The Trademarking Of Duff Beer: How Fictional Trademarks Become Copyright Issues In The Real World

from the metamorphisis dept

THResq points us to a fun, but thorough, law journal article by law student Benjamin Arrow, looking at whether or not Duff Beer, from the Simpsons, is protectable as a trademark in the real world (or you can go directly to the paper) (pdf). The analysis is actually more complex than you would think, noting that as you shift from the fictional world of the Simpsons to the real world of beer production, the issue switches from being a trademark issue to a copyright issue, where the beer is a form of a derivative work on the copyrighted expression known as the cartoon of Duff Beer.

Fox and The Simpsons' creator, Matt Groening, developed the idea for the fictional brand, Duff. Therefore, when a real-world manufacturer puts out a product by the same name, one might think that it has stolen Fox's idea and that, as a matter of equity, intellectual property law ought to furnish a remedy. But intellectual property law does not protect ideas in the abstract. While a real-world Duff manufacturer may have taken more than just an idea, it is difficult to articulate how much more. Part of the reason it is so difficult to conceptualize the injury Fox suffers when another producer introduces a Duff Beer to the marketplace stems from the fact that Duff Beer is a fictional product sold in a fictional universe under a fictional brand name. Fox's injury looks very different when we suspend our disbelief and plunge into the fictional world of Springfield, accepting the fictional reality as our own and when we pull back, remind ourselves that The Simpsons is nothing more than a cartoon and view Duff Beer as one element of a vividly imagined work of animated fiction. As a consequence of this puzzle of perspective, Fox suffers a different intellectual property injury depending on our vantage point.

An analogy to Internet law helps explicate the puzzle. Writing on the problem of perspective in this area of the law, Professor Orin Kerr posits that "whenever we apply law to the Internet, we must first decide whether to apply the law to the facts as seen from the viewpoint of physical reality or virtual reality." Kerr terms the perspective from inside virtual reality the "'internal perspective' of the Internet" and the point of view of an "outsider concerned with the functioning of the network in the physical world rather than the perceptions of a user" the "external perspective." In attempting to apply law to the Internet, our perception of who is doing what to whom is not a mere cognitive tool for conceptualizing difficult problems, Kerr contends. Instead, our selection of perspective is itself outcome determinative, because "[b]y choosing the perspective, we choose the reality; by choosing the reality, we choose the facts; and by choosing the facts, we choose the law." While Kerr suggests that courts may dismiss this problem of perspective as "a minor skirmish in the 'battle of analogies,'" he notes that courts "already choose perspectives when they apply law to the Internet" without realizing it.

While this may just seem like a fun, little intellectual query, the second paragraph above highlights why it's actually pretty important. For nearly a decade, we've been pointing out the problems that occur when you take laws from the real world and pretend you can just apply them naturally into a virtual world. The same thing applies here to some extent. In this case, it's resolved via copyright law, since the creation of Duff Beer may be protectable under copyright in the real world, and any such beer would be derivative. Trademark, on the other hand, which would apply in the fictional world, does not apply in the real world, since there's no real "use in commerce" of a product known as Duff Beer.

Either way, the paper is a fun read, and actually raises a series of issues that are important and worth thinking about when discussing how the real world law applies on the internet in general and in wider "virtual" worlds.

Filed Under: copyright, duff beer, fiction, real, trademark, virtual

Old Fogeyism Isn't That Surprising

from the kids-these-days dept

Last week Thomas Friedman penned a silly column claiming that Internet-based activism doesn't "count" as real political engagement. "Activism can only be uploaded, the old-fashioned way — by young voters speaking truth to power, face to face, in big numbers, on campuses or the Washington Mall. Virtual politics is just that — virtual," he says. As various people have pointed out, this is complete nonsense. I engaged in some campus activism in college in the late 1990s, and I have trouble even imagining how students coordinated their activities in the pre-email days. Blogs have proven an incredibly potent force for rooting out and publicizing injustice. And I'm sure the technologies that have evolved since I graduated are just as valuable to campus activists. Obviously, online activism by itself doesn't accomplish anything, but by the same token neither do telephone calls or newspaper columns. Rather, these are all tools that activists can use to coordinate their activities more efficiently. Many of the people who sign up for candidates' Facebook groups do go to the candidates' rallies or volunteer for their campaigns.

Filed Under: activism, protests, real, virtual