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If not NOW, watch which?

Originally posted 2013-04-16 11:48:23. Republished by Blog Post Promoter

Matthew David Brozik

If not MDB, who?

On April 15, a company called E. Gluck Corporation filed with the United States District Court for the Southern District an uncomplicated, eight-page complaint alleging infringement upon a registered trademark it owns by another company, one Strickland Fuller Partnership. The plaintiff company “creates, designs, and has manufactured for sale watches.”

“The trademarks owned by plaintiff include the NOW trademark at issue herein.”

Yes, the trademark owned by the plaintiff, “extensively advertised and promoted” by the plaintiff, and now allegedly being used in violation of the law by the defendant in connection with the sale of other watches (albeit in the phrase Now is the time, “with the NOW portion… highlighted”) is the word NOW.

Allegedly, since 1986, E. Gluck Corporation has “continuously marketed and sold millions of watches under its NOW trademark… nationwide to the public through thousands of retailers and on the [I]nternet.” The NOW mark is registered with the USPTO in connection with watches. The registration is incontestable, constituting prima facie evidence of the plaintiff’s ownership of the mark and its exclusive right to use the mark in connection with the sale of watches.

Indubitably, the USPTO would not (have) register(ed) the word WATCH* for use with watches. Or TIME.** Next on that list should be NOW. (After that might be WHEN.)

NOW-Watch_0F17433E

How is the word “now” not generic when used in connection with the sale of watches—items whose primary function and purpose is to tell you what now is? That is, when is now? That is, it is always now, but when, specifically, is now? In terms of time? What time is it (now)? Look at your watch.

Even if NOW is not a generic term in connection with the sale of timepieces—devices designed to keep track of now—the phrase “now is the time” is so banal, so bland, and so… well, generic itself as to hardly rise (or sink) to the level of infringement of the word NOW (it seems to this writer, anyway). Now is always the time, after all. No?

_____

*Although there is, of course, SWATCH.

**Likewise, TIMEX.

“DUMB STARBUCKS”: Grasping at laws.

Dumb StarbucksYour blawger, he is conflicted. Part of me does not want to give the—ahem—geniuses behind the DUMB STARBUCKS stunt any more press, but the rest of me feels that you, our readers, deserve to know at least my opinion, which is that there is no way in Hades that the aforementioned—ahem—geniuses will be able to survive any attempt by the real Starbucks to shut down their pretend art installation masquerading (poorly) as social commentary that is really just a pop-up cafe blatant ripping off the latter’s registered trademarks. There, I said it.

If you haven’t already heard: A “parody” [see here for a sort of primer from the LOC archives -- RDC] coffee shop sprung up in Los Feliz, California (of course), called DUMB STARBUCKS. According to the Los Angeles Times, “Walking into the… unit, which over the weekend drew long lines while offering free joe, is like entering a real Starbucks, except that almost every label and circular logo inside also features the word ‘dumb.’”

I. MDB.

Caffeinated and conflicted.

A sign at the store, printed on stationary topped with the DUMB STARBUCKS logo, offered answers to “frequently asked questions.” If this isn’t a prank that ends soon, then this flyer will be Exhibit 1 of the plaintiff in the trademark infringement lawsuit that Starbucks brings, because the statements made on the FAQ sheet damn the dumb undeniably.

Is this a Starbucks? No. Dumb Starbucks is not affiliated in any way with Starbucks Corporation. We are simply using their name and logo for marketing purposes.

Um, okay. So you admit right out of the gate that you are marketing something—coffee products, obviously, in direct competition with the company whose registered trademarks you also admit you are using, without permission (that’s implied).

How is that legal? Short answer – parody law.

Putting aside for the nonce that there really is no such animal as “parody law,” that’s an interesting short answer. The FAQ elaborates: By adding the word ‘dumb’, we are technically “making fun” of Starbucks, which allows us to use their trademarks under a law known as ‘fair use’. Fair use is a doctrine that permits use of copyrighted material in a parodical work without permission from the rights holder. It’s the same law that allows Weird Al Yankovic to use the music from Michael Jackson’s “Beat It” in his parody song “Eat It.”

