A documentary is being filmed. A cell phone rings, playing the “Rocky” theme song. The filmmaker is told she must pay $10,000 to clear the rights to the song. Can this be true? “Eyes on the Prize,” the great civil rights documentary, was pulled from circulation because the filmmakers’ rights to music and footage had expired. What’s going on here? It’s the collision of documentary filmmaking and intellectual property law, and it’s the inspiration for this new comic book. Follow its heroine Akiko as she films her documentary, and navigates the twists and turns of intellectual property. Why do we have copyrights? What’s “fair use”?

The Duke Center For the Study of the Public Domain has this story in a new comic book available for sale or for free download. The Heroine’s name, AKIDO, in this story means ‘the way of harmony’ but the story is anything but the story of harmony….

Berlent v. Focus Features makes the lesson, again, that on the merry-go-round of preliminary injunctions, that old adage, “thems as snoozes loses” never gets stale.

Berlent, a New York composer, sued all the producing parties of the movie, Brokeback Mountain, claiming that the movie theme song was a copyright infringement of Berlent’s own song, “Slow Dance”.

The Southern District of New York never got to the merits, but looked at the timeliness of the filing of the law suit relative to the harm that the action was seeking to prevent. As Berlent filed the action eight months after the first public release of the movie trailer; five months after the soundtrack was released; four months after the movie was released; AND, one month after the Academy awarded “Best Original Score” for the music at issue, the court held that the only rights to be discussed were after a trial. Motion for Preliminary Injuntion denied.

Berlent, in the complaint, acknowledged that he was already in the intolerable position of watching someone else get an Oscar for music that Berlent had written and for which he got no credit. Berlent claims that he only heard the music when a television advertisement presaged the release of the DVD of ‘Brokeback Mountain’.

Pre-emption

Laws v. Sony Music Entertainment, Inc. (9th Cir 5/24/06)

Long ago (1976) in a pre-digital, pre-internet world, Debra Laws, a recording artist, signed a license with Electra Records for Electra to exclusively produce master recordings and to sub-license the resulting recordings.

Fast forward to the digital, internet burgeoning world where Electra licenses to Sony the nonexclusive right ‘sample’ from Law’s recordings to integrate those ‘brief samples’ into a Jennifer Lopez DC and music video entitled, “All I Have”. Electra does not communicate or enquire of Law’s inclination to such a sublicense as Electra was the exclusive licensee, and as such was the titular and beneficial owner.

Law, outraged, sued in California state court under much the same analysis that Portia stopped Shylock from extracting his ‘pound of flesh’ pointing out that Shylock could only have a “pound of flesh” without a drop of blood. Law claimed that she had standing in state court under California Publicity Code 3344 which prohibits the misappropriation of one’s voice, image or name.

Electra defended stating that the California Publicity Statute was preempted by the Federal Copyright Law. The Ninth Circuit agree that the California Statute was preempted.

Which just goes to show that Shakespeare is out of step with digital, internet copyright law: You can take the pound of flesh and all the blood you want, if you have an exclusive copyright license. Shylock was way ahead of his time.

Dale Chihuly, thought by many to have only a peer in Tiffany’s Glass Works, has sued two glassblowers who worked over a decade for him at the Chihuly Seattle Glass Works. Chihuly alledges copyright infringement against the two former collaborators claiming that the two glass blowers were merely ‘scribes’ of his, Dale Chihuly’s, copyright expression.

Chihuly claims that the two glassblowers have infringed his signature sea images, specifically the lopsided, off center, sea figures and sea gardens for which Chihuly has become famous worldwide.

Son of a Tacoma, Washington butcher, Dale Chihuly has not blown glass for 27 years since two accidents, surfing and automobile, impaired his sight and range of motion. Chihuly authors the images by sketching and other two dimensional renderings of that which he instructs the team of over 50 glass blowers at Chihuly’s enormous, former boat manufacturing house, ‘Boat House’ on Lake Union in Seattle Washington.

This case will frame the copyright doctrine of ‘idea/expression’ and will include the recent 9th Circuit case of Satava Glass in which a glass jellyfish encased paperweight was found uncopyrightable as not expression, but one of nature’s ideas made manifest. On the other side, there will be arguments that some minimalistic expression is so creative and original as to warrant copyright protection, such as Picasso’s spare line drawings.