SCOTUS hears oral arguments tomorrow in ABC v. Aereo. It’s a fascinating case with potentially the most far-reaching consequences for the television industry since the Betamax decision in 1984.
Having read the decisions below and many of the briefs for the current case my instinct tells me this one just may go against the broadcasters.
Aereo’s been incredibly canny in building its operations and user experience by essentially using that ‘84 Betamax decision—together with the 2nd Circuit’s ‘08 Cablevision ruling—as a framework for their technical design schematics.
That, and 1) the potential difficulty of crafting a narrow ruling against Aereo that wouldn’t kill much else bedsides; and 2) the wildcard broadcasters’ use of the “public airwaves” represents will make for an interesting argument.
Many, myself included, know the Pulaski Skyway from television on Sunday nights.
Of my countless real world trips on that rickety strip, more amusement park ride than highway, a few stand out:
By cab early one morning from the East Village to Newark to take the New Jersey bar exam; In my beat-up Honda, freshly sideswiped that very morning, racing to my mom’s deathbed; Cruising in the rain in Paul’s old DeVille convertible, coats across our laps on account of a bum seal where the windshield met the header.
Court documents filed today in the U.S. Southern District Court of New York state that Richard Prince and his gallery, Gagosian, are free of any claim of copyright infringement from French photographer Patrick Cariou.
Another “fair use” case and an interesting outcome, especially in light of the recent Goldiblox settlement.
Without getting into the details—and there are many, factual as well as legal/technical—of either situation there seem to be two broad lessons from both:
1) When using another’s work try to avoid slandering or disdaining their efforts and [the appearance of] disproportionate commercial gain, and
2) Don’t for a minute rely on a naïve distinction between art and commerce.
Beasties/Goldieblox settlement; Plus my pre-settlement draft post “Following up on Goldieblox/the Beastie Boys and “Girls”“
Word comes today of a settlement between Goldiblox and the Beasties in which the toy company has agreed to publicly apologize for their actions and to make payment “based on a percentage of its revenues, to one or more charities selected by Beastie Boys that support science, technology, engineering and mathematics education for girls.”
Its a clear win for the band and hopefully claws back most of the company’s profit arising from the undeserved and ill-gotten publicity/advertising Goldiblox had cynically engineered. And the best part is that these payments now really will go to supporting girls education and achievement.
Also maybe interesting: Before getting news today of the settlement I’d drafted a followup post, which I’d last edited a few weeks back. Here it is pasted below as I left it then:
In an earlier piece I posted not long ago on a copyright dispute over toy company Goldieblox’ use of the Beastie Boys’ song “Girls” in a commercial for their toys I committed to following up on a few issues that I hadn’t had the chance to address at the time. Here goes.
Recall that I’d first thought to post on the situation because it seemed so odd, odd even in the often-strange context of entertainment-industry disputes. Spotting and preventing this sort of odd stuff is at the core of my regular work as an entertainment lawyer so the elements were all familiar. Nevertheless, on first viewing Goldieblox’ commercial I was stunned at the audacity of the thing, by the unambiguous, apparently willful copyright infringement the piece seemed to be. My initial impression has only been confirmed as the matter has developed further.
But willful infringement alone isn’t all that uncommon or especially remarkable. What’s really strange here is the inference I’m forced to draw given the combination of the following things. And I should note here again that what follows is simply my opinion as a working entertainment attorney:
So Goldiblox does the following:
1) They act: Goldieblox releases a clearly copyright-infringing commercial, and simultaneously releases[ITALIC] a press release characterizing the commercial as a progressive and girl-positive parody of the Beasties’ original work, which they take pains to characterize [LINK] as unreconstructed misogyny of the “Our Gang” he-man-woman-hating variety [LINK]. This is slandering another for the purpose of praising oneself. It takes balls.
2) They sue: Then, before any action is taken against them, Goldieblox proactively sue the Beasties for a declaratory judgement that their commercial is a “fair use”. In doing so they exponentially increase the attention paid their commercial. I think they not only reasonably anticipated this to occur but in fact counted on it happening. This was their aim after all. I think a fair reading of their complaint [LINK] reveals their legal action is to be a fairly meritless sham. To my mind at least an attorney familiar with copyright infringement litigation and the limits of the “fair use” defense in a commercial context couldn’t possibly have expected it to succeed. This is cynically using the courts to drum-up business. And it takes balls.
Happily the Beasties were well-represented, both at the bar and in the world. Their attorneys filed a response [LINK] to Goldieblox’ suit that calls them out for much of the above, pointing out that Goldieblox has (in this case and others) infringed copyright, defamed original artists, and—in this case at least—hauled innocent and generally good-guy artists into federal court. Goldieblox has dealt here, in the words of the Beasties’ reps, with “unclean hands” (see my discussion of “balls”, above).
But I think the Beasties representation in the real, non-legal world has also been important. Goldieblox cynically ginned-up outrage over the original “Girls” to appear progressive and to sell toys. People who knew the track from when “Licensed to Ill” was first released (or who took the trouble to find out more about it) mostly saw the smear for what it was.
So good luck, I guess, to the jerks at Goldieblox. They’re in a big mess of trouble and its strictly of their own making.
"The books in your library are more important than the numbers on your balance sheet."
RIP Bill Drenttel. For those unfamiliar there’s a good tribute to him up now on Design Observer.
Marsilio, an independent publishing company I helped run in New York for much of the 90’s used Bill’s firm for some of our more important work. Among these was a book I edited and—despite what the colophon might say—also translated with the brilliant Eugenio Bolongaro, Science in the Kitchen and the Art of Eating Well by Pellegrino Artusi.
That book’s wonderful cover, which I clearly recall first seeing in Drenttel Doyle Partner’s studio, is reproduced above.
Ok, so Lena Dunham’s on board. Still, however canny and rumpelstiltskinian she’s been of late can she really make Jughead a thing again?
Don’t get me wrong. Refreshing stale IP can sorta work sometimes. Can’t think of an example right now outside superheroes but it must have worked somewhere else before. Right?
And then there’s this. The NYT quotes Archie CEO Jon Goldwater:
“My marching order [sic], so to speak, is you have a blank canvas,” he said. “I’m going to let Roberto [Aguirre-Sacasa, the new chief creative officer at Archie Comic Publications] be the guy to blow the whistle and start the race.”
"An incoherent mix of racism, anti-Semitism, homophobia, black nationalism, anarchy and ad hominem attacks relying on comic book and horror film characters and images that he has used over and over and over."*
So R.I.P. Amiri Baraka. I’m proud to have been your editor in the middle/late ’90s.
But I’ll claim no credit—and am due none—for his amazing work.
It’s fifteen years on now and I can still vividly recall a pretty grand Manhattan lunch he and I shared, and the odd visit to his home in Newark.
*from Stanley Crouch’s 2002 NY Daily News appraisal of Baraka’s work cited in the NYTimes obit linked above.
Happy Holidays folks! Just a brief check-in to confirm that Kanye West’s “How you gonna be mad on vacation?” line from Bound 2 wasn’t purely rhetorical, at least as far as singer Ricky Spicer is concerned.
Spicer’s sued West in NY state court for unjust enrichment, infringing his publicity rights and infringing his common law copyright in the Ponderosa Twins Plus One’s original Bound from their album 2+2+1=. ”Common law copyright” you say? Yes, since the original album was released in 1971, a year before congress extended federal copyright protection to recorded music.