I hardly know where to begin.

If you’re admitting that you’re “technically” making fun of something, then you’re never going to convince a judge or jury or me that you were genuinely attempting to make any real fun. Rather, you’re admittedly trying to exploit a doctrine that you sometimes call a law, which you evidently do not understand at all. Indeed, you’re referring to a copyright law doctrine, but you’re infringing on trademarks. (Sure, those trademarks are protected as well by copyright, but this isn’t a copyright matter.) And, worst of all (not really), you’ve drug Weird Al into this, when everyone knows that Weird Al does not invoke the doctrine of fair use to avoid getting permission to record his parody songs. Weird Al always, always gets permission.

So this is a real business? Yes it is.

Good to know. Because your revenues are going to be turned over to Starbucks Corporation soon.

Are you saying Starbucks is dumb? Not at all. In fact, we love Starbucks and look up to them…

Make it stop. It hurts. It hurts! You just… you just admitted that… I can’t continue. This is just too dumb. Fortunately, Starbucks Corporation is “aware” of this—ahem—hilarious parody and is “looking into it.”

Oh, also, as of yesterday, the establishment reportedly did not appear to have a business license. But that’s probably also okay under parody law.

 

Inside s©oop.

The other day, I received an email from a Registration Specialist, Literary Division at the U.S. Copyright Office. She’d written to ask me to submit again/separately the graphics incorporated in a literary work I’d applied (entirely electronically, mind you) to have registered. When I’d sent her the graphics files, she then asked me to confirm that I owned the copyright in each, because if I didn’t, then my single-author application wouldn’t be accurate, and I might have to disclaim something.

This guy.

I had created all of the graphics but one, which one I’d commissioned from a freelancer. I told the Registration Specialist as much, and she reminded me that it might be a work for hire, at which point I confessed to being a lawyer who has forgotten more about copyright law than most people will ever know… and yet who has never been quite able to wrap his head fully around the concept of a work made for hire. In any event, we agreed that the commissioned illustration is a work made for hire, and the Reg. Spec. told me, “The registration is complete.  You should receive the Certificate of Registration by mail in 3-4 weeks.”

Our correspondence didn’t end there, however, as I wanted to pick her brain a bit about what her job entails. (I’m not naming her because I didn’t ask her for permission to excerpt our exchange, and also because her name, while a nice enough name, is not relevant to this post.) About works for hire, she wrote (edited slightly by your blawger):

[T]he law explicitly states that to have a work made for hire, you must have a written agreement stating as much. We get a lot of “Well, my neighbor drew this for me as a favor,” and it can be difficult to explain the legal requirement in a way that makes sense. I think most people don’t realize copyright is a right granted by law (the Constitution, even!) and [therefore] has rules and requirements attached to it.

About the position generally:

The job certainly has a lot of variety. Every day I view between 40 and 50 cases submitted by people from all over. For every J.K. Rowling there are five individuals submitting their unpublished material. We have one guy in California who just sends in pages and pages of his “ideas” scratched out on notebook paper.

Because a lot of people don’t understand the “idea/expression” dichotomy, either, it would seem. I didn’t ask—or, I haven’t yet asked—what she does when she gets pages of ideas, but I might still. I’ll let you know. Also, I imagine that there are more than five people submitting unpublished material for every J.K. Rowling….

Now you can go Holmes again!

Watson and Holmes

Which one is Brozik? Is Coleman really that old?

“Knock, knock.”

 “Who’s there?”

  “Watson.”

   “Watson who?”

