AMC Defeats Liberty Tax Service Over Supposed Depiction In ‘Better Call Saul’

Trademark

from the death-and-taxes dept

A little over a year ago, Liberty Tax Service filed a trademark and defamation lawsuit against AMC. At issue was the depiction of a shady tax prep company run by con-men in the final season of the hit show Better Call Saul. In the show, the name of the tax prep company is “Sweet Liberty Tax”, run out of a trailer in the middle of the desert, with branding that included the use of the Statue of Liberty. Liberty Tax likewise uses Lady Liberty, typically by employing people to stand outside of its storefronts in costume, waving around signs to get people to come in for tax services. Liberty Tax claimed the show ripped off its name and branding, while also claiming that the negative connotation of the fictional tax company would either confuse the public into thinking that the real life company was itself shady, or that the company had some association with the depiction in the show.

“We were frankly shocked at the similarities between not only the name but the logo, the imagery; what we call the trade dress, frankly,” said Liberty Tax Service’s representing attorney Peter Siachos, partner with Gordon & Rees.

The federal lawsuit filed in New York claims Better Call Saul ripped off the trademarked name, look, and an inflatable Statue of Liberty that many Americans associate with Liberty Tax Service simply by adding the word “sweet” in front of the name. “They chose liberty, they chose the patriotic imagery, they chose the Statue of Liberty, and Liberty Tax has a trademark that gives it an exclusive use of the Statue of Liberty icon connecting with tax preparation services,” said Siachos.

The suit was questionable, in other words. The public knew they were watching a fictional show about fictional people and fictional companies. Confusion of association was never really a thing. Add to all of that the fact that the First Amendment protects the kind of artistic speech that the show was engaged in and you had all the hallmarks of a lawsuit destined for dismissal.

And that is exactly what has now happened. A Manhattan court has granted AMC’s motion to dismiss the suit, noting over the course of 30 pages that Liberty Tax Services failed to offer any real evidence that there was or could be confusion between the fictional depiction of a differently named company and the real life tax prep corporation.

U.S. District Judge Paul Gardephe in Manhattan ruled in favor of AMC Networks (AMCX.O) and Sony Pictures Television (6758.T) over the depiction of “Sweet Liberty Tax Services” in an April 2022 episode. Gardephe said Liberty Tax offered no “particularly compelling” allegations that viewers would be confused into thinking Sweet Liberty was one of its more than 2,500 offices.

The court’s decision, embedded below, takes the claims through the Rogers test. Seeing the court’s analysis on each prong is useful, but you can get a taste of how the court is viewing Liberty Tax’s claims by looking at the final prong, in which the company claims AMC’s use will have a negative impact on the public’s perception of the quality of the real life company’s service. After pointing out that the “products” each company is making in this case aren’t in the same marketplace at all, the court then moves on to Liberty Tax’s complaint that AMC is causing the public to “link Liberty Tax’s Trademarks and Trade Dress to inferior quality services and/or portray Liberty Tax’s marks and services in an unwholesome or unsavory context.” From the court document:

Plaintiff has not pled facts suggesting that viewers of the Show will not understand that “Sweet Liberty Tax Services” is a fictional business operated by fictional characters in a work of fiction.

And because this is an artistic work we’re talking about, the First Amendment applies with hefty weight.

So the case is dismissed. Liberty Tax has made some noises about looking to appeal the ruling, but it really should only do so at this point if it can find actual examples of confusion in the public to buttress its argument. After all, the episodes in question aired over a year ago. Were there to be any legitimacy to Liberty Tax’s concerns, surely they would have shown up in real world examples by now.

Filed Under: better call saul, likelihood of confusion, trademark
Companies: amc, liberty tax service

Daily Deal: The A to Z Cyber Security & IT Certification Training Bundle

Deals

from the good-deals-on-cool-stuff dept

The A to Z Cyber Security & IT Certification Training Bundle has 12 courses focusing on foundational IT skills. Courses cover penetration testing, beginner cybersecurity techniques, ethical hacking, and more. The bundle is on sale for $46.

Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team.

Filed Under: daily deal

Authors Guild, Jealous Of Other Terrible Author Lawsuits Against AI, Decides To Join In The Party

Copyright

from the high-school-english-infringes? dept

It’s been eight years since the Authors Guild was thoroughly and totally embarrassed by losing its big lawsuit against Google over the Google Books scanning project. I guess they’re missing the feeling of embarrassment, as they’ve filed what is effectively the same damn suit against OpenAI over that company’s book scanning.

