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18 Dec, 5 tweets, 3 min read
No Go: 9th Circuit Court of Appeals rules that crowdsourced @comicmix "Oh, the Places You'll Boldly Go!" is not protected fair use defense. /jt cdn.ca9.uscourts.gov/datastore/opin…
Two key points to note right away: popular notions of transformative works doctrine often touted at comic-con panels are more advocacy than actual application of doctrine by courts. Fair use transformation is more than simply adding new material. This paragraph is more typical:
Also, simply evoking or humorously using others' IP is not automatically parody. Parody involves ridicule or critique of the material. Courts have waivered on this at times - usually re lower priced pop products riffing on luxury brands - but outside high/low is harder to win.
Separate from copyright fair use issue, court also ruled on trademark infringement claim - in favor of @comicmix!
Here the free speech concerns were particularly relevant to the court, w/ test "balanc[ing] artistic free expression and trademark rights." This is an important ruling, so more to follow!

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More from @CBLDF

18 Dec
1/ Pitch and portfolio theft are rampant, and such cases are difficult to win. Yet as noted in thread last night, Darth Vader actor Hayden Christensen did prevail in a crucial stage of his pitch theft case, leading to settlement. Lesson? /jt caselaw.findlaw.com/us-2nd-circuit…
2/ My sense - and your mileage may differ - is that justice isn't blind. Who brings a case, who judges, current events - these all can influence outcomes as much as legal doctrine. The most famous personality in this case was likely discussed in chambers, esp. by clerks.
3/ This opinion threads a needle to mend arguments torn apart below. Copyright preemption was overcome by finding the contract protected pitch ideas - ideas aren't copyrightable. NY court also looked to CA law re industry standards setting price to establish contract validity.
Read 7 tweets
18 Dec
The Alan Dean Foster/Disney royalties dispute is far from the only case involving an author and franchise IP. The Saori Kuma Dragon Quest lawsuits and criminal action (!) in Japan are another important ongoing story. japaninsider.com/square-enix-su… animenewsnetwork.com/news/2019-12-1…
Alas, I haven't yet located original filings from Japan, but reports say that the dispute turns on a Dragon Quest film's use of a name derived from a character in a novel based on a video game. Might sound niche, but think of all the new characters in extended universes today!
The lawsuits by the book author exemplify why contracts often make sweeping claims for franchise IP owner's rights in any new characters + use in other media - you want to minimize risk of lawsuits down the line.
Read 7 tweets
17 Dec
Alan Dean Foster royalties follow-up by @AndrewLiptak
@polygon generally tracks our linked thread hypo - Disney got LucasFilm copyright; separate publisher contract w/ author; Disney/LF moved license; ethics and law are distinct. polygon.com/2020/12/16/221…
/2 That hypothetical was based on Splinter's copyright info in screenshot below - note copyright owner, consistent w/ what @AndrewLiptak found re Splinter being work made for hire.
As always, tho, re contracts, a lot turns on details, and
@AndrewLiptak @polygon adds a crucial piece of info that could help in ADF situation -- ADF Star Wars contract had royalties clause directly with Star Wars Corp., now LucasFilm!
Read 6 tweets
19 Nov
The controversy over nonpayment of royalties to Alan Dean Foster following the assignment of his book contract to Disney, a third party, raises important issues re all IP contracts, including comics creators’. (by #jefftrexler)
1st, disclaimers: This thread is my opinion, not CBLDF’s. It’s not legal advice, & explanation is *not* endorsement. Same with hashtags - I’m including #disneymustpay here as a reference, not as a legal conclusion...
I haven’t read the contracts involved, though I did read ADF’s open letter and watched the press conference.
Read 55 tweets
6 Oct
Continuing this week's look at the Supreme Court, comics & cartoons, here's the ruling mentioning @cbldf: Brown v. Entertainment Merchants Association. SCOTUS: California law regulating video game violence did not survive First Amendment strict scrutiny. supremecourt.gov/opinions/10pdf…
What's an amicus brief? Amicus curiae is Latin for "friend of the court." An amicus brief (amici = plural) provides info or arguments from someone who is not a party to the dispute. Here's the @CBLDF amicus brief in Brown v. EMA: sblog.s3.amazonaws.com/wp-content/upl…
By the time of the Court's ruling the Governor of California was Jerry Brown, but when @cbldf submitted its amicus the gov was someone known worldwide for his efforts to curb visual representations of violence: Arnold Schwarzenegger (cartoon by MAD's Mort Drucker)
Read 4 tweets
5 Oct
Speaking of Marvel and SCOTUS, here's a case that did get argued before the Court & resulted in a ruling: Kimble v. Marvel, over an inventor's rights in the patent used in toy Spider-Man web shooters! (by #jefftrexler)
Kimble v. Marvel was a battle between contract rights and patent rights. The patent had expired - existing precedent established that royalty clauses are not enforceable for sales after a patent expires, but Kimble wanted this overruled.
The Court ruled in favor of upholding precedent, which meant that Kimble would no longer be paid royalties on the device. What made more news than the result, though, was the opening of Justice Kagan's final paragraph with a familiar quote.
Read 6 tweets

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