Last year, the Ninth Circuit stood out amongst fair use decisions in its opinion in Seltzter v. Green Day, particularly in contrast to what has persuasively been dubbed the Second Circuit’s "know it when we see it" approach to transformativeness as annunciated in the Cariou v. Prince decision. By contrast, the potentially destabilizing effect of the Ninth Circuit’s highest profile copyright case in 2014 can scarcely be overstated. Unless and until the full court reverses a three-judge panel in Garcia v. Google, Inc., nearly every motion picture will be in peril of "infringement." The consequences for the First Amendment and for free expression would be devastating. Although it was not raised, expect fair use to come into play if the decision stands and the case heads back to the trial court. The film is clearly transformative precisely because the plaintiff argues that her performance was unknowingly changed in service of a message she found offensive.
Topics: Walter Sobchak, Copyright Act, Feist, Prince v. Cariou, Libya, Digital Millennium Copyright Act, DMCA, Youssef, YouTube, Innocence of Muslims, Green Day, Seltzter v. Green Day, Nothing Compares 2 U, prior restraint, 17 U.S.C. § 106, Cindy Garcia, Copyright, Prince, First Amendment, Google, Sinead O’Connor, Benghazi, work for hire
News that a coffee shop had opened in Los Angeles entitled "Dumb Starbucks" has again raised the proper interpretation of fair use under U.S. intellectual property law into the realm of popular culture and commerce. Whereas last year’s Beastie Boys/GoldieBlox dustup (still ongoing) revolved primarily around copyright law, here the potential issue is one of trademark infringement. To stave off accusations of liability, the new enterprise has preemptively labeled itself an "art gallery." Will this hold up? Even Starbucks seems puzzled.
Topics: 505 U.S. 763, parody, Landham Act, Weird Al Yankovic, @dumbstarbucks, Green Day, Bad Starbucks, Trademark, 17 U.S.C. § 107, 15 U.S.C. § 1115(b)(4), GoldieBlox, Copyright, Dr. Evil, Starbucks, Number Two, Twitter, intellectual property, Two Pesos Inc. v. Taco Cabana Inc., Beastie Boys, Fair Use, Merriam-Webster, Austin Powers
After GoldieBlox announced with great fanfare that it would withdraw its claim seeking a declaratory judgment that its use in a video of the Beastie Boys song “Girls” was a fair use under the Copyright Act, many assumed that was the end of it and that the only point for discussion was GoldieBlox’s motivation. As we pointed out at the time, however, that “offer” was not accompanied by a dismissal of the already filed lawsuit. Presumably, the Beastie Boys either declined, or failed to respond, because the band has now answered the Complaint and filed counterclaims, alleging copyright and trademark infringement.
The Ninth Circuit has ruled in favor of the band Green Day in a copyright case that gives much better guidance on fair use and transformativeness than this year’s earlier Prince v. Cariou Second Circuit case. Despite copying an entire image, in the backdrop of a video that showed onstage at a multi-million dollar concert tour, the appeals court upheld judgment in Green Day’s favor because the use added new meaning and purpose, and thus was transformative. It is a victory for expressiveness, but more importantly, a useful set of instructions that Prince failed to give.
Topics: Cariou v. Prince, Derek Seltzer, Roger Staub, Graffiti Art, Green Day, 21st Century Breakdown, East Jesus Nowhere, Copyright, Ninth Circuit, Jesus Christ, Performance Environmental Design, Scream Icon, Fair Use