The average internet user, for the most part, doesn’t care much for things like copyright. That’s not to say that they necessarily derive pleasure in disregarding our well-established intellectual property laws; rather, they just want what they want, and if they can’t get it from the putative source, they’re happy to turn elsewhere, and on the internet, there’s always an elsewhere.
The most recent example of this is a pseudonymous YouTuber who was forced to remove all of their videos featuring Nintendo game soundtracks after—you guessed it—Nintendo lodged over 500 copyright complaints. It’s not a terribly surprising move; Nintendo, like many other companies, jealously guards their intellectual property rights, as is their wont. No business likes to lose money to a free competitor, after all.
But there is the rub: Nintendo doesn’t have a competing product as such. There are the games that you can of course purchase, but if you’re looking for the soundtracks on Spotify or Apple Music or even on a CD, you’re out of luck. That’s why those videos were on DeoxysPrime’s channel, and why they were able to garner the attention that they did.
That doesn’t excuse the copyright violation, but perhaps it goes some way to explaining it. It’s impossible to say that no one would pirate Nintendo soundtracks if they were more readily available, but surely it would mitigate the issue. More than anything, it seems a curious decision by Nintendo to completely ignore the market that clearly exists for these soundtracks. Perhaps the answer, lie the princess, is simply in another castle.
Are famous artists more prone to copy (or, more generously interpreted, borrow) from other artists, or are they simply more likely to be either caught out or targeted by other musicians or rightsholders for these perceived indiscretions? If we believe that they’re not any different from other artists, save for being more talented and/or luckier to achieve their stardom, then it’s easy to believe that they’re no more likely to intentionally or inadvertently infringe upon the works of others, but for more likely to get noticed for it, and to be subject to lawsuits that go after some portion of the fortune they’ve amassed.
Case in point is Taylor Swift, one of the biggest names in music and one of the more frequent artists turning up in copyright or trademark cases among musical artists. this time, she’s making news for losing in her attempt to have a copyright case over her song “Shake It Off” dismissed. The case itself dates back to 2017, which offers some illustration as to why artists are eager to have such matters go away as quickly as possible, and relates to a couple of lines in the song and their provenance.
According to the plaintiffs in the case, Sean Hall and Nathan Butler of 3LW, the lines about “players gonna play” and “haters gonna hate” were taken from a song of theirs entitled “Players Gon’ Play”; according to Swift and her team, they’re phrases commonly used enough to be considered in the public domain, a consideration that they allege the judge didn’t take under advisement in moving the case forward.
Of course each side has their own interpretation of events that they set forth; for Swift and her team, it’s an attempt to copyright troll every songwriter that references players playing and haters hating, for lack of a better term, and for Hall and Butler it’s yet another powerful artist using their resources to escape consequence or justice. Whatever the truth, it’s indisputable that Taylor Swift seems to find herself at the center of a number of IP cases, regardless of who might be at fault.
As has been noted before, it’s particularly hard for rightsholders to nail down exactly who to blame for copyright violations on the internet. There’s the obvious answer — the people who are actually committing the infringement — but they can be hard to actually track down and are typically just one of thousands doing similarly bad things, so stopping them doesn’t do much to solve the problem on a larger scale. And so many of those rightsholders go after those who serve as middlemen and women for the legion of copyright infringers, be they platforms or internet service providers or any other service that has some incidental role in the act, even without direct knowledge.
The most recent example of this involves Cloudflare, a company that offers website infrastructure and security, and a pair of wedding dress manufacturers. Per Ars Technica, Mon Cheri Bridals and Maggie Sottero Designs sued Cloudflare, claiming that the company contributed to copyright infringement committed by sites ripping off their designs by providing its services to said sites. Mon Cheri Bridals and Maggie Sotttero Designs claim that they tracked down the infringing sites and sent notices to Cloudflare for takedowns, but that their notices were ignored, and that Cloudflare continues to store and transmit those sites to visitors, furthering the infringement.
But the judge in the case disagreed, granting Cloudflare’s motion for summary judgment. In it, he concurred with the argument laid out by Cloudflare that the services provided to the infringing website didn’t constitute a “material contribution” to the infringement in question, nor do the services Cloudflare provides serve to amplify or magnify the reach and visibility of the sites. Cloudflare is not contributing to an essential part of the infringement itself with what it’s doing for those websites. If anything, it seems like Mon Cheri Bridals and Maggie Sottero Designs should be taking greater aim at the web hosting for those sites rather than Cloudflare, although it could be the case that such suits are in the offing.
