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There was once a time when you could stroll through an arcade and see a line of pinball machines, usually being played by very irate people gyrating the machine back and forth showing it “who’s boss”. Always a simple game with a simple user interface (what arcade game today has only two buttons and involves actual moving parts, not virtual humanoids or dynamically generated special effects?) today, most pinball machines have been replaced by games featuring the latter characteristics. It’s all for the good of the industry I hear, or at least that’s the idea I get when I watch videos like these where kids react to a GameBoy (summary: a lot of kids saw it as the equivalent of an old record player). After all, pinball machines still use… Coins! Oh the humanity. Besides presenting “old” types of gaming interfaces, pinball machines have fallen out of favor in the last few decades because they are expensive to repair and some of the parts are hard to find.

Despite the headwinds, there are still many pinball enthusiasts who are out there trying to save the game, much like Skee-Ball devotees are trying to save that game by instituting tournaments and generating buzz by deeming it a sport “almost recognized in the 2012 olympics”. These coin-toting strongmen, with a flare for slapping giant wooden boxes and shaking them harder than a 7.0 Richter Scale earthquake refuse to let go of their insatiable appetite for blinking lights, multiplier jackpots, and the ever-elusive quest to make the top score board.  

If your goal is to keep the game relevant (and thereby ensure that there are enough new games and suppliers/servicers to help keep pinball machines ticking), how do you convince a younger and increasingly-tech savvy generation that pinball can be fun? You do what any enterprising tycoon does: you turn to synergies; brand and copyright synergies, to be exact.


 
 
If you couldn’t tell by the title (it’s a somewhat cryptic reference), this post pertains, yet again, to a pop-culture icon attempting to get a trademark on an element of a performance. For this reason, you might be justified in wondering if I have Katy Perry and Taylor Swift on repeat in my iTunes playlist. Well, I don’t. The truth is, there have been a lot of interesting developments lately in the trademark world involving these pop stars, who seem to be as interesting in their intellectual property protection strategies as they are in their performances.

At this point, unless you live under a rock or haven’t read this blog (I forgive you, I promise), you should probably be familiar with the dancing sharks that Katy Perry used in her performance at this year’s Super Bowl. Here’s a picture to remind you. 
The dancing sharks went viral mainly because one of the sharks decided to go rogue in its performance and not follow the choreography. I guess I would do the same thing if I was in the spotlight dancing for an audience of over 100 million people. But I digress.

Perhaps one totally unintended consequence (or benefit) of the choreography malfunction was the tremendous following these sharks acquired after the Super Bowl performance. Indeed, immediately after the performance, artists jumped on the opportunity 3D making models of the sharks and selling them on sites like Shapeways. Of course, other enterprising artists struck to Etsy to sell shirts bearing the cute but aloof shark.


 
 
Picture"Call me, maybe?" (image credit http://popdust.com/2012/06/19/carly-rae-jepsen-call-me-maybe-lyrics-analysis/)
By now its practically a universal symbol of, well, I’m not quite sure. Only that I have seen it in numerous avatars and it has generally gone “viral”. Just in time for Easter somebody has actually made one of these fanciful shark figures out of peeps. I’m talking of course about Katy Perry’s sharks from her halftime show during the Super Bowl. Specifically, the left shark, who seems to have made up his own choreography. What is it about these sharks that seems to have tickled so many people pink?

I’m really not able to say, just like I can’t say what caused the “it’s peanut butter jelly time” dancing banana to take off. I guess people on the internet really have a penchant for taking short clips of comical figures, pairing them with a short pithy statement, and using it to charm fellow internet users with a laugh, in an endless pursuit of a million Facebook likes. Or maybe it stems from Twitter’s 140 character limit rule; it really forces us to make the message small and compact. Just as Josh Billings said: “There’s great power in words, if you don’t hitch too many of them together.” 

Take the lyrics from this catchy song from Carly Rae Jepsen:


“Hey I just met you
And this is crazy
But here’s my number
So call me maybe”

They should sound fairly familiar, considering they are from a song that placed high on the Billboard charts (this means it was widely played!) and its election as Song of the Year in 2012 by MTV (this means… actually, I have no idea). Also, if you have kids in the age range of 10-18 or even early 20’s, if you happen to catch a little of their music, you’ve probably heard this song before. Although these lyrics represent just a snippet of the song, they are probably the most highly quoted.


