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Sunday, September 28, 2008
Thursday, September 18, 2008
You be the Judge: Judging Pretty Woman
Sometimes in order to play judge and fully investigate a situation, I have to acquire evidence. And so, many times when I read an intellectual property dispute regarding a musical work, I purchase and listen to the music at issue. Yes, truth be told, I have an “infringement” section on my MP3 player.
Unfortunately, more often than not, I will later learn that parties settled out of court and cannot discuss the details of the case. So then when my play list brings the allegedly infringing song back into my legal ears, I am left to wonder what exactly happened. Thankfully I am also often left with some pretty cool music.
To me, the only thing worse than a song stuck in your head is not knowing whether or not that song is legit. To avoid this situation, this time instead of us playing judge I’m going to leave the job to a select few: the Supreme Court of the United States. However, please feel free to comment on this case and let us know what you would decide if you were the judge.
In 1964, Roy Orbison released a song titled “Oh, Pretty Woman” which reached number one in the Billboard Hot 100. The song’s lyrics paint a romantic picture of a man watching a beautiful woman and at the last minute she turns around.
Here’s a sample of Orbison’s lyrics:
Pretty Woman, walking down the street,Pretty Woman, the kind I like to meet,Pretty Woman, I don’t believe you,You’re not the truth,No one could look as good as you
In 1989, 2 Live Crew recorded a song titled “Pretty Woman” and sampled the distinctive baseline from the Orbison song. 2 Live Crew’s lyrics describe a “bald-headed woman” a “two timing woman” and a “big hairy woman.”
Here’s a sample of 2 Live Crew’s lyrics:
Big hairy woman you need to shave that stuffBig hairy woman you know I bet it’s toughBig hairy woman all that hair it ain’t legit‘Cause you look like ‘Cousin It’
Almost a year later, after nearly a quarter of a million copies of 2 Live Crew's recording had been sold, Orbison’s publisher, Acuff-Rose Music sued 2 Live Crew and argued that the fair use doctrine did not permit commercial reuse of copyright material. District Court granted summary judgment for 2 Live Crew, reasoning that the song was a parody which “quickly degenerates into a play on words, substituting predictable lyrics with shocking ones” to show “how bland and banal the Orbison is” and its commercial purpose was no bar to fair use. The Court of Appeals for the Sixth Circuit reversed and remanded finding that “every commercial use … is presumptively … unfair.”
In 1994, the United States Supreme Court heard the case and in a seminal fair use decision decided in 2 Live Crew’s favor, thus greatly expanding the fair use doctrine to protect parodies created for profit.
According to the court,
“[i]t was error for the Court of Appeals to conclude that the commercial nature of 2 Live Crew's parody of 'Oh, Pretty Woman' rendered it presumptively unfair. No such evidentiary presumption is available to address either the first factor, the character and purpose of the use, or the fourth, market harm, in determining whether a transformative use, such as parody, is a fair one. The court also erred in holding that 2 Live Crew had necessarily copied excessively from the Orbison original, considering the parodic purpose of the use. We therefore reverse the judgment of the Court of Appeals and remand for further proceedings consistent with this opinion.”
Check out this site to hear the songs for yourself. So, although the judges have spoken, you be the judge!
Unfortunately, more often than not, I will later learn that parties settled out of court and cannot discuss the details of the case. So then when my play list brings the allegedly infringing song back into my legal ears, I am left to wonder what exactly happened. Thankfully I am also often left with some pretty cool music.
To me, the only thing worse than a song stuck in your head is not knowing whether or not that song is legit. To avoid this situation, this time instead of us playing judge I’m going to leave the job to a select few: the Supreme Court of the United States. However, please feel free to comment on this case and let us know what you would decide if you were the judge.
In 1964, Roy Orbison released a song titled “Oh, Pretty Woman” which reached number one in the Billboard Hot 100. The song’s lyrics paint a romantic picture of a man watching a beautiful woman and at the last minute she turns around.
Here’s a sample of Orbison’s lyrics:
Pretty Woman, walking down the street,Pretty Woman, the kind I like to meet,Pretty Woman, I don’t believe you,You’re not the truth,No one could look as good as you
In 1989, 2 Live Crew recorded a song titled “Pretty Woman” and sampled the distinctive baseline from the Orbison song. 2 Live Crew’s lyrics describe a “bald-headed woman” a “two timing woman” and a “big hairy woman.”
