Do you have adblock enabled?
 
If you can read this, either the style sheet didn't load or you have an older browser that doesn't support style sheets. Try clearing your browser cache and refreshing the page.

(Pitchfork)   Now, here's a little story I got tell, about a trademark infringement suit that didn't go so well   (pitchfork.com ) divider line
    More: Followup, trademark infringement  
•       •       •

15270 clicks; posted to Main » on 18 Mar 2014 at 2:13 PM (2 years ago)   |   Favorite    |   share:  Share on Twitter share via Email Share on Facebook   more»



108 Comments   (+0 »)
View Voting Results: Smartest and Funniest

Archived thread

First | « | 1 | 2 | 3 | » | Last | Show all
 
2014-03-19 12:35:25 AM  
I would have figured that there was the customary licensing agreement to use the pop song in an ad (all terms totally negotiable, as with using a pre-existing song in a TV show or movie score), and that said agreement would had spelled out whether any kind of derivative/parody version was OK, or if it had to be "verbatim."
 
2014-03-19 12:41:10 AM  

Teiritzamna: JuggleGeek: The point GoldieBlox was trying to make was "buy our product".  And you aren't allowed to use someones song to do that without their permission.  Fair Use is not the same as "We want to make money".


The Court of Appeals, however, immediately cut short the enquiry into 2 Live Crew's fair use claim by confining its treatment of the first factor essentially to one relevant fact, the commercial nature of the use. The court then inflated the significance of this fact by applying a presumption ostensibly culled from  Sony, that "every commercial use of copy-righted material is presumptively . . . unfair. . .  Sony, 464 U. S., at 451. In giving virtually dispositive weight to the commercial nature of the parody, the Court of Appeals erred.

The language of the statute makes clear that the commercial or nonprofit educational purpose of a work is only one element of the first factor enquiry into its purpose and character. Section 107(1) uses the term "including" to begin the dependent clause referring to commercial use, and the main clause speaks of a broader investigation into "purpose and character." As we explained in  Harper & Row, Congress resisted attempts to narrow the ambit of this traditional enquiry by adopting categories of presumptively fair use, and it urged courts to preserve the breadth of their traditionally ample view of the universe of relevant evidence. 471 U. S., at 561; House Report, p. 66. Accordingly, the mere fact that a use is educational and not for profit does not insulate it from a finding of infringement, any more than the commercial character of a use bars a finding of fairness. If, indeed, commerciality carried presumptive force against a finding of fairness, the presumption would swallow nearly all of the illustrative uses listed in the preamble paragraph of § 107, including news reporting, comment, criticism, teaching, scholarship, and research, since these activities "are generally conducted for profit in this country."  Harper ...


I would distinguish this case from the facts at hand (as well as the cases involving Leibovitz/Naked Gun, Fairey and Zimmerman) because the commercial aspect of those uses were artistic in nature..i.e. they were selling movies, music or visual art.  This particular case is about using someone else's work to sell toys.  The parody itself is not what provides value to the end consumer.
 
2014-03-19 01:05:42 AM  

Teiritzamna: ArcadianRefugee: 1) PARODY: a humorous or satirical imitation of a serious piece of literature or writing.

He is referencing a legal distinction, not a dictionary one.

Under the law of fair use, parody is most protected, as it involves the taking of a work and altering it such that it mocks the original work or author.  The reason this is more protected is that it is 1) highly unlikely that the original author will grant authorization to a work that mocks them or their efforts and 2) at least some of original work must be used if the point is to make fun of that original work.

Satire, on the other hand is the use of a work to humorously lampoon something else.  Thus it is less protected because there is far less of a need for to use that original work - you could always write your own song or what have you to make fun of that other thing.


True: I should have used a legal dictionary.

My bad.

Theaetetus: You missed the fact that we're talking about a legal definition, rather than a colloquial one.


Two* posts too late. You lose.

/ok, three, but 'two' is more lyrical
 
2014-03-19 08:29:41 AM  

Cataholic: I would distinguish this case from the facts at hand (as well as the cases involving Leibovitz/Naked Gun, Fairey and Zimmerman) because the commercial aspect of those uses were artistic in nature..i.e. they were selling movies, music or visual art.  This particular case is about using someone else's work to sell toys.  The parody itself is not what provides value to the end consumer.


Oh i think you are correct - the citation was more in line with addressing the oft misunderstood idea that a commercial use is automatically not fair use and that a "non-commercial" use is, even though most touted non-commercial uses are, at bottom, done for money in some way.
 
2014-03-19 08:36:57 AM  
Teiritzamna:

Nope.  Fair use, is like shouting "not it" or "no backs" when a child.  As long as you say "fair use!" IP law doesn't apply to you.  Its part of the secret legal code of the US, the one the courts bring out when you write your name all in caps and recognize the admiralty flag.

Yessssssss! You also have to make them recognize your strawman.

I was stunned with how often 2 Live Crew came up in law school classes. AFAIK, they had precedent-setting cases in Copyrights, Constitutional Law and Bankruptcy cases. Litigious as they want to be, I suppose.
 
2014-03-19 10:40:07 AM  

red_dragon60: Teiritzamna:

Nope.  Fair use, is like shouting "not it" or "no backs" when a child.  As long as you say "fair use!" IP law doesn't apply to you.  Its part of the secret legal code of the US, the one the courts bring out when you write your name all in caps and recognize the admiralty flag.

Yessssssss! You also have to make them recognize your strawman.

I was stunned with how often 2 Live Crew came up in law school classes. AFAIK, they had precedent-setting cases in Copyrights, Constitutional Law and Bankruptcy cases. Litigious as they want to be, I suppose.


There was the fair use thing with Roy Orbison, the Skywalker thing with George Lucas, the obscenity ruling in Florida (I think Jack Thompson was involved with that one) and I think there was an arrest on criminal obscenity charges, too, right? But I never heard anything about bankruptcy for those guys.
 
2014-03-19 01:05:46 PM  

ArcadianRefugee: Two*

Fourposts too late for victory. You lose.

/ok, three, but 'two'
Four is more lyrical

Satire!  Pay me!
 
2014-03-19 01:07:38 PM  
And props to all the Fark Legal Beagles for putting out the facts about the law.  Saves me the trouble.

(Not that it will actually do any good or inform anyone here.  It never does.)

Still, good on all y'all.
 
Displayed 8 of 108 comments

First | « | 1 | 2 | 3 | » | Last | Show all

View Voting Results: Smartest and Funniest


This thread is archived, and closed to new comments.

Continue Farking
Submit a Link »
On Twitter






In Other Media


  1. Links are submitted by members of the Fark community.

  2. When community members submit a link, they also write a custom headline for the story.

  3. Other Farkers comment on the links. This is the number of comments. Click here to read them.

  4. Click here to submit a link.

Report