Now, I know, some folks are going to insist that this is somehow different, that AI makes things different, but if anything, I’d argue that the case against OpenAI is significantly weaker than the one against Google. In the case of Google, the company was actually showing snippets of the works. With OpenAI, its book scanning is only for the sake of training the AI. The AI systems are doing the equivalent of reading the books, but never displaying them, just learning from them.

The process is indistinguishable from how humans learn: they read books, and retain some details, and if asked to produce a summary of the work, or to create a work “in the style of” an author, they do so by taking what they’ve learned and producing an entirely new work. That’s all that OpenAI does as well. And unless we’re going to say that reading a book and producing a book report is infringing, then this case seems particularly pointless.

Now, this isn’t the first lawsuit by authors against OpenAI. We covered another one back in July, but rather than just a random list of authors and a desire to turn it into a class action, this new lawsuit is by the Authors Guild itself, and has a ton of big names, including John Grisham, Mary Bly, George Saunders, Scott Turow, Jonathan Franzen, and George R.R. Martin.

It’s not surprising that some of these authors are angry. Scott Turow (who had been a lawyer) used to run the Authors Guild, and was the architect of its failed attack on Google’s book scanning effort. He should have learned his lesson, but if we’ve learned anything over it’s the last decade it’s that Scott Turow’s hatred for the internet knows no bounds.

Some of the other authors you wish would be a bit more circumspect before going down this path.

Of course, with copyright law, the end result is always somewhat up in the air. Judges all too often fall under the sway of big names whining about their “lost money,” and are willing to ignore the text and limitations of copyright law for a chance to make the richest of the rich authors even wealthier.

But, this is a terrible lawsuit and should lose, and the Authors Guild should be embarrassed again. Everything about the complaint is dumb. The Authors Guild is somewhat famous for only looking out for the interests of its biggest name authors (and, bizarrely, publishers), and screwing over smaller authors. And you can see that in the complaint, which literally claims that without the authors suing here, OpenAI would have no product at all (which is just nonsense):

Unfairly, and perversely, without Plaintiffs’ copyrighted works on which to “train” their LLMs, Defendants would have no commercial product with which to damage—if not usurp—the market for these professional authors’ works. Defendants’ willful copying thus makes Plaintiffs’ works into engines of their own destruction.

No offense, but if OpenAI could “usurp” the market for these writers, then these writers suck and deserve to have their market usurped. Do these writers not actually believe they can write better stories than a computer?

How embarrassing for them to admit that. Also, as much as I’ve enjoyed some of their works in the past, this lawsuit tells me that these authors are cooked. They are admitting that they’re so uncreative a computer can outwrite them. Fair enough warning: no need to ever read any of their books any more.

Somewhat hilariously, the Authors Guild uses the fact that ChatGPT says that some of its training model may have come from in-copyright works as proof that they did:

ChatGPT itself admits as much. In response to a query submitted to it in January 2023, the chatbot responded: “It is possible that some of the books used to train me were under copyright. However, my training data was sourced from various publicly available sources on the internet, and it is likely that some of the books included in my training dataset were not authorized to be used. … If any copyrighted material was included in my training data, it would have been used without the knowledge or consent of the copyright holder.”

But… ChatGPT doesn’t actually know that. ChatGPT makes up its answers based on probabilistic scores, which is why it’s prone to “hallucinate” false things as true. While, it would only make sense that OpenAI was trained on such things because doing so would be fair use (given multiple court rulings regarding the computer scanning of copyright covered materials, including both search engines and book scanning), the fact that the Authors Guild thinks ChatGPT saying this is some sort of admission shows just how little (i.e., basically nothing) the Authors Guild and its lawyers understand any of this.

The lawsuit, bizarrely, highlights that some Authors Guild members are so bad at writing that they’d already lost jobs to ChatGPT:

An Authors Guild member who writes marketing and web content reported losing 75 percent of their work as a result of clients switching to AI.

Another content writer (unrelated to the Plaintiffs here) told the Washington Post that half of his annual income (generated by ten client contracts) was erased when the clients elected to use ChatGPT instead.

Why would you admit that? Incredibly, in the very next paragraph in the suit, the Authors Guild admits that AI-generated content is terrible. Right after admitting that its own members write worse. Incredible.

Recently, the owner of popular online publications such as Gizmodo, Deadspin, The Root, Jezebel and The Onion came under fire for publishing an error-riddled, AI-generated piece, leading the Writers Guild of America to demand “an immediate end of AI-generated articles” on the company’s properties.

