No copyright in the fact of your existence

Originally posted 2009-01-02 09:19:37. Republished by Blog Post Promoter

Whether someone else’s movie includes your building in Times Square (a properly defunct trademark claim) or, as Marty Schwimmer reports, your pinball machine in the corner of the room, being an IP jerk — at least in front of U.S. District Judge Denny Chin — will only get you so far:

[T]he movie ‘What Women Want’ depicted a pinball machine in the background of a scene. The owner of rights in the pinball machine sued the producer, Paramount, for copyright and trademark. The court said “de minimis non curat lex.”

The decision is here.

Judge Chin ordered “costs” (basically the filing fee and other trivial amounts) awarded to the defendant, but explicitly stated that plaintiff was not required to pay the defendant’s attorneys’ fees.  For while the law does not concern itself with trifles, the law unfortunately considers trifling the legal fees expended by those forced to defend manifestly meritless causes — even under a statute such as the Copyright Act which permits fee-shifting.  And that remains no small thing at all.

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Author:Ron Coleman

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8 Responses to “No copyright in the fact of your existence”

  1. David Nieporent
    January 2, 2009 at 11:41 am #

    Wait, you address the copyright claim. But what about the trademark claim? The copyright claim is “merely” trivial, but it seems to me that the trademark claim is utterly frivolous, and also could have, and should have, resulted in a fee award to the defendants. I know that the Lanham Act is interpreted to provide for fee awards only in “exceptional” cases, but this case presents a pretty egregious abuse of trademark litigation.

  2. MarcW
    January 3, 2009 at 9:38 am #

    Does this mean people are going to stop sending me generic release forms every time my company’s classic video game appears on screen for sixteen frames in a movie somewhere?

    Frankly, I won’t miss ‘em. It stopped being cool after about the sixth one.

  3. James Lindon
    January 3, 2009 at 1:41 pm #

    What I wonder is why the movie set included the pinball machine. It may be just “background” but they probably picked a machine they thought looked good. Why should they not pay the pinball machine creators?

    • January 3, 2009 at 7:00 pm #

      Because what you described is neither copyright infringement or trademark infringement.

  4. January 4, 2009 at 8:24 pm #

    Still… a product placement opportunity lost.

  5. Laura Lee
    January 9, 2009 at 2:30 pm #

    They probably also chose lighting that looked good, clothing that looked good, tables, chairs, carpeting… To pay a licensing fee to every object that a camera passes would make it impossible to make films. Life has stuff in it.

Trackbacks/Pingbacks

  1. CopyrightLaw - January 2, 2009

    “No copyright in the fact of your existence” http://tinyurl.com/9l7jpv

  2. Blawg Review # 193 « Charon QC…the blawg - January 4, 2009

    [...] and beliefs.  I am no mere trifle, but thankfully, as US attorney Ron Coleman, author of the Likelihood of Confusion blog, will attest…  there may be “No copyright in the fact of your [...]

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