Will Netflix have a Devil of Time Defending Suit Brought by Satanic Temple?

The Satanic Temple sued Netflix, for using a computer-generated image of Baphomet in the Chilling Adventures of Sabrina, that was allegedly that was apparently copied directly from a statue created for The Satanic Temple by sculptor Mark Porter.

While the images of Baphomet are similar, the similarities can be attributed to a drawing  of Baphomet by a 19th-century French occultist named Eliphas Levi. However a distinctive detail added by Mark Porter are two adoring children, a feature in Netflix’s version as well.

According to Rolling Stone, The Satanic Temple send a cease and desist letter, demanding action by November 9, 2018, but then jumped the gun and filed suit on the 8th.  But then again, who really trusts Satan?

 

Copyright Claim from Out of the Blue

Leslie Weller has sued Gillian Flynn, author of the book Gone Girl, and a host of others for infringing Wellers’s copyright in a novel titled Out of the Blue.  What is interesting about this case (aside from the fact that every successful movie seems to be based upon copyright infringement) is the case for access by defendant.  Plaintiff emailed her script to a consultant whose books were edited by who was represented by the Levine Greenberg  who also represented defendant Flynn

Plaintiff’s claim is on its face plausible, but so convoluted, that defendant may be able to break the chain.  However, this Complaint, and others like it, are a reminder of the importance of keeping records of development, whether its a story as here, or a computer program or some other work, to be able to prove independent creation.

Plaintiff’s Complaint does identify a number of similarities in between Gone Girl and Out of the Blue, and it will be interesting to see the defendants response.  If there was no infringement, hopefully defendants have records to show the independent creation.

 

For God’s Sake, Copyright Does Not Protect Ideas, Only Expression

On December 6, 2107, Judge Louis Stanton dismissed Randy Brown’s copyright law suit again Time Warner, Turner Broadcasting, Cartoon Network, and others, based upon the claim that the television series Black Jesus infringed his short story Thank You Jesus.

Judge Stanton’s opinion concisely stated what every copyright owner needs to remember:

It is a principle fundamental to copyright law that a copyright does not protect an idea, but only the expression of the idea.

Judge Stanton found that there are “no similarities between the two works beyond the abstract and unprotected idea of an African American male protagonist named Jesus who believes that he is the Son of God.”  Review plot, characters, setting, themes and total concept and feel, he concluded that the concept of an African American Jesus who engages in allegedly “un-Jesuslike” conduct is an abstract idea, which is illustrated and expressed differently by entirely different stories in each work.  Judge Stanton found that no reasonable jury, properly instructed, could finding that the expressions of Thank You Jesus are substantially related to Black Jesus.

While the law does provided limited protection for ideas under certain circumstances, copyright does not.  Merely because a second work is based upon the same idea as a first work does not mean it infringes the copyright in the first work.

 

Not All Pirates are in the Caribbean

On November 14, 2017, Arthur Alfred II, Ezequiel Martinez, Jr., and Tova Laiter sued The Walt Disney Company in the District of Colorado, alleging copyright infringement, and claiming that the Pirates of the Caribbean franchise of films, video games, theme park attractions, merchandising, casino games, literature and other related items infringe their screenplay of the same name.  The focus of the Complaint is that the Captain Jack Sparrow character in the Disney productions is substantially similar to the character Davy Jones in their screenplay.

Plaintiffs claim that Jack Sparrow is “an expression of a uniquely new ‘pirate.'”  Interestingly, the “idea” of humorous pirates may have been the idea of the rides original designer, Marc Davis, who realizing actual pirates were not particularly glamorous, opted for a more whimsical and romanticized approach that was less threatening to younger audiences.  Moreover Johnny Depp has claimed that his portrayal of Jack Sparrow was his own invention, and almost got him fired.

The court will have to decide whether Jack Sparrow and Davy Jones are similar because they are embodiments of the same idea or because they share the same expression.

He Who Lives by the Suit, Dies by the Suit

CBS Broadcasting Inc. has sued photographer Jon Tannen for posting still images from the Gunsmoke episode “Dooley Surrenders,” first aired on March 8, 1958. On line posting of images from classic television is fairly common, leaving one to wonder whether there isn’t more to the story, and it turns out there is.  As CBS Broadcasting explains in Paragraph 1 of its Complaint: “Tannen hypocritically engaged in this act of infringement while simultaneously bring suit against Plaintiff’s sister company, CBS Interactive Inc., claiming it had violated his own copyright.”

Tannen sued CBS Interactive in February, claiming that the online division of CBS had used two of his photographs without permission to illustrate an article about high school football player Sofian Massoud.

Despite being created by statute (17 USC 107) the only thing certain about copyright fair use is that it not as broad as everyone thinks it is.  Grabbing pictures from Google image searches to make a point or make a joke is common, but not every such use is technically a “fair use.” Although the widespread use of images in this manner probably is broadening the definition of fair use.  The Tannen v. CBS v. Tannen situation is a reminder that not all online uses of images are fair uses, and more importantly, if you are going to complain about something, you better not be doing what you are complaining about.

