One of my Anony-Mice from the previous post directed me to this headline in the Daily Beast: Muggles Ruin Harry Potter Dinner originally from The Guardian UK. It seems a restaurateur in London whose daughter is an "obsessive" fan wanted to host a fun Harry Potter themed dinner on Halloween.

She didn't count on the Zombie Lawyers coming out of the Crypt:

( Everything Under the Cut... )

We just had a good discussion the other day about JKR at Paris Fashion Week watching the extremely thin model go down the runway. Then I saw a picture from Ralph Lauren with a model so incredibly emaciated it was posted on a website called Photoshop Disasters which inspired the perceptive observation from a blogger on BoingBoing who wrote,

"Dude, her head's bigger than her pelvis."

Photoshopped Fillipa Hamilton, Olive Oyl, and a more "robust" and real Hamilton.
Actually, poor Olive would need to lose weight for the runway these days.

 

Great Video Coverage of this by Rachel Maddow
"She sort of looks like she was shrinky-dinked, doesn't she?
Look at the ratio of her torso to her head.
That is not a ratio that exists in nature, at least outside the insect world....
It looks like whoever was in charge...was inspired by a combination of Barbie and those
giant-headed Bratz dolls. Actually those dolls
look more normal and more human than the model."



The picture was circulating around the blogosphere when the House of Lauren decided to do a Rowling and send out a bunch of threatening letters, as documented by BoingBoing:

It's obvious by now that Ralph Lauren *hates* being mocked. They hate being mocked so much that they ordered their attack lawyers to send letters trying to fool ISPs into pulling an "infringing" advertisement featuring a ridiculously skinny model (in fact, our posting of the image was fair use, not infringement; Ralph Lauren's takedown notices are bogus and they should know better).

It's also obvious that the photo of Filippa Hamilton used in the Ralph Lauren advertisement was digitally manipulated. But we still have three questions: 1) who, exactly, gave Ms. Hamilton the Olive Oyl physique? 2) If the photo was manipulated after it appeared in the advertisement, why didn't Ralph Lauren's law firm make mention of that in their silly DMCA takedown notice? and 3) Where's the original advertisement?

Note: For all these blog links, read the comments ~ priceless!

( Read more - Threats, Takedown Notices, Excuses,Counterthreats, Mockery, Truth, Etc... )

If you are like me and you never met a retro picture that you didn't like, then here is a website for you: Magazine Art. It's an archive of old magazine covers, some of them absolutely beautiful. Found via Neatorama.

A restaurant in Malaysia called "McCurry" has won a nine-year legal battle against McDonald's. They've insisted that the "MC" stands for "malaysian chicken curry." Since I love curry much more than a Big Mac, I'm very happy for them. :)

This article from Canada.com is a hoot: a list of stupid questions from visitors to Banff National Park in the Canadian Rockies. Just a sampling ~ number 19 is my personal favorite:

From an unofficial survey of Banff tour operators, here are the top 20 outrageous questions, some with answers in case you've wondered the same thing. As for the rest, well, they stand on their own.

1. Are the animals with collars tame? (These animals have been fitted with tagged collars because they have had incidents with people. It is important to stay a safe distance away from wildlife.)

2. We are going into British Columbia. Do we need to change our money into Euros?

3. Can we drive our car onto a glacier anywhere? (Not to our knowledge, but you might enjoy a trip on the Ice Explorer across the Columbia Icefields.)

4. Do we need snow tires or chains to drive to Lake Louise in July?

5. Where are the igloos and the Eskimos?

( Read more... )

And speaking of wildlife, an amazingly Pettigrew-esque Giant Rat that has been discovered in a volcanic crator of Papua, New Guinea. Which makes me wonder - after Peter got the silver hand, could he still transform?  Or did he just become a rat with a silver paw?

See Newly Constructed Sets for the Harry Potter Theme Park, Orlando.

Deathly Hallows actor Jamie Bower Campbell talked about Gellert Grindelwald on Hollywood Crush.

I play Gellert Grindelwald, who is an old friend of Dumbledore's," explained the 21-year-old actor. "It's a flashback character, which is good fun. I did a little bit before I went off and did 'New Moon.'"

"No, I'm just doing number one," he answered when we asked if Grindelwald was scheduled to be in both halves of the split-for-the-cinema-sequels made from J.K. Rowling's "Harry Potter and the Deathly Hallows" novel. "Thus far, I mean. I haven't seen the script for the second one; I don't think anyone has seen the script for the second one."

