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  • Aug 6th, 2013 @ 10:29am

    Re: Billy Cub should go away...???

    1. The claim is trademark infringement, not copyright. The Cubs logo is certainly trademarked, and the uniform might be.

    2. The essence of a trademark infringement claim is consumer confusion- that is, are people mistakenly attributing the trademark owner as the source or endorser of something. In this case, if people believe "Billy Cub" is the official team mascot, then the Cubs have a decent claim at trademark infringement.

  • Apr 24th, 2013 @ 12:27pm

    Re:

    In a nutshell, there are both federal and state level copyright laws. The (federal) Copyright Act of 1976 generally preempted existing state level copyright laws, and created a uniform, federal system that is the one that we usually think of. However, there were exemptions to this preemption (see http://www.copyright.gov/title17/92chap3.html#301), which means that the state laws would still be in effect.

    UMG claimed violations under NY state copyright for works that were not preempted by the federal statutes. Grooveshark argued it was protected under the federal DMCA safe harbor provision, but NY appellate court has now rejected that.

  • Apr 24th, 2013 @ 12:01pm

    Re: Re: Re:

    I argue that the DMCA and laws like it expand the rights and remedies of the copyright holder, at least when taken as a whole. It grants copyright holders the power to issue takedowns of infringing (and non-infringing) works with very limited oversight in addition to the original power to track down the infringer through discovery and sue them directly. The safe harbor effectively allows takedowns to occur without the service provider becoming liable for that content.

    First, whether or not on the whole copyright holders are in a stronger position post-DMCA, that's not the standard. 17 USC 301(c) states that "any rights or remedies under the common law or statutes of any State shall not be annulled or limited by this title until February 15, 2067". Emph. added. The question isn't whether the total bundle of rights is stronger/weaker, but if any particular right is weaker.

    Second, that "expansion" of rights you cite isn't actually an expansion. Copyright holders already had the ability to send a complaint about infringing material; the takedown notice wasn't a grant of a new right- remember, a takedown notice does not actually force a service provider to remove content. With the DMCA, takedown notices are actually much weaker for the copyright holder because now you can't sue the service provider because of the DMCA safe harbor provision. A pre-DMCA threat to a service provider to sue has leverage; a post-DMCA threat doesn't have as much.

  • Apr 22nd, 2013 @ 6:22am

    Re: Re: Re:

    Not correct at all. The court ruled that due to the public safety exception, those pre-Miranda statements were admissible in court.


    We hold that the Court of Appeals in this case erred in excluding the statement, "the gun is over there," and the gun because of the officer's failure to read respondent his Miranda rights before attempting to locate the weapon. Accordingly we hold that it also erred in excluding the subsequent statements as illegal fruits of a Miranda violation. 467 U.S. at 659-60.


    That's what make this an exception. The Miranda "rule" is (roughly) that pre-warning statements are inadmissible. The exception means that that those pre-warning statements would be admissible.

  • Apr 22nd, 2013 @ 5:06am

    Re:

    There is a public safety exception to the general inadmissibility of evidence derived from a pre-Miranda interrogation. So assuming that this situation falls within that exception, any statements and resulting evidence would be admissible at trial. Here are some parts of the Supreme Court case, New York v. Quarles - 467 U.S. 649 (1984).

    [W]e do not believe that the doctrinal underpinnings of Miranda require that it be applied in all its rigor to a situation in which police officers ask questions reasonably prompted by a concern for the public safety. 467 U. S. 656

    So long as the gun was concealed somewhere in the supermarket, with its actual whereabouts unknown, it obviously posed more than one danger to the public safety: an accomplice might make use of it, a customer or employee might later come upon it.

