This article was originally posted on The Tactical IP Blog

• Shut down the luge track to prevent any more deaths… check.
• Conduct an internal investigation… check.
• Let an “independent” authority do its own investigation… check.
• Make immediate modifications to the luge track to stop future accidents… check.
• Make a press release, expressing regret, but denying all responsibility… check.

All perfectly acceptable anticipated responses. So why is this an IP story, you ask? Well, when the above-described actions failed to push this embarrassing catastrophe under the rug, the IOC turned to their attorneys, asking what else could be done to hush the whole thing up. Video clips of Kumaritashvili losing control of his sled and crashing into a steel pole were popping up all over the internets, repeatedly showing the world what happened. The answer from their legal team: Those people are violating our copyright in that clip! We can use the Digital Millennium Copyright Act (DMCA) to have that material removed from the web — so no one else will see it!

Now, giving the IOC the benefit of the doubt, I’m sure their intentions in suppressing the accident footage were honorable. Don’t misunderstand me. I recognize that what happened was horrible, and Kumaritashvili’s family and teammates are likely still reeling from the impact of it all. If they have to see that clip everywhere they turn on the web, that’s not ideal — especially if any of the commentary employing the clip was in poor taste, which I’m sure some of it was.

Even where all of this is true, U.S. copyright law was not implemented to choke off the flow of facts and news reporting. In fact, § 107 of the Copyright Act specifically limits a copyright owner’s rights in these kinds of situations. The IOC cannot use DMCA takedown notices to silence the speech it does not like. In fact, sending those notices may end up costing the IOC, unless they can successfully make the case that they considered whether use of the clips could be fair use before making their demands. Just ask the artist currently known as Prince. This will be tough argument for the IOC, considering this isn’t the first time they’ve tried to misuse their copyrights.

Unfortunately, groups like the IOC don’t recognize that the appropriate response to inappropriate speech is not to look for the most expedient suppression mechanism — it’s more speech. The marketplace of ideas is perfectly capable of recognizing which commentary is a legitimate dissemination of news about the tragedy and which ones are morbidly childish. Sending out demand letters that essentially state “you have to pay if you want to show our Faces of Death video” is equally deplorable, no matter what the IOC’s intentions actually were.

The article was originally published on The Tactical IP Blog

No.  It was those champions of copyright policy, the Rosemont Police.  As it turns out, Illinois has a relatively new anti-bootlegging statute, which criminalizes knowingly operating an audiovisual recording device in a movie theater without permission.  See 720 Ill. Comp. Stat. 5/21-10.

Now, don’t get me started about what a moron this woman is.  Clearly, she’s not the brightest crayon in the box, but I’m not sure she should be looking at three years in the state pen for being a moron.  Her conduct can arguably be defended as fair use, avoiding any civil liability for copyright infringement.  Even if it’s not newsworthy to the most of us, the reason that Ms. Tumpach gives for making the recording, i.e., preserving her sister’s birthday activities for posterity, likely does satisfy the first prong of a fair use analysis in her favor.  With a recording that comes in at a whopping four minutes, the amount-and-substantiality factor should go her way as well.  And it isn’t likely that Ms. Tumpach’s video will replace the needs of these screaming Twilight moms to see Jacob’s rippling six pack.

With respect to federal criminal liability, Ms. Tumpach’s activities don’t seem to satisfy those requirements either.  She didn’t make her video for personal commercial gain, and she hasn’t distributed anything.  So I’m scratchin’ my head, trying to figure out why this chick had to cool it in the clink for a few days and is now awaiting a full-blown criminal trial.  Has being a rude, inconsiderate, i’d-answer-my-cell-phone-if-it-rings-during-this-movie titwank finally become illegal?  She does admit to talking throughout the film, which in my book should be punishable — but more in the corporal variety, e.g., the slap-a-bitch treatment.

Now write the date and time down somewhere, because this may be the only time you’ll ever hear me make the following statement:  I don’t think that the state of Illinois has the power to enforce its bootlegging statute.  Normally, I’d say the federal government should get the hell out of the way, and let the states do their thing, but not this time.  You see, the United States Constitution provides the authority to the Congress to create legislation to protect the exclusive rights of copyright owners.  Any right that the states have to recognize or enforce copyrights has been expressly preempted by the federal government.

Making these criminal charges stick, solely based on the statutory language, may be a slam dunk for some prosecutor, but I’m not sure it would be constitutional.  What say you Blevins?  Would you throw the book at this chick?

UPDATE:  Cook County prosecutors have dropped the charges against Ms. Tumpach (source).  Summit Entertainment, the film’s producer, and Muvico, the theater involved, have both made press releases, declaring that, while they are happy that Ms. Tumpach got off with only an attorney bill and a couple of nights in a holding cell, they are committed to a zero-tolerance policy, recommended by the MPAA, for handling camcorder use.

This article was originally posted on The Legal Satyricon

The bottom line is that you can’t sue anyone for “stealing your idea” or “taking that movie plot you thought of.”  This concept is hard for some to grasp, and every so often, a big player in the IP world may take advantage of this common misunderstanding.  While perusing sites that sell graphic tees (one of my favorite forms of communication – e.g., here, here, or here), I came across an example of this that I think is worth sharing.