    “Not much. But there is this decision from the U.S. District Court for the Northern District of Illinois…”

It would be tempting, to be sure, to try to embellish a discussion of the recent Sherlock Holmes decision with Holmesian flourishes, but this blawger isn’t going to do that—even though the decision has recognized his—and yours, for that matter—freedom to use the “characters, character traits, and other story elements from Sir Arthur Conan Doyle’s Sherlock Holmes stories”—or at least those published before 1923. That said, a simple recitation of the relevant facts is in order—a method Holmes himself might have employed—in a bulleted list (and Holmes would have been able to tell you whether I am left- or right-handed just by examining these bullets!):

  • Sir Arthur Conan Doyle wrote four novels and fifty-six short stories featuring the fictional characters Sherlock Holmes and his friend and chronicler Dr. John H. Watson.
  • The first story, “A Study in Scarlet,” was first published in 1887 (in the United States in 1890). Forty-five further stories and the four novels were published in the U.S. before January 1, 1923. All of these works are in the public domain.
  • The remaining ten stories, published after 1922, are still protected by copyright, owned by a company whose principals are relatives of Conan Doyle.
  • The plaintiff of Leslie S. Klinger v. Conan Doyle Estate, Ltd. is, among other things, an anthologist of new Sherlock Holmes stories. He co-edited an anthology of such works published by Random House, which had entered into a licensing agreement with Conan Doyle Estate, Ltd. to use the characters of Holmes and Watson, notwithstanding Klinger’s belief that no license was required by law. More recently, however, when Klinger sought to have a second anthology published by a different house—and Conan Doyle Estate, Ltd. again demanded that a licensing agreement be entered into (and threatened to pressure retailers not to sell the new book absent such a license)—the second publisher balked, prompting Klinger to sue Conan Doyle Estate, Ltd.
  • Klinger sued in the United States District Court for the Northern District of Illinois for a determination of the “copyright status of a list of specific characters, character traits, dialogue, settings, artifacts, and other story elements in the [Sherlock Holmes canon; the ‘Canon’].” After some procedural missteps—including a failure of Conan Doyle Estate, Ltd. to appear!—Klinger was permitted to move for summary judgment (which the Estate was permitted to oppose, despite its default). Read More…

On context at the intersection of mass tort litigation and intellectual property.

There isn’t much of an intersection of mass tort litigation and intellectual property law, but here’s a tidbit that falls squarely into that slim territory:

In August of 2010, Johnson & Johnson subsidiary DePuy Orthopaedics recalled a replacement hip device—the embattled metal-on-metal ASR—for a variety of reasons. Predictably, lawsuits followed, leading to the formation of a federal multidistrict litigation matter in the United States District Court for the Northern District of Ohio. Last month, a possible settlement arrangement was presented to the court. Before the court will consider the proposal, however, the plan is to be voted upon by the victims themselves. If a sufficient number of victims vote to approve the deal, then it will advance to the bench for review.

Meanwhile, on November 22, Judge Katz, who is presiding over the MDL, issued an order that raised at least one of this blawger’s eyebrows. “The vast majority of plaintiff lawyers who have participated in this MDL and in the cooperating jurisdictions have done so in good faith,” Judge Katz wrote. “This Court appreciates the efforts of those lawyers who zealously represented the interests of their clients in this case and who participated in this MDL and in the cooperating state court jurisdictions.”

Unfortunately, there have been a number of potentially misleading websites and website postings regarding this case and this settlement. *** Because of these websites, it is difficult to actually find the official website for this settlement which is www.usasrhipsettlement.com. Please be advised that any other website that purports to be a DePuy ASR settlement website is not authorized. Only DePuy itself can rightfully use its name in any website address in this context.

This Court takes very seriously the ability of the ASR patients and their counsel to obtain accurate information regarding this settlement and make informed decisions free of deceptive advertising or other misinformation from third parties. (See ABA Model Rules of Professional Conduct, Rules 4.2, 7.1, and 7.3). *** This Order is entered to protect ASR patients and their counsel from misinformation.

All for avoiding misdirection.

All for avoiding misdirection.

“Only DePuy itself can rightfully use its name in any website address in this context.” Did you see that?

Now, I’m all for the protection of victims against misinformation or misdirection, the efficient conducting of court business, and other wholesome things… but Judge Katz’s decree gives me pause. Read More…

Fight for your right to parody. Or don’t.