    In such a situation, if the police are required to recite the familiar Miranda warnings before asking the whereabouts of the gun, suspects in Quarles' position might well be deterred from responding. Procedural safeguards which deter a suspect from responding were deemed acceptable in Miranda in order to protect the Fifth Amendment privilege; when the primary social cost of those added protections is the possibility of fewer convictions, the Miranda majority was willing to bear that cost. Here, had Miranda warnings deterred Quarles from responding to Officer Kraft's question about the whereabouts of the gun, the cost would have been something more than merely the failure to obtain evidence useful in convicting Quarles. Officer Kraft needed an answer to his question not simply to make his case against Quarles, but to insure that further danger to the public did not result from the concealment of the gun in a public area.

    We conclude that the need for answers to questions in a situation posing a threat to the public safety outweighs the need for the prophylactic rule protecting the Fifth Amendment's privilege against self-incrimination. 467 U. S. 657

  • Apr 18th, 2013 @ 1:51pm

    Re: Re: Re: Re: Re: YOU CANNOT COPYRIGHT NATURE!!

    I think that analysis is off in a few aspects.

    Yes, "derivative" and "transformative" are distinct terms, but neither are they mutually exclusive. In fact, "transformative" works are a subset of derivative works.

    A “derivative work” is a work based upon one or more preexisting works, such as a ... art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications, which, as a whole, represent an original work of authorship, is a “derivative work”. 17 USC 101, emph. added


    Definitionally, the contest image was a derivative work of the original image.

    Second, there isn't a transition from derivative to transformative. Even if the contest image were to be considered fair use, it is still a derivative work of the original image, but a non-infringing derivative work. Moreover, the transformative aspect of a derivative work is only one part of the fair use analysis. So you can transform a work to an extremely high degree and still fail on a fair use claim- that is, you would have a highly transformative but infringing work.

    Lastly, while I agree that copyright law has a lot of gray areas, the claims that (a) the original photo couldn't be copyrighted (the title of this thread is "YOU CANNOT COPYRIGHT NATURE!!") and that (b) "creating new ones that do not exist in the original image, or in nature, makes the new image original work" are just plainly incorrect according to current law.

    Certainly while a new, non-derivative work would be non-infringing, you can also have non-infringing derivative works. And trying to shoehorn the contest image into the former category just won't work definitionally- they started with the original image and photomanipulated it- that's a derivative work under copyright law. Whether or not it is fair use is a completely separate issue.

  • Apr 17th, 2013 @ 8:10pm

    Re: Re: Re: YOU CANNOT COPYRIGHT NATURE!!

    Well, you never mentioned fair use- only the eligibility for copyright of the image. And arguing that the contest image was fair use is very different than arguing that the original image wasn't protected by copyright. All your statements about backdrops, shot angles, and general lack of originality only address the copyright, not whether or not the transformation was fair use.

    Flipping the image, obliterating the original spots, creating new ones that do not exist in the original image, or in nature, makes the new image original work.
    No, it makes it a derivative work with new original elements. If the contestant wanted to make a completely new work, he (she?) should have started with their own photo. Instead, there was transformation of an existing work. Reflecting around an axis, changing the shading, squaring the dots, etc. all amount to editing a pre-existing work and creating a derivative work.

    "[Did] not exist in the original image" is not the correct standard. Suppose I use photoshop to make the negative of the original image- so every pixel is different and does not exist in the original image. Is that a new work? Yes. Is that a derivative work? Yes.

    While there can be a lot of new original creative expression in the derivative work (for which the second artist can receive copyright protection), that doesn't obviate the infringement on the original work or the ability of that copyright holder to act on it.

    Whether or not the photographer is just "being a bitch", that's his choice. There are only a few compulsory licenses in the copyright code, and this wasn't one of them.

    Regarding the CC license, if you violate the terms of the license, then you're not protected by it. For example, that's the point behind the GPL- if you want to use my copyrighted computer code, then you can, subject to the GPL conditions. If you violate those conditions, then you are outside the scope of the license and are committing copyright infringement. In this case, it was a photograph and not computer code, but the same concept applies.

    Sorry, your argument just doesn't hold water, unless you're doing your damnedest to make sure everyone pays.