The Authors Guild notes that it holds several copyrights itself, that it’s using in this lawsuit, including for Mignon Eberhart’s books, such as “The Patient in Room 18,” which was published in 1929 and will go into the public domain in less than a year and a half. Also there’s “While the Patient Slept.” That’s a book that was… published in 1930 and will go into the public domain in less than three years. Is the Authors Guild really claiming there’s some giant market for licensing books that are about to go into the public domain? Really?

And, again, like earlier suits, their big complaint is that these AI tools can do the same thing a 7th grade student can:

When prompted, ChatGPT generated an accurate summary of the final chapter of While the Patient Slept, one of the Authors Guild Infringed Works.

Generating a summary is not infringing, guys.

For another author, the complaint is that it generated a made up outline for the next book in a series of books, which is (again) often a task assigned in high school English classes (I remember having to draft an outline for a sequel to 1984, was I infringing too?)

Again, this complaint is pure hubris and greed from authors. The complaint cites a survey saying that authors believe they should be paid for having their works training AI systems, and who isn’t going to say they should get free money for doing nothing? That’s not how you determine if it’s actually infringing, though.

As mentioned above, copyright law is difficult to predict, because judges often go wacky, but this is a horrifically stupid lawsuit, following on some other similar lawsuits. The Authors Guild lost every bit of the Google Books scanning lawsuit, which was found to be transformative and fair use, and the same should be the case here as well.

Filed Under: ai, book reports, chatgpt, christina baker kline, copyright, david baldacci, douglas preston, elin hilderbrand, fair use, generative ai, george r.r. martin, george saunders, jodi picoult, john grisham, jonathan franzen, mary bly, maya shanbhag lang, michael connelly, rachel vail, roxana robinson, scott turow, summarization, sylvia day, transformative, victor lavalle
Companies: authors guild, openai

It’s Beyond Stupid That Robocallers And Lobbyists Have Made Our Voice Networks Almost Unusable

(Mis)Uses of Technology

from the fifty-forth-time's-the-charm dept

It can’t be said often enough: it’s stunning that we’ve let scammers and scumbags hijack the nation’s top voice communications platform. And that we’ve let marketing and telecom industry lobbyists slowly degrade the authority of the one U.S. regulator capable of actually doing something about it.

Every six months or so the FCC comes out with a new plan it insists will finally fix the scourge that is robocalls. Yet the solutions are never quite enough to actually combat robocallers, who now annoy Americans roughly 5.1 billion times every month. We’ve noted repeatedly why robocalls are a problem that somehow never gets truly fixed:

• Lobbying by a coalition of industries has routinely led to Supreme Court rulings that have curtailed the FCC’s authority to pursue “scammers” and legitimate companies alike.
• Lobbying has resulted in a paradigm where the discourse fixates on “scammers,” when it’s “legitimate” industries that are routinely the biggest culprits, often using the same exact tactics as scammers to do things like harass heavily-indebted people they know can’t pay.
• The FCC has long lacked the backbone to stand up to telecom giants that for 20 years turned a blind eye on robocalling because they profited from it (and in many cases still do).
• The current system allows the FCC to fine robocallers, but doesn’t give the FCC the authority to actually collect those fines. That falls to the DOJ, which often doesn’t bother. The FCC has repeatedly asked for the authority to collect fines itself, but a corrupt Congress ignores the request, thanks to a prevailing “wisdom,” seeded by industry, that competent regulatory oversight is somehow bad.

Still, the FCC really loves putting on a show to suggest that a fix for the problem is just around the next corner. Like last week, when the FCC finally (after years of pressure) closed a loophole pertaining to voice over IP (VOIP) providers that gave robocallers easy access to U.S. phone numbers. Which scammers then use to spoof their numbers and hide their identities:

“…under rules adopted by the FCC yesterday, VoIP providers will face some extra hurdles. They will have to “make robocall-related certifications to help ensure compliance with the Commission’s rules targeting illegal robocalls,” and “disclose and keep current information about their ownership, including foreign ownership, to mitigate the risk of providing bad actors abroad with access to US numbering resources,” the FCC said.”

To be clear: this is good; it’s just not enough.

Every time you see the FCC do something about robocalls, you can be fairly certain that it’s (1) something people had been pressing them to do for the better part of a decade, (2) probably contains ample loopholes as not to offend the “legitimate” companies that utilize the exact same tactics as scammers, and (3) probably won’t actually stop more agile robocallers from annoying the shit out of you at dinner.

