My Official Super Bowl Television Post

kitten bowl[Madisonian readers: I wrote this for a general audience. I'm reposting here for your amusement/fact-checking.]

The 48th annual Super Bowl is tomorrow, which means of course that people are thinking about intellectual property law. (Doesn’t everyone?) No, I’m not going to talk about whether your local grocery store infringes on the NFL’s trademark when they advertise “Super Bowl Savings,” except to pose the question of whether a single person ever has been actually confused about whether that indicates a relationship between the NFL and the grocery store. Or the makers of this thing. Rather, I’m going to talk about television. Specifically, what size television can you watch the Big GameTM on?

The NFL caused a bit of confusion on this score when they sent a cease and desist letter to an Indiana church back in 2007 that was planning on hosting a Super Bowl party for church members, with a fee for attendance and the game displayed on a “giant” TV. (I can’t find a description of the exact size.) In the letter and in subsequent pronouncements, the NFL took the position that it was a violation of copyright law to display the Super Bowl to a public gathering on a screen larger than 55 inches diagonally. In the face of likely congressional legislation in 2008, the NFL backed down and said it would not enforce its rule against church groups. But it still maintains that others cannot display the game publicly on sets larger than 55″.

News stories about the controversy have gotten some parts of the relevant copyright law correct, but are still a bit confusing on the 55-inch “rule” and where it comes from. So I’ll try to clarify. The short version: There is no 55-inch rule, at least not for the game itself. Continue reading

Public Domain? We ain’t got no Public Domain. We don’t need no Public Domain! I don’t have to show you any stinkin’ Public Domain!

With apologies to B. Traven and John Huston, I note that Duke’s Center for the Public Domain has a nice post about what might have been in the public domain. In my paper The Life and Death of Copyright, I go over how a few authors rallied with American interests to extend copyright term. I also show that no matter which of the main theories one looks to for IP, none supports copyright after death. None.

In other words, folks who usually disagree about all sorts of nuances in copyright, (It’s labor! It’s the personhood! It’s utilitarian!) converge on, or at least have no good support for copyright after death. Paul Heald’s work shows that the dreaded under-production myth is just that, a myth. Aram Sinnreich’s The Piracy Crusade just came out and gets into the problems with locking up work. I’ve just started it, but his run through history, sociology, and more looks to be a great addition to the literature in this space.

So it’s a new year. Old fights are with us. New ones will come. The sun also rises. Time for naked lunch.

(Note: Burroughs claimed the phrase, Naked Lunch, meant a “frozen moment when everyone sees what is on the end of every fork.” or the truth albeit ugly).

2013 in Fair Use

By any account, 2013 was a big year for the doctrine of fair use in copyright law. It was a big year for other copyright things, too; “copies” and “performances” were much in the news. More on those later, perhaps.

I had it in mind to actually write up synopses and critiques of the principal fair use opinions, but there has been no time. To borrow a phrase from Inigo Montoya, there is too much. Instead: Let me sum up.

I haven’t included cases in which fair use was argued but not relied on as a basis for decision. I haven’t included cases in which fair use was not argued but could have been – or should have been. And I haven’t included cases where fair use played an important role but wasn’t itself a litigated issue (see, for example, the continuing Lenz v. Universal Music litigation).

I have included cases that struck me, and no doubt struck many observers, as important markers on the journey toward understanding what roles (plural) fair use is playing in copyright policy today.

In reverse chronological order, with appellate cases first: Continue reading

Derivative Works: Substance versus Medium

I know it’s Christmas Eve and probably the last thing anyone is thinking about is copyright law at the moment, but I can’t help it. I have copyright on my mind. I’ve just been re-reading the “Wind Done Gone” and “Harry Potter Lexicon” cases (great pre-Christmas reading!) and am having trouble getting my mind around why these works aren’t “derivative works” for copyright purposes, or at least why “The Wind Done Gone” isn’t a derivative work (as I understand it infringement of the derivative works right was not argued in that case). To the extent that there is a feeling that derivative works have to be in a different “medium” than the original, I can’t find support for that view in the section 101 definition of “derivative work”. I suppose I understand the argument from the Harry Potter case that a lexicon is not a “form in which a work may be recast, transformed or adapted” and that rather the lexicon is a guide or dictionary that assists with interpretation of the original work. But why isn’t a retelling of “Gone With the Wind” from a new character’s perspective a “recasting” or “transformation” of the original work? I’m sure I’m  missing something obvious but I don’t seem to be able to put my finger on it right now. Must be too much Christmas spirit(s)!

i-DEPOT: A “Good First Step in Innovation”?

Perhaps I find this fascinating because I have heard from so many entrepreneurs about how the options presented to them by the current intellectual property legal system fail to meet their needs.  Or because of my research on copyright fixation.  Or because I’m fairly convinced I was a magpie in a prior life.  But through the diligence of a research assistant (thanks, Benton Patterson), I recently came across i-DEPOT, and I find it very interesting.

i-DEPOT is a sort of safe deposit box for ideas, offered in Benelux through the Benelux Office of Intellectual Property (BOIP).  The website is very careful to say, repeatedly, that i-DEPOT does not convey any IP rights.  Rather, it claims that i-DEPOT is a “legal means of proof that issues a date stamp,” providing that a particular individual is “the rightful owner of a particular creation at a specific date.”  It does not offer legal protection at all, except in so far as it serves as a source of evidence.  After a creator or inventor submits something to i-DEPOT, the individual receives a certificate with an assigned number.  (Here I am tempted to analogize to the Universitatis Commitiatum E Pluribus Unum, but that might be unfair.)

The website of the BOIP recommends that i-DEPOT be used while an idea is in the development stage, or if an individual wants to keep her idea secret.  Maybe the patent costs are too great, or the life-cycle of the product is so short that a patent would be worthless.  It can also be used for IP rights that do not require formal registration, such as copyright (does this serve as a sort of official validation of the “poor man’s copyright”?).  Finally, the BOIP suggests that i-DEPOT enables creators and inventors to feel more secure in negotiations with potential business partners by including the i-DEPOT number in a confidentiality agreement.

The BOIP frames this as a good first step in the innovation process.  I’m interested to hear from others on this.  What are your thoughts?  Does anyone know about anything similar in other countries?  Or about how widely used this is in Benelux?