 

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Out-of-CTRL C

CTRL C, CTRL V (copy,paste) are widely used keyboard commands to add interesting content to emails, newsletters, and slide decks.  Everyone does it, so it must be o.k., right?  Not quite.  Copying existing text or images can constitute copyright infringement, if the copied material is copyrighted.  The problem is that almost everything is copyrighted.  There is an exception for certain fair uses — uses for criticism, comment, news reporting, teaching, scholarship, or research. But many uses in a commercial enterprise do not qualify as fair uses.

The following guidelines can help minimize the risks when putting together publications for internal or external distribution:

Give a Man Cupcake Sushi, and He’ll Have Dessert for a Day; Teach a Man to Make Cupcake Sushi, and He’ll Rip You Off

Lori Shubert and her company Cupcake Sushi, LLC filed an interesting lawsuit against Santiago and his associates doing business as Sushi Sweets, for patent infringement, trademark infringement, misappropriation of trade secrets, common law trademark infringement, federal and state unfair competition, and trade dress infringement. Shubert claims to have invented a unique confectionery dessert cake: cupcake sushi. Shubert has apparently built a thriving business in Key West Florida.  According to the complaint, Santiago, a former licensee and employee of Cupcake Sushi, absconded with product, equipment and Cupcake Sushi’s trade secrets.

Shubert clearly had an interesting and appealing idea, and while she took some steps to protect it, she probably should have formed a more comprehensive plan at the outset.  As she pleads in her lawsuit she applied for a utility patent (14/487364), she allowed the application to abandon.  She also applied for and obtained a design patent (D789,025) but filed the application several years after she claims to have developed her product.  Even if this patent validly protects a later design, she left her earlier designs exposed. While she did register her CUPCAKE SUSHI name and logo (Reg. Nos. 4471750 and 4770652), she might have also tried to protect her products names and appearances.

Resources are always tight in start-ups, and it is easy to second guess the allocation (or lack thereof) to lawyers, as entrepreneurs always seem to have other fish to fry. Shubert probably could have done more and done it sooner.  Shubert did take a number of appropriate steps to protect herself, and if those rights have been violated, then hopefully she will be able to enforce them and this won’t represent the fish that got away.  However, a more comprehensive approach might have made enforcement like shooting fish in a barrel:

Shubert may have learned another important lesson about protecting confidential information.  A confidentiality agreement does not make a dishonest person honest. The most important steps in protecting confidential information is limiting disclosures to people who can be trusted.

Shubert may have to also have to face the fact that no matter how comprehensive your intellectual property protection, there will always be some way for other to compete.  Good luck to Ms. Shubert, but if things don’t work out, there are always other fish in the sea.

Lawsuit Attempts to Finish the Job that the Iceberg Started

Stephen Cummings has sued James Cameron for turning his life story into the hit movie Titanic.  Mr. Cummings claims that Leonardo DiCaprio’s character Jack Dawson “is based solely/wholly/only” on his life.  Cummings claims violation of Right of Publicity, Unjust Enrichment, Copyright Infringement; and Trespass to Chattels/Conversion, and seeks $300,000,000 and a 1% royalty in perpetuity for each of three counts.

According to Mr. Cummings: “EVERYTHING, which went into to film, ORIGINATED with only myself, including the vessel, -via only my own remarks, and about the vessel/incident of its sinking).”  While conceding that Cameron did photograph the vessel, but that these were mere tools “to tell only MY OWN, story.”

While it seems doubtful that Cummings will be able to sink this Titanic, it is important for creators to document their creative process to be able to establish their independent creation, because it seems as if every time there is a successful product or movie, there is someone claiming he or she thought of it first.

Copyright is a Joke

There is an interesting case pending in the Southern District of California that answers the question: Are jokes copyrightable?  Robert Kaseberg for has sued Conan O’Brien for infringing his copyright in some jokes that he wrote and posted on his blog prior to Conan’s telling of very similar jokes.  Conan moved for summary judgment, which was granted as to one joke that was shown to be created before Kaseberg, and as to another joke that was shown to be sufficiently different.  However the court denied summary judgment  as to the other jokes, confirming that jokes are copyrightable, although the court agreed with O’Brien, that jokes are only entitled to “thin” copyright protection.  The Court said that there was “little doubt that the jokes at issue merit copyright protection,” however that protection was constrained by their subject matter and the conventions of the two-line, setup-and-delivery paradigm.  The Court explained:

Each joke begins with a factual sentence and then immediately concludes with another sentence providing humorous commentary on the preceding facts. Facts, of course, are not protected by copyright. Feist, 499 U.S. at 345. And although the punchlines of the jokes are creative, they are nonetheless constrained by the limited number of variations that would (1) be humorous (2) as applied to the specific facts articulated in each joke’s previous sentence and (3) provide mass appeal. This merits only thin protection. The standard for infringement must therefore also be some form of “virtual identity.”

The court found sufficient difference as to one joke, but as to the others, the court concluded there was a triable issue of whether the jokes were sufficiently similar.

You Don’t Have a Right to Use a Photograph Just Because its of You

Xposure Photos (UK) Ltd. sued Khloe Kardashian for posting a Manual Munoz photo of Kardashian to her Instagram account. While the complaint The Photograph is highly creative, distinctive, and valuable, a substantial part of the vault is the subject: defendant.

One would expect that the litigation will be setlled, but it is still a good reminder that you can’t post images merely because you want to.