Copyright Office Extends Anti-Circumvention DMCA Exemptions To All Filmmakers, Not Just Documentarians

from the victory dept

Earlier this year, we wrote a bunch of posts on the Copyright Office's request for comment on changes needed to the DMCA's anti-circumvention exemption list. There were lots of interesting submissions, but one that caught my attention was a whole bunch of film association groups, most of them for documentarians, advocating that the anti-circumvention they enjoyed to be able to use clips from other films and content be expanded to include filmmakers generally. This would address the copyright industries' cynical attempt to route around Fair Use usage by filmmakers by simply locking up their content behind all kinds of DRM that, unless you're a documentarian, you can't circumvent. The MPAA, as you would expect, said that allowing for this would kick off "widespread hacking" of all the DVDs on the planet, while all it was really concerned about was the licensing agreements it was able to secure by filmmakers who didn't want to violate the DMCA to get the Fair Use clips they wanted.

Well, the Copyright Office made its decision and the exemption will now be offered to filmmakers en masse.

Digital Millennium Copyright Act (DMCA) exemptions aren’t just for documentary filmmakers any more. The U.S. Copyright Office and Library of Congress last week broadened a DMCA exception to now allow more filmmakers to circumvent anti-copying technology and rip short video clips for purposes of commentary and criticism.

“This is huge for the independent film industry,” said Michael Donaldson, an attorney who argued for expanding the exemption before the Copyright Office, in a written statement. “The use of fair use material by narrative filmmakers has exponentially increased to the point where expanding the exemption to fiction films was absolutely necessary.”

What this means is that more filmmakers will now be able to simply rip clips from protected DVDs to use in their own creative works, as long as the purpose of the clip is used for parody or to demonstrate biographical or historically significant information. This opens up all kinds of uses, of course, but all of them will still be subject to being truly Fair Use cases. That, of course, is a defense, so you can expect lawsuits to be filed before we settle into some kind of a norm here.

Still, this is a good decision by the Copyright Office. The idea that the MPAA and others could lock up content that could otherwise be fairly used behind DRM obviously doesn't comport with the purpose of the law.

Filed Under: circumvention, copyright, copyright office, dmca, dmca exemptions, drm, fair use, filmmakers, library of congress, parody, triennial review

Titleist Goes After Another Parody Golf Gear Company After Settling With The First

from the par-for-the-course dept

A little over a year ago, we discussed how Acushnet, the company that owns brands like Titleist and FootJoy in the golf gear industries, had sued I Made Bogey, a company that created parody golf gear. Crude parodies, at that, with the headlining product being a hat styled after Titleist's famous golf hat that read "Titties" instead of "Titleist." While Acushnet had brought claims of trademark infringement and dilution, we noted at the time both that these claims were fairly specious -- the parody only works in all of this if you are clear on the difference between golf's waspy culture and I Made Bogey's sophmoric take on it -- and that the case would almost certainly be settled out of court. It's not like I Made Bogey had the same gobs of money to throw at the case as Acushnet, after all.

Well, it seems like this might be turning into a game of litigious whac-a-mole, as Acushnet has now sued another company pulling the exact same parody and joke, and a whole bunch more.

On Friday, Acushnet set its sights on an Australian company called Golf Gods that is apparently making the same joke. The company’s website boasts a diverse inventory of accessories and apparel — including polo shirts patterned with flamingos or decorated with a cartoon figure breaking his club over his knee — but Acushnet wants punitive damages and an injunction over the line similar to its Titleist products.

The complaint details all of the supposed cases of infringement in question, but one of them is the exact same "Titties" hat that I Made Bogey had been selling. Alongside that one, Acushnet claims that various other parody lines of clothing and apparel also represent trademark infringement and dilution.

In addition to its cursive logo, Acushnet says Golf Gods has been infringing its protected marks “#1 Ball in Golf,” “Pro V1” and “Footjoy.”

The latter company’s products use the marks “#1 Sluttiest Ball in Golf,” “Hoe V1” and “Footjob.”