Here’s a sample of 2 Live Crew’s lyrics:
Big hairy woman you need to shave that stuffBig hairy woman you know I bet it’s toughBig hairy woman all that hair it ain’t legit‘Cause you look like ‘Cousin It’
Almost a year later, after nearly a quarter of a million copies of 2 Live Crew's recording had been sold, Orbison’s publisher, Acuff-Rose Music sued 2 Live Crew and argued that the fair use doctrine did not permit commercial reuse of copyright material. District Court granted summary judgment for 2 Live Crew, reasoning that the song was a parody which “quickly degenerates into a play on words, substituting predictable lyrics with shocking ones” to show “how bland and banal the Orbison is” and its commercial purpose was no bar to fair use. The Court of Appeals for the Sixth Circuit reversed and remanded finding that “every commercial use … is presumptively … unfair.”
In 1994, the United States Supreme Court heard the case and in a seminal fair use decision decided in 2 Live Crew’s favor, thus greatly expanding the fair use doctrine to protect parodies created for profit.
According to the court,
“[i]t was error for the Court of Appeals to conclude that the commercial nature of 2 Live Crew's parody of 'Oh, Pretty Woman' rendered it presumptively unfair. No such evidentiary presumption is available to address either the first factor, the character and purpose of the use, or the fourth, market harm, in determining whether a transformative use, such as parody, is a fair one. The court also erred in holding that 2 Live Crew had necessarily copied excessively from the Orbison original, considering the parodic purpose of the use. We therefore reverse the judgment of the Court of Appeals and remand for further proceedings consistent with this opinion.”
Check out this site to hear the songs for yourself. So, although the judges have spoken, you be the judge!
Sunday, August 17, 2008
Electronic Copyright Registration Now Available!!
I am happy to report that the U.S. Copyright Office is now accepting electronic filing of copyright registrations. Previously, I reported that the Copyright Office was conducting a beta test of this system.
Advantages of Electronic Copyright Office (eCO) system include:
• Lower filing fee of $35 for a basic claim (for online filings only)
• Fastest processing time
• Online status tracking
• Secure payment by credit or debit card, electronic check, or Copyright Office deposit account
The U.S. Copyright Office's website has a great tutorial to help get you started. I have registered some of my work using the old school paper system (my personal favorite) and I tried out the beta test of the web-based registration system (save yourself a headache and turn off your pop up blocker), but I have yet to try out the eCO system. If you get a chance try out the eCO, please let me know what you think!
Advantages of Electronic Copyright Office (eCO) system include:
• Lower filing fee of $35 for a basic claim (for online filings only)
• Fastest processing time
• Online status tracking
• Secure payment by credit or debit card, electronic check, or Copyright Office deposit account
The U.S. Copyright Office's website has a great tutorial to help get you started. I have registered some of my work using the old school paper system (my personal favorite) and I tried out the beta test of the web-based registration system (save yourself a headache and turn off your pop up blocker), but I have yet to try out the eCO system. If you get a chance try out the eCO, please let me know what you think!
Wednesday, August 06, 2008
You be the Judge: Copycat Caskets
When walking through certain neighborhoods of New York City, I often am approached by entrepreneurs selling “brand name” items at unbelievably low prices. These allegedly designer bags, watches, DVDs and perfume may look similar to the real deal, but chances are the products are knockoffs and illegal. It’s easy to doubt the authenticity of an item yanked from a garbage bag by a guy standing on a crowded corner whispering “handbag,” but the concern over knockoffs is not necessarily limited to this type of situation: take the case of the knockoff caskets.
The York Group is a Pennsylvania casket maker which sells wood and metal caskets nationwide.
Wuxi Taihu Tractor Co. is a Chinese casket manufacturer.
In a 2006 lawsuit, State District Judge Elizabeth Ray, ordered that Wuxi place the words “Made in China” on caskets built in the Asian country and sold to U.S. distributors, as required by federal law. The judge also ordered that Wuxi cease distributing copycat caskets.
In the current case, York contends that Wuxi violated the court order by distributing “knockoff” and “look-a-like” caskets which copy York’s "hardware, design lines and paint jobs." According to York’s attorney, “this is part of a continuous, ongoing battle that all U.S. manufacturers have.”
Wuxi’s casket designer claims that he doesn’t use York caskets as a standard for his ideas. And others argue that all caskets are inherently similar and question “how many ways can you make a casket?”
Although I was unable to find images of the caskets in question, you be the judge. What do you think about protecting the design of a casket? For more information about U.S. Copyright law check out http://www.copyright.gov/; for information on U.S. Patent and Trademark Law check out http://www.uspto.gov/.
The York Group is a Pennsylvania casket maker which sells wood and metal caskets nationwide.