GoldieBlox logoSometimes, just when a copyright dispute is getting very interesting, the parties go and do the unthinkable: They resolve their differences like reasonable people, and then there’s nothing left to do but imagine how things might have played out. And here we are.

Recently, in a very short period of time—less than two weeks—these things happened, in fairly rapid succession:

  • A company called GoldieBlox—established in 2012 to help introduce girls to the field of engineering—produced and released an advertisement for its products.
  • The GoldieBlox spot got noticed—because it was twelve kinds of awesome—but one of the ways in which it was awesome is the parody of the song “Girls,” recorded and released in 1987 by the Beastie Boys, used as the soundtrack.
  • GoldieBlox was contacted by counsel for the Beastie Boys. Said counsel reportedly notified GoldieBlox that because the Beastie Boys and writer/producer Rick Rubin, as copyright holders
    of the original song, had not given—and did not now give—permission for a version of the song to be recorded and used, GoldieBlox was therefore infringing the exclusive intellectual property rights of the Beasties/Rubin, and that unless such infringement ceased and GoldieBlox desisted… well, you know the rest.

beastie_boys_logo2

  • GoldieBlox sued the Beastie Boys and Rubin—with admirable alacrity—for a declaratory judgment… and the Internets went nuts, in part because many laypersons do not understand what declaratory judgment is (remember the Robin Thicke/Marvin Gaye story from a few months ago?), and in part because many people thought they’d read or heard that the Beastie Boys had sued GoldieBlox.
  • Then Beastie Ad Rock tweeted: “You guys..Don’t get it twisted. We did not threaten to sue Goldiblox..THEY’RE SUING US.” Which was accurate, if a tad disingenuous. A distinction without a difference, one might say.
  • And then GoldieBlox did something seemingly—see below—very classy: The company posted an open letter to the surviving Beastie Boys stating, among other things, that the company was unaware before hearing from the Beasties’ counsel that the late Adam Yauch had “requested in his will that the Beastie Boys songs never be used in advertising” and for that reason, even though “we believe our parody video falls under fair use, we would like to respect his wishes and yours,” GoldieBlox had already removed the song from its video. (Of course, the unredacted version can still be found with no effort at all, but it would be irresponsible for this blawg to point you to anywhere specific.)

Licensed to ill in NY and NJ.

I write “seemingly,” because one might argue that GoldieBlox has already gotten everything it had hoped to from its song parody, and therefore removing it now is merely… er, lip service. Indeed, some have suggested that GoldieBlox’s entire goal from the start was simply to get press, and that proactively suing the Beastie Boys was just a part of the plan—except that to bring a legitimate suit for declaratory judgment one needs to allege a real controversy, and there would have been none if the Beasties’ lawyers had not threatened legal action. And it’s not as if you can force someone else’s lawyer to threaten you with litigation. The most you can do is use their intellectual property without permission in a video that goes viral and… wait just a minute…!)

This will probably be the end of the matter. Read More…

Grande, Venti, De Novo. (Starbucks VI)

Drinks a lot of coffee. A Lot.

Drinks a lot of coffee. A Lot.

Last week, while one giant was vindicated after years of litigation—even if its name was spelled “Goggle” on page 2 of Judge Chin’s decision—another was dealt a decisive, possibly final blow in federal court. In what I believe will be called “Starbucks VI,” which constitutes the third appellate decision in Starbucks Corp. v. Wolfe’s Borough Coffee, Inc., the United States Court of Appeals for the Second Circuit affirmed the decision of the United States District Court for the Southern District of New York (“Starbucks V”) concluding that Starbucks failed to prove that the defendant’s use of the marks MISTER CHARBUCKS and CHARBUCKS BLEND is likely to dilute Starbucks’s famous marks including, of course, STARBUCKS.