Groups like the National Consumer Law Center (NCLC) have repeatedly issued reports detailing that we can’t fix robocalls until the FCC and Congress find the backbone (you might be waiting a while) to stand up to both scammers and legitimate corporations alike:

“Even when these providers are told—sometimes repeatedly—that they
are transmitting fraudulent calls, they keep doing it, because they are
making money from these calls. And even when they are caught and told
to stop, they are not criminally prosecuted, and the fines that are levied
are rarely collected.”

The robocall problem is usually framed in the press as a story about robocall scammers deftly outmaneuvering bumbling regulators. But that’s only part of the story. The reality is legitimate companies have actively constrained the FCC’s authority to do its job, blocked real reformers from being seated at the agency, and actively purchased the hollow performance that is modern regulatory oversight.

As a result, you often can’t use the fucking phone. Another byproduct of corruption and unchecked lobbying power we’ve somehow normalized over decades of dysfunction.

Filed Under: fcc, phone, regulatory oversight, robocalls, scammers, scams, spam, telecom, voip

Court Shoots Down Cop’s Attempt To Instruct Jury That He’s Innocent Just Because He Wasn’t The FIRST Violator Of Rights

Legal Issues

from the facts-don't-care-about-your-desire-not-to-be-sued dept

Are you familiar with “felony murder?” Let’s talk about it. It’s a handy way to send more people to prison for more years just because they participated in a crime that contained a murder. While I can (sort of) understand the deterrent effect of laws like these, the simple fact is felony murder laws hold all crime participants liable for a murder if anyone involved in the initial criminal act kills somebody during the commission of the crime.

It’s “bystander liability,” but for criminals. Any crime is everyone’s crime, even if your only real participation in the crime was sitting in the car or acting as a lookout or assisting in the criminal conspiracy. “Don’t do the crime if you can’t do the time,” as the adage goes. But this law expects people to do the time for crimes they didn’t actually commit.

Then there’s bystander liability. If someone witnesses a criminal act, it might be proved that they had an obligation to prevent it from happening or, at the very least, to not participate in the actual criminal act.

Somehow, cops feel felony murder and bystander liability are legal concepts that should never apply to their acts. (They do, though.) That’s how we arrive at the point a cop being sued for constitutional violations attempted to instruct the jury it would be impossible to find him guilty of anything.

Here’s what happened following the court’s rejection of Officer Maze’s proposed jury instructions, courtesy of the Associated Press:

A federal court jury in Oxford on Thursday ruled that Southaven officers Zachary Durden and Samuel Maze had not violated the civil rights of Ismael Lopez when Durden shot him to death in 2017. The verdict came after a four-day trial in a lawsuit by Claudia Linares, the widow of Lopez, who sought $20 million in compensation.

“The verdict was that the jurors did not believe that the use of force used by Officers Durden and Maze was excessive in light of all the facts that they considered,” attorney Murray Wells told WREG-TV.

Those facts are borne out by the docket, which shows the jury found both officers not guilty of rights violations. And maybe that’s the correct decision. At least it was considered by a jury, rather than short-circuited by generous applications of qualified immunity.

This is what led to this lawsuit. Officers arrived at the home of Ismael Lopez and Claudia Linares late one night in 2017. The officers were serving a domestic violence warrant but had the wrong address. They knocked on the door without identifying themselves (wtaf?!). The door opened and a dog ran out. Officer Maze shot the dog and then (less than a couple of seconds later, according to Maze’s testimony), Officer Durden fired multiple shots at Ismael Lopez, who was still inside the home.

Lopez was struck in the back of the skull and died. This incident was initially given this description by the employer of these two officers, the Southaven (KY) police department:

The report says Durden shot Lopez, and Maze shot the family’s dog. Durden has since resigned.

The nine-page report says Lopez died from a gunshot wound to the back of his head. District Attorney John Champion has said Lopez refused commands to put a rifle down.

A third officer at the scene “corroborated” this official narrative, claiming Lopez had ignored several shouted instructions to “drop” the rifle. No recording of this incident survives. (Most likely, no recording was ever created.) Odds are, this narrative was generated after the fact as cover for the inexplicable killing of Lopez.

Lawyers for Lopez, who died before he could be taken to a hospital, have disputed that he pointed the gun at officers. They noted his fingerprints and DNA were not found on the rifle, which was recovered more than six feet away from his body. They suggested that Durden shot Lopez because the officer was reacting to Maze shooting the dog.

This suggestion is supported by the findings of shooting investigation, in which it was noted Lopez was found lying dead in the prone position, handcuffed, and several feet away from the rifle laying on the couch.

