Showing posts with label copying. Show all posts
Showing posts with label copying. Show all posts

Friday, February 6, 2015

Katy Perry Dubiously Claims to Own Copyright in Shark Costume from the Superbowl Halftime Show

During singer Katy Perry's performance at the halftime show at the 2015 Superbowl, a variety of amusing costumes depicting sharks and palm trees were used.  It is unclear who specifically designed these particular costumes.  Katy Perry has reportedly utilized Jeremy Scott as her costume designer.

Greenberg then fired off a formal cease and desist letter to, which had offered to sell shark figures that were based upon Katy Perry's costume design:

So let's scrutinize Katy's copyright claim a bit more...does U.S. intellectual property law really protect this shark costume?

Potentially, no.  The costume itself may very well be a "useful article" under U.S. Copyright law, and not protectable in the abstract, since its ornamental elements are not clearly "separable" from it.  Copyright protection is generally not available to articles which have a utilitarian function.

Under the Copyright Act, the only copyright protection available to these items is for "features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article."  Unfortunately for Ms. Perry, this test is inherently ambiguous when deciding the scope of copyright protection for certain useful articles, such as shark costumes.

Some distinctions are clear.  For instance, a painting on the side of a truck is protectable under copyright law even though the truck is a useful article. The painting is clearly separable from the utilitarian aspects of the truck.  The overall shape of the truck, on the other hand, would not be copyrightable since the shape is an essential part of the truck's utility.

Another commonly considered example is that of clothing.  The print found on the fabric of a skirt or jacket is copyrightable, since it exists separately from the utilitarian nature of the clothing. 

However, there is no copyright in the cut of the cloth, or the design of the skirt or jacket as a whole, since these articles are utilitarian.  This is true even of shark costumes; no copyright protection is granted to the costume as a whole.

That is because costumes, in addition to covering the body, serve a “decorative function,” so that the decorative elements of clothing are generally “intrinsic” to the overall function, rather than separable from it.  See Whimsicality, Inc. v. Rubie's Costume Co., 891 F.2d 452, 455 (2d Cir. 1989) (observing that garments' decorative elements are “particularly unlikely to meet [the] test” of conceptual separability); but see Chosun Int'l Inc. v. Chrisha Creations, Ltd., 413 F.3d 344 at 329 n. 3 (2nd Cir. 2005) (expressing skepticism that Halloween costumes that permit wearer “to masquerade” have a utilitarian function other than to portray appearance of article).

The idea for an upright “shark costume" is not an original copyrightable element, standing alone.  General character types are not protectable by copyright law.  See Hogan v. DC Comics, 48 F. Supp.2d 298, 310 (S.D.N.Y. 1999).

Further, as for a potential claim of "trade dress" or the tort of commercial "misappropriation," Ms. Perry would need to show that she is uniquely associated with this particular shark costume in consumers' minds.  While that is possible given the immense publicity and viewership that the Super Bowl halftime show receives, there are functionality issues there, as well.

Finally, below are photographs of a few similar shark costumes that appear to have been created and sold long before Katy Perry's costumes were created.  It is unknown if any of these designers successfully have claimed copyright or trade dress rights in their designs.  However, it would appear that the scope of Ms. Perry's intellectual  property rights, if any, would probably be quite narrow, if they exist at all:

Tuesday, July 15, 2014

The Profound Ways that Wal-Mart Affects the Brands That It Sells

There is certainly no shortage of commentary on how the unprecedented expansion of Wal-Mart has affected American society, both for good and ill.

There are those who lament Wal-Mart's treatment of its own workers which the New York Times describes as "authoritarian," and those critics who decry Wal-Mart's (and similar large retailers') policies as tantamount to encouraging modern slavery.

But the chain also has its supporters, who argue that Wal-Mart can offer community support, as well as low prices on staple commodities for consumers on public assistance.

