Given the incredible complexity of federal budget legislation, and the fact that it is often crafted for the precise purpose of enabling "gotcha" campaign advertising, the fact that this suit has been filed over the proper characterization of what a given vote represents strikes me as a dicey basis for a defamation claim.
Re: Re: A couple of points about average joe's comments
You are right to point out that I mistyped, but not to argue that "the parody defense is not even available since the use is commercial." These are separate defenses (or exclusions, in the language of the statute). Unless the fair use defense, including parody, is purely duplicative (and we try to avoid construing statutes that way), it must be available in situations where "noncommercial use" is not a sound defense -- that is, is cases of commercial use.
It is not correct that the parody defense is not available when the use is non-commercial. Non-commercial use is ONE defense to a dilution claim (subsection 3(B)). "Fair use . . . including . . . parody" is a separate defense per subsection 3(A).
Also I said only that tarnishment claims frequently succeed when a mark is associate with porn; "usually" seems to me a bit strong. LL Bean nevertheless lost its dilution suit against a High Society parody that overflowed with nude models; and although the Second Circuit gave the Dallas Cowboys a win against the porn film "Debbie Does Dallas" it is not at all clear that the result would be the same today.
The public ought to be able to hold Judge Kaplan accountable for his orders in this case, and the only way to do that is to see exactly what BJ argued, and what evidence it presented. His allowing the sealing of the images over which suits has been filed -- and indeed the non-filing of the moving papers in this case (including whatever arguments may have been made for the sealing) -- is disturbing. Sealing order is here: http://www.scribd.com/doc/105327851. I was, though, heartened to see his warning that he might ultimately decide differently in light of the public right of access to judicial records, which is particularly strong in the Second Circuit.
The article is a bit unclear, and the complaint is not available on PACER; indeed, the judge has entered an order sealing some of the materials that were apparently presented to him in support of the complaint. So it is hard to make any independent judgments about the veracity of the article.
That said, this strikes me as a dilution case involving a claim of tarnishment. If so, there is no obligation to show confusion and, in fact, lack of confusion would be irrelevant. I am no friend of the dilution cause of action, but historically, the one area in which trademark plaintiffs frequently succeed in arguing tarnishment are the cases in which a defendant, and especially a commercial defendant, associates a trademark with either pornography or narcotics use.
The fact that the defendant makes a parody claim might or might not make the defense litigable. One would have to look at the product to make a judgment about whether this is really a parody or just an effort to exploit a trademark to sell a pornographic film.
That said, considering that this is a TRO against a movie, there are some very disturbing questions that come to mind. PACER not only does not contain the complaint; although the TRO recites that there were declarations, the docket does not reflect any such documents having been filed. The TRO says nothing about what efforts were made to give the defendants notice and an opportunity to be heard, and why the judge was justified in issuing a TRO without notice, if in fact there was no notice (Rule 65(b)(2) expressly requires such a recitation). The case was filed September 5, and the judge entered the TRO on September 6. It would be nice to see some explanation of why the plaintiff was entitled to get such quick action, possibly before defendants had the opportunity to present an opposition.
Opinion's references to other South Park episodes and other viral videos
Not so surprising when you understand that in the federal courts of appeals, opinions are generally drafted by 25 or 26 year old law clerks who are fresh out of law school. No doubt they had fun with this opinion.
The letter comes from a lawyer in the Civil Rights Division, which, among many other duties,pursues issues of police misconduct. These cases are among the hardest that Justice Department lawyers do, because they involve taking on police officers who generally enjoy huge reserves of public support in the local areas where the cases are pursued. And juries don't often side with the federal government against local police officers. The lawyers who do this work are incredibly dedicated; thank goodness they are there.
An old friend of mine, indeed he is a former colleague here at Public Citizen, who used to represent consumers in tiffs with airlines and with the FAA and the old Civil Aeronautics Board, had this realpolitik comment about the politics at play here:
"Understand one thing about the FAA: If they repeal the current rule, and a plane crashes, there will be hell to pay. If they leave it on the books, the only downside will be complaints from a relatively small number of passengers who dislike the inconvenience of turning off their laptops or smartphones for 10 minutes. Iím sure you can guess how that choice will be resolved by an agency."
Re: Re: One of the big problems with DMCA takedowns....
With respect, it is not "the trial lawyers" who "won't let something like that pass." The inability for others to sue over takedowns is a consequence of the Burger and then the Rehnquist Court's increased used of standing and other Article III doctrines to prevent suits in the public interest on the ground that the person suing lacks sufficient personal, concrete interest in the litigation to justify use of the courts. Not at all the "trial lawyers."
I agree with almost everything you say (and thanks for the link to my blog post about it), but I offer one technical correction. The problem is not lack of "use in commerce" but rather the fact that the video is entirely noncommercial, or, in the relevant language of the two sections of the Lanham Act invoked here, there is no "connection with any goods or services" and the video is plainly not a "commercial advertisement." We used to make the "use in commerce" argument in our defense of Internet critics running gripe sites and the like, but when we won the Bosley Medical Institute v. Kremer, 403 F. 3d 672, http://en.wikipedia.org/wiki/Bosley_Medical_Institute,_Inc._v._Kremer (and that is a Ninth Circuit case, which will be the controlling law here), that court indicated that it was the "in connection with goods or services" and not the "use in commerce" language on which it was relying. After doing several more cases like Bosley, I have come to conclude that this is, in fact, the better argument.
The details are linked from the underlying story -- Sotka don't look so good
The complaint http://www.fkks.com/docs/complaint_salvator.pdf alleges (∂ 7)that many creative judgments were made in creating the photograph, and further (∂ 8) that the original digital image was further altered in a variety of ways in consultation two art experts. The artist's affidavit (part of the file linked above) goes into a fair amount of detail about the creative choices (∂∂ 4, 6-7, 9) and the digital alternations (∂∂ 8, 10-11). The complaint further alleges that Sotka posted the image on her web site as a freebie as part of a threat to make a high quality digital copy available, and encourage rapid dissemination of that high quality image, unless plaintiff stopped interfering with her efforts to sell merchandise through Brouhier's web site with copies of the photo printed on them. Of course, that doesn't matter absent copyrightability, but the issuance of this threat could well have encouraged the judge to grant the preliminary injunction.
One procedural flaw: The order http://www.fkks.com/docs/SalvatorMundiOrder.pdf violates Rule 65(d)(1) of the Federal Rules of Civil Procedure, which requires any order granting a preliminary injunction to (A) state the reasons why it issued. But the order just says the reasons were stated on the record at the hearing. But that is only a ground for appealing the order.
My reaction is similar to Karl's but perhaps less strongly. Electronic Arts' argument is that the two companies are in related markets, in that both sell their products by association with the same sports and athletes; they may also appeal to similar groups of consumers. This may well be a contestable case, depending on the facts, although Energy Armor's product is pure nonsense as Karl notes, and besides it may well lack the finances to cover the cost of the litigation.