    Not liking the result doesn't make the argument invalid. If you think this is a crappy result, then get congress to change the copyright law.

  • Apr 17th, 2013 @ 11:19am

    Re: YOU CANNOT COPYRIGHT NATURE!!

    But, unless the second user took the actual photograph, on it's original media, and manipulated it in such a way where it was OBVIOUS it was the original work, then you may have a case. But it wasn't the original media: it was a digital copy, which was apparently (KEY WORD HERE--he might've used a completely different image) reversed, then significantly modified to the point where the salient identifying features of the moth were TOTALLY obliterated, and then a completely new set of salient features digitally "painted" on, making the secondary (if indeed it is secondary) image a totally new image, without any real relation to the original.

    First, you can certainly obtain a copyright on a photograph of nature. Like all of Ansel Adams's works. See Burrow-Giles Lithographic Co v. Sarony. While most of the elements in isolation are not protected expression, the composition as a whole certainly is. If the contestant went out, got his own moth, and shot his own photo, he would have been fine. This wasn't hard to avoid. But by using an existing work, he instead created a derivative work, entangling the copyright controls of the original work, rather than a completely new work.

    Second, the medium of storage doesn't make a difference. The original photographer's rights in a digital copy of his work are essentially the same as the original "film" version. It's either a derivative work or the same work fixed in a different medium, and, either way, he has the full set of copyright controls on that work.

    Third, I think it's incorrect to claim there's no "real relation to the original". You pretty much laid out how you get from the original image to the contest image- reverse across the vertical axis, and stretch out the spots to make it more grid-like.

  • Apr 13th, 2013 @ 6:46am

    Re: Re: Re: Re: Re:

    The bankruptcy trustee generally can choose to assume the lease (many caveats not listed), so if they think the contract in place is worth more than it would cost to maintain it, the lease would remain in force and the assets couldn't be recovered just because there was a bankruptcy. While probably it wouldn't be worth maintaining in most cases, if the lease is a bargain at current market rates, it might be worth keeping that lease in the bankruptcy estate.

    As for collateral, it's actually the exact opposite of what you stated. If the lessor has perfected a valid lien against the collateral, then they'll have priority over general creditors. For example, that's the point of a mortgage- the property is the collateral against the loan, and in the event of bankruptcy, the lender gets the property (up to the value of what's owed). Collateral could also be a bank account, accounts receivable, physical assets, or something else.

  • Apr 12th, 2013 @ 2:09pm

    Re: Re: Re:

    It should be noted that the problems in this case are not really Copyright issues, though. They're contract issues and issues with how bankruptcy court apparently sees Copyrights.
    I agree. This isn't a copyright issue. This is exactly the problem you'd have with a piece of machinery or another asset of the bankrupt entity. This is pretty much what would happen if someone had leased a physical asset to a bankrupt entity- you couldn't just seize it back.

  • Apr 12th, 2013 @ 1:41pm

    Re: the REAL problem

    They view contracts as "assets" of the publisher and don't pay attention to the time limits on the contracts. If the contract runs out while held by the courts, they still hold it as if it has value that doesn't exist to the business going bankrupt.
    I'm not an expert on bankruptcy proceedings, but I think this is incorrect. While you can't necessarily get out of your contract with a bankrupt entity, I don't think the time countdown is tolled by the proceeding. If your contract is set to expire on a date, it would expire on that date regardless.

    If you still hold the copyright and are only licensing the publisher, then you still have the copyright even during bankruptcy and you could license the works to a new publisher. Assuming that the original license was exclusive, a non-exclusivity clause contingent on the publisher entering bankruptcy might allow you to re-license the work, despite the bankruptcy proceeding. The idea is that while terminating the original license with the bankrupt publisher might be disallowed, you would be free to issue a new license. Of course, the original license would still be floating around out there until expiration, so a new licensee might be unhappy about that. It might be a good thing to ask your attorney.