 
 
PictureYes, this image in the public domain.
This past week there was quite a stir when the Daily Mail published a story discussing an obscure provision in the EU copyright law that, on its face, appears to require any person taking a picture of the Eiffel Tower at night must get approval from some outfit called the Societe d’Exploitation de la Tour Eiffel. Yes, you read that previous sentence properly: it included a reference to both copyright and a building. And yes, the rules only restrict taking pictures of the tower at night and sharing them; daytime pictures are A-okay. At this point, you might be a little confused about several things. Quite frankly, I am too, I mean after all, being in the public and freely accessible to anyone, isn’t it unfair to deprive someone of the ability to photograph something? Aren’t these buildings designed for the express purpose of giving others inspiration and allowing them to incorporate the building into their own artwork? Ay, my head is spinning already, as it usually does when copyright I dissect copyright issues. Despite being a seemingly simple idea and legal concept, copyright laws have evolved (or devolved, depending on the context for discussion) into a complex web of statutes and case law protecting not only standard faire, but more advanced and nuanced “artwork as well”.

With that narrative in place, let’s dive in here and break it down.

First, buildings can be copyrighted. More specifically, architectural works are protected. They are protected even though they are “useful”, being made primarily for the housing of people and things. Architectural works and architectural plans are both protected as copyrightable works. When you think about it, this makes sense because architecture, as a form of practical artwork, can be just as much of an original creation as can a painting or sculpture. If an architect spent years designing a critically-acclaimed building only to have elements of it copied by another drafter and re-created on the cheap, it seems wrong that the copier should get off scott-free, especially since architectural plans and drawings are so easy to copy. 


 
 
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As we transition from summer into fall, we get ever closer to that venerable time of year when the skies turn gray, the cold winds blow, and the ground turns a stark shade of white. Who would have ever thought that a movie set in a cold, snowy world with a plot evolving around a person with the magical ability to freeze people would be such a success. Of course, the whole reason for its success seems not to be the setting of the story but the characters and the underlying themes. It would be quite a shame if these themes were copied from somebody else’s story, especially if the copying was done by Disney, a media company hailed as a bastion of originality and creator of magical experiences for multiple generations of kids and kids at heart.

What is so special about Frozen that has enabled it to gross nearly $1.2 billion (yes, with a “b”) worldwide since its release? Could it be funny scenes, like the one where Olaf and Sven battle it out across the throws of a frozen pond to reach Olaf’s discarded nose (which itself is the subject of litigation over copyright infringement)? Threads like this woven throughout the plot make the movie as a whole special and contribute to the entertainment value of the film, but the true essence of the movie is the overarching theme of sisterly love sprinkled with the usual obstacles of overcoming physical and emotional hardships and, of course, realizing true love.

In case you are wondering, I will go out on a limb and say, “yes, you probably have seen this before.” Yet, Tanikumi (the author who claims Disney lifted the storyline of Frozen from a book she wrote) is claiming that her story wasn’t something you have seen before. Here is a table showing some of the elements from Tanikumi’s book, all of which are cited in her suit against Disney for copyright infringement as elements that are similar to elements in Frozen:

1.     Village near snowy mountains: Story is set at the base of a snow covered mountains where two sisters live with their parents.
2.     Two sisters: Both sisters are a few years apart, have opposite hair colors, and each own a horse.
3.     Intense sisterly love: one sister has a deep love for the other sister.
4.     Older sister accidentally hurts younger sister: the two sisters are playing when one falls into a vat of hot custard, becoming severely injured.
5.     Younger sister falls in love: the suitor-to-be is a dark haired, tall and fair man
6.     The suitor-to-be has competition: another man has a love interest in the younger sister (who is conflicted about who she really loves)


 
 
Some woman writes a story about her life in a remote village in the Andeas, a story about deep sibling love, betrayal, true love, and tragedy that goes to the root of the love shared by two close sisters. Sounds like a lot of other stories you have read, doesn’t it? It may even sound like Frozen, or at least that’s what one author, Isabella Tanikumi, thinks (yeah, I’d never heard of her, either). She has filed suit against Disney claiming $250 million in damages. The claim? That Disney took the theme, characters, and plot from a book she wrote about her life.


 
 
It seems like I have had a lot of conversations with people lately about movie and book titles. No, not in the form of trivia questions; I mean conversations about how so many movie titles just seem to sound the same. Or a related topic: how can a movie studio come up with a title for their movie when there are already so many other movie titles out there? In a universe with a finite list of words and phrases, how does a “Title”ist (fancy moniker for somebody who writes film titles, according to me) expand their wings?