While it does seem that the right result was reached in this case, you do have to feel sympathy for the dress manufacturers and other companies that are trying to take on copyright infringement on the internet. Chasing down offending sites must feel a bit like a game of whack-a-mole that doesn’t end when your quarter’s worth of time is up. In that context, it’s easy to understand how companies would go after any and every company involved in putting the website out there, even as those efforts might not jibe with what the law says about the liability of those businesses when it comes to infringement.
If you’re a company as large as Disney, with as much ownership over wide swaths of TV and cinema and other media as they now possess, you’re going to have some fairly frequent IP run-ins. The most recent case making news was the lawsuit brought against the estates of comic creators seeking to prevent them from canceling the copyright on Marvel characters that feature prominently in both current iterations of the comic books as well as the Marvel Cinematic Universe. It’s unpleasant business, but not altogether surprising; every company is going to seek to protect its interest, and every family wants to see their relative’s legacy preserved and properly compensated.
Which brings us to the most recent IP story coming out of the House of Mouse, involving a legendary stuntman and his surviving family. Kelly Knievel, the son of the late Evel Knievel, has his trademark infringement lawsuit against Disney dismissed by a federal court judge. Knievel alleged that Disney infringed upon his father’s likeness in creating a similar character for Toy Story 4.
If you’ve seen the film, you probably remember Duke Caboom, the motorcycle daredevil toy that Woody, Buzz and company encounter on their quest to get back to Bonnie. (If you haven’t seen it, that’s on you.) The character, as voiced by Keanu Reeves, is certainly evocative of Evel Knievel and other stuntmen of his day, with a white jumpsuit and crash helmet, albeit with a French-Canadian twist, but just how evocative? The crux of Knievel’s argument is that the character is essentially derivative of his father, to a degree that constitutes infringement of the Knievel estate’s trademarks.
The judge in the case disagrees, stating in the ruling that Disney’s Kaboom was different enough that it doesn’t represent a depiction of the late stuntman. Certainly Duke Caboom owes something to that, but is it the case that Evel Knievel has come to represent the larger category of motorcycle stunt drivers? Clearly the Simpsons makes a nod towards him with Lance Murdock, the stuntman who shows up in “Bart the Daredevil”. Likewise Hot Rod puts its audiences in mind of Knievel in both stunts and in the titular character’s costume change before the climactic finale. Evel Knievel certainly has a very specific look that the family was able to trademark, but in a way the jumpsuit and helmet and cape have managed to transcend the man into becoming archetype, and for someone looking to grab the attention of audiences, it’s perhaps not the worst thing to be synonymous with motorcycle stunts, even if it makes your heir’s work a bit harder.
Obtaining patents for your business can be an exciting process in protecting your intellectual property, but making money off of it in the immediate term is not typically achievable without undergoing a few particular business maneuvers, many of which tend to be loaded with risk. Regardless, that tends to be the nature of making money off intellectual property in a time when litigation over ownership rights has the potential to drain any money made.
Saying the word “startup” conjures up images of Silicon Valley smarty-pants rocking flip-flops and essentially living at their desks, working their tails off to IPO or drum up rounds of funding. While this picture I’ve painted might be the reality for some, in truth, startups are any new business, determinedly trying to get off the ground and obtain customers. In those whirlwind times, there’s a lot to consider, and unfortunately, intellectual property (IP) concerns can fall to the wayside—or worse, not be a concern at all. After all, most startups aren’t even sure what IP entails. Here are four startup must-haves that relate to intellectual property:
Char sent me an email one day with some incredible website links to share on social media with a follow up statement: “Now that I’ve done some solid IP Internet fodder researching, I thought I’d take a crack at a blog post…” And that was that. No questions asked, she just wrote a blog post titled “Four Startup Must-Haves That Relate to IP” – of which you must read, because it is a GREAT post! So I thought it would be appropriate to next introduce to you Char, Traklight’s Copy Czar…
What I learned about IP before I started at Traklight?
This is a guest blog by Kunvay blogger Christine Varad, an attorney and artist who helps educate creatives, freelancers and their clients navigate copyright and intellectual property. She has a long standing interest in intellectual property law and promoting the rights and interests of writers and visual and performing artists.
The last thing you want to do is ever infringe on trademarks that may apply to intellectual property you found in your business. Sometimes when a business buys another business, prior IP might be discovered later that’s stored away in a vault. What happens if your business decides to create something slightly similar to an item already trademarked? Fair use applies to trademarks as much as it does to copyrights. But you still have to be very careful or you could end up dealing with complicated legal issues.