Lopez’s widow sued the two officers. The cops’ lawyers argued (among other things) that Lopez had no constitutional rights because he was not a legal resident of the United States.

Fortunately, all of this went before a jury, despite the government’s best efforts to prevent this from going to trial. Officer Samuel Maze, however, felt the only way he could survive a jury’s judgment was to instruct it that it could not possibly find him liable in this case.

According to Maze, he could not be found liable for his contribution to this tragedy because he didn’t actually shoot Lopez himself. His proposed jury instructions misstated the law, misinforming juries that an officer can’t be sued for excessive force if he did not actually engage in a “seizure” of the victim of the excessive force.

Wrong, says the judge. The order [PDF] rewriting the jury instructions (and rejecting Maze’s motion for reconsideration) spells out — in detail — how wrong the officer’s proposed jury instructions are.

Under Maze’s understanding of the law, in a situation where multiple officers are pointing their weapons at an armed suspect in a standoff, any of the officers is entirely free to be the first to fire his weapon, so long as he takes care to miss the suspect. An officer is even free to do so with malicious intent, hoping that his shot will cause his fellow officers to follow suit and kill the suspect. He may, under defendant’s understanding of the law, do so completely secure in the knowledge that any legal liability resulting from the shooting will be faced by others, and not himself. Under defendant’s theory of the law, the fact that the malicious officer took care not to strike, or “seize,” the suspect is the beginning, middle and end of the Fourth Amendment analysis, and a court may look no further. This court regards this as an unconscionable result and it will not accept that the law requires such a result…

The court goes on to criticize Officer Maze’s “myopic” view of Fourth Amendment law — one that ignores Fifth Circuit precedent. According to Maze’s proposed jury instructions, “bystander liability” simply ceases to exist. The court points out it definitely does exist. Not only that, this legal doctrine is supported by years of Fifth Circuit Fourth Amendment rulings.

While not all of it may be exactly on point, accepting Officer Maze’s interpretation of the law would be, as the court says, ridiculous.

This court believes that the fact that both Gates and the bystander liability case law provide for liability of each officer in this context is not some extraordinary leap of logic applicable only to supervisors or bystanders, but, rather, a common-sensical application of joint causation principles which is applicable whenever two officers commit two objectively unreasonable acts or omissions which combine to cause a seizure in violation of the Fourth Amendment. Under these circumstances, what possible rationale would permit dismissal of one of the officers, who — again — committed an objectively unreasonable act which was a proximate cause of a Fourth Amendment violation, simply because another officer was the only one to physically seize the suspect? None that makes any sense to this court.

The court rejects the officer’s proposed jury instructions, adding to it instructions of its own. Those instructions note Officer Maze did not fire the fatal shot that killed Lopez, but instructs the jury to consider whether Maze’s (missed) shot at the dog was itself an unreasonable use of force and whether his possibly unreasonable shot may have prompted Officer Durden to open fire (the next set of possibly unreasonable actions). Basically, the court is saying these events were not separate. They did not occur in a vacuum. And it won’t allow Officer Maze to instruct the jury to pretend they did.

In the end (as noted above), the officers were cleared of wrongdoing. And that makes the sign-off by this court a bit more bittersweet.

The above approach makes complete sense to this court, and it believes that refusing to apply this common-sensical approach to joint causation issues simply because Maze is neither a supervisor or a bystander would be an absurd result. Of course, the “clearly established” prong is known for producing absurd results, at it at least seems possible this case will eventually be mounted above its fireplace as another example of that fact. But this court will not be the one to put it there.

All too true. The court knows it. The sentence about the “clearly established prong” producing “absurd results” has a footnote appended that quotes from Fifth Circuit Appeals Court Judge Don Willett’s scathing take on qualified immunity, specifically this paragraph of his blistering dissent in a case involving a warrantless search of private medical records:

Section 1983 meets Catch-22. Plaintiffs must produce precedent even as fewer courts are producing precedent. Important constitutional questions go unanswered precisely because those questions are yet unanswered. Courts then rely on that judicial silence to conclude there’s no equivalent case on the books. No precedent = no clearly established law = no liability. An Escherian Stairwell. Heads defendants win, tails plaintiffs lose.

At least this court isn’t willing to join the long list of participants in the HOUSE ALWAYS WIN scheme the Fifth Circuit presides over while often directly encouraging this sort of absurdity. Sure, the cops walk on this one, but at least one court did what it could to prevent them from obtaining an entirely unearned win.

Filed Under: bystander liability, claudia linares, crime, felony murder, ismael lopez, oxford, samuel maze, zachary durden