Woody Allen: Complaint

Woody Allen Compliant

The allegations are that since Woody Allen does not endorse any products or services in the US, the utilization of "his image and identity in total disregard to his rights of privacy and publicity, his exclusive property rights and personal rights in, and the use of his image and likeness" are "egregious and damaging." Claiming a violation of Section 50 (Rights of Privacy) and 51 of the Civil Rights Law in New York, Allen intends to disgorge the profits earned by American Apparel Inc. ( AAI ) from such allegedly 'unlawful use of image for advertising purposes' which purport his 'commercial endorsement.'

Harry Potter Series - To be or not to be: Rowling's Stolen Plums or Ark's stab at the Potter cake

Under the Fair Use Doctrine, the factor for purpose and character identifies whether the latter work is transformative. In Campbell, when the defendant’s work is more transformative, then lesser weight is given to the commercial nature of that work. The transformative nature and public benefit are two crucial considerations for this factor. In this case the conclusion will find a balance between the referential value of the Lexicon and the reasonableness of the amount taken from Ms. Rowling's work, to satisfy this purpose. Thus, does the taking add value to justify the proportion of the taking? Is it an excessive taking or the least restrictive form of taking?

In the present matter, the evidence and expert opinion for the plaintiffs alleged that the defendant’s “took more and did less”. Their expert's opinion indicated that the same “useful purpose” could have been satisfied with “brevity” in usage of copyrighted material. Examples were offered which compared the Ms. Rowling's original wordplay in her text and the extent of the same, used in the Lexicon. For instance, out of 2437 words in the Lexicon, 2034 words were “simply lifted” such that out of five words, three would be Ms. Rowling's. The argument made was that Ms. Rowling’s wordplay is distinctive and out of the entire content only 403 in the Lexicon may be attributed to Mr. Vander Ark.

The defendants argued that the “usefulness” of this ready reference guide outdid the monopolistic undertones of Ms. Rowling's enforcement strategy. They claimed that the Lexicon functioned as a reminder to one about details, which given the numerous characters and plots, and is all but time consuming. Eg. who is the character under a particular name Lord Voldemort. The Lexicon, the expert Professor Sorensen opined, is easily accessible, concise and pithy. Further, it was a 'cheap synthesis and distiller of information' by compiling into a single place, a ready referencer.

The plaintiff's counter argued with Dean Jerri Johnson's opinion, that there was 'infrequent' etymological contribution, the information was carelessly recorded, the pagination was not as per a standard usually followed or identifiable accurately (the current pagination scheme directed one to a chapter where a lengthy reading, for instance of 35 pages, was required before one discovered the root) and most significantly, information was non-paraphrased and non-quoted which logically concludes that he is the author of that material (which Mr. Vander Ark concededly is not). In essence, alleging "intellectual theft" the plaintiff's expert stated that the long entries were not helpful to her and it was difficult to distinguish between what was original to the Lexicon vis-à-vis Ms. Rowling's words.

Mr. Hammer defended the Lexicon, by attempting to step outside of the box argued that there is no real category that the Lexicon could fit into for a description. So how could she confidently say the Lexicon was conclusively not a ready referencer? Could she deny as confidently that a different form of a referencer could exist? A tad philosophical, but a good strategy nonetheless. Predictably, an argument on what standards apply for determining a reference guide ensued. Dean Johnson alleged that the Lexicon, being of 'dubious' quality with commentaries equal to 'tiny bursts that frizzle out' , did not meeting the quality standards required by the REA guidelines. Mr. Hammer argued that because the real audience were 9 year olds, the Lexicon is not meant as a scholarly reference guide or as a academic scholarship and thus the quality need not meet those guidelines.

It could have been argued that it might be prudent to first learn the basics before learning to distinguish it from the explorative conclusions. But that again is just my view and I don't intend to comment on the educational structure here or anywhere for that matter.

The defense rested with a closing which stressed on the usefulness of the Lexicon and that it would not affect a market for Ms. Rowling. Their expert on publishing often stressed that Ms. Rowling's popularity alone is sufficient to predict, that the sale figures of the Lexicon would be a mere drop in the ocean compared to the sale figures of her potential encyclopedia. The US Constitution guarantees copyright protection to ensure incentivizing further creation. And an outcome in favor of the Ms. Rowling's 'draconian' protection strategy would undermine that very aim, he argued.

Ms. Rowling, taking the stand a final time, analogized her work to a plum cake and Mr. Ark's work being a product of her stolen plums. The defense in its closing statement argued for fair use by claiming that Mr. Ark's work was merely his stab at an existent work. What is the extent to which an author can protect her work from being used? In what fashion may it be used? To what extent may it be used? To what extent does the 'incentivized' author go to tread carefully on this land mine of a subject? Judge Patterson referred to copyright infringement and fair use being a 'murky area of law.' Settlements are encouraged and often opted for in such matters and an appeal is also expected in this case. But as an author and as a lawyer, it is always the hope that soon this murky area will be remembered as nothing more that the early morning fog which took merely a ray of sunshine to dissipate.

