(The Return of) Ignatz, by Sam Heldman

Wednesday, April 02, 2003

S.Ct. prediction
The second case to be argued this morning, and the last one for almost 3 weeks, is Dastar v. 20th Century Fox. All you people who were up in arms about Eldred v. Ashcroft, thinking that the Sonny Bono Creeping Copyright Extensions for Mickey Act was the end of the public domain – you should be keeping a close eye on this case, because it touches on that concern as well. It's about trademark law (the Lanham Act), as applied to creative works. Unfortunately, I'm no expert on the subject; I've just got a sense that this case is important.

But I can tell you something useful, even if you are an intellectual property expert: if you want to download the briefs from Findlaw, you'll have to work around an html typo. When you click the links (from that page I just linked to), to get the pdf files of the briefs, you won't get them. Instead, you have to insert, into the URLs for those briefs, the characters " /briefs " right between "supreme_court" and the docket number. You'll see what I mean if you try it.

Here's a quick and dirty summary of the facts. General Eisenhower wrote a WWII memoir. Fox got the television rights to it, and produced a tv miniseries from it in 1948. But, either because they were dumb or because they were not psychic about the future of home entertainment, Fox didn't renew the copyright in that tv series when it expired some years later. So, as a matter of copyright law, the tv miniseries was in the public domain. Once the VCR age was upon us, Fox realized its mistake; in an effort to minimize the effects of the mistake, Fox renewed its television/video rights in the book, restored the old tv miniseries, and put it out on videocassette.

But meanwhile Dastar, figuring that the miniseries was now in the public domain (because the copyright hadn't been renewed), copied it, changed it a little bit, took the old credits off, put new credits on, and sold videocassettes of it cheap – cheaper than Fox's version.

Naturally, Fox sued – with both a copyright claim (based on the copyright in the original book, not the expired copyright in the tv series) and a Lanham Act claim, based on 15 U.S.C. § 1125(a)(1). The crux of the Lanham Act claim, as I understand it, is that by taking off the old credits and putting in new credits (crediting only its own people, rather than the original creators), Dastar was making misleading statements within the scope of that statutory section.

Stop for a minute, and get cynical with me: do you really believe that Fox wouldn't have sued, if Dastar had put a note on the outside of the videocassette box that said: "note: we cribbed this good stuff from those clever folks at Fox, who deserve all the credit for its creation but aren't getting any of the $ because they messed up and didn't renew the copyright"? Of course not. They would have cooked up some other theory. This is an effort to scare people away from copying works that Fox originally created and that are now in the public domain. But does that cynicism matter to the outcome of the case? Well, it might, in ineffable ways.

Anyway, the Ninth Circuit (in an unpublished opinion) ruled for Fox on the Lanham Act claim, and affirmed the trial court's ruling that Dastar had to pay double its profits to Fox. So the case, as it comes to the Supreme Court, has questions about the merits (did Dastar even violate this section of the Act?) and about remedies (even if so, was the double profits award allowable?).

Now, as I say, I'm no expert. But having read the briefs – and having previously opined here at Ignatz that the trouble with copyrights is not their length but the lack of clarity as to which ones are still extant, and what you can do with things once their copyright has expired – I'm strongly of the opinion that the Court should reverse, either on broad grounds or on narrow grounds at least. We need to have the fundamental understanding that when a work's copyright lapses, the former owner can't go scaring people off from using the work.

And I guess that the Court will do what it should, in this instance, so I say "REVERSE." Just in case they don't, read this loud and clear: REGARDLESS OF THE TITLE AND THE PICTURE ABOVE, THIS BLOG IS NOT AFFILIATED IN ANY WAY WITH GEO. HERRIMAN, CREATOR OF THE AWESOME OLD STRIP "KRAZY KAT," OR WITH ANYBODY WHO OWNS ANY RIGHTS THERETO. THEY'RE NOT GETTING ANY MONEY FROM THIS BLOG. NOR AM I, FOR THAT MATTER. IT'S JUST A SILLY BLOG, NOT AUTHORIZED BY GEO. HARRIMAN, CREATOR OF THE AWESOME OLD STRIP "KRAZY KAT", OR BY ANYBODY WHO OWNS ANY RIGHTS THERETO. THIS BLOG IS JUST ME, SAM HELDMAN. BUT THE PICTURE ABOVE IS BY GEO. HERRIMAN, NOT BY ME, AND I'M PRETTY SURE IT'S IN THE PUBLIC DOMAIN. Unless you want to see lots of litigation anxiety and longwinded cover-your-ass disclaimers like that on everything that is inspired by preexisting artistic/literary creations, you should probably hope for a reversal too.

posted by sam 6:27 AM 0 comments


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