( Cut for a sort of strange spoiler concerning Grindelwald's appearance... )

 

An article in The Daily Beast about ugly cakes drew my attention to a blog called Cake Wrecks, which is soon to become a book. If you need a laugh (and we all do these days) that is the place to go!






Folks down in Florida better keep an eye on Tropical Storm Erika:
National Hurricane Center
Atlantic Visible Satellite
Tropical Atlantic Water Vapor Loop
NOAA Storm Tracker

And of course all of you out in California have been watching the Station Fire in horror!
See Pictures sent in by readers of Huffington Post 

Time-Lapse Video from Wilson Observatory

And finally, my daughter has discovered that the students at her Law School have more time on their hands than she thought they would. They even have time in between Torts and Contracts to make funny videos about life in the hallowed halls. Check it out (it gets better as it goes along, so stay with it): 
 

First a definition for "Amicus Brief" from WiseGeek:

The tradition of accepting amicus briefs comes from a larger concept, the amicus curiae, or “friend of the court.” A friend of the court may be interested in a case for various reasons, although he or she is not directly involved. For example, a court might be preparing to try a case related to online file sharing, an issue of great concern to many people. An amicus brief might be filed to discuss the larger ramifications of potential case outcomes, since these ramifications might not be brought up by the prosecution or defense during the course of a trial.

In this case several groups have filed amicus briefs due to their concern about J. D. Salinger winning an injunction against a writer who wanted to publish a continuing story of Holden Caufield since Salinger himself has no intention of writing about the character any more. That case is moving to the Court of Appeals now, which is why groups are being compelled to get their ideas into the case to persuade the next Judge to rule differently.

The groups involved see this as a Freedom of Speech question. That reminds me of what Roger Rapoport said during the first week of the Lexicon case for which he was vilified and taunted, but he is in good company obviously.

Techdirt: This is America ~ Why are we Banning Books?

Stanford Law: Confusion Over Copyright Injunctions and Other Restraints of Speech

Briefs Filed ~ PDF format:

On Behalf of the American Library Association (ALA), the Association of Research Libraries, the Association of College and Research Libraries, The Organization of Transformative Works and the Write Right Fund. filed by Anthony Falzone of Stanford University Law School, Jennifer Urban of the University of California at Berkeley Law School, and Rebecca Tushnet of Georgtown Univerisity Law Center.

( Read an Excerpt ).

The New York Times, The Associated Press, Gannett Newspapers, and the Tribune Company

( Read an Excerpt )

New York Law School and Public Citizen Litigation Group

( Read an Excerpt )

Michael Wolff on Newser.com has an essay about litigious authors, mentioning J. D. Salinger and J. K. Rowling as two of the most prominent:

From I Am Holden Caufield

The best client you could have if you are an intellectual property lawyer is JD Salinger. The second best is JK Rowling. This is because they are both extremely litigious, guarantee great publicity, and because their aura of great virtue, together with the belovedness of their creations, helps them win.

...Salinger and Rowling are examples of the current anomaly in which intellectual property becomes ever more protected in traditional media, and ever more impossible to protect in digital media.

I am writing this in the air so I cannot check if jdsalinger.com or holdencaufiled.com have been taken, but, if they aren’t, I will try to remember to grab them soon after I land. Alternatively, I will try for iamholdencaulfield.com—that could work, nicely. (At some point, we have all dreamed of being Holden Caulfield.)

But on iamholdencaulfield.com I can invite visitors to the site to write their own versions of what might have happened to Holden in the intervening years (perhaps I will link to the British version of the Swedish author’s book). This is fan fiction of the kind that piggybacks off many best-sellers and pop-culture characters with obsessive followers—and Catcher in the Rye, at 22 million copies and counting, has always had its obsessives. It’s probable that such explicit Holden sites and Holden fan fiction already exist—so much for my new pastime. Certainly Harry Potter is as finely documented on the web as Harry and friends could ever be in the reference book that Rowling has blocked from publication.

(Someone should write to him and let him know the Lexicon is in print!)

Rowling and Salinger and their lawyers do not pursue such possible web infringements because it is too penny-ante and time-consuming, and victories on the web tend to do nothing to discourage other infringements on the web. If Salinger and Rowling have deep pockets, they are not deep enough to sue the entire Internet.

