Court Rulings
APPROPRIATION AND TRANSFORMATION II
In a post here back in April, we reported on the Second Circuit’s ruling in a fascinating fair use case involving the use of copyrighted photographs by appropriation artist Richard Prince, Cariou v. Prince. We observed that in assessing the “purpose and character” of Prince’s use the court had taken an exceptionally broad and subjective approach to…
Read MoreENGLISH LANGUAGE 1, SUBWAY 0
No, this is not another contribution to the on-going debate over whether Subway’s vaunted “footlong” sandwiches actually measure 12 full inches. I will leave that to the consumer affairs bloggers. Our concern is with Subway’s effort to monopolize the word “footlong” as a registered trademark for 12-inch, give or take, heros/submarines/wedges/hoagies/grinders. Last week the Trademark Trial…
Read MoreFULL OF SOUND AND FURY, SIGNIFYING NOTHING
Some time ago, in our continuing series of “Cease and Desist Letters from Beyond the Grave,” we reported on a complaint for copyright infringement filed by William Faulkner’s literary estate against Sony Pictures, arising out of a single line spoken by Owen Wilson in Woody Allen’s Midnight in Paris: “The past is not dead. Actually, it’s not…
Read MoreGOOGLE LIBRARY CLASS DECERTIFIED
When last we checked in with The Authors Guild, Inc. v. Google, Inc., the long-running copyright dispute over Google’s plan to digitize all the world’s libraries, Judge Denny Chin had certified the case as a class action on behalf of all “persons residing in the United States who hold a United States copyright interest in…
Read MoreTHE BREYER ASCENDANCY, PART TWO
In a post here a few months ago, I noted that a series of dissents in intellectual property cases over the past decade had established Justice Stephen Breyer “as one of the Supreme Court’s leading intellectual property law skeptics, along with now-retired Justice John Paul Stevens.” “Not coincidentally,” I added, “Justices Breyer and Stevens were…
Read MoreOWNING OWN THE POWER
Some of my favorite trademark cases involve “reverse confusion.” Instead of the usual scenario in which a rich and powerful senior trademark user crushes a little start-up for trading on its good name, the essence of a reverse confusion case is that a rich and powerful entity has flooded the market with much more promiscuous use of a…
Read MoreAPPROPRIATION AND TRANSFORMATION
Patrick Cariou, a professional photographer, spent six years among the Rastafarians of Jamaica. and in 20oo he published a book of portrait and landscape photographs taken during this sojourn. Yes Rasta sold modestly, earning Cariou about $8,000 in royalties from sales of about 5700 copies. Four of those copies were purchased by appropriation artist Richard Prince. Prince, without…
Read MoreTHE BREYER ASCENDANCY
In a post a while back, I quoted from Justice Stephen Breyer’s dissents in two important copyright cases of the past decade, Eldred v. Ashcroft (2003), which upheld the copyright term extensions adopted by Congress in the Sony Bono Memorial Copyright Term Extension Act of 1998, and Golan v. Holder (2012), which upheld an act…
Read MoreTHE EMPIRE STRIKES OUT
It was some ten years ago, while the Boston Red Sox were still mired in the 86-year championship drought brought on by the Curse of the Bambino, that their president Larry Lucchino hung the moniker “Evil Empire” on the New York Yankees. The Yankees, as Lucchino should have anticipated, took it as a compliment and good naturedly…
Read MoreHOLY UTILITARIAN FUNCTION, BATMAN
In a short-lived, much-reviled sitcom of my youth, My Mother the Car, the title character was a restored 1928 Porter touring car, the reincarnation of star Jerry van Dyke’s mother, who spoke to Jerry through the radio and—as per the theme song indelibly lodged in my memory—“helped him through everything I do.” I am not aware of any…
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