Here are the salient points from what will be—unless Starbucks appeals to the Supreme Court—the last word in the matter [For some previous words, start here -- RDC]

starbucks-logo

Just one of at least 56 marks…

Way back in 2005, a bench trial was held in the Southern District to determine whether Wolfe’s Borough Coffee, a New Hampshire corporation doing business as “Black Bear Micro Roastery,” was infringing on some of the more than 56 registered trademarks of Starbucks Corp.—including the mark STARBUCKS and those that incorporate that mark—by using marks that include the word “Charbucks.” Even before Black Bear began using its CHARBUCKS marks, the Starbucks marks had become famous. And if we’re talking about famous marks, then of course we’re going to talk about dilution.

Indeed, dilution is all the Second Circuit addressed in its most recent decision, because Starbucks’s claims of trademark infringement in violation of 15 U.S.C. § 1114(1), unfair competition in violation of 15 U.S.C. § 1125(a), trademark dilution in violation of NY Gen. Bus. Law § 360-l, deceptive acts and business practices and false advertising in violation of NY GBL §§ 349 & 350, and unfair competition in violation of New York common law were all dismissed previously. In other words, Starbucks kept losing grounds. Er, ground.

At the trial, “two matters of significance to [the last] appeal occurred,” according to the Second Circuit. One of those is that Starbucks introduced the testimony of a “scientist in the field of consumer research and polling.” Warren J. Mitofsky explained the results of a telephone survey he had conducted of “six hundred participants, designed to be representative of the United States population.”

 The survey asked, “What is the first thing that comes to your mind when you hear the name ‘Charbucks,’ spelled C-H-A-R-B-U-C-K-S?” 30.5 percent of participants answered “Starbucks.” Nine percent answered “coffee.” (Other common responses included “barbecue” or “charcoal”; “restaurant” or “grill”; “meat,” “steak,” or “hamburger”; and “money.”)  When the participants were asked “Can you name a company or store that might offer a product called ‘Charbucks’?,” 3.1 percent responded “Starbucks,” and another 1.3 percent responded “coffee house.” But more popular responses to the second question included: “grocery store”; “discount store”; “restaurant”; “department store”; and “hardware store” or “home improvement store.”

Read More…

“Happy Birthday”: Second verse, same as the first.

While I wasn’t looking, the lead plaintiff in the class action to have the song “Happy Birthday to You” declared to be in the public domain (1) in late July, voluntarily dismissed the action brought in the Southern District of New York, and (2) in late June, filed a class action in the Central District of California, which has been consolidated with other cases… but it appears that the allegations and claims as we knew them are all intact, just relocated. It would appear as well that the plaintiffs filed a Second Amended Consolidated Complaint along the way, because it is parts of this Second Amended Consolidated Complaint that are the subjects (objects?) of a recent motion to dismiss made by the defendants, Warner/Chappell Music, Inc. and Summy-Burchard, Inc.

Wasn't looking.

Wasn’t looking.

On August 30, the defendants moved to dismiss the plaintiffs’ federal claims (Claims One and Two, of seven, seek the declaratory judgment and other relief that would follow from the entry of declaratory judgment) to the extent that they are time-barred by § 507(b) of the Copyright Act, a three-year statute of limitation. The defendants also moved for dismissal of the plaintiffs’ other five claims, all based in state law, as being preëmpted, insufficiently pleaded, time-barred, etc.

The court—Hon. George H. King, Chief U.S. District Judge, presiding—ruled as follows:

  • Some of the plaintiffs’ federal law claims—that is, the claims of some of the plaintiffs—are time-barred, being older than three years. The plaintiffs argued for a four-year limitation period, inasmuch as the bar expressly provided in the Copyright Act doesn’t, or shouldn’t, apply to declamatory judgment actions, and the federal Declaratory Judgment Act does not have its own statute of limitations, so the court should borrow a limitation period from an analogous California statute… which argument the court found unpersuasive. So Claims One and Two were dismissed as to certain plaintiffs, with leave to amend their pleadings to allege delayed accrual or tolling. But the Second Amended Consolidated Complaint remained undismissed generally.
  • And, giving effect to something the parties themselves had agreed upon at a conference, the court ordered that Claim One—for declaratory judgment—would be bifurcated through summary judgment. The other six claims—the one federal claim for post-declaration relief and the five state-law-based claims—are stayed until further order of the court.