Wuxi Taihu Tractor Co. is a Chinese casket manufacturer.
In a 2006 lawsuit, State District Judge Elizabeth Ray, ordered that Wuxi place the words “Made in China” on caskets built in the Asian country and sold to U.S. distributors, as required by federal law. The judge also ordered that Wuxi cease distributing copycat caskets.
In the current case, York contends that Wuxi violated the court order by distributing “knockoff” and “look-a-like” caskets which copy York’s "hardware, design lines and paint jobs." According to York’s attorney, “this is part of a continuous, ongoing battle that all U.S. manufacturers have.”
Wuxi’s casket designer claims that he doesn’t use York caskets as a standard for his ideas. And others argue that all caskets are inherently similar and question “how many ways can you make a casket?”
Although I was unable to find images of the caskets in question, you be the judge. What do you think about protecting the design of a casket? For more information about U.S. Copyright law check out http://www.copyright.gov/; for information on U.S. Patent and Trademark Law check out http://www.uspto.gov/.
Thursday, July 03, 2008
You be the Judge: Naked M&Ms
I’ll admit it: as Etsy's in-house attorney, I love reading legal disputes and thinking about what important issues each side should stress. I especially like to analyze pending copyright, trademark, and patent cases. I daydream about what points I would argue if I were the lawyer for each side and then I put on my imaginary judge’s robe and make a decision.
Well, here’s your chance again. If you were the judge, what would you decide on this real-life on-going legal battle? (Remember, this issue hasn't gone to court yet).
Robert Burck (aka the Naked Cowboy), clad only in underpants, boots, a cowboy hat, and a strategically placed guitar has entertained New York City Times Square tourists for over ten years.
Mars, Inc., which makes M&Ms, and Chute Gerdeman Inc., an Ohio advertising agency, released two Times Square billboards and print ads showing an M&M strumming a guitar, dressed in a white cowboy hat, cowboy boots and underpants, alongside views of New York.
Read the rest of the article and have your chance to play Judge here: http://www.etsy.com/storque/section/reviews/article/you-be-the-judge-naked-mms/2102/
Well, here’s your chance again. If you were the judge, what would you decide on this real-life on-going legal battle? (Remember, this issue hasn't gone to court yet).
Robert Burck (aka the Naked Cowboy), clad only in underpants, boots, a cowboy hat, and a strategically placed guitar has entertained New York City Times Square tourists for over ten years.
Mars, Inc., which makes M&Ms, and Chute Gerdeman Inc., an Ohio advertising agency, released two Times Square billboards and print ads showing an M&M strumming a guitar, dressed in a white cowboy hat, cowboy boots and underpants, alongside views of New York.
Read the rest of the article and have your chance to play Judge here: http://www.etsy.com/storque/section/reviews/article/you-be-the-judge-naked-mms/2102/
Tuesday, May 13, 2008
You be the Judge: Vuitton and Darfur
Nadia Plesner is a Danish artist. According to her website, the illustration “Simple Living” was inspired by “the media’s constant cover of completely meaningless things. My thought was: Since doing nothing but wearing designer bags and small ugly dogs is enough to get you on a [magazine] cover, maybe it is worth a try for people who actually deserve and needs attention.” One hundred percent of the profits from the Simple Living t-shirts and posters will be donated to Divest for Darfur.
In February, 2008 an attorney for Louis Vuitton Malletier (“Louis Vuitton”) sent Plesner a letter asking that she discontinue making and selling the Simple Living products.
Read the rest of my article here: http://www.etsy.com/storque/section/reviews/article/you-be-the-judge-vuitton-and-darfur/1710/
In February, 2008 an attorney for Louis Vuitton Malletier (“Louis Vuitton”) sent Plesner a letter asking that she discontinue making and selling the Simple Living products.
Read the rest of my article here: http://www.etsy.com/storque/section/reviews/article/you-be-the-judge-vuitton-and-darfur/1710/
Wednesday, April 02, 2008
How-to research trademarks
Hello!
The next time you’re eating a candy bar, a bag of chips, or even breakfast cereal, take a closer look at the packaging. You may see various symbols following the brand name or the logo. What do these symbols mean?
To find out, read this Storque article:
http://www.etsy.com/storque/section/howTos/article/how-to-research-trademarks/1511/
The next time you’re eating a candy bar, a bag of chips, or even breakfast cereal, take a closer look at the packaging. You may see various symbols following the brand name or the logo. What do these symbols mean?
To find out, read this Storque article:
http://www.etsy.com/storque/section/howTos/article/how-to-research-trademarks/1511/
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