But the proliferation of Wal-Mart's ubiquitous retail stores has affected the very brands that it sells, often in ways that are subtle but profound.  Here are just a few:
  • Potential for Quality Deterioration:  For certain basic products, Wal-Mart has a "clear policy" that its prices must go down from year to year, rather than up.  If a particular vendor does not keep its wholesale prices competitive with other suppliers, they risk having their brand removed from Wal-Mart's shelves in favor of a lower-priced competitor.  Critics say that this eventually pressures all vendors to shift manufacturing jobs to China and other developing nations, where the cost of labor is less expensive.  Over time, they argue, the quality of Wal-Mart's products must inevitably decline, rather than improve.
  • Decreasing Brand Diversity:  Any retailer only possesses a limited amount of visible shelf-space to display products in a category, such as baby diapers.  Because of their packaging and size, baby diapers occupy a fair amount of the retailers' valuable "real estate."  Therefore, a retailer must carefully choose which brands to carry.  Wal-Mart, one of the nation's savviest retailers, chooses among the competing brands to determine shelf-space return on investment. Consequently, Wal-Mart chooses to devote 95% (or more) of its shelf space to Luvs, Pampers and Huggies, the three top sellers in that category. Per square foot, across all its stores, it simply may not make economic sense for Wal-Mart to even consider carrying any smaller, "alternative" brands such as Seventh Generation diapers which appeal to shoppers who want diapers free of bleach, latex or fragrances.  Wal-Mart's customers therefore benefit from lower prices for Luvs, Huggies and Pampers, but are not presented with a diverse selection of alternatives.  Over time, this trend can harm brand diversity, as Seventh Generation must rely upon niche market health food stores and online retailers to compete, thus creating a significant entry barrier for smaller brands.
  • Weaker Intellectual Property protections:  Perhaps desiring to sell cheaper, lower quality mass-market versions of popular designs, Wal-Mart has also advocated and lobbied very effectively for limiting intellectual property protections for budding designers.  For example, in 1997, children's clothing maker Samara Brothers had sued Wal-Mart for "knocking off" its entire clothing line of high-end clothes.  Wal-Mart didn't dispute the copying, but took the case all the way to the U.S. Supreme Court to challenge the designer's claims, a process which took years and cost hundreds of thousands of dollars in legal fees.  The Supreme Court ultimately ruled that Samara's clothing line was unprotectable as a matter of law because it couldn't satisfy stringent legal "distinctiveness" criteria. Wal-Mart won not only the case, it helped to set precedent in its favor whenever it chooses to copy other designers. The Samara case is still the prevailing law of the United States, which limits the availability of trade dress protection to product configurations. The commercial reality is that very few private parties have the resources to litigate such cases against Wal-Mart, all the way to the Supreme Court, and even fewer can win. In contrast, Wal-Mart possesses both the will and the resources to dedicate serious efforts to altering the legal landscape in its favor.

Wednesday, May 21, 2014

Opening Pandora's Box: Supreme Court Allows Archaic Copyright Infringement Cases to Proceed

This week, the U.S. Supreme Court opened Pandora's Box.

The decision that the Supreme Court may come to regret involved a copyright infringement lawsuit surrounding the script to the movie Raging Bull, which was released in 1980.  In the film, Oscar-award winning actor Robert DeNiro played boxer Jake LaMotta.  

An heir to the co-author of a 1963 screenplay about the life of the boxer apparently waited until 2009 to file a copyright lawsuit, claiming that the 1980 movie had copied portions of her father's screenplay without authorization.

The District Court in Los Angeles and the Ninth Circuit Court of Appeals applied the equitable doctrine of "estoppel by laches," borrowing the 3-year statute of limitations in the U.S. Copyright Act.  Those Courts both found that the writer's heir had deliberately waited to file suit, prejudicing MGM which had released the film thirty-four years ago.

However, on Monday, in an unusual 6-3 split not along ideological lines, Judge Ruth Bader Ginsburg wrote for the majority, finding that the significant delay will not bar the heir from seeking damages or an injunction on a rolling basis, going forward.

The majority reasoned that each time a new Raging Bull DVD is printed and sold, there is a new independent act of copyright infringement potentially violating the heir's copyrights. Every new DVD that is printed, every time the film is broadcast on television or the film is re-mastered or re-released, is effectively a new act of infringement subject to the 3-year window going forward, not backward.

The end result is that copyright disputes that originated thirty or forty years ago -- or even in the more distant past -- can be resurrected and instituted now.

Justices Stephen Breyer, Anthony Kennedy and Chief Justice Roberts dissented, holding that the precedent would upset settled doctrine, and open up years of litigation over old wounds.

70-year old Jimmy Page, Robert Plant and others in Led Zeppelin presumably agree with the dissent's point of view.

In 1971, Zeppelin released the now iconic "Stairway to Heaven."  According to some estimates, the song has earned at least $562 million since its release, a number poised to rise higher since Zeppelin is set to release new versions of its albums this summer.

Relying on Monday's Raging Bull decision from the U.S. Supreme Court, Time magazine reports that a new copyright infringement lawsuit has now been filed by representatives of the band Spirit, which released an instrumental song "Taurus" in 1968.  According to the newly-filed lawsuit, Zeppelin opened for Spirit in the late 1960's, and was inspired to write the now famous guitar introduction to Stairway.

Direct evidence of copying may nonetheless be difficult to gather.  Spirit's lead guitarist Randy California died in 1997 and documents showing copying, if any, were presumably lost to the mists of time.

Friday, August 16, 2013

Ironically, "Blurred Lines" of Copyright Law Lead to Litigation

Summer 2013's hottest pop single "Blurred Lines" has become quite a phenomenon.  Its primary vocalist and author, Robin Thicke is the son of Alan Thicke, of the popular family television sitcom Growing Pains.