So let's just make a couple of things clear. First, these jokes mostly suck. This kind of lazy parody built on offense is mostly stupid, save for its unique value in poking fun at golf culture. Even there, they barely do the job. Second, tastefulness is not in question when it comes to trademark concerns. For infringement, there needs to be a risk of customer confusion between the companies putting forth these products. That, as was the case with I Made Bogey, is of no concern here. The only value in Golf Gods products rests solely on everyone being in on the joke, no matter how the products themselves are stylized.

As for dilution, Acushnet would have to show that these parody products somehow harm the Titleist reputation or steal some of its fame. Again, such claims are laughable. These jokes again only work because Titleist is so famous, well known, and respected. That's the entire point.

As was the case the last go around, a settlement is somewhat likely. The one wrinkle is that Golf Gods is an Australian company. Given that the parody company isn't talking about the suit at all, however, indicates that it's taking this seriously. So, again, probably a settlement coming for what is clear parody that ought to be protected.

Filed Under: golf, parody, titleist, trademark
Companies: acushnet, golf gods, i made bogey, titleist

New Organization Formed In South Africa To Promote The Rights Of Creators And Support Intelligent Copyright Reform

from the fair-use-is-only-fair dept

Over the years, Techdirt has written about some pretty bad stuff happening in South Africa on the copyright front. For example, there was the Business Software Alliance using made-up figures in an attempt to revise copyright law in its favor. The South African music rights organization tried to put public domain works under copyright. And -- most insane of all -- the South African recording industry association ran a stupid "anti-piracy" campaign called "Shoot the Pirate", which resulted in actual violence. So it makes a pleasant change to report on some good news from the country. A new organization of creators has been formed to press for a more balanced copyright system in South Africa. They call themselves ReCreate, although apparently the group has no connection with the similar US organization Re:Create. Here are the South African ReCreate's basic principles:

ReCreate exists to promote the interests of South African creatives with regards to copyright legislation.

As much as we are creators, we are users of existing cultural products. Currently our work can be blocked through censorship by those who claim to own our culture. Moreover we often do not not own the work we create. And many of us have been disadvantaged by an exploitative system which fails to pay us for our work.

Growing the digital economy requires innovation. South Africa is at a disadvantage to other countries with flexible copyright laws that support creativity.

We call on Government to include in the ongoing copyright reform three key issues to enable us to create the next generation of South African content for the world.

An update about the South African copyright reform currently underway can be found on the infojustice.org site. There's also an opinion piece in South Africa's Mail & Guardian written by some of ReCreate's founders, in which they explain some of the problems they face under current copyright legislation, and the fair use rights they need to help them produce new works in the digital world:

Parody and satire

Incidental use of background content

Use of works in public places

Digital archival

Creation of educational works

Non expressives uses on the Internet, including indexing, data mining and search

Re-mixing, transforming and re-interpreting

Creation of accessible copies for people with disabilities

Adaptation to future technology

However, according to another post on infojustice.org, the South African Department of Arts and Culture has come out against introducing fair use, claiming:

Fair use by its nature is open-ended and it creates uncertainties in the management of rights. If adopted, this model will permit uncontrollable and unreasonable access to copyright materials resulting into reduction of real income for copyright owners.

Although it's disappointing to see this kind of tired old FUD being spread, it's great to see artists standing up for themselves like this in South Africa. For too long, the copyright companies have claimed to represents artists while doing precious little to help them create new works or earn a decent living. The founding of ReCreate is a hopeful sign that things may be about to change.

Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

Filed Under: archival, copyright, creativity, fair use, innovation, parody, recreate, remix, satire, south africa

UK Begins Absolutely Bonkers 'Education' Of Grade Schoolers About Intellectual Property And Piracy

from the hey-teacher-leave-those-kids-alone dept

Several years ago, a music industry transplant into Parliament, Mike Weatherley, made a glorious push to get the government to invade primary schools in the country to teach them that piracy is the worst thing in the world and intellectual property laws are super cool. Children as young as seven years old would be subjected to "educational information" provided by the government on the "proper" use of the internet. This was not the first attempt at pushing copyright propaganda on kids. In fact, we've reported on many of these, going all the way back to 2003 -- and many of the programs have been mockable, including the infamous Captain Copyright.

