this doesn’t get you new viewers, I’d be very surprised.

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AUGUST 21, 2008

After years of controversy, Hasbro, the makers of Scrabble, finally issued a DMCA takedown notice to Facebook regarding its online game Scrabulous and, in late July, filed a copyright infringement suit against Scrabulous makers Rajat and Jayant Agarwall. A DMCA takedown notice is the same method Viacom used to compel YouTube to take down “Daily Show” clips.

In defense of its actions, Hasbro general manager Mark Blecher said, “This is theft of intellectual property. It’s really no different from when the recording industry faced the issue of folks posting music on sites like Napster and letting them copy it for free.”

Presumably, so as not to alienate Scrabulous fans, Hasbro waited until Electronic Arts (which also has a stake in Scrabble) was ready to launch its own Facebook application before demanding that Scrabulous be taken down. The Agarwall brothers have also posted a new, very similar, game called Wordscrapper.

At the crux of the issue is money. The Agarwall’s certainly aren’t open source activists who believe that everything belongs to the people. The brothers reported that Scrabulous was making them about $25k/month. Hasbro had offered a buyout to the brothers; however, the brothers reportedly were asking for tens of millions of dollars, even though most fair estimates would value Scrabulous at $3-6 million.

Some say that the Agarwalls shouldn’t be entitled to any of this money because it is the fruit of copyright infringement. However, others note the potential benefits the Scrabulous application may have had on Scrabble sales. For while it may be fun to play Scrabulous when one is bored at the computer, it can’t compare to playing people in person (and more than one person at that). Scrabulous may have fueled a new appreciation for Scrabble, which has led to increased sales of the board game.

As Bobby Prom of ReadWriteWeb aptly puts it, “This question is truly the basis for all the arguments surrounding the piracy issue - that is, whether it’s worthwhile to go after pirates, thieves, and copyright-infringers, or whether it’s better to simply let them be and consider it free advertising.”

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