I would love to be able to end this post by writing, “We’ll be watching this case closely as it continues…” or some such, but the truth is that I’ll probably get distracted and won’t even know about a resolution for a month after one is reached, and I’ll still be sending Warner/Chappell royalty checks every time I sing “Happy Birthday to You” even when the song is in the public domain….

A Mickey Mouse confession.

Horse thief.

Horse thief.

Has it really been fifteen years since the Copyright Term Extension Act was signed into law? (It has. President Clinton signed the bill on October 27, 1998.) Time flies when you’re protected by copyright law, I suppose. And what the CTEA did, of course, is extend the period of copyright (for many works) for another two decades. (For the details and a discussion of the opposition to the law, read this piece from the Washington Post.)

The CTEA is popularly known as the “Sonny Bono Act” (in memory of the musician-turned-Congressman who had died tragically earlier in 1998)… and derisively as the “Mickey Mouse Protection Act,” because if not for the CTEA, “Steamboat Willie,” the first Mickey Mouse cartoon, would have entered the public domain in 2003. According to some, this would have allowed anyone to use the character in new works, but that hardly seems correct, being that (1) the depiction of Mickey Mouse is a registered trademark of the Walt Disney Company, and (2) there is no 2. If the 1928 short film were to enter the public domain, there would likely be very little harm done to Disney. Many much wiser legal scholars than I have addressed this topic, however, so instead I’m going to tell you about my personal connection to Mickey Mouse:

Not my grandfather's work.

Not my grandfather’s work.

Years ago, my late paternal grandfather had a business that sold souvenir items to gift shops in New York City. My grandfather, as I understand it, bought in bulk various and sundry (cheap) novelty items, like plates, mugs, key chains, oversized pencils, piggy banks, etc., on which he would then have printed or otherwise applied graphics to make them New York City souvenirs. Usually, the graphic was some form of the I♥NY (a trademark of the State of New York).

And sometimes it included a depiction of none other than Mickey Mouse.

Yes, my grandfather received a cease-and-desist letter from counsel for Disney. I couldn’t tell you if my grandfather ceased or desisted applying Mickey Mouse graphics on the souvenirs that he sold to gift shops. He probably did. That is, he certainly did when he eventually gave up the business and moved to Florida.

So there’s my confession: I come from a family of trademark infringers. One, anyway. I hope you’ll still be able to respect me. It feels good to get that off my chest, anyway.

What’s your poison? Copyright infringement.

You’ve heard the tale in one form or another: A bar plays a recorded song over its sound system (without permission), then gets sued for violating the public performance right of the musical composition’s copyright holder. But it’s just an urban legend, right? Wrong. It happens. It happened earlier this month.

There is (according to the complaint in Broadcast Music, Inc., et al. v. JNJ Enterprises, Inc., et al., anyway) an establishment in White Plains, New York known as The Lazy Boy Saloon (but also as The Lazy Boy Saloon & Ale House and as Lazy Lounge) where, on August 16, 2013, four songs in the formidable “BMI Repertoire” were played, presumably over the speakers in the place with reckless abandon and utter disregard for law and/or order. That is: “Defendants publicly performed and/or caused to be publicly performed at the Establishment the musical compositions identified… without a license to do so. Thus, Defendants have committed copyright infringement.”

(The four songs? Brown Eyed Girl; Every Rose Has Its Thorn; Sympathy For The Devil; and Talk Dirty To Me.)

Matthew David BrozikThe verified complaint is brief; it has all of twenty paragraphs of allegations. There are no sordid details (other than that, of the four songs at issue, two are by Poison). In fact, this lawsuit is so… boring, that I’m wondering (as you might be as well) why I’m writing about it. Maybe because it seems like such a small thing, hardly worth starting a literal federal case over.

Don’t get me wrong: I’m all for protecting the rights of copyright holders and other owners of intellectual property. I’m the guy who actually says, “Don’t steal music” to other people and means it.

But this… this seems like something that could have been overlooked by BMI, no? Read More…

Covering your assets.