  • Apr 11th, 2013 @ 12:25pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re:

    I'm not going to be able to compete with Coke under it's identity, so organically I will want to chose another name if I am looking for a signifigant profit. What copyright sympathizers like you are worried about isn't that my Coke won't taste like Coke, but that it will. You are worried that your beloved corporations would only have a fraction of the profitability once I am able to go on a corner and sell my Tech Dirt Reader Cola on a street corner and have it so it is not only could taste like Coke, but possibly improve upon the formula making Coke obsolete.

    How exactly are current IP laws stopping you? You're free to go out and make and market Tech Dirt Reader Cola right now- well, you'd have to get approval to use the Tech Dirt name, but there's no Coke problem. If you come up with a better tasting cola, or even one that tastes exactly like Coke, IP laws aren't stopping you. I'm not worried that you'll make a better drink- I would be thrilled if you made a better drink.

    What I would not be thrilled about is if I went to store and bought a can of "Coke" that was filled with Tech Dirt Reader Cola instead. And would you be thrilled if, after you established Tech Dirt Reader Cola as a reputable brand, I went out and sold cans of Tech Dirt Reader Cola filled carbonated anchovy juice? The whole point behind trademarks is to reduce consumer confusion.

    While Kickstarter is still young and there is no telling the scope of projects that will pop up in the future is, you aren't going to need them to fund Avengers 2, Game of Thrones, or whatever media you are into. Again, they just want the monopoly on content production.
    Of course they want a monopoly on production- every company wants a monopoly. But that doesn't mean the alternative is better. Moreover, if you want to make an indie now, that's fine- use a patron, use kickstarter, use whatever you want for funding.


    Last I checked society has a vested interest in healthcare. Just by virtue of being able to produce mass quantities of pills big pharma will be profitable no matter what.
    Uh, no. The margins on generics is pretty poor. And as far as society goes, there are 50mm people without health insurance in the US, we have the about the highest infrant mortality in the developed world, and universal coverage is a political non-starter. So, yeah, society has a vested interest, but that doesn't mean we're going to do anything about it.

    Sure, getting rid of patents will certainly drop med prices today. I'm just worried about the next year and the next decade. Why should any company do original research or development? The major cost of making a new drug is all up-front; the actual production costs are relatively minor. So if I can copy your new drug and drive the price down to production costs, what's the incentive for you to do the research? And don't expect the government to step in. The US pharma industry spends ~$70B on R&D, and I don't think the govt would make that up.

    Copyright and patent laws address a major market failure- free riding. Without patents and copyrights, companies and individuals will pass on making some new goods that would make society overall better off because they personally cannot capture sufficient returns. For these things where the first object to make is expensive but the subsequent ones are all cheap, the ability of competitors to drive the price down becomes a curse and not a blessing if the initial investment cannot be recovered.

    Make the case that a world without IP would be better, not just that the current one is bad.

  • Apr 11th, 2013 @ 9:46am

    Re: Re: Re: Re: Re: Re: Re:

    People should care because they address difference aspects of our lives, have different standards for liability, and have difference defenses. Lumping them all together and calling them evil doesn't accomplish anything.

    Patents address invention, copyrights address creative expression, and trademarks address consumer confusion. If you don't think there should be any patent protection, fine- but don't expect there to be much in the way of pharmaceuticals when you have an infection or disease. If you don't think there should be any copyrights, fine- but don't expect the next season of Game of Thrones or whatever media you're enjoying today- Kickstarter ain't going to fund the Avegners 2. If you don't think there should be any trademarks, fine- but don't expect that "Intel" or "AMD" processor to actually work that well or your next "Coke" to taste like you expect.

    The balance of protections may be out of whack, but personally I prefer the current system to no IP protection at all.

  • Apr 11th, 2013 @ 8:42am

    Re: Re: Re: Re:

    The analysis above is about trademarks. The New Kids on the Block quote is from a trademark case.

    There is a fair use doctrine in trademark law. If you're a mechanic, you can say "we repair Toyotas" without a trademark issue. News organizations can report on the Boston Marathon, a trademarked term.