The result is that, more and more, two worlds of intellectual property exist. One becomes increasingly a pretend world, or a world of principle but not of meaning. Lawyers and courts and obsessive creators (who inspire obsessive fans) and their heirs can have their way with books and expensive video productions, while a new sort of popular culture, unrestrained and unbothered, is being created...

My friend   bohemianspirit   showed me a developing story over on the Zenhabits blog.
 
It seems that the blogger, Leo Babauta, had used the phrase "Feel the fear but do it anyway" as the title of a post, and was then served with a Cease and Desist email from the attorneys of a writer who has that phrase trademarked as the title of a book. Unbelievable. He had never heard of her book, nor was he quoting her, but she wanted him to put a trademark symbol beside the words and a disclaimer that she was granting him "permission" under the title.
 
Zenhabits: Feel the Fear and Do It Anyway or The Privatizaion of the English Language

bohemianspirit and I left comments over there. There are alot of comments, pro and con, but mostly in favor of the blogger.


UPDATE: Lots and Lots of bloggers are picking up this story. Techdirt even gave me credit for sending them the story - wow! I didn't expect that.

Techdirt: Using Trademark To 'Privatize The English Language' from the did-you-(R)-that? dept

Jeanne sent in news of yet another overly aggressive trademark claim, this time on a blogger who just so happened to use the phrase "feel the fear and do it anyway" in a blog post.

. . . trademark law is only supposed to apply to use in commerce, and it seems like a stretch to claim the blog post is use in commerce (though, since the blog has ads, the lawyers might disagree). However, the fact that the use of the phrase seems to have absolutely nothing to do with the book again raises questions about how this could possibly be considered confusing or dilutive of the mark. Either way, Barbauta makes a point we've been trying to make here for a long, long time...

More Bloggers Chime In:
Raptitude: Get Up Stand Up
Feel the Fear and Do It Anyway: The Allure of Taking Someone Down
Tararua Library: Feel the Fear and the Lawyers
 
And some great information here:
Andrew Flusche, Attorney: Trademark Dispute Against My Favorite Author

Andrew writes: ...Susan Jeffers holds a federal trademark registration for “FEEL THE FEAR…AND DO IT ANYWAY.” She actually owns several registration for that precise trademark, for different goods and services.

The main trademark registration at question here is probably registration # 3338961 for these specified services: Education services, namely conducting seminars, workshops and training programs both in person and online, and the production of video and television programs in the field of psychology, spirituality, personal development and self improvement.

But the real question is: How did Leo use the trademark? He wrote a blog post that used the phrase “feel the fear and do it anyway” deep within the content.

Here’s the key: Leo didn’t use the phrase as a trademark. Susan Jeffers doesn’t own the exclusive right to “feel the fear…and do it anyway.” She just owns the right to use that phrase as a trademark on certain goods and services.

I also  came across the Ask Harriete blog written by an artist with a series of enlightening posts about copyright. She talks about an artist who liked to work with candy wrappers that were also trademarked. However, when you see the pictures it's obvious that the artwork is not meant to replace the candy or to resell the wrappers as candy wrappers. And that's the thing. Fair Use allows for creativity, even if the materials are trademarked or copyrighted.  The work cannot replace the original, but has to transform it.  It's really not rocket science, even though people seem to find this hard to understand.

Cease and Desist Letters designed to Scare Artists

Understanding Fair Use and Copyright Laws

Finally, more in the long saga of Shepard Fairey and the AP:

Stanford Fair Use Project: AP Issues Statement, Misses Point Entirely

There's new case law in the realm of the Fair Use Doctrine.

ZDNet: TurnItIn's archiving of student papers is fair use, court says

Some Virginia high school students were upset that copies of school papers were being archived online by the website TurnItIn.com owned by the company iParadigms. The idea is that if the papers are archived there, then teachers can check for plagiarism by comparing new papers to old. This would deter a student from copying their older brother's essay or selling a paper for money to another student.

The objection to the practice is that it wasn't a "transformative use" of the material, and that it might rule out the students being able to get their papers published in the future if the work was submitted to another school/college or journal for publication.

A District Court ruled against the students, and last week an Appeals Court upheld the ruling. This is clearly different from the Lexicon case in that the students had to click an agreement when they uploaded their papers that they wouldn't bring suit against iParadigm. Obviously, JKR/WB had no such agreement with RDR books. And TurnitIn was never going to publish any of the student papers, but just kept them locked in an archive accesible only by password.

