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THE LAW IS A ASS for 12/17/2002
DOCKET ENTRY
"The Law is a Ass" Installment # 175
Originally written as installment # 155 and published in Comics Buyer's Guide issue # 793, January 27, 1989 issue
Earlier this year, I turned 50.
No, this isn't where I whine about getting older. To be sure I'm going to whine, just not about that. No, the reason I tell you I just turned 50 and point out that I started practicing law when I was 29 is so that you know my legal practice has reached the legal age, 21. (No real advantage. I can't even get the office to accept the notion that, as I've been a lawyer for 21 years, so my practice is legal, I should be able to drink in my office.)
It's just that for all of those 21 years, not some but all, I've been ... What?
Yes, a public defender. A person who practices exclusivelyin the arena of criminal defense work.
In my career, I've done intellectual property work exactly as many times as I've played Center Field for a professional baseball team. I've filed as many copyrights or registered as many trademarks as I've hit game-winning home runs in the bottom of the ninth in the seventh game of the World Series.
So why do people keep asking me copyright and trademark questions?
Is it that people really are looking for free advice, even if the advice might be wrong? Or is it somehow that I'm even more scintillating when I write about intellectual property.
I don't know. Read the following and you tell me.
******
THE LAW IS A ASS
Installment # 175
by
BOB INGERSOLL
Writers will tell you, that the first sentence of any work is the hardest to write. It's true. I have no idea what to write as a first sentence for this column. I figured by telling you this, I'd get something down on paper, then I could segue smoothly into today's topic.
Today's topic is copyrights and trademarks. (Smooth enough for you?) I know I've done columns on this topic before. I'll probably do columns on this topic again. No matter how many times I do a column on copyright or trademark law, the one column topic I'm always asked to do more on is...
...Freud's theory that man's psychological nature is composed of the Id, the Ego, and the Superego. Nevertheless, I'm going to do a column about copyrights, trademarks, and their infringement.
Copyrights first.
Copyrights are rights created by Congress for the creators of works of art--be it graphic art, prose, sculpture, music, dance or even things you can't understand why anyone would want to copyright in the first place like Who Wants to Marry a Multi-Millionaire?. Once a work is finished, the person who created it--who, for want of a better word, we'll call the "creator" (although there's one comic publisher whose contracts use the more business-like "Proprietor;" which probably explains why this company's output is lifeless and seems more concerned with the quantity of the bottom line then the quality of a line of dialog)--is vested of certain copyrights. These copyrights give the creator control over who can reproduce the work and how.
A copyright is automatic; it comes into being as soon as the work is in it final form. When, later tonight, I finish this column, it will be copyrighted. I don't have to do anything except finish the work to get it copyrighted; not even place the copyright symbol © on the work or register it with the Library of Congress. (However, it is recommended that the copyright symbol be used and the work registered. Not only because it makes the creator's intent toward the work crystal clear but because there are damage consequences that result if your copyrighted work is plagiarized and you haven't registered the copyright. Unregistered works have, by operation of law, limited damages.)
Recently Congress amended copyright law so it's even easier to copyright a work than before. Easier? It's tougher to get a headache in a construction site than to get a copyright. As I haven't read the new law yet, I have no idea how Congress accomplished this miracle. Can someone enlighten me?
The creator can retain all rights, as Dave Sim does by self-publishing Cerebus, or sell some or all of his rights to another party who will reproduce the work. I, for example, sell some of my rights to Krause to publish it, and retain others. (I keep the important ones. When they want to license "The Law Is a Ass" plush figures, they gotta come to me!)
The copyright holder can enforce the copyright against people who infringe it by making or marketing unauthorized reproductions of the work. The infringing work needn't be an exact duplicate of the original work. If the new work is substantially similar to the original, it is actionable infringement.
Case in point--and I thank Dana Gabbard of Los Angeles for sending me an article from the December, 1987 issue of Art Law and Accounting Reporter which I used for research--the case of Loews v. Benny..
Loew's, Inc--which owned the copyright on the movie, Gaslight--sued Jack Benny for his satire, "Autolight". Benny argued that his work was a parody and was protected from suit by the Fair Use clause of the copyright law. The federal court for the Southern District of California disagreed. It found the works substantially similar in plot, setting, and dialog and ruled "Autolight" was a copyright infringement. It also rejected Benny's claim that as a parody, "Autolight" fell into the Fair Use Clause of the copyright law.
That's simple enough; if a new work is substantially similar to an existing work, it is a copyright infringement. So how do we explain the case involving the movie From Here to Eternity and a Your Show of Shows sketch, "From Here to Obscurity?
When Columbia Pictures sued NBC for "From Here to Obscurity", Columbia must have felt confident. Loew's was, despite being criticized for being too harsh and having a chilling effect on the art form of parody, still good law which specifically rejected the same parody defense NBC was using. Moreover, the case was heard in the same year and by the same judge as the Loew's case. Imagine Columbia's surprise when the judge found no substantial similarity between Eternity and "Obscurity." The court ruled parody to be a valuable art form, and that a parody could indulge in a limited amount of "taking" from the original to "conjure up" the work being parodied for the audience.
Answer to the earlier question: we don't explain it. We just remember that sometimes even judges change their minds.