The song features controversial lyrics about the lack of clear boundaries that have been called "rapey" by feminists, as well as an R-rated music video. The video for the song was released on March 20, 2013, and was made in two versions; the first video features models Emily Ratajkowski, Jessi M'Bengue, and Elle Evans being topless, the second features them covered.

The covered version on YouTube (embedded above) has reached nearly 138 million views. However, the topless, R-rated version of the video was removed from YouTube on March 30, 2013, for violating the site's terms of service regarding nudity.  On, the R-rated version has reached nearly 11 million views.

The song itself has been a worldwide hit, topping the charts in Australia, Canada, New Zealand, Ireland, Germany, the Netherlands, Poland and the United Kingdom, as well as the top ten in Belgium, Denmark, Lithuania, France, Iceland, Italy, Portugal and Switzerland. As of July 17, 2013, it is the second best-selling single of 2013 in the UK.

The song features a catchy beat and chorus, clearly reminiscient of Marvin Gaye's 1977 classic "Got to Give it Up":

Thicke apparently admires Marvin Gaye's style and music, and went so far as to admit that it inspired him in this instance, but denied overtly sampling Gaye's musical compositions when writing Blurred Lines.

When asked by Yahoo! Music's Billy Johnson Jr. about the notable similarities between "Blurred Lines" and Gaye's song, Thicke said "[t]here is no sample." But he admitted, "[d]efinitely inspired by that, yeah.  All of his music ... he's one of my idols."

Sampling is the act of taking a portion, or sample, of one sound recording and reusing it as an instrument or a sound recording in a different song or piece.

Hearing the similarity and likely believing that Gaye's music was sampled without permission, Gaye's family apparently demanded a royalty from Thicke and his co-authors, which they refused to pay.

After reaching an impasse, Thicke and his co-authors pulled the trigger first, suing Gaye's family in federal district court in California this week, seeking a declaratory judgment that the song does not infringe upon Gaye's copyrights.

“There are no similarities between plaintiffs’ composition and those the claimants allege they own, other than commonplace musical elements,” the suit contends. “Plaintiffs created a hit and did it without copying anyone else’s composition.”

Invocation of declaratory judgment jurisdiction is typical when it becomes clear that suit is inevitable, and when an actual case or controversy exists between the parties, based upon the totality of the circumstances.  Assuming Gaye's family asserted a clear claim of copyright infringement and demanded a royalty, and assuming that no ongoing discussions were occurring, Thicke may have been entitled to file a preemptive suit first.

Procedural wrangling aside, in any event, the underlying legal test remains the same. Did Thicke and his co-authors cross the line from inspiration to infringement?

Ironically, that line is rather blurry in this instance.

Sampling an identifiable and substantial portion of Gaye's song would likely lead to a finding of copyright infringement. Thicke has (so far) expressly denied that any form of sampling whatsoever occurred, claiming that the similarities were from simply borrowing "commonplace musical elements."  That distinction is a matter of degree, and will depend upon a close comparison of the two songs.

Friday, August 3, 2012

Zynga's The Ville Accused of "Blatant Mimicry" by Sims Social Creators

Electronic Arts ("EA") today announced that it filed a lawsuit on behalf of its Maxis Label against Zynga for infringing EA's copyrights to its Facebook game, The Sims Social.
In the Complaint, which was filed in the United States District Court for the Northern District of California today, EA claims that in Zynga's recently-released Facebook game The Ville, Zynga willfully and intentionally "copied and misappropriated the original and distinctive expressive elements of The Sims Social in a violation of U.S. copyright laws."
The Sims Social, launched in August 2011, brought the distinctive universe of EA's world-renowned franchise, The Sims, to the social gaming audience on Facebook.  An instant hit, The Sims Social rapidly gained tens of millions of users, and maintains a current user base of several million active players on Facebook.
Lucy Bradshaw, General Manager of EA's Maxis Label, commented on the lawsuit in a statement posted to EA's website,
"As outlined in our complaint, when The Ville was introduced in June 2012, the infringement of The Sims Social was unmistakable to those of us at Maxis as well as to players and the industry at large. The similarities go well beyond any superficial resemblance. Zynga's design choices, animations, visual arrangements and character motions and actions have been directly lifted from The Sims Social. The copying was so comprehensive that the two games are, to an uninitiated observer, largely indistinguishable. Scores of media and bloggers commented on the blatant mimicry.
"This is a case of principle. Maxis isn't the first studio to claim that Zynga copied its creative product. But we are the studio that has the financial and corporate resources to stand up and do something about it. Infringing a developer's copyright is not an acceptable practice in game development. By calling Zynga out on this illegal practice, we hope to have a secondary effect of protecting the rights of other creative studios who don't have the resources to protect themselves.
"Today, we hope to be taking a stand that helps the industry protect the value of original creative works and those that work tirelessly to create them."