March 12, 2015 | Category: Blog | Tags: copyright, expression-idea dichotomy, music, substantial similarity | Comments: 9
Rick is an experienced Nashville intellectual-property litigator and an erstwhile part-time professor at Vanderbilt University Law School whose writing and teaching focuses on copyright issues but whose law practice involves a wide variety of IP-related disputes.
I swear the title of this post is the only time I’ll be making that pun.
The “Blurred Lines” case was actually highly unusual because of a key principle of copyright law that has not been discussed much at all: access. When the alleged infringement is “non-literal” (i.e., not word-for-word or note-for-note), you have to prove that the alleged infringer had “access” to the underlying work. This is usually very difficult to prove, because proof of access usually rests with the alleged infringer, who has little incentive to remember things correctly. But in this case, Robin Thicke told a magazine that he and Pharrell Williams not only were exposed to “Got to Give it Up,” but they had its “groove” in mind immediately before they wrote it. After that, it was just a (still difficult) matter of experts and a jury’s gut instinct, and here we are.
If this case exposes a problem, it’s that the law governing copyright infringement is so varied and inconsistently applied, and it relies to such a large extent on a jury’s gut feeling, that it’s difficult for artists to know when they’re too similar to works that they have frankly been inspired by. But it’s…
Who Owns the Copyright in Your Life Story? Nobody.
There is, in my mind, a rebuttable presumption that earnest Hollywood movies are the equivalent of eating overcooked vegetables: you only watch them because they’re good for you, and most of the vitamins have been leached out. Thus, I’ve never watched The Good Lie, an earnest Hollywood movie about the “Lost Boys of Sudan,” who have a remarkable story no matter how you tell it.
The Good Lie gets my attention because it is the subject of an ambitious and astounding lawsuit filed last week in the Northern District of Georgia, which has a fascinating, if misguided, copyright angle. You can read the lengthy (but compelling) Complaint here. The plaintiffs are dozens of Lost Boys who had been interviewed by the early producers of the movie (whom we’re just going to call the screenwriters. Everyone allegedly knew that the interviews’ purpose was to help write a script, and everyone expected a movie to eventually be produced.
The Lost Boys were savvy enough not to give their life stories away for free, but the screenwriters didn’t have a lot of money. The real money would come later, but only after the script was written,…
Four Seasons of Legal Pain
If you are of a certain age, when you’re old enough to be living on your own but young enough to be content with renting rather than owning your abode, you start to get pressure from well-meaning older folks, like your parents, that you really should be considering buying a place. It is always better to own than to rent, they say, as though that were a general rule. And, with real property, at least, it’s usually true.
With copyrights, though, sometimes you don’t want to be the owner—or, more precisely, you don’t want to be a part owner. This crazy Jersey Boys case shows why.
Jersey Boys is, as you probably know, a very successful Broadway musical about The Four Seasons, a music band that was simply huge in the 1960’s, especially the early 1960’s, before the Beatles came along. I’ve blogged about the musical, the band and Frankie Valli’s astounding falsetto before, in very special episode of Is it Fair Use?, so you can get some additional background there.
Ghostwriters Have Rights, Too!
There were, as you might guess, four members of the band. In the 1980’s, one of them, Thomas DeVito, wanted to write an autobiography.…
We Took the Whole Thing, But it Was for Journalism!
I blogged about Swatch’s dispute with Bloomberg a couple of years ago. At the time, Bloomberg’s motion to dismiss had just been denied, but the trial court explicitly did not address fair use, mostly because it couldn’t at that early stage.
One of the lucky 333 analysts invited to the Swatch earnings call. Photo taken by Eric Danley under this Creative Commons license.
The Secret Pleasures of Earnings Calls
Swatch is a Swiss watch-maker. You may have heard of its products. More important (for our purposes), it’s a major, publicly-traded international corporation. And like most such companies, it routinely holds an “earnings call” (or “analyst call”) right after it files (with the SEC) and release (to the public) its earnings report. The earnings report is required of public companies so investors know certain basic information about the company. The earnings call is optional, but it gives the company a chance to explain the earnings report, while potentially opening itself up to awkward questions from some pretty sharp and skeptical folks.
As you might expect, Swatch doesn’t like the awkward questions, so it tries to limit the audience of the conference call to…
Part III, No. 1: Tattoos, Video Games and the Quasi-Fallacy of “Innocent Infringement”
Thanks for reading so far. If you’re just joining the discussion, I’m posting the final exam I gave to my Vanderbilt Copyright Law class last term, with annotations about what I was looking for in the answers and some additional notes about how students answered. In the first part, I explained the perfectly good reasons why I made the exam to beastly to grade (and to take, I’m sure!), and set forth the annotated Part I of the exam (short answers). In the second part, I basically just set out the Part II, which consisted of short essays.
I was going to post Part III of the exam as one long post, but it’s really too much, since it consists of two long essay topics. The fact patterns are long, and there’s a lot to annotate. So I’m splitting the two long essay topics into two posts.
One of the main things I was testing with the long essays, in addition to analytical ability, was nerve. Copyright law is often counter-intuitive, and you have to trust what you know over what your gut is telling you.* In Essay No. 1,…