This parody doctrine clarified somewhat in 1964, when Irving Berlin sued Mad Magazine for parodying some of his songs. The court wrote that the parody was not intended to replace the original and used only enough of the original to "conjure up" the image of the original, therefore a fair use was being made.
Not all parodies are immune from suit, however. In 1978, Disney sued over the infamous underground comic, Mickey Mouse and the Air Pirates, which featured several of the more famous Disney characters--drawn to look exactly like the original characters and using the character's actual names--engaging in drug and sex orgies. The creators claimed their work satirized the characters' wholesomeness and innocence, therefore they were entitled to use the Disney characters in order to conjure up the characters for the audience. The court rejected the parody defense. The court ruled that using exact likenesses of the Disney characters and their actual names was a greater "taking" than was necessary for the satirical intent. As the parody could have been accomplished by using characters who were similar in appearance and name to the Disney characters--without being the actual characters themselves--the taking was too substantial and constituted infringement.
A different example of a use of copyrighted material which does not result in an infringement action was supplied to me by Steve Erwin, artist on DC's Checkmate, and David Malcolm Porta of Sacramento, California. Both sent me copies of an article from the April, 1988 issue of The Artist's Magazine. According to the article, recent copyright infringement suits in Florida, Michigan, California, and Virginia, were dismissed because the defendant was the state itself.
A typical case was that of the Virginia photographer who found that the University of Virginia had published a book of his copyrighted photographs without paying him for their use. The photographer sued for copyright infringement. The court dismissed the case, because the state--here a political subdivision--was immune from suit.
The Eleventh Amendment to the United States Constitution, codifies the common law doctrine of sovereign immunity--ie. one cannot sue one's own sovereign. Under sovereign immunity, states and their political subdivisions are immune from most types of civil actions including copyright infringement actions. (The common law lawyers must have foreseen how most governments would conduct their business in 1988 and figured the only way to keep the courts from being hopelessly clogged was sovereign immunity.)
When he sent me the article, David also suggested, tongue in cheek, that we incorporate as a city and fund our operations and large salaries by selling reproductions of The Dark Knight and similar works. I couldn't do it. Not only is it immoral--even if not illegal--there's an inherent problem with the plan. After we had printed the obvious choices, we'd have to get suggestions for future editions by reading the letters requesting us to reprint certain works and, thereby, learn what people actually perceive as art (Could you please reprint Secret Wars and Millennium--complete with all the cross-overs--in a giant coffee table edition?)
Trademarks next.
Trademarks are marks used by a business to identify their products in the market place and distinguish them from other products. Trademarks are not automatic and must be claimed, usually by placing the ™ symbol next to the proposed mark and notifying the Trademark and Patent office of the intended mark. If no one opposes the mark, the Office of Trademark and Patents will issue it. A trademark can also be registered with the Office of Trademarks and Patents, after which the symbol ® is be used.
Copyrights have a limited life set by statute. Once that life expires, the copyright ends and the work is plunged into public domain. A trademark is indefinite. It lasts for as long as it is used.
A trademark, like a copyright, can be infringed upon, when someone else uses the same mark in a way that is likely to cause confusion in the market place. For example, the manufacturer of the Beretta handgun is suing Chevrolet over its car of the same name. They might have a good case, but personally I don't see where the confusion lies. After all, no one expects to see James Bond slip a two-door sports coupe into his shoulder holster and go out to fight SMERSH.
A mark can also be infringed when someone uses a mark which isn't identical but is so similar to an existing mark that it is likely to cause confusion. Again, for example, obviously I could not publish a comic called Superman without infringing on DC's trademark; for the same reason, I doubt I could publish a comic called Superbman; although it isn't an exact copy of DC's trademarked name, it is a name so close that it could well cause confusion in the market place.
I'm running out of room, so I can't go into more detail. Still I wanted to answer some questions from Steven Bates of Fairborn, Ohio. I hope I'm not too late.
Steve is planning stories about a midget super-hero named Derringer. He wants to know if this will infringe on the trademark of the midget character Nick Derringer in the TV show, Hooperman. I don't know. I don't know if the Hooperman character is trademarked. A simple trademark check should answer that.
If the character isn't trademarked, Steve, there's no problem. If he is, then your character might be an infringement in the same way a car infringes on a gun. It would probably be easier to use a different name rather than invite the expense of a lawsuit--even a law suit you might ultimately win.
As to your other question, Steve, that of using this incident as a story idea, by having the Hooperman producers threaten Derringer with lawsuit, don't. It's dangerous to use real persons in a story; you can be sued for libel, invasion of privacy, false light, and a host of other things. Considering the other TV show produced by the Hooperman people, do you really want Victor Sifuentes on your tail? You can still use the story idea, however, just change the name of your character to something other than Derringer and use the fictitious producers of a fictitious TV show as the villains.
That's it for this time. Next time, I promise to do a classic, old-fashioned, Ingersoll tears apart some unsuspecting comic book with no holds barred column, provided I can find a comic book foolish enough to incur my wrath.
******
BOB INGERSOLL, Cleveland attorney, comic book fan, and frequent legal analyst for this page and actual newspapers just finished reading Batman # 429, the last part of the "A Death in the Family" story.
I found it!
Bob Ingersoll
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