    The point behind trademark protection is to prevent consumer confusion. If I start selling "louis vuitton bags", that aren't actually louis vuitton, then consumers are deceived about the source of the product. But a "louis vuitton inspired bag" is something different because there's no expectation that it's actually from louis vuitton.

    So long as the hat sellers are making it clear the source of these hats is not Fox (or fox licensee), then they're probably fine.

  • Apr 11th, 2013 @ 8:15am

    Re: Re:

    There is legal difference.

    In terms of copyright, commercial vs non-commericial (private) use is a part of the fair use analysis.

    There shouldn't be any trademark issues in privately making a hat for yourself. No customer confusion.

    Patent analysis would be the same I think.

    So it's not just likelihood of being sued- defenses might be better too.

  • Apr 11th, 2013 @ 8:08am

    Re: Re:

    Even assuming that Fox has a trademark on "Jayne", there's still a fair use trademark doctrine that would probably allow using "Jayne" to some degree.

    Indeed, we may generalize a class of cases where the use of the trademark does not attempt to capitalize on consumer confusion or to appropriate the cachet of one product for a different one. Such nominative use of a mark--where the only word reasonably available to describe a particular thing is pressed into service--lies outside the strictures of trademark law: Because it does not implicate the source- identification function that is the purpose of trademark, it does not constitute unfair competition; such use is fair because it does not imply sponsorship or endorsement by the trademark holder. New Kids on the Block v. News Am. Pub., Inc., 971 F.2d 302.


    If sellers are using "Jayne" as a descriptive matter ("like Jayne wore in the show", "inspired by Jayne", "we can make you an unofficial Jayne-like hat") and are making it clear they're not official, sanctioned, or endorsed, then they're probably ok using the word "Jayne".

  • Apr 11th, 2013 @ 7:29am

    (untitled comment)

    It's not clear from the articles what basis Fox is asserting protection, so here are some likely areas:

    Copyright Articles of clothing may qualify for copyright protection as a "pictorial, graphic, and sculptural works", but it'd be pretty unusual and weak. The only parts that might be protected are those "features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article". 17 U.S.C. 102(a).

    The utilitarian aspects of the hat are not eligible for copyright, in particular the physical design. So the general hat shape, ear flaps, and ties are definitely out. The pom-pom on top is potentially purely aesthetic, but it's also such a generic aspect of hats that it's not likely to be protected- scenes a faire essentially. The US copyright office won't register garment designs.

    The color pattern has a better claim to being protected, but probably isn't. Cloth patterns generally can qualify for copyright. There's nothing particularly functional about the colors in the hat; it would be equally functional (as a hat) if it were purple, green, or black. So there is some creative expression in the color choice- it was obviously selected to be garish for the humorous effect. That being said, there's also not much creatively in terms of having two horizontal rows of solid colors (the solid row aspect might actually be functionally driven by the nature of knitting/crocheting). This was about the most simple two color design you could have, and it'd be easy for a court to just say there wasn't anything protectable in that.

    Galiano v Harrah's, 416 F.3d 411 has some nice discussion on this.

    Note that a written pattern for the hat probably would be copyrightable. Of course, someone could write up their own version of a pattern that results in a similar hat. And even if a pattern is copyrighted, the object you make from it (i.e., the hat) doesn't necessarily have any protection.

    Patents The hat shape and design could potentially be patented, but it's expensive and unlikely anyone bothered.

    Trademarks The hat itself probably can't qualify for a trademark. It hasn't been really used as a mark of the show or company.

    Unfair competition/confusionA better issue is the use of the Firefly name or characters in the advertising. But some use of another's marks is allowed, including if necessary to fully describe your goods/services (e.g., We repair Toyota cars). To the extent that people need to refer to Firefly to identify where the hats are inspired by/duplicated from, that's probably ok. As long as people aren't trying to pass off their versions as official, Fox approved, or the like, there's not likely to be an issue with source confusion.