Links:

The Leaky Cauldron

Harry Potter Series - PART III

The trial ended on April 16, 2008 with a main issue for Judge Patterson’s deliberation – whether the defendant’s can claim fair use for having used Rowling’s copyrighted material in Vander Ark’s Lexicon.

Justice Holmes in White-Smith Music Publishing Co. v Appollo Co provided a classic definition which included the following significant elements of copyright –An abstract expression, which possesses a right to exclude others from interference. Under Article I Clause 8 of the constitution, the justification of copyright is that it promotes learning and culture for public welfare, by the grant of exclusive rights to the authors, for a limited time. However, such a monopoly needs to have a positive effect by allowing the creation of other competitive works. Thus, the question is whether the Lexicon is a competitive work protected by the Fair Use doctrine or is it ‘wholesale copying’ unworthy of the protective status.

Section 107 of the Copyright Act, 1976 provides the four factors of fair use as follows:
1. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit education purposes.
2. The nature of the copyrighted work
3. The amount and substantially of the portion used in relation to the copyrighted work as a whole; and
4. The effect of the use upon the potential market for or value of the copyrighted work.

Though in the closing arguments, stress was laid on the chronology of factors as being all important, Sec. 107 of the Copyright Act gives no indication how each of the factors should be weighed.

Some interesting issues I will explore are:

• is the Lexicon transformative and thus useful, to entitle it protection
• could the Lexicon have embraced brevity and still supplied the same level of usefulness
• what is going to be the impact of finding fair use in this case on authors and their permitting use by fan sites in the future.

Stay tuned for more.

Harry Potter Series - PART II

And surprised I was.

Though today's proceeding lacked the excitement that was in the air yesterday, there was testimony by Mr. Vander Ark and experts from either side. Mr. Vander Ark testified that approximately 50% of his material came from Ms. Rowlings books directly and the remaining came from various other fan sites, contributions, essays, suggestions etc. Mr. Ark admitted to having discouraged other users of his website from cutting and pasting his pages onto theirs. (hmm....interesting - the words chosen carefully suggest that taking in whole is not acceptable to him, especially when the whole is a carbon copy. What about the 450 pages of nearly identical copying from Ms. Rowling's book?). Mr Ark thereafter proceeded to have his emotional moment in court today at the thought of not being a welcome part of the Harry Potter Club anymore.

It in interesting to note that prior to writing the Lexicon book, Mr. Ark admittedly had his concerns about anticipated copyright issues with the book in question. RDR advised him otherwise and even agreed to a controversial indemnification clause in the contract between them. Though the exact content was not mentioned in the contract, there was a verbal understanding that bared the result it has - an index containing material which dangerously flirts with copyright infringement.

Expert's from the plaintiff's side attempted to establish that with the loss of a "first to market" right, Ms. Rowling's encyclopedia will fail to receive the originally anticipated attention and market response. The distinctiveness would be diminished. This in turn would cause authors of future works to be careful of the latitude they give to fans regarding the use of their material. The result of which is expected to cause a chilling effect in that healthy relationship.

The expert from the defendant's side provided a counter opinion saying that Ms. Rowling herself was such a "figure" in the publishing industry as compared to Mr. Vander Ark, that her book would sell millions as compared to a risky/optimistic prediction of 10,000 for Mr Ark. He was confident that Lexicon would not compete in a meaningful way with Ms. Rowling's encyclopedia.

Now, here's the surprise or well, maybe not - Judge Patterson at this point was visibly unhappy with the way the case was going (long and seemingly endless presentment of evidence with no conclusion in sight) and so he decided to speak. He said that the case was now becoming more lawyer driven than client driven. He said that though Ms. Rowling's feelings are strong regarding her work and the defendants as regards fair use, maybe it was time for the parties to talk before they go down this road. HA!

Utter silence in the courtroom. So tomorrow should we expect a shift in gears or just more determined undermining of each others efforts? Can hardly wait.

Harry Potter Series - PART I

Counsel for the plaintiff eased into her presentation by introducing Ms. Joanne Rowling a.k.a J.K. Rowling, with a simple "state your name for the record" approach. Continuing with the simplistic theme, Ms. Dale Cendali (Rowling's Counsel) successfully portrayed Ms. Rowling as just another normal person and not a magical creature that some in the crowd thought her to be. Ms. Cendali played the crowd very well and eventually the craned necks stopped being craned and people returned to breathing normally. (Phew!) After having pacified the crowd with a shot of reality, Ms. Cendali asked a question to which Ms. Rowling became quiet and teary eyed. The moment was certainly heavy but seeing the entire courtroom being led in waves of emotions was quite the experience. Thankfully, Ms. Rowling is packed with a great sense of humour and fought back her tears saying "I can't cry, I am British!". (Laughter)

The question Ms. Cendali asked Ms. Rowling was a simple yet a poignant question - what does Harry Potter mean to you?

