A Legal Blog by Aaron | Sanders, PLLC


The Force Toys Around: Can You Post a Picture of Your Favorite Star Wars Action Figure?

DMCA = Darth’s Malicious Copyright Attack

Warning: careful about clicking some of the links. There may be spoilers. Well, a spoiler.

I have it on good authority that Star Wars fans were surprised to discover an action figure of a major character from the upcoming Star Wars: The Force Awakens movie for sale at their local Walmart. What’s more, said action figure might constitute something of a spoiler because the packaging depicts the character as holding … something that might give away a hitherto unknown secret about the character. Excited, these people took pictures of the toy (with packaging) and uploaded to websites, such as Star Wars Action News and plain-old Facebook and Twitter. Disney and/or LucasFilm then got those images removed by sending DMCA take-down notices to their hosts. TorrentFreak has details. Fortune and Ars Technica have also covered.

If you’re OK learning a possible spoiler, here’s the photograph at issue.

Ah, the delicate balance between fandom and intellectual-property enforcement! This seems a little heavy-handed, no? Maybe an instance of automation gone overboard? Or, perhaps the toy was mistakenly released early and someone wants to stop a certain spoiler from getting out? Relating to the last theory: the DMCA notifications have described…

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Lenz, the DMCA and Dancing Babies: Don’t Go Crazy, OK?

tl;dr Summary

Although the DMCA’s procedure for taking down allegedly infringing material is (ahem) nearly universally disliked. Rights holders can’t figure out why it’s so hard to take infringing material down, and consumers and service providers can’t figure out why it’s so easy to take obviously non-infringing down. Lenz v. Universal thus appeared a perfect test case for those who wished to clip the wings of the DMCA’s takedown procedure. When Universal saw Ms. Lenz’s video of her toddler dancing to “Let’s Go Crazy” in the background, it got the video removed. Although Ms. Lenz was able to get it put back up, she was angry enough to sue Universal under §512(f), which forbids knowingly representing that a work subject of a takedown notice is infringing. Her theory was that her video was so obviously a fair use, Universal’s takedown notice constituted a knowing misrepresentation. She knew, however, that she had a tough road, because at most all Universal had to prove was that it had a subjective belief that her video wasn’t fair use, a very low standard indeed.

At trial, she successfully fended off a motion to dismiss and a motion for summary judgment, in which Universal argued that…

This seismometer measures changes to copyright law, starting in 1909. The big disturbance is either the 1976 Act or possibly the Sony Betamax case. Note that it's been a while since the needle has moved significantly.

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NAACP and WD-40: A Primer on When We Need, and Don’t Need, Fair Use in Trademark Cases

Fair Use Has a Weird Relationship with Trademark

By now you know that fair use is a squishy, fact-intensive, unpredictable but absolutely necessary feature of copyright law. But at least fair use’s role in copyright law is well understood. It’s just hard to apply.

Fair use in trademark law, however, is another matter, as two recent appellate-level decisions involving the NAACP and WD-40 demonstrate. We don’t always even know how it works within the context of trademark law. In theory, it’s an “affirmative defense.” With an affirmative defense, even if you’ve broken the law, we say it’s still OK, often because we recognize some greater social good. In the context of copyright, we’re saying that, even if you copy stuff that’s protected by copyright, it’s OK because what you’ve done is more socially good than holding you liable for copying.

It’s Confusing Because of Confusion

But with trademark, applying fair use as an affirmative defense requires us to say something a little weird. The key concept in trademark law is confusion. Trademark law exists to prevent consumers from being confused and buying one product when they thought they were buying another, or thinking one product had a quality that it doesn’t really have. So,…

Sometimes confusion is fun, but not when you're thinking about buying stuff. "From Confusion Hill" by Hitchster, Creative Commons Attribution 2.0 Generic license.

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Richard Prince Is a Jerkface, but Don’t Blame Instagram

If You Call it Art, Is it Automatically Fair Use?

By now you’ve probably heard that Richard Prince is a jerkface. Or that he is a trolling genius. I am not here to dispute either of those things. They are not mutually exclusive, for one thing. To the contrary, I’m here to argue that what he’s doing is copyright infringement and not fair use, regardless of whether he is a jerface or a trolling genius.

Instagram Only LOOKS Like it Owns Your Stuff

But, first, I’m here to tell you to stop blaming Instagram. Yes, there is a fairly widespread narrative (myth?) that social media sites “own” anything you post. They don’t—at least, if by “own,” you mean “own the copyright in” the thing you posted.

Some confusion is understandable because we have different ideas of ownership depending on the context. All social media sites, including Instagram (and Facebook, etc.) grant themselves wide latitude to use what you post. If you define “ownership” as “control,” which is a reasonable definition with some basis in law, then this sure looks like a loss of ownership on your part, which implies a commensurate gain of ownership by the social media platform. It’s a short leap…

Fountain 1917, replica 1964 Marcel Duchamp 1887-1968 Purchased with assistance from the Friends of the Tate Gallery 1999 http://www.tate.org.uk/art/work/T07573

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DMCA Explainer: Why Chilling Effects Can Display Takedown Notices Complete with Pirate URLs

Wherein we Also Discuss Whether Hyperlinks Can Be Infringing

Ellen Seidler, an independent filmmaker with one movie under her belt, wonders why her attempt to get Chilling Effects, the aggregator of DMCA takedown notices, to take down her own earlier DMCA takedown notice has failed, just moments after she thought it had succeeded. From her perspective, Chilling Effects is “operating above the law.” It isn’t, but based on common misconceptions of how the DMCA takedown regime works, it sure looks that way. I hope she doesn’t mind, but I’d like to take Ms. Seidler up on her request to be “filled in” and explain generally how the DMCA takedown regime works and clear up some basic misconceptions.

The movie in question is And Then Came Lola, which was released in 2009. The filmmakers appear to have made the movie available through a wide variety of downloading and streaming channels. But, like roughly every other movie in existence, it is available on several pirate sites. My sense is that the income from the legitimate downloads and streaming is worthwhile but marginal, and the filmmakers are therefore especially sensitive to the illegal competition, which would be irritating in any event.

Chilling Effects: Bastion of…

© Dana Rothstein | Dreamstime Stock Photos

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