You would think that maybe those producing this propaganda would realize that it basically always is a flop as kids are smart enough to see through it -- and that their attempts to be cool and hip tend to come off as insane. But... the UK has pushed forward with this plan, and you have no fucking idea how insane it actually is.

Part of the education features a fictitious cartoon band called Nancy and the Meerkats. With help from their manager, they learn key copyright insights and this week several new videos were published, BBC points out.

The videos try to explain concepts including copyright, trademarks, and how people can protect the things they’ve created. Interestingly, the videos themselves use names of existing musicians, with puns such as Ed Shealing, Justin Beaver, and the evil Kitty Perry. Even Nancy and the Meerkats appears to be a play on the classic 1970s cartoon series Josie and the Pussycats, featuring a pop band of the same name.

As TorrentFreak points out, the inclusion of a parody of Ed Sheeran is more than a bit eyebrow-raising, considering just how open to and grateful for piracy and filesharing Sheeran has been. For the government to hijack his likeness for a parody that takes the opposite view is, at the very least, uncouth. If it seems odd that a series of videos extolling the virtues of intellectual property rights makes such liberal use of parody to play on well-known entertainment stars, well, just take a look at the government's video trying to explain parody and fair use and picture a bunch of first-through-fifth graders taking this all in.

Beyond how vomit-inducing the video is generally, one wonders just how closely the message in the video overlaps with actual UK law. While UK law is more stringent on free speech when it comes to so-called "insulting" speech, it seems far too simple an explanation to state that any parody that is found insulting would be illegal. Let's say, for instance, that Ed Sheeran considers this parody depiction of him, complete with an anti-piracy message that comes off as the opposite of his own, is insulting. Is the UK's IPO really saying that its own video suddenly becomes illegal?

Now, while the videos generally tread upon long-debunked ground...

After the Meerkats found out that people were downloading their tracks from pirate sites and became outraged, their manager Big Joe explained that file-sharing is just the same as stealing a CD from a physical store.

“In a way, all those people who downloaded free copies are doing the same thing as walking out of the shop with a CD and forgetting to go the till,” he says.

“What these sites are doing is sometimes called piracy. It not only affects music but also videos, books, and movies.If someone owns the copyright to something, well, it is stealing. Simple as that,” Big Joe adds.

...there is also some almost hilarious over-statements on the importance of this messaging and intellectual property as a whole. For instance, were you aware that the reason it's so important to teach 7 year olds about copyright and trademark is because navigating intellectual property is a full-blown "life skill?"

According to Catherine Davies of IPO’s education outreach department, knowledge about key intellectual property issues is a “life skill” nowadays.

“In today’s digital environment, even very young people are IP consumers, accessing online digital content independently and regularly,” she tells the BBC. “A basic understanding of IP and a respect for others’ IP rights is therefore a key life skill.”

It's enough to make you wonder if this is all just another example of a parody of those that push intellectual property rights education on school-aged children -- so ham-fisted is the execution and so wildly overstated is its importance.

Ultimately, we can likely rest easy, because children even as young as seven are far too smart and resourceful, not to mention critical in terms of entertainment, as to consider these videos to be anything other than the obvious propaganda that they are. One nearly hopes that some of these children will create their own parodies and put them up on that dangerous internet thing they've been warned about, with hopefully as much mean-spirit as their little psyches can conjure.

Filed Under: copyright, elementary school, fair use, ipo, kids, lessons, parody, propaganda, uk

How The Muppets And A Font Choice Hurt The Star Trek / Dr. Seuss Mashup In Court

from the one-fish-two-fish-we-CAN-sue-fish dept

A little over a year ago, we wrote about an unfortunate case in which Dr. Seuss Enterprises decided to sue for copyright and trademark infringement over an attempt to create a (pretty funny) parody that mashed up Dr. Seuss with Star Trek, called "Oh, The Places You'll Boldly Go." As we noted at the time, this seemed to be a clear parody (which is protected by fair use). It was clearly transformative, and was commenting on the differences between Trek and Seuss. We also noted some extraordinary (and extraordinarily silly) claims in the lawsuit. The defendants in the case, Comicmix, won a round earlier this year, when the judge tossed out the trademark claims. However, he let the copyright claims stand for the time being. After, Dr. Seuss Enterprises filed an amended complaint on all the claims, leading to a new motion to dismiss.

