No “Happy Birthday” for Trolls? Filmmaker seeks public domain judgement on song’s copyright

“Happy Birthday to You” is protected by copyright? The song is based on the tune from “Good Morning to All,” written in the late 1800’s. Over the years families adapted the tune for singing birthday greetings. Vexed with paying synch fees for use of the song in a film, producer Jennifer Nelson of Good Morning Productions asked a court to determine that “Happy Birthday to You” is in the public domain. Read her story at the NY Times. The case is great news! The “Happy Birthday to You” copyright claim begs several important public domain questions. (more…)

Can a celebrity’s post mortem right of publicity enter the public domain?

Banking on a dead celebrity’s right of publicity being public domain is an extremely dangerous advertising practice. Rights of publicity are a suite of legal rights that have developed from invasion of privacy and trademark law since the early 20th Century. There is a web of state and federal laws that can protect dead celebrities– even celebrities from states like New York that specifically do not recognize a post-mortem right of publicity. And the laws can protect rights of publicity for as much as 100 years after death.

As a young lawyer, a common task was determining which state laws apply to a dead celebrity so to determine whether his or her name or image could be used for free.  The analysis is extremely detailed. Which law applies, New York (no protection) or California (broad protection)?  Does the use violate the celeb’s trademark or constitute a false designation under federal law?  An article in Slate today made some stunningly dangerous over-simplifications about how a dead celebrity’s persona is protected.

In my entertainment and sports law seminar, we spend a few classes examining the various ways of protecting a persona. A right of publicity protects the commercial value of a celebrity’s persona. A 1941 Texas case involving Davey O’Brien is my hands down favorite for explaining the basis for protecting a celebrity’s right of publicity. The Texas court gets the analysis wrong, and a dissent by Justice Holmes provides the foundation for modern ROP laws.

All American and Heisman award winner Texas Christian University quarterback Davey O’Brien (more…)

Intellectual Property and the U.S. Economy: Industries in Focus

In the post-Bilski/KSR/Prometheus regime patents are unquestionably a costlier and riskier investment. Statistics confirm this. Fifty percent of patent applications are abandoned these days, as opposed to only thirty-five percent in 2004. Paying more to prolong prosecution (via request for continued examination) restores the odds of success, but at a price. [USPTO statistics at www.uspto.gov/dashboards/patents] Even after the patent is awarded, of those subsequently litigated roughly 40% are declared invalid in court, many falling prey to the judicial shifts in patent law. Place all that against a backdrop of a relatively slow recovery from a relatively deep recession, and lingering cutbacks in research and development investment. A sage investor might have predicted a drop-off in patent filings, but just the opposite has happened. U.S. patent filings have increased steadily in recent years, and international patent filings have increased dramatically. Why? The Constitutional purpose of our patent system is to create incentives for innovation, and patent budgets have historically tracked R&D budgets. However, there are recent dynamics that disassociate the two. Patent trolling (by companies seeking only to profit from lawsuits) is on the rise. Reports estimate that there were five times as many patent trolling lawsuits in 2010 than in 2004. [Patent Freedom 2011] Defensive patent aggregation (to mitigate the risk of litigation from patent trolls) is on the rise. The number of U.S. patents granted to foreign companies and individuals is on the rise, exceeding the 50% mark in 2009 and continuing to date. [IFI Patent Intelligence]. Is the U.S. patent system broken? No, but she moves in mysterious ways and the statistics surely bear closer watching. The USPTO is beginning to take an active role in this, having established the Office of the Chief Economist in March 2010, and appointed Dr. Stuart Graham as its first Chief Economist. A few days ago the USPTO jointly released an ambitious report that directly or indirectly attributes forty million U.S. jobs to intellectual property: Intellectual Property and the U.S. Economy: Industries in Focus. http://www.uspto.gov/news/publications/IP_Report_March_2012.pdf  The report will convince you that the U.S. economy hinges on intellectual property. The only thing lacking is what to make of it? I’m already looking forward to the sequel.

Hey HON, how did a trademark become a Kitchen Nightmare?

There was lots of excitement in Baltimore on Monday when Cafe Hon owner Denise Whiting held a news conference with TV reality show chef/provocateur Gordon Ramsay, in which she announced that she was relinquishing her trademark in the word “Hon”. The news conference was timed to coincide with the filming of an episode of Gordon Ramsay’s reality TV show Kitchen Nightmares, which should be something to see (speculation runs high that it will not be a promotional video for the Cafe Hon). 

Actually, Cafe Hon, Inc. owns numerous trademark registrations: CAFE HON was registered in 1992 for restaurant services. HONFEST was registered in 2007 for community cultural festivals. Presumably those will not be affected by the announcement on Monday. Cafe Hon, Inc. also owns federal trademark registrations for the word HON… (more…)

A Hater’s Guide to Golan v. Holder

Photo by dbkingAt first I hated the idea of restoring copyrights in public domain works.  This week the US Supreme Court heard arguments in Golan v. Holder taking me back to when Section 514 was first implemented. I hated the idea even though I am pro-copyright.  I hated the idea despite my feeling that on some level it righted wrongs suffered by authors whose copyrights were forfeited due to an inadvertent failure to comply with a US copyright “formality”.  A faulty copyright notice or failure to make a certain filing in the US  Copyright Office could propel the foreign author’s work into theUS public domain, although no such formality existed in the author’s home country.  I hated restoration because it undermined confidence in the permanence of the public domain, something I firmly believed was and should remain “black letter law.”   I guess I was a hater…

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