As the trial proceeded it became clear that the question was not just about the Harry Potter, but everybody's own Harry Potter. Would authors be willing to give up their life's worth of work to someone who got an "A for effort" as a fan site! (which is what Ms. Rowling gave to the author of the Lexicon website as the best fan site). Did someone say creativity? Yes. Thank god for the small things.

The trial started with counsel for either side providing their opening statements. One promising to prove copyright infringement and the other claiming fair use. Specifically the latter (defendants) mentioned usefulness, organization and a lack of bad faith because there is "no obligation to take permission to make fair use". Further, they added that the market for Harry Potter books would not be substituted by the Lexicon.

My question is - Does transformative work include unoriginal indexing of fictional facts?

Ms. Cendali using a plethora of evidence and by comparing text from the two works demonstrated that the work copied included original words and scenarios, which are fictional. Ms. Rowling stated a number of times to this, that these words "would have no existence outside my words." The Lexicon added little or nothing of value, no commentary or analysis to be transformative. Calling the Lexicon "dire" and "atrocious" Ms. Rowling pointed out that a few etymologies were even misleading. For instance a spell in her book called "Alohamora" comes from a west African language and means "favorable to thieves" and the Lexicon interpreted the origin to be from the Hawaiian Aloha. The evidence demonstrating her intent to write a companion book/encyclopedia since 1998 included a bible, list of beasts and characters, A-Z format and a confession that she would rather do "it properly" or not do it at all. However, with this competing book, she was forced to stall other work and concentrate on something she felt she owed to her fans, more than being truly passionate about writing it.

In toto, she claimed that the shoddy association with a book which added no informative value to her work and a blatant copy, if allowed would mean that creators would not be protected and this would be an "advantage to plagiarizers...to make the fast buck." Does the author become the plagiarizer of is own work?

Not to be outdone, the defense counsel aggressively questioned Ms. Rowling about her use of the online version of the Lexicon at one time for reference, her giving the website an award and for other books which her lawyers sent out cease and desist letters for stopping publication. His point was to demonstrate the usefulness of the Lexicon as a reference guide. Obvious Achievement - annoyed Judge Patterson with becoming repeatedly inaudible (kept moving away from the mike), annoyed the clerk because he asked questions and did not wait for a response from Ms. Rowling which required the drill of "Objection"-"Please let the witness respond." Ah...tiresome.

So at the end of the day I walked away asking myself that simple question - what does Harry Potter mean to each one of us as an author? Are we being arrogant in thinking that we should be the ones to solely exploit our creative work, especially since the exploitation does little more than rearrange our own sentences. Can we appreciate a "lazy"(as Ms. Rowling put it) effort to reproduce our work?

An index which is not original in its compilation or arrangement; content which is far from fact -

wonder why there has got to be a trial. But I hope to be surprised. More after today...

Other links:

New York Times

Bloomberg.com

Woody Allen: Publicity and Trademark Law

Woody Allen sued American Apparel claiming that his image from "Annie Hall" was used on a billboard and the Internet without his permission. He claims not to commercially endorse any commercial products in the United States and is unhappy to a quantified extent of a mere $10million for such wrongful use of his image.

Here are links to the news:

Yahoo

USA Today

The image can be seen on The Trademark Blog.

More to follow.

Pepsi Jazz- Geez!

I did not even know that Pepsi had a drink called "Jazz"!!! (Wonder what that says about the drink...)

I read this article on a website called 'All About Jazz' where the Pepsi spokesperson said the following - “No one had trademarked the word, ...so we took the opportunity to secure our brand property. We feel this will eliminate confusion that may be usurping our brand integrity and product recognition. From now on, when anyone says 'Jazz,' everyone will know they mean 'Pepsi Jazz.'”

Seriously - KEEP DREAMING!

A basic tenet of trademark law is that there be no confusion between two marks. The first step to ensure that is by demonstrating that one mark is popular enough to meet the "consumer recognition" threshold. The Ambercrombie spectrum is used to determine strength of the marks to qualify them for protection. Generic marks- well there is no surprise how these are treated - IGNORED. Jazz has a rich history and a rich sound and has been for a long time been associated with a certain form of music. To imagine it having a taste of Black Cherry French Vanilla is something else altogether. The article states that Pepsi Jazz has been in use since 2006 but the word Jazz has been used since 1915. The legal department is sending out their tracked pigeons bearing cease and desist letters and it seems (shockingly) some recipients are willing to comply.

WHY?

The TESS system shows that there is a trademark registration for Pepsi Jazz and its specimen can be seen on this TDR finding. Pepsi Jazz is a brand name adopted by Pepsi Co. in 2006. Regardless of all these facts, I am struggling to imagine how ANYBODY can claim that " 'Jazz,' will mean 'Pepsi Jazz.'”

Big corporate dreams come with big corporate checks -reality.. well apparently, that is only an affliction of the populace. (Now i have certainly the blues...)