Unfortunately, in a new ruling, the court has again denied the fair use claims on copyright, and also denied a new motion to dismiss on trademark grounds, meaning the case will move forward. And it's in large part due to the Muppets and a font. I only wish I were joking. You can read the ruling here. Since the court had previously done a copyright fair use four factors analysis, it mostly just points back to its previous ruling on the matter, but only adjusts its analysis of factor four -- the "effect of the use upon the potential market." The other factors split evenly (factor one in favor of Comicmix, factor two in favor of Seuss, factor three favoring neither).

So this ruling turns on what many courts (perhaps incorrectly...) believe is the most important factor: does this use harm the market for the copyright-covered work. Here, the discussion turns on whether or not this would undermine the Seuss Estate from licensing out its copyrights to someone to do a Star Trek mashup. Comicmix's argument is basically "come on, no one's doing that." Seuss's argument is "hey, look, we've done other mashups before"

Plaintiff states it has published “books that are derivative of [Go!]” such as Oh! The Places I’ll Go; Oh, Baby! Go, Baby!, and more.... Plaintiff states it also publishes a series of “books written and illustrated by other authors and artists that are based upon and incorporate the Dr. Seuss Intellectual Property” such as Oh, The Things You Can Do That Are Good for You!, There’s No Place Like Space!, Oh, The Pets You Can Get!, and more.... Plaintiff states “[n]otably, ‘Dr. Seuss’ does not appear on any of the [book] covers, and all of the covers include names of other authors, despite the fact that these works are authorized by DSE and are recognized by the public as Dr. Seuss works.”...

Defendants argue Boldly cannot cause any relevant market harm because Plaintiff’s licensed collaborations listed in the FAC are not works of Boldly’s type.... Defendants argue Plaintiff has not licensed and would not license “any derivate work that creates a hybrid of Dr. Seuss’s books with existing characters and imagery from a third party’s entertainment franchise. The first amended complaint does not give rise to a plausible claim that Boldly would cause any harm in any transformative market.” ... Defendants distinguish their mash-up from Plaintiff’s licensed derivatives and argue none of the books published as part of Plaintiff’s co-branding licensing program “are crossover works that integrate pre-existing characters or imagery from another entertainment franchise, such as Star Trek, with those of Dr. Seuss.”

The Seuss folks responded to this by pointing out that... they'd done a Muppets mashup with Seuss. Muppets!

Plaintiff argues it has in fact collaborated with others and created crossover works, such as through the creation of The Wubbulous World of Dr. Seuss, “a live action/puppet show produced by the Jim Henson Company featuring Dr. Seuss’s well-known and beloved characters alongside new, Muppet-like characters created by The Jim Henson Company.”

That apparently is enough to convince the court that Seuss might possibly, some day, find a market to produce mashup Seuss / Star Trek works:

Although these books may not be mash-ups like Boldly, there is a potential market for a literary mash-up involving Plaintiff’s books; such a market would not be unlikely based on Plaintiff’s past licensing programs. Defendant’s production of Boldly may result in an adverse impact on Plaintiff’s derivative market and the Court therefore finds there is potential harm to the market for Plaintiff’s derivative works. Therefore, this factor weighs in favor of Plaintiff.

