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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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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Bald Attempt to Use Trademark Law to Silence Criticism Is Defeated

It’s Outrage Week!

I know this is hard on the heels of my take on an outrageous attempt to leverage a dicey trademark registration into some settlement money, but at least there, you could admire the guy’s chutzpah. What I want to talk about today is willfully ignorant bullying—by government officials.

What is it, exactly, about small-time politicians and their complete inability to handle criticism? (WARNING: the second link was manufactured on machinery that also manufactures satire.)

Defending the Honor of the Murderous Seal

Anyway, Union County, New Jersey, like other counties in the United States, has a nice little seal. Here it is.

Isn’t it precious? I like the colonial-era house and—wait—what’s that? I think that’s a redcoat shooting at someone? That’s not nice. Well, I’m sure there’s an interesting story behind it. Indeed, there is. It depicts the killing of Hannah Caldwell during the Revolutionary War at the hands of a British soldier. At the time, New Jerseyans were wavering about which side to support, and the news of her murder tipped the scales in favor of the Revolution. One suspects a bit of propaganda was involved, but so it goes.

A political activist, Tina Renna, has a local-access program in Union County.…

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I Like Pi: Trademark Registrations for Fun and Profit

SPACE MARINES Repeated as Farce

Remember the SPACE MARINES bogus “trademark” DMCA takedown notice? In that case, a markholder succeeded in temporarily blowing one by a sophisticated technology provider, Amazon. This time, with the Zazzle-π issue, we have a much more cynical version.

Zazzle is a successful print-on-demand online store. Designers upload their designs to Zazzle, and Zazzle makes them available to the general public, splitting the profit with the designer. Among other things, you can order T-shirts with a wide variety of designs on them. And because nerds are like that, there are a lot of T-shirts with some variant of pi (π) on them. I don’t know if you can rich doing this, but designers must make some money from this system, and buyers get to express their mathematical and/or punning nerdiness.

Zazzle then received a rather confusing demand letter from Ronald Millet, Esq.. It’s confusing because he starts of demanding that Zazzle “CEASE AND DESIST ALL COPYRIGHT INFRINGEMENT” (capitalization and bold in original) but then goes on to talk about his client’s amazing trademark registration.* The letter isn’t very specific, saying only that his client has noticed Zazzle’s use of “the mathematical symbol ‘pi,’ … in association with the…

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