It seems that Ian Bogost, a video game professional, associate professor, blogger, and amateur t-shirt designer, decided that it would be clever to put a Spanish phrase, “Por favor manténgase alejado de las puertas,” on a t-shirt, adjacent to various theme park graphics.  If you’ve spent any time in a Disney theme park, you may recognize the foreign equivalent for “Please stand clear of doors,” which can be heard over and over on the monorail, as the automated recording paternally berates passengers.

When Mr. Bogost put his t-shirts up for sale on Zazzle, one of his designs was quickly yanked from the virtual shelves.  He was told that it was due to copyright infringement.  The response to his requests for additional information came as follows:

The Disney castle concept is the protected intellectual property of Disney Inc. and may not be used on Zazzle products without permission, regardless of who the original artist or photographer may be.  We are sorry for any inconveniences this may have caused. (Source.)

The above statement is legally incorrect.  Disney may have several registered copyrights in various depictions of a castle.  They more than likely have multiple trademark registrations that include a castle design.  They may even own the copyright in the architectural plans that were used to construct the castles that appear in their theme parks.  But no one owns the concept of a castle.  It is free for all the world to use.

Now, as an attorney, I have a duty to qualify that last statement.  While the concept of a castle may be free for all the world to use, you will want to consider your risk tolerance when you do so.  If you draw your own castle, and it looks too much like the Disney castle, they can certainly accuse you of copyright infringement – and when I say “accuse,” I mean “sue.”  They may not win, but they can certainly make life rough for you until they lose.  Disney can also “accuse” you of trademark infringement, or more likely, trademark dilution.

My guess here is that Zazzle got some communication from Disney, which threatened all of these causes of action, if Zazzle didn’t remove Mr. Bogost’s t-shirt design.  More than likely, Disney used some language that wasn’t quite so questionable, and Zazzle either misunderstood or misquoted them in responding to Mr. Bogost.  Could be that Zazzle has had a previous run in with Disney, over a completely different t-shirt design, and Zazzle has taken a proactive approach to avoiding similar disputes in the future.  Either way, that company’s not going to stick its neck out on Mr. Bogost’s account – it just doesn’t make business sense to do such a thing.  And Disney knows this.  As a result, they succeed in asserting that they own the “concept” of a castle – a dubious claim at best, from an academic perspective.

The article was originally posted on The Tactical IP Blog

The “originality” requirement of our copyright statute is a very low hurdle.  As long as you created it, and as long as it has the smallest amount of creativity, then a work of authorship qualifies for automatic protection.  Only the most basic and unoriginal material is considered ineligible for protection.  For example, the United States Supreme Court has ruled that alphabetized lists of names and contact information (e.g., phonebooks) are not original enough to be protected by copyright.  Also, anything that can only be expressed in a limited number of ways, e.g., contest rules or contract terms, will not be afforded protection.  Anything else is fair game.

Where many people run into trouble is the “fixation” requirement.  There is no protection for unexpressed ideas.  The statutory language is careful to point out that there is no limitation on what medium must be employed, but unless the expression is fixed in such a way that it can be duplicated, then you cannot stop someone else from getting it down and claiming their own expression.

With a couple of exceptions, initial ownership of copyright belongs to the person, or persons, who create a work of authorship.  In most cases, the protection starts from the moment of creation and lasts until 70 years after the author’s death.  Where an employee creates a work of authorship within the scope of her employment, this is known as a “work made for hire,” and the company is considered to be the “author” of the work.  However, since companies can potentially live forever, the life-plus-70 rule fails on works made for hire.  In these cases, protection lasts for 95 years from the date of first publication, or 120 years from the date of creation, whichever ends first.

As I’ve been pointing out all along, copyright protection exists automatically.  To use the word that Congress chose, protection “subsists” in the work upon creation — meaning that the author does not have to do anything special, apart from creating the work, to obtain the protection of the federal government.  However, depending on how you would like to use your protection, registration with the United States Copyright Office may be required.  For example, if you ever want to sue someone who has wrongfully copied your protected work, without a registration, you would not be able to obtain statutory damages or recover your attorneys’ fees.  Registration is a simple and fairly inexpensive process, and it can be done online for most works.  Everything you need can be found on the Copyright Office’s website.

A few last things that you should know about copyright are the major limitations to protection that exist.  There are some situations where you cannot sue someone for behavior that may seem like infringement.  For example, unlike patents or trademarks, independent creation is a defense to a claim of infringement.  This means that, even if someone duplicates your copyrighted work exactly, as long as she did it on her own, without actually copying your work, she cannot be successfully sued for infringement.  Copyright protection is only meant to protect an author from “wrongful appropriation.”  Additionally, the copyright statute specifically limits liability for so-called “fair use” of copyrighted materials.  This means that copyright protection cannot be used to prevent someone from copying your work for such things as criticism, news reporting, or research.

Copyright protection provides an important mechanism for ensuring that your business can reap the proper reward from materials that could be copied by an unscrupulous rival.  As an example, companies that invest thousands of man-hours in developing a software product would be unlikely to begin such a project knowing that a competitor could just steal the resulting lines of code without recourse.