With the amended complaint, the court also revisits the trademark claim... and allows it to move forward as well, reversing its earlier ruling. It finds that Seuss's trademark is valid here, and then says that Comicmix's use does not meet the standards for nominative fair use (in trademark law, that basically means did you just use the trademark to identify the thing that you're talking about). The real failing by Comicmix? Going a bit overboard in using the identical font in their title. Really:

Defendants not only use the words “Oh! The Places You’ll Go!” in the title of Boldly but also use the exact font used by Plaintiff. The look of the lettering is unquestionably identical on both books, down to the shape of the exclamation point. This situation is similar to that in Toho. The Court finds it was unnecessary for Defendants to use the distinctive font as used on Go! to communicate their message (i.e., that Boldly is a mash-up of the Go! and Star Trek universes). The Court concludes Defendants have not satisfied this nominative fair use factor.

I find this... puzzling. Again, the use of the font is the same issue as the use of the other Seussian design: to evoke the world of Seuss in which to land their parody.

So, Comicmix is 0-for-2 at this point -- and have the Muppets and a font to blame. Ouch.

This by no means that the case is over. It can still go through discovery and summary judgment and, then possibly a trial. And it's still possible that Comicmix could win -- but it's also going to be expensive to keep going.

In the meantime, I'm still left wondering why this is a good move by Dr. Seuss Enterprises. It's a beloved brand acting like a bully, pissing off tons of fans. Why not just let the Star Trek / Dr. Seuss fans have their fun for a bit and use the goodwill to sell more of its own books. I mean, I imagine the temptation among many people who would buy the mashup book would be to also get a copy of the Seussian original if they don't already own it. But, alas, in this day and age, so many organizations feel they have to go legal against everyone.

Filed Under: copyright, dr. seuss, fair use, fonts, licensing, muppets, parody, star trek, trademark
Companies: comicmix, dr. seuss enterprises

Miami Beach Police Unaware Of The First Amendment, Arrest Guy For Twitter Parody Account

from the do-they-not-have-the-1st-amendment-there? dept

Back in 2014, the police in Peoria, Illinois raided the home of a guy, Jon Daniel, suspected of running a Twitter account parodying Peoria's mayor, Jim Ardis. Despite knowing no laws had been broken, Ardis pushed hard to prosecute the person for daring to mock him on Twitter. It didn't end well. A year and a half later, the taxpayers of Peoria were on the hook to pay Daniel $125,000 to settle the lawsuit filed against the city (with help from the ACLU).

Someone might want to share that story with the police in Miami Beach. Last week they arrested a guy for having a Twitter parody account of the police spokesperson, Ernesto Rodriguez. The story sounds fairly familiar to the Peoria story. As in that case, police are claiming that the "crime" committed by Ernesto Orsetti here is "falsely impersonating" a public official. Yet, as the Miami New Times notes, just a little while ago Rodriguez (the real one) joked with reporters and made it clear he considered it a parody account. He also appears to have made some tweets that are clearly laughing off the parody account.

It seems like the approach that the real Rodriguez took to this, laughing it off, makes a lot more sense than going and arresting the guy -- especially given what happened in Peoria.

Filed Under: ernesto orsetti, ernesto rodriguez, miami beach, parody
Companies: twitter

Chateau Marmont, Hotel For Celebrity Humans, Sends Trademark C&D To Cateau Marmont, Hotel For Cats

from the catfight! dept

While spending a great deal of time writing about dumb trademark disputes can be both monumentally frustrating and fill your mind with despair, I will be the first to admit that it also is a great avenue for entertainment and laughter. This story is about a situation firmly in the latter categories. The Chateau Marmont is a famous hotel in Los Angeles with a reputation for catering to celebrities both in its lodgings and at the restaurant. Roman Polanski took up residence there, while Hunter S. Thompson, F. Scott Fitzgerald, and Tim Burton all produced some of their works from within its walls. John Belushi overdosed while residing there in 1982. It's kind of a thing for human celebrities, in other words.

Whereas the Cateau Marmont is a hotel for cats. Just cats. Humans, celebrity or otherwise, need not apply. And, yet, the Chateau Marmont has fired off a cease and desist letter to the Cateau Marmont over trademark concerns centered on the fear of confusion among the public.

According to a July 18 letter obtained by The Hollywood Reporter, the celebrity hot spot is threatening a lawsuit against the adorably named pet spa if the Cateau doesn't change the name of its business. Lawyers for the Andre Balazs-owned hotel warned Cateau, located in Toluca Lake neighborhood of L.A., that it could pursue claims related to trademark infringement, trademark dilution and unfair competition.

