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An interestin gthing About Coypright and Image altering
While looking at the Mattel Summary Judgement Statement (from another Thread) I came across this bit of information that may shed some light not only on spoof covers, but also on where the line is drawn for fair use versus copyright infringement. This is a Quote Directly from the summary Judgement and actually refers to a case (involving Dustin Hoffman) that the Judge used in determining the mattel suit. ************** In Hoffman, a magazine published an article featuring digi-tally altered images from famous films. Computer artists modified shots of Dustin Hoffman, Cary Grant, Marilyn Mon-roe and others to put the actors in famous designers spring fashions; a still of Hoffman from the movie Tootsie was altered so that he appeared to be wearing a Richard Tyler evening gown and Ralph Lauren heels. Hoffman, who had not given permission, sued under the Lanham Act and for violation of his right to publicity. The article featuring the altered image clearly served a commercial purpose: to draw attention to the for-profit magazine in which it appear[ed] and to sell more copies. Nevertheless, we held that the article was fully protected under the First Amendment because it included protected expression: humor and visual and verbal editorial comment on classic films and famous actors. (internal quotation marks omitted). Because its commercial purpose was inextricably entwined with [these] expressive elements, the article and accompanying photographs enjoyed full First Amendment protection. ******************************* I think that puts the Kabash on any argument about Spoofs, amoung a few others here :-) May 03 05 12:49 pm Link No, not really. Remember, the difference here is between COPYRIGHT and TRADEMARK. And, indeed, the cite you give references neither. May 03 05 12:56 pm Link Posted by Chris Ambler: Huh? May 03 05 01:04 pm Link This goes against my understanding of trademark law. But rather than go with my understanding, I just put in a call to my attorney and left him voicemail asking the question. I'll pay for 15 minutes of his time later this afternoon for an answer. (this is my IP attorney, by the way, so this is what he does) May 03 05 01:11 pm Link Let me clarify more. The image of Dustin Hoffman was Copyrighted. The Image of Dustin Hoffman was altered without his permission. The image of Dustin Hoffman was used to sell clothing. NO Copyright violation. This case was cited in the brief to define non-commercial use. Noncommercial use is one of three exceptions to trademark dilution. Noncommercial does not mean what it seems, and that quote above helps clarify it. Trademark law and copyright law are similar in that both are subject to dilution law. If I use the Nike logo to sell shoes, Definate Trademark violation. If I use it to sell underwear, Potential trademark violation. If I use it on a magezine cover that says nothing about Nike and a ton of things about everything else, Ambiguous at best. If I use it on the magezine and reference Nike with it such as Nike in the pits! Article inside, NOT Trademark infringement it is noncommercial use! May 03 05 01:12 pm Link have him refer to Mattel v MCA Records Inc. and Hoffman v. Capital Cities / ABC, Inc. Also, Bolger v. Youngs Drug Prods Corp. (463 U.S. 60,66 1983) "If Speech is not "purely commercial" that is, if it does more than propose a commercial transaction then it is entitled to full First Amendment protection" May 03 05 01:16 pm Link Posted by Ty Simone: You see, if this is true, then LiveJournal wouldn't have a case against me using their trademark in my LJ spoof. But clearly they did, and my attorney told me so. May 03 05 01:19 pm Link I love this Judge - Check this out..... I swear to god this is on pages 22 and 23 of the Summary Judgement!!! fter Mattel filed suit, Mattel and MCA employees traded barbs in the press. When an MCA spokeswoman noted that each album included a disclaimer saying that Barbie Girl was a social commentary [that was] not created or approved by the makers of the doll, a Mattel representative responded by saying, Thats unacceptable. . . . Its akin to a bank robber handing a note of apology to a teller during a heist. [It n]either diminishes the severity of the crime, nor does it make it legal. He later characterized the song as a theft of another companys property. MCA filed a counterclaim for defamation based on the Mattel representatives use of the words bank robber,heist, crime and theft. But all of these are variants of the invective most often hurled at accused infringers, namely piracy. No one hearing this accusation understands intellectual property owners to be saying that infringers are nautical cutthroats with eye patches and peg legs who board galleons to plunder cargo. In context, all these terms are nonactionable rhetorical hyperbole, Gilbrook v. City of Westminster, 177F.3d 839, 863 (9th Cir. 1999). The parties are advised to chill. The Judge tells them to Chill! I love it! :-) May 03 05 01:21 pm Link Posted by Ty Simone: The parties are advised to chill. Love it. May 03 05 01:26 pm Link Chris, I do not know what the spoof was, or where the Lawyer thought they had a case against you. Every case is individual, and the lawyer saying they have a case may not mean that they would win. I know the lawyers I use prefer not to go to court over something if they cannot win on summary judgement. Meaning that Even if we are in the right, if it is not 100% clear cut to the point where a judge will dismiss the claim, they prefer to negotiate to a settlement first. I have