President or Pirate? The DMCA Takedown War of the Presidential Campaigns

In what has been described by some as over-zealous enforcement of copyright, BMG (the large German publisher) forced YouTube to take down a Mitt Romney campaign video because it included footage of President Obama singing Al Green’s “Let’s Stay Together.”

The Romney video followed the Obama campaign’s release of a political ad featuring Mitt Romney’s off-key rendition of “America the Beautiful" as underscored to images of off-shore employment out-sourcing. Romney’s campaign used the Al Green song to attack Obama for his relationship with lobbyists and campaign fundraisers. YouTube pulled down the Romney ad after BMG, the music publisher that owns the copyright in the “Let’s Stay Together” composition, filed a copyright takedown notice under the Digital Millennium Copyright Act (DMCA). Not wanting to look like it was playing politics and only targeting the Romney ads, BMG also sent notices to YouTube to take down the original news footage clips of Obama singing the song.[1] The Obama campaign met no similar copyright opposition to its attack ad because the copyright to “America the Beautiful,” first released in 1910, has expired and that musical composition is now in the public domain.

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Louboutin Loses: The Red-Soled Plot Continues

Footwear designer Christian Louboutin, has just suffered another set-back in the company’s ongoing effort to own the red sole, this time in Louboutin’s native France. In 2008, Louboutin filed a lawsuit in Paris against Spanish clothing manufacturer and retailer Zara, after Zara sold a red-soled shoe.  This May, the French Cour de Cassation (the French appeals court) irrevocably invalidated Louboutin’s trademark to the red sole in France. 

The decision appeared to rest on what some might consider a technicality, with the Cour de Cassation noting that Louboutin’s France trademark registration lacked a specific Pantone color reference, a standardized color reproduction code used universally in a variety of industries and in trademark registration[1]. Accordingly, the Cour de Cassation faulted the registration for its lack of precision and distinctiveness.

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CBS is Finally Off the Hook for the 8 year-old “Wardrobe Malfunction,” But Next Time will be Different

8 years later and it’s still hot news. This summer session, the Supreme Court, finally, officially, put the CBS Super Bowl “wardrobe malfunction” matter to rest. It let stand a 3^rd Circuit Court of Appeals ruling that, in 2008,  threw out the FCC’s $550,000 fine against CBS for its 2004 broadcast of a fleeting view of singer Janet Jackson’s breast.

That 2008 Appellate Ruling deemed the FCC’s fine for the network’s unplanned glimpse to be "arbitrary and capricious," an unexplained departure from what the Appellate Court described as a 30-year FCC policy of exempting “fleeting” moments of indecency from the scope of the indecency broadcast ban [18 U.S.C. § 1464, prohibits the broadcasting of “any obscene, indecent, or profane language”].

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Linsanity: From the Basketball Courts to the Trademark Office

“Linsanity” began in February when Knicks benchwarmer Jeremy Lin unexpectedly took the basketball world by storm. Lin had received no athletic scholarship offers out of high school, wasn’t drafted out of college, and was assigned to the Warrior’s D-league three times in his first season with the NBA. 

A soaring basketball career was not generally expected from this 2010 Harvard University graduate, but, after suddenly leading the Knicks to five victories in a row, Lin was promoted to the Knicks’ starting lineup. Lin even impressed veteran Lakers player, Metta World Peace (born Ron Artest), who ran by reporters shouting “Linsanity! Linsanity!” after, with less than a second remaining, Lin scored a game-winning three-pointer against the Toronto Raptors. 

So, on the Monday after the last game of his five-game winning streak, Lin did what any good manager would advise a rising star with a catchy moniker to do: he had his lawyers file a trademark application to register LINSANITY with the United States Patent and Trademark Office (USPTO).

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Stealing Valor is Not Yet a Federal Crime

With all the clamor recently about some high-profile Supreme Court rulings– especially, those addressing immigration and healthcare legislation – one case about the exercise of First Amendment free speech rights received little public attention outside of the military communities. On June 28th, the Supreme Court ruled that the government does not have the power to punish individuals for lying about their receipt of military awards. Such a law, the majority said in a 6 to 3 decision, is an unconstitutional infringement of free speech.

The Stolen Valor Act of 2005 made it a crime for a person to falsely claim, orally or in writing, “to have been awarded any decoration or medal authorized by Congress for the Armed Forces of the United States.” 

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The Power of One: Some Issues in the Application of Complex Copyright Transfer Termination Rights

Authors – even the more successful composers, painters, writers, and other creatives – are familiar with the early career financial struggles that come with devoting oneself to creative work before that “big break.”  

An author’s initial negotiations with publishers, producers and distributers often have a “David & Goliath” character, with the author concerned not to overplay his or her hand, or just truly lacking bargaining power. 

I wrote more about this here on my company blog.