Group 99, which controls Chateau's intellectual property, insists in the cease & desist letter that their hotel has spent almost a century building the iconic brand and doesn't want customers to mistakenly think the Hollywood hangout is venturing into kitty care and rescue.

C'mon, meow. Concerns about public confusion are a stretch at best. Members of the public aren't going to see this pet boarder's name and assume the human hotel has gotten into the boarding business. Rather, they will assume that the owners of the boarder have playfully pun-ified its name while operating in a distinct marketplace. If the people behind the Cateau Marmont are guilty of anything at all, it's of delving into puns, the laziest form of comedy (which I love dearly).

The fear of confusion on display by the human hotel is also belied by another punny player in the neighborhood.

Interestingly enough, as THR points out, the Chateau Marmont doesn’t seemed too concerned about a Beverly Grove dog spa similarly named Chateau Marmutt — a business established close to two decades ago.

If anything, this should be a fight between Chateau Marmutt and Cateau Marmont, with no involvement for the human counterpart. Meanwhile, the Chateau has spotlighted its own lack of humor, which I will happily point out is a distinct trait for the humans to whom it purports to cater.

Filed Under: cateau marmont, chateau marmont, parody, trademark
Companies: chateau marmont, group 99

Titleist Tees Up Lawsuit Against Parody Clothier Because Golf Doesn't Have A Sense Of Humor

from the fore! dept

Back in the more innocent era of the early 2010s, you may recall that we discussed a series of delightful trademark disputes between clothier North Face and a couple of guys who started a business first called South Butt (later changed to Butt Face). In those series of posts, we discussed two conflicting facts: trademark lawsuits against parody operators such as this are extremely hard to win in court... except that those same lawsuits are crazy expensive to fight, so the parody operators typically just cave and settle. It's one of those corners of the law in which the very framework of the legal system virtually ensures that the proper legal conclusion is never reached. Yay.

It seems that North Face's peers in the clothing industry share its disdain for these parody companies. Titleist, for instance, recently filed a trademark and dilution lawsuit against a company called I Made Bogey, suggesting that the following example of its product both will confuse the public as to its origins and will tarnish Titleist's reputation.

Now, if you want to make the point that the hats and other items with this same branding aren't funny, go ahead. I'm right there with you. It's not even particularly clever. That said, it's also not the case that anyone is going to view this stuff as anything other than what it actually is: a parody of the notably poshly-presented golf brand. In fact, the joke only works, insofar as it does at all, if a person realizes that the parody pokes fun at the polite and often Waspy culture of golf. In other words, none of this is a thing were it not easily differentiated from Titleist's brand. For that very reason, attacks on parody like this have a heavy legal load to tow up a large mountain of precedent.

In the suit, Titleist claims both trademark infringement and dilution. For dilution to stick, it must show that I Made Bogey’s hats tarnish Titleist’s reputation or blurs its fame. For trademark infringement, however, Titleist must show that consumers would be confused by the two logos. “They would have to show that people would think Titleist is making hats” with the sexually explicit misspelling, said Tobin, the attorney. And that would be pretty difficult, she said.

And, yet, despite all of that, conventional wisdom suggests that this will all be settled out of court before the lawsuit progresses much further. The cost to fight this fight is likely to be too much for I Made Bogey to shoulder.

That doesn’t mean I Made Bogey is necessarily going to prevail, though. Trademark suits are expensive to defend, and there’s no guarantee the maker of Titties hats will come out on top. If you want a lewd golf hat, act sooner rather than later.

And, whatever your opinion of I Made Bogey's products, that's too bad. Taste is not really at issue when it comes to protecting parody, an important form of speech. Defenders of free speech need to be able to keep their spines when opportunities to defend speech they don't like arise. This is certainly one of those times. Abusing trademark law and playing pretend about public confusion to silence offensive speech is an action without any virtue.

Filed Under: golf, parody, trademark
Companies: titleist