Gordon Firemark is the producer of various podcasts entitled
Entertainment Law Update available on iTunes for free. During each of his
podcasts, he discusses various legal cases with other attorneys. While
discussing different forms of copyright, he talked about the case of Faulkner
Literary Rights v. Sony Pictures Classic. In this particular case, there was a
debate over the phrase “The Past is Never Dead… It’s Not Even Past.” Faulkner
is suing Sony for using it in a movie. Federal Judge agreed that it’s not
Copyright Infringement; referring to it as a small portion from the book
(9-word quote).
Looking at the use of video games, EA Sports was in court (9th
Circuit Court of Appeals) because they were being used for using collegiate
athlete’s likeness. This isn’t protected under the Fist Amendment. According to
the research, student athletes cannot be compensated for use of their likeness.
EA Sport’s defense is that he students’ names are not being used on the jerseys
in the video games. The court’s ruling found that elements of the athlete’s
likeness were found in the game but it did not go far enough to be considered
infringement.
In 2011, musical group No Doubt sued ActiVision over the
video game Band Hero’s unauthorized use of their image. The court’s ruling
decided that creative elements of their likeness in the game were used for
commercial exploitation of the band’s image and that it wasn’t fair use.
Photographer David Harney took a picture of a father and his
daughter. It turns out that the father had kidnapped his own child from a
different country and brought her to the US. Later on there were actors
portrayed of the father-daughter in a movie so Harney sued Sony Pictures for
copyright infringement. The jury awarded the photographer monies; after appeal,
courts ruled that there was no way that the jury could determine that there was
any copyright infringement because the photographer has nothing to do with the
creative elements of the photo (photos were notably different in composition
and color making them different). Attorneys are questioning what copyright
protected elements does the photographers hold in the photo as well as what was
the purpose for the photo being included in the movie. The court is not giving
credit to the photographer even though he actually stopped the father in the
street to take the photo of them.
Subway is trying to sue another restaurant that is claiming
that their sandwiches are 12 inch. Others are claiming that subway’s sandwiches
are only 11 inches long. Looking from a trademark standpoint, there are no
registrations occurring because other restaurants have been blocking them. The “foot
long” claims are descriptive but not actually the size of the food. The question
of puffery comes up when people are starting to ask, “Does the consumer have a
reasonable expectation of the sandwich really being 12 inches long?”
Copyright for Students and Teachers: What right does the
school have to the work of students to display throughout the school when they
want? Students should be able to own their works that they create while in
school. Copyrights are being conveyed to the school board and districts. School
districts want to be given recognition for the works. Students are being asked
to sign over rights of research when grants are being provided to allow them to
do the works.
Questions of misrepresentation come up in the case of
William Eggleston. An art collector purchased 8 photographic works from
Eggleston claiming that they were a part of a limited edition collection (16x20
in size individually numbered). Eggleston reprinted more of the images in
different sizes, mediums and production dates and sold them. This caused the
originals to decrease in value. Lower courts dismissed all claims of
infringement; stating that they are all different from each other.
Firemark, G. (n.d.). Episode 38 - When a Foot is Only 11
Inches, and a Batmobile is a Character. Entertainment Law Update Podcast
.
Firemark, G. (n.d.). Episode 40 - Areo, ReDigi, Veoh &
IMDB. Entertainment Law Update Podcast .
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