Re: Re: Re: Re: Re: Re: Re: I'm with Perry's team on this
This obsessions with the 'costume' aspect is a distraction, not the reason I see a reasonable claim of IP.
Ok. That's fine. What I am arguing is that the costume aspect is tantamount it being a reasonable copyright claim in the first place. It's not an obsession at all, it's the gist of my argument.
The original cease & desist says "intellectual property depicted or embodied in connection with the shark images and costumes portrayed and used in Katy Perry's Super Bowl 2015 half-time performance". Images, not just costumes. And as a reflection of underlying IP, not necessarily the IP itself.
Personally I never saw any "images" of sharks aside from the dancer's costumes, but it's possible I missed them when I watched it live. But, if it turns out that the costumes are the only portrayal of sharks at the time it was broadcast (ie: fixed to tangible medium) and the costumes aren't copyrightable, no infringement occurred.
And how did the replica-figurine-seller even know what Left Shark looked like? He did not have direct access to any costumes. He didn't implement the generic idea of "man-wearable shark costume". He didn't market it as "figurine of man in shark costume".
He worked from a fixed, tangible medium – an entertainment telecast concert performance – which is undoubtedly both copyrightable and copyrighted. He made a version that's instantly recognizable as one of the Perry Concert Sharks.
I don't disagree that the figurine was probably copied from the broadcast, since it's doubtful that the 3d designer actually attended the Superbowl. But if the costumes are not protected by copyright that really doesn't matter because no infringement occurred in the first place.
Additionally, in the process of designing the show, surely a series of fixed-medium scripts and concept drawings existed first, and guided the creation of the costumes and the performance choices of the actors/dancers.
To be honest, I'm not sure how that actually helps. How can copyright infringement occur on something that was never seen be the infringer? The supposed infringement occurred from the live broadcast, not the concept drawings or production notes or whatever.
Can't characters like Spider-Man or Barney-the-Dinosaur be protected even though they often instantiate as people-in-costumes?
This relates to what I was trying to convey further up thread. The characters you mention were protected by copyright prior to costumes of the characters being made.
Neither of those examples were given a copyright based only on the costume design, which is what you seem to be advocating for Left Shark. They were given copyright protection because their likenesses were affixed to a tangible medium other than the costume itself.
Yeah, I agree that the contracts involved with a Superbowl Halftime show probably killed more than a few trees.
That fact makes Sprigman's request to show ownership even more compelling, though.
As for the copyrightablility of the costume, that's a pretty grey area legally and courts have gone either way on it, so who knows.
The one thing that I wonder about though, is that previous cases seemed to involve costumes of things that were already under copyright, like characters from a movie or a book that were previously affixed to a tangible medium. If this a new costume design for a live show, is it copyrightable?
Your efforts to explain the law here are admirable, but it's a waste of time.
No, not really. I've had plenty of discussions with AJ/antidirt where I've learned quite a bit. Not a waste of time at all.
There is a POV here that must be maintained and no amount of logic or reasoned application of the law will make it through the filter.
Now you are just being rude. Well, thought out arguments are always welcome here, even if it opposes the majority view.
Hey, it gets them their clicks, but that dripping sound they don't want to hear about is the loss of credibility. Ah well.
Not even sure what that means. You realize that for the most part the Techdirt blog is a loss-leader for the rest of Mike's business, don't' you. From what I've gleaned over the years, the ads here barely pay for all the bandwidth used. Page clicks are not what Techdirt coverts and Techdirt's reputation is worth more then pageviews could ever provide.
There's other cases that cut this same way, and there’s cases that cut the other way. But my point is that it’s not as simple as costume = not copyrightable, as Mike claimed.
First off, I have to say that your attack on Mike is a bit unjustified. All Mike said was "Yes, there is doubt concerning this, because in most cases costumes are not copyrightable." He never said it was simple or resolved, you did.
Secondly, I have to agree that certain design features of costumes (which are not utilitarian) can be copyrightable.
Also, courts have stated that if the whole purpose of the costume is to portray a protected character then they are not "useful articles":
What should really be determined is if Left Shark was a work-for-hire and if it was, Perry very well could own the rights.
Based on her own statements about how little artistic control she had concerning the halftime show, I'm thinking that Perry's whole performance was a work-for-hire and the rights (if any) would belong to the NFL.
That is, of course, assuming that the artist intends to use only Spotify as a revenue stream...
According to this Future of Music Coalition survey only 6% of the money earned by the surveyed musicians comes from recorded music. That number, in my opinion, is actually bit low when talking about streaming considering the survey also included music teachers, orchestra members & session musicians.
But, if you look further down at some of the breakdowns by genre, about 95% of Rock, Pop, etc musicians rely on copyright for only about 25% of their income.
A blog whose readers steal music writes an article complaining about record labels making too much money on streaming.
So much wrong in a single sentence.
First, the whole sentence is an ad hominem. You don't like the message, so you attack the messenger. That only indicates that you really have no argument.
Second, no one is "complaining about record labels making too much money on streaming", the gist of the article is to simply point out that the artist's who are complaining that streaming services screwing them over are actually bitching about the wrong entities.
Third, the phrase "A blog whose readers steal music" is not only an inept over-generalization, it is, in my opinion, incorrect. Take a gander at Techdirt's demographics. They show that 56% of Techdirt readers make over 50k/yr and 68% are college graduates. Those aren't pirates, those are people who have expendable income to spend on things like music and movies. Or in other words: YOUR CUSTOMERS.
You allege that Ms Tillotson invited the officer to handcuff her so that she would have opportunity to complain about his battery against her person.
Nope. I surmised that Ms. Tillotson invited the officer to arrest her so she could dispel, in a court of law, his incorrect notion that an attorney interceding between their client and the police is obstruction. I really have no idea if that was her intention or not, I'm just basing it upon her tone and attitude at the time.
If she thought the officer was on the verge of a mistake, then perhaps she had no positive duty to stop him by vocalizing the unspeakable. But she did have a duty to refrain from requesting the officer commit error.
I really haven't clue as to what you are getting at there. My point was that once the detective decided to arrest her, any further objections were pointless and would be better served when brought up in front of a judge.