Over the weekend, all the nerdiest news outlets reported that Volpin Props—a company that makes props and replicas “mostly videogame related,” according to the outfit’s Facebook page, “but anything goes!”)—received a cease-and-desist letter from Couristan, Inc., a rug and carpeting concern… for possibly the nerdiest/coolest reason imaginable (under the circumstances): Volpin had made for two attendees of the recent DragonCon—held at the Atlanta Marriott Marquis, a hotel with a wide variety of some very, very busy carpeting—custom camouflage outfits in the same pattern as one of the busier carpets at the venue. See a terrific photo here.

Does not wear carpet.

Does not wear carpet.

This probably would have been fine. That is, making custom carpet-camouflage costumes for a couple of conventioneers likely would not have gotten Volpin on Couristan’s radar. Or maybe it would have garnered Volpin praise from the carpeter. But Volpin didn’t just make the costumes; it reportedly put the fabric up for sale at Spoonflower.com, a site that sells fabrics, wallpapers, decals, gift wrap, etc. And that got Couristan’s attention—and Volpin got a C&D letter.

Because of course. And I mean that: Assuming that Couristan holds the copyright to the carpet pattern—and, man, what a pattern it is!—then Volpin can’t sell a fabric with that same pattern, else it infringe on Couristan’s intellectual property rights. And, to Volpin’s credit, the company’s principal—Harrison Krix, himself of Atlanta—has asked (on Facebook, where much of the public commentary has been posted) that people “not send Courtisan [sic] Inc or Marriott any nasty messages concerning this. I’m in complete agreement with their decision.”

(If you have three or four hours free, you might read the nearly 500 comments on Volpin’s Facebook posts about carpet-flage-gate. Then check out photos of all the carpeting at the Atlanta Marriott Marquis.)

 

Detective work: Hunting down the copyright victory (of a “cop”).

Matthew David Brozik

Amateur sleuth.

If you want to read an article about an important development in copyright news, but you don’t want to be distracted by a lot of “facts” and such, enjoy this piece in the New York Times about Victor Willis, formerly of the Village People. You’ll learn next to nothing! And that’s too bad.

Rumor has had it for some time that the Times is written at an eighth-grade reading level. I went to eighth grade. I can read and understand this Times article. What I can’t understand is why the piece links to such things as an interview with a French record producer, but not to such things as the court decision that informs the news purportedly being reported: to wit, that Mr. Willis is the first musician to successfully reclaim, under Section 203 of the Copyright Act, his rights in and to musical compositions transferred some 35 years ago. Indeed, I had to read the article several times before I realized that there has in fact been a court decision. And I successfully completed eighth grade!

Fortunately, I am something of an amateur detective, and there are some clues in the Times piece. The name of a party (likely not the plaintiff, because the way these termination cases are coming to court is that the creators of the works at issue are sending termination notices to the transferees, and then the transferees are consequently filing declaratory judgment actions) is one—Victor Willis, the “police officer” of the Village People. (Now you get the “cop” joke, yes?) Also, the article mentions “Federal District Court in Los Angeles.” So to PACER I go… ah, but first to a map of California, because I honestly do not know where in the state L.A. is. No, I’m not kidding. I’m a New Yorker. Turns out, Los Angeles is in the Central District, and… well, this is interesting:

There is no such case in the Central District of California, according to PACER. No case under the name of Victor Willis, nor the entities to which he assigned his rights years ago (and from which he has reportedly reclaimed them), Scorpio Music S.A. and Can’t Stop Productions, Inc. (neither mentioned in the Times piece). But what’s this? Scorpio Music S.A. et al v. Willis… in the Southern District of California (San Diego)? And doesn’t the Times piece mention that Mr. Willis spoke to the Times by telephone “from his home in Southern California”? Also, the photo accompanying the piece shows Mr. Willis “in downtown San Diego.” Okay, so maybe the Times made a simple mistake, and the case was heard in “Federal District Court in San Diego.” (This leads to the obvious question—sing it with me: “Why, NYT?”)

No harm, no foul. Read More…