4 ms·
Weird Al does not rely on fair use, he seeks permission from the rights holder[1]. I don't think their reading of fair use is correct here. They talk about the
by paulgb 13y ago
Weird Al does not rely on fair use, he seeks permission from the rights holder[1].
I don't think their reading of fair use is correct here. They talk about the copyright doctrine, but the trademark doctrine is entirely separate.
Unlike the copyright doctrine, under the trademark doctrine, the commercial aspect of this works against them:
"In general, however, the courts appear to be more sympathetic to the extent that parodies are less commercial, and less sympathetic to the extent that parodies involve commercial use of the mark"[2]
(disclaimer: ianal)
[1] http://fairuse.stanford.edu/overview/fair-use/cases/ http://fairuse.stanford.edu/overview/fair-use/cases/
[2] http://cyber.law.harvard.edu/metaschool/fisher/domain/tm.htm http://cyber.law.harvard.edu/metaschool/fisher/domain/tm.htm
- nostromo 13y agoWhat about all those cheesy parody t-shirts people sell for profit? E.g.: http://i.imgur.com/AtIbWVe.jpg http://i.imgur.com/AtIbWVe.jpg Aren't those legal parodies of protected trademarks?
- sabbatic13 13y agoSelling a t-shirt with a parody logo of a company isn't the same as a company presenting itself with a parody logo of an another company in the same space.
- jrockway 13y agoThen what is "Scroogled"?
- stbullard 13y agoUnless your business is clothing; see http://en.m.wikipedia.org/wiki/The_South_Butt http://en.m.wikipedia.org/wiki/The_South_Butt
- chrismcb 13y agoAnd The South Butt lost
- MichaelApproved 13y agoThey lost? I didn't get that from the wiki: "The court ordered mediation in the case, and on April 1, 2010, the parties reached a closed settlement agreement."
- sfall 13y agoyea the south butt stopped operating
- delinka 13y agoLater in the article you'll read where The South Butt admitted breaking the agreement.
- MichaelApproved 13y agoThey broke the settlement agreement, that doesn't mean they lost the original court case. Them breaking the settlement agreement has nothing to do with creating case history for other intellectual property cases. Them breaking the agreement is a completely different issue than anything else going on in the article.
- jarrett 13y agoThe commercial nature of the alleged infringement it doesn't necessarily determine the outcome. So you could have one case where the judge rules for the plaintiff because the use is commercial, and another where the judge rules for the defendant despite the fact that the use is commercial.
- ben0x539 13y agoEh, if the starbucks spokesperson is quoted as saying "Its obviously not a Starbucks," they ~obviously~ don't have a case with regards to trademark infringement, since ~obviously~ consumers aren't being misled or whatever.
- jarrett 13y agoYou're speaking about the "likelihood of confusion" standard for trademark infringement, I presume. If a company employee admitted to a fact that was damaging to the company's case, then that could be a real problem. The spokesperson's judgment of the "obvious[ness]" is just an opinion, though, rather than a factual admission. The courts aren't likely to take that opinion as gospel. In other words, that statement won't short-circuit the court's normal process of evaluating the evidence and determining whether infringement has occurred. Given that, who would win? I don't know. I'm just saying that the spokesperson's statement doesn't automatically scuttle whatever case Starbucks might have. Also worth nothing: Another possible claim would be trademark dilution, which, unlike infringement, doesn't require likely consumer confusion.
- delinka 13y agoOr, maybe it's "obviously" not a Starbucks because the owners of Dumb Starbucks Coffee already contacted Starbucks and worked things out and keeping mum on the topic is part of the agreement until the punchline is delivered some time in the future. That said, if this were the case, you'd think the PR response would be even less information-- silence, or "we're looking into this" and leave it.
- chilldream 13y agoAlso, reading "obvious" as "obvious to the general public" rather than "obvious to the person I'm speaking to right now: a journalist specifically asking for comment because they already believe it's not a Starbucks" and expecting that interpretation to hold up anywhere that matters is the kind of thing you only see in Internet lawyering.
- gonzo 13y ago"Doesn't require likyhood of confusion." But does require that the misuse be in a different class, IIRC. And not so much trademark as trade dress. Knew the lawyer who argued the case for Taco Cabana in front of SCOTUS.
- 1stop 13y agothey so far have only been giving away the coffee... so there isn't a commercial aspect yet.
- paulgb 13y agoGood point, I was responding directly to the wording of their FAQ which implies that they plan to sell coffee at some point.
- pbhjpbhj 13y agoPrice (inc. zero price) is not he test for whether actions are commercial. Usually the test includes a measure of whether the actions are damaging to the commercial nature of the offended party in a suit.
- delinka 13y agoI think these people are also being disingenuous about their classification of their "business," stating plainly that they are attempting to skirt trademark law by being some kind of art installation. Either it's a parody with permission from Starbucks (which neither party to the agreement is required to inform the public about) or they're going to be in trouble. A bit more tangential to the topic, there are an awful lot of details missing from that Stanford link about Weird Al's work. He can write completely different lyrics and publish them all he wants without getting permission or paying royalties. If he chooses to record his own lyrics (which he holds the copyright on) to the same tune as the lyric he parodies, then he becomes responsible for paying royalties on the musical composition only. Once a song has been recorded and published, U.S. law compels licensing to anyone else to also record and publish their version of that song at specified royalty rates to the original lyricist and the original composer (compulsory licensing.) Weird Al does seek permission. This is simply a gesture of good will on his part. He is in no way required to seek this permission. He writes unique lyrics to which he owns the copyright, records them to the original tune (owing compulsory rates to the original composer), and he's completely legal without ever having to have sought anyone's permission. And "fair use" never enters the equation because copyright law already compels such licensing.
- ErsatzVerkehr 13y agoDumb Starbucks is a parody of parody. A meta-parody.
- b1daly 13y agoActually I think the compulsory license does not apply if it is a derivative work, you would need permission from the publisher.
- delinka 13y agoIf the work can be defined as "derivative," then you are correct. So how do we define "derivative" when it comes to lyrics? Are all limericks derivatives of the original simply because they have the same pattern? I suspect the definition a judge would use would take into account how many words from the original lyrics appear in the exact places in the parody lyrics. Comparing Weird Al's Amish Paradise to Coolio's Gangsta's Paradise, I'd say Al is pretty close to that derivative line. If I were the judge, I'd probably rule for Al in this specific case. And this is the reason Al gets permission - let's avoid all this nastiness and just do what we love.
- joe_the_user 13y agoOne that you might note in your argument is how the store so far has not sold anything - it has merely given away coffee as part of a supposed "grand opening". That makes the commercial infringement part less plausible. Sure, the handout talks about selling stuff. The handout may not be what they use to defend themselves in court if it comes to that.
- biot 13y agoThough Weird Al could rely on fair use. In his own words [0]: "My parodies have always fallen under what the courts call “fair use,” and this one was no different, legally allowing me to record and release it without permission. But it has always been my personal policy to get the consent of the original artist before including my parodies on any album..." [0] http://alyankovic.wordpress.com/the-gaga-saga/ http://alyankovic.wordpress.com/the-gaga-saga/