September 18, 2014

Sorry For Partying: 5 Useful Articles – Vol. 2 Issue 1

1. Easterbrooking No Dissent

You want to catch us issuing apologies here at Five Useful Articles. But we guess, if pressed and we had to apologize for something, we could only say: Sorry for partying. Which must be why, even setting the fair use considerations aside, we found the clothier defendants in Kienitz v. Sconnie Nation so darn sympathetic. The facts: Kienitz is a photographer whose official portrait of Madison mayor Paul Soglin was downloaded and commercially printed onto shirts, alongside the text "Sorry For Partying," in an inside joke we understand to be hilarious to people from Wisconsin.

Seventh Circuit Judge Easterbrook, perhaps himself no stranger to celebratory apologies, sided with the t-shirt seller. But—and he wanted to be very clear about this—not for the kind of reasons that those fancy New York judges take into consideration. Though a fair use analysis that incorporates the "transformativeness" of a use is now pretty darn standard in many jurisdictions, Easterbrook, J., wants us to know he's not buying it.

Which, well, the Supreme Court likes it enough to use it in Campbell. But ok, Easterbrook wants to stick to the non-exhaustive list of four factors enumerated in the statute. (Sort of: there's also a fair bit of judicial factfinding spelunkery, expertly covered by Rebecca Tushnet; and Matthew Sag's headline on the case is quite direct.)

So, lots of facts presented handwavily, but it's hard to stay mad when he comes to the right conclusion. Personally, we would have liked a few more citations, maybe to the leading texts in the field. Like, Nimmer, or ... well, maybe that's just us.

2. Flynn-trigue in the Ninth

Gosh, it's been so long since the last update to the Garcia v. Google saga that we quietly removed the counter from the newsletter. (It has been, by the way, 9 weeks since we last mentioned Garcia).

To nobody's surprise, except maybe Kozinski's, the plaintiffs are now multiplying, with a second pretty-darn-similar suit, Flynn v. Google, filed in the Central District of California. It's almost like if you give one actor a copyright interest in their acting, all the other actors are going to want one too. We say "pretty-darn-similar" but note the very bizarre inclusion of a complaint against John Doe torrenters of The Innocence of Muslims and against Google for not automatically removing search engine links to the torrents.

Sure, we could talk about how Garcia and Flynn are two cases based on a sympathetic fact pattern that ultimately represent a terrible and incorrect interpretation of the Copyright Act, and act as end-runs around both the DMCA and CDA 230, but we at Five Useful Articles would prefer to stick to the cutesy puns, since these arguments have already been made in numerous amicus briefs before the Ninth.

No word yet on how Garcia II: The Final Flynntier will affect Google's still-unanswered request for an en banc hearing.

3. Holy Trinidad

How does Apple do it? They look like they're working so hard putting out all these fancy new products, but then you check the trademark history and it turns out they were on vacation for the last six months in Trinidad and Tobago! At least, that's one explanation for why they filed for the "Apple Watch" trademark in that Caribbean island republic.

There's also the official story: that Apple uses the trademark offices of countries like Trinidad and Tobago to provide security-through-obscurity for their upcoming filings, keeping them out of the view of the tech press while locking in the earliest possible date for exclusivity. Kind of a neat hack, that, and Apple isn't the only one to figure it out; Google, for example, is reportedly partial to the Kingdom of Tonga for its new marks.

We think this is a fascinating phenomenon that bears more research. If any 5UA readers wish to support this journalistic endeavor, please just buy us round-trip tickets to various small island nations. We will demand answers—and we promise to leave no grain of pristine sun-drenched sand unturned until we find them.

4. Lock, Stock, and Three Smoking Lawsuits

Stock images are a hot trend in copyright litigation right now, but law firms getting sued over stock images is even hotter. There's Masterfile v. Joseph, in which a firm is being sued for using a stock image of "business people in suits doing law things" without licensing. Then there's Schneider Rothman v. Getty, in which an intellectual property practice is going after Getty for sending them a boilerplate "unauthorized use notification" over a thumbnail hosted by their website's syndication partner. The stock image in question was not of "business people in suits doing law things," which lends some credence to their story.

And just in case you thought these stock image suits are all a bit predictably bland, Getty just filed its reply to Microsoft in their lawsuit over the Bing photo widget.

Expect more stock image suits in the future, given Google's continuing theft of all those pictures of women laughing at salads.

5. In The Thicke Of It

Last August, Robin Thicke filed for a declaratory judgment against the estate of Marvin Gaye, looking for a court pronouncement that "Blurred Lines" is not substantially similar to "Got to Give It Up." So, just to be clear, we know this is what Robin Thicke wanted. Supposedly.

Which is why Thicke's trainwreck of a deposition (which ranks up there with Bieber's and Lil Wayne's is so surprisingly to us.

Thicke: To be honest, that's the only part where — I was high on Vicodin and alcohol when I showed up at the studio. So my recollection is when we made the song, I thought I wanted — I — I wanted to be more involved than I actually was by the time, nine months later, it became a huge hit and I wanted credit. So I started kind of convincing myself that I was a little more part of it than I was and I — because I didn't want him — I wanted some credit for this big hit. But the reality is, is that Pharrell had the beat and he wrote almost every single part of the song.

In other music litigation news, Jay Z is not a trainwreck, and might be on track to undoing Bridgeport Music v. Dimension Films (the case that found that 2 seconds of sampling is long enough to be infringing).

Seems reasonable enough to us. Mike Masnick at TechDirt suggests that this case has the potential to become one of the important cases on music samples. Maybe Hova's tendency to make timeless classics will also extend to the courts.

De Minimis News Items

Get On My Leval: Transformative Use Of The Week

Pop Sonnets, providing an old twist on new tunes, weekly.

Hypo-quandary of the Week

In each issue of Five Useful Articles we introduce an absurd copyright hypo and invite our readers to offer their expert input, the best of which will be featured in next week's issue. This week we would like to invite our readers to put their own twist on the hypo, and come up with a fact or a procedural issue that makes the hypo more absurd. Tweet at us with the hashtag #5uaHypo.

On a trip through the Midwest, Sarah purchases a satirical t-shirt featuring an unauthorized mayoral portrait justaposed with a snarky slogan. But she finds the fabric scratchy and the cut ill-fitting; after a few wears, she sets it aside in her California apartment until one rainy day when, struck by a fit of inspiration, she découpages the whole thing onto a plank of wood and promptly places it on Etsy. When her store gets featured on Boing Boing, the shirtplaque sells quickly, prompting her to order several dozen more of the shirts. But the publicity also attracts the attention of the Wisconsin t-shirt maker—ShirtCo—who threatens legal action. What could possibly make this more ridiculous?

While none of our readers picked up on the Bridgeman v. Corel reference we cunningly planted in last week's #5uaHypo, they nonetheless came up with some fun answers. We've selected some of our favorites here:

"Depends on whether pic is really in PD; if not, 3D model is an unauth'd deriv., so unprotected (Gracen), so no claim against Parker." – Joe Gratz

Entirely Ornamental, Non-Utilitarian Article

Nevertheless, cases continue to challenge these sorts of photographs on originality grounds. Courts, for the most part, are reluctant to deny copyrightability in the context in which these challenges are typically raised—as defenses to allegations of copying by a competitor or by a former client of the copyright holder. However, these courts often do not ground their decisions in any developed, articulated theory of originality.

Originality Proxies: Toward a Theory of Copyright and Creativity by Eva E. Subotnik

You may have noticed we've incremented the volume number. We just figured that, as long as Garcia remains the spiritual center of our brand of weird copyright, we ought to grow with it. So, we're in like Flynn to a new volume.

Five Useful Articles is selected and arranged by Parker Higgins and Sarah Jeong. It does not reflect the views of their past, present, or future employers, or the Electronic Frontier Foundation. And good lord, this is not legal advice.