Here is just a short list of titles that overlap:
28 days vs. 28 Days Later
Monsters Inc. v. Monsters Ball
Aristocats vs. Aristocrats
Black Sheep vs. Black Sheep

But wait a second: aren’t names and such (anything that is a creative work) protected by copyright? Nope, not really short phrases, of which titles, be it a book or movie title, falls victim. Names and short phrases such as “Live, love laugh” just don’t exhibit enough creativity to be protected in the same way that a full-length book or movie is. Or at least that’s what the Copyright Office has specifically declared in its decree that all words embody a “minimum amount of authorship in the form of original literary, musical, pictorial, or graphic expression.”


 
 
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As if everyone else hasn’t already had enough of winter, I thought I would throw a little Christmas cheer into the mix just to remind everyone that the holiday shopping season (which seems to move up a few weeks each year), is only like 6 months away. We’re halfway there, which is great if you are a retail store or manufacturer of electronic goodies because that means you have a little bit more time to fine-tune your next big release and marketing campaign in time to cash in on the big rush.

What boggles my mind is that there are some companies that actually dedicate their entire existence to Christmas and selling all the related wares like tinsel, strings of lights, ornaments, and (of course) Christmas trees. I’m not knocking these stores at all; if you can make a business successful (like this company in Michigan has done), more power to you. Christmas is a time of happiness and cheer, a time for giving. So how did a nutcracker, perhaps one of the quintessential décor items of Christmas, find itself in the middle of a fight? No, not the fight between Clara and Fritz in The Nutcracker play, but a knock-down, drag-out, spare no expense battle over copyright?

Yes, you heard me right: copyright. Here’s a little backstory to add some Christmas sparkle. Old World Christmas (OWC) is a year-round Christmas store that sells, as its name not-so-subtly suggests, Christmas décor and related products through showrooms in Atlanta, Law Vegas, and Dallas. A while back, OWC contracted with this company in Georgia to design and manufacture a nutcracker. Besides looking very nutcracker-ish, with a tall body mounted on a pedestal, large hat/helmet, and white hair protruding from under the hat and under the mouth, OWC’s design incorporated skis and poles. The nutcracker, eponymously named “Alpine Skier,” was also registered with the U.S. Copyright Office. That was in 1998. The contract between OWC and the supplier eventually lapsed. At some point, according to OWC,  this supplier began making a nutcracker with a substantially similar design for Gump’s Corp., a novelty-company in San Francisco, also a purveyor of fine Christmas décor (although not exclusively Christmas). OWC filed suit against both the supplier and Gump’s alleging copyright infringement, seeking damages and injunctive relief.


 
 
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Things are starting to get feisty in the epic battle that pits, well, boys against girls. Yes, the age-old conflict immortalized by such debates as Hot Wheels vs. Barbie Dolls has found a new manifestation surrounding a song that is ostensibly about gender roles. It’s not exactly the kind of fight that you might think of, however.

By now this story has pretty much made the social media rounds and has been extensively commented on by many of my esteemed colleagues (see here for an outstanding summary of the dispute and interesting commentary on merits of the suit, and here for a counter-viewpoint regarding fair use). For that reason, I won’t elaborate too much on the background for fear of boring readers (which I hope number more than a few) into leaving this site entirely. At the risk of being reiterative, here is the basic story. 



 
 
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The "Like" Button. Facebook's barometer of users' overall mood.
Last week, an app developer was in the news for creating the world’s biggest digital blob. Okay, its really just a gigantic compilation of all the facebook profile pictures ever uploaded, arranged chronologically by date of upload. That’s a grand total of 1.2 BILLION images weaved into a massive collage that resembles the dreaded snowy picture that one would often get on their television screens before TV’s became more aesthetically pleasing with their screens and simply displayed “no signal” instead of snow.

Undoubtedly, there is no way that the creator could have obtained the permission of every single facebook user prior to posting their profile pic. Indeed, the creator relied on a special algorithm that scanned facebook profile pages for each user and downloaded the profile pics. All those profile pictures, most of them are photographs that people took themselves, right? And some users probably use paintings and pictures of other things (besides themselves), where the pictures were taken by other people, right? Take this quote from 2011, for instance from the British Journal of Photography: