A Legal Blog by Aaron | Sanders, PLLC

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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Why Twitter Has Nothing to Fear from Sony

The Attack of the $1200-an-Hour Gorilla

Someday, someone will have to explain to me what is so awesome about David Boies. He bills out at something like $1200 an hour, which ought to buy a lot of awesome. But there’s not much awesome about his strategy for suppressing the dissemination of internal Sony documents after the “Guardians of Peace” hack. You might have heard about it.

To be fair, I’m sure he’s at least a pretty good trial lawyer, but there are lots of pretty good trial lawyers. And it’s nice that he uses those trial skills in the service of unpopular clients, such as Napster, George Steinbrenner, the U.S. Government, the SCO Group, Oracle, Andrew Fastow and Al Gore. Even the unpopular require competent legal representation. And just because he loses most of those cases doesn’t mean he’s a poor trial lawyer. It could be that these cases were all hard, and there’s only so much even the best trial lawyer can do with bad facts and unfavorable laws. And he was really gutty to leave Cravath rather than abandon a client. And he once defended the right to free speech when he defended CBS against Gen. Westmoreland

But would you…


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Who Owns the Goldmine? Bob Marley’s Missing Copyright

The Mysteries of Copyright Ownership

If there were a goldmine in your town—one that produced a worthwhile amount of gold every year and wouldn’t run out for many, many years—you’d probably expect any dispute about who owns it to have long since been resolved. It’s true that the folks who sell you real estate might not actually own it, which is why you buy “title insurance,” but real estate transactions are pretty well-recorded, so such awful surprises are pretty rare, which is why anyone would dare to offer “title insurance.” At a minimum, you wouldn’t expect two different people to be mining the gold without, you know, their coming to blows.

But this sort of thing happens with copyrights and royalty streams with surprising frequency. It can be very difficult to tell who owns a copyright. Copyrights can be sold just like real or personal property can, but you don’t need to record the sale anywhere.* True, transfers of copyright have to be in writing, but many industries that deal with copyright—I’m looking right at you, music industry—suck at keeping records.

Jamaica, where, apparently, they didn’t do paperwork in the 1960’s.

Copyright ownership vests initially in the author, or…


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Transform my Hart: Publicity Rights in Expressive Material

Divided Third Circuit Reverses in EA v. Hart

Way back in September 2011, I blogged about Hart v. EA, mostly as an introduction to publicity rights. Hart was a former NCAA quarterback (and former teammate of Ray Rice at Rutgers) whose image (like many other former NCAA players’) is used in EA’s NCAA Football. The NCAA (whose reputation has not gotten any better since then) licenses collegiate athletes’ images and physical statistics to EA, but at the same time forbids collegiate athletes from profiting from their own images.* When you play NCAA Football, you can actually play a simulacrum of Hart—his image and certain physical and football statistics. If you’re a Rutgers alumnus, you might be pretty excited to play Rutgers’ powerful 2006 team (with Hart as quarterback and Rice as tailback) and relive the high-water-mark of Rutgers football.

* I’ll make no secret of my disgust at this state of affairs. Universities are able to profit mightily from young men to risk their health and long-term prospects to play a game they love. A university education is a very valuable thing, and most student-athletes get a great deal, but it’s on the backs of the football players, who…


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In Dark Knight Rises Trademark Case, Judge Works from Clean Slate

Fake Website Selling Fake Software Doesn’t Infringe Real Trademark

I’m taking a short break from the posts about my all-important, earth-shattering article because this legal opinion is too awesome not to. Read it here (Fortres Grand v. Warner Bros.). It involves: Dark Knight Rises, “Catwoman*,” fake software, real software, viral marketing, and the First Amendment. So, yeah, I kind of have to blog about it. Now.

* Before you ask: Eartha Kitt.

In The Dark Knight Rises, an important plot point is some fictional software called “Clean Slate” that can completely remove your criminal history from every database in the world—except in places that still keep paper files, I guess. Actually, “fictional” doesn’t do it justice. Perhaps “fantastic” or “outlandish” or “magical” are better.

Don’t you hate it when your slates are not clean? Try Clean Slate brand slate cleaner.

Not terribly coincidentally, CLEAN SLATE is also the name of a software product published by the plaintiff. This product erases all record of your doings on a computer so that subsequent users can’t tell what you’ve been up to on the computer. The idea is that each user starts with a “clean slate.” The reason that this doesn’t…


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