had two thus far. Both of which I was right on, and my lawyers were sure they could win, but which would have involved going to trial (past the summary judgement stage) Both were settled to ours and their satisfaction. (one was AOL! I think they would have buried us financially :-P ) However, everycase is different, and in your case I do not know. I do know what the court case says though, and in my opinion, and that of the attorney I work with here, Spoof covers should be protected. Also understand, like someone said earlier, there is a difference between a rip-off and a spoof. the skinning 50 models makes it a spoof.... May 03 05 01:29 pm Link Posted by Ty Simone: Not necessarily. Posted by Ty Simone: Agreed. The District Court which awarded $3 million noted quite clearly that Hoffman's suit was not about copyright, and dismissed LA Magazine's claims that their use was protected by copyright law: US District Court, Jan 22, 1999 Ty, I'm also curious about your claim that "Trademark law and copyright law are similar in that both are subject to dilution law". Excluding newspaper articles on Mattel's Barbie case, I've never heard the phrase, and I've been following IP fairly closely for the last 10 years. Trademark dilution: all the time. Copyright dilution: never heard of it. May 04 05 01:39 am Link Posted by Chris Ambler: I can't really say why livejournal might have a case against you, but it isn't because isn't subject to fair use (or at least nearly identicle loopholes). As far as I know, it's generally harder to make a valid case for fair use of a trademark than for a copyrighted work, but it's been known to happen. May 04 05 01:45 am Link Interesting findings. 1. Harvard Law School: No matches found for "Copyright dilution" FindLaw Search: Your Search for the term "Copyright dilution" produced no matches. ------------------------------------------- 2. Nissan Motors, the Japanese car manufacturer, is suing little Nissan Computer Corp. of North Carolina for the heinous crime of cybersquatting -- registering a domain name of a well-known person or company with the intention of selling it back for profit -- and asking for damages to the tune of $10 million. According to his informational site, Uzi Nissan, the founder of Nissan Computer Corp., has every right to own Nissan.com. The Israeli-born entrepreneur founded the company in 1991 and legally registered the domain name Nissan.com in 1994. Prior to the computer venture, Nissan owned two other companies bearing his name. Portions of the suit have already been decided in summary judgment. Mr. Nissan has been deemed not guilty of cybersquatting. But Nissan Motors' claim of "copyright dilution" is going to trial in Los Angeles on May 14, 2002 May 04 05 02:48 am Link Posted by Kevin Connery: http://www.sfgate.com/cgi-bin/article.c … ST0100.DTL May 04 05 07:25 am Link Scrap this DDC post - the case is more trademark than copyright. Misrepresented in the article. The DDC holds a copyright over the dewey decimal system. They also hold a trademark for "Dewey Decimal" as well. Although the suit made reference to dilution of copyright, It is more of a trademark case. However: COPYRIGHT DILUTION Wrench v. Taco Bell, Iss. 20, 7/23/01, p11A May 04 05 07:32 am Link It's nice to see this passion and understanding of copyrights being talk in this forum. The more understand these issues, the more we educate not only oursleves, but models to clients usage of our work which once that shutter is clicked.....you are the creator of that images...knowledge is a wonderful thing. May 04 05 07:44 am Link Well, I am done researching that subject now. the biggest set of cases for coypright dilution? Porn movies that spoof regular movies. There are 67 cases I found, the most prevelent was spaceballz The Second set is all about domain names, like Nissan's May 04 05 08:12 am Link I'd asked (Emphasis added.) Ty Simone responded I appreciate your efforts, but they don't address the question about copyright dilution (phrased in that or any other way). Ty Simone responded I have read it--I followed the case when it first came out. The only reference in the court's ruling regarding dilution is to trademark and trade dress--nothing about copyright. The bundling of the set in the final summation "We AFFIRM the Los Angeles federal district court's grant of Forsythe's summary judgment motion as to Mattel's copyright, trademark and trade dress infringement and dilution, and state law claims." is just that--the collection of all the claims, not anything to do with copyright dilution. May 04 05 12:37 pm Link :::Reese sits quietly in the corner acting as forum courtroom sketching artist::: May 04 05 12:51 pm Link Posted by Reese, VA . MUA: My right side is the better side.... May 04 05 12:59 pm Link Kevin, I apologize and Stand Corrected, You are right. (I may have to edit the other post) It does appear that there is no case law that supports dilution of Copyright. and that the phrase has been misused by the press and others to mean Dilution of Mark (whether service or Trade.) And that the underlying assumption is that all intellectual properties have the same protection / lack thereof. Again, I stand corrected. May 04 05 01:55 pm Link Ty, no problem. I'd kind of been hoping it was something real that I'd missed, as there seems to be some logic to the concept. But apparently that's just something propagated by the press rather than a reality.  Probably too messy in real life, though. Improper trademark use is much more easily identified and proving dilution of that is difficult enough. Copyright would probably be a nightmare. May 04 05 02:48 pm Link |