But what is interesting to me about this is the language in the Opinion from the Appeals Court about the First Factor because this debunks the whole "Pie Chart of Doom" idea that every word should counted against the Lexicon or it wasn't transformative "enough."  The whole enchilada, or tamale pie so to speak, can be used if needs be according to this new ruling. Now I wish this would be applied to YouTube!

Page 13 of Opinion on the First Factor: Transformation

"Plaintiffs also argue that iParadigms’ use of their works
cannot be transformative because the archiving process does
not add anything to the work — Turnitin merely stores the
work unaltered and in its entirety. This argument is clearly
misguided. The use of a copyrighted work need not alter or
augment the work to be transformative in nature. Rather, it
can be transformative in function or purpose without altering
or actually adding to the original work. See, e.g., Perfect 10,
Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1165 (9th Cir. 2007)
(concluding that Google’s use of copyrighted images in
12 A.V. v. IPARADIGMS, LLC
thumbnail search index was "highly transformative" even
though the images themselves were not altered, in that the use
served a different function than the images served).
iParadigms’ use of plaintiffs’ works had an entirely different
function and purpose than the original works; the fact that
there was no substantive alteration to the works does not preclude
the use from being transformative in nature."
~~~~~~~~~~~~~~~~~~~~~~~~~

This is what we are talking about here - a franchise attacking their own fans.

Hey NBC Attorneys ~ Copyright is not a Weapon!

Techdirt Blog: NBC Universal Shuts Down Battlestar Galactica Fan Charity Event In Toronto 

 

( Read more... )

UPDATE:  Thanks to weerdonewho sent me the link to Battlestar Toronto Blogspot with more information about this story:

Torontoist: By Their Command

 ( Read more... )

P2PNet: Universal NBC Battlestar Galactica Disgrace

 "One would expect nothing less than from a company which believes suing its customers and treating them like dirt makes good business sense."

The Fox Theater where this movie was going to be shown is stepping up and allowing ticket holders for the cancelled movie to make donations food to the Daily Bread Food Bank instead of getting a refund on their tickets.

From Andy at the Fox: Simply the write the word "Donate" on the back of your ticket, sign it and return to the location it was purchased.. For each ticket signed in this way, we will donate $7 to the Daily Bread Food Bank. Canned goods can still be dropped off at the Fox and we'll make sure they get there as well.

UPDATE 2 :  Thanks to aredwitchwho sent me the following link about another group that was organizing the same type of Battlestar Galactica Party, only they didn't ask permission. Also notice that they were meeting at a Sports Bar instead of a theater - that may be the main difference.  Plus they were charging just five dollars for food and not for watching the two big screen TVs. Still - there's not much difference between a big screen TV and a movie screen these days.

Battlestar Galactica Frakkin' Finale Party


And here's a very unusual story about a Brooklyn filmmaker who is giving away her product - an "enchanting" animated film - for free, and only making money from the merchandising! Why? Because she hates the copyright runaround. 

I'm ultra-busy this weekend, but thought I'd pop in to post some stuff concerning JKR's copyright attorney Dale Cendali.





Yes, that's a picture of Dale Cendali changed into a Shepard Fairey Obama picture. Someone had to do it! Of course she is representing the Associated Press against Shepard Fairey - see my previous posts for more.

But here's the scoop - she is also leaving O'Melveny and Meyers, the firm that represented JKR/WB in the Lexicon trial:
Above the Law Blog: Musical Chairs: Dale Cendali from O'Melveny to Kirkland

Bluestocking has posted her own "insider" view of Cendali and Anthony Falzone meeting again so soon in a copyright case:
Bluestocking: Life is Stranger than Fiction ~ So Happy Together

A little more here:
Copyrights and Campaigns Blog: Fairey v AP ~ Harry Potter Redux?

Note the comment there from Roger Rapoport, who has also done an interview with Book Business Magazine

Finally, the HP Lexicon Tour continues, so catch Steve Vander Ark at the University of Arizona on Sunday, March 15 for the Tucson Festival of Books, at 2:30 PM in the Student Union - Catalina Room.

Co-Author Lisa Bunker will also be there for a signing! More Here

So Cute!

A couple of notes about Fair Use.

Anthony Falzone is giving a speech at Duke University in Durham, North Carolina. Of course most of you know who he is from the Lexicon case, and now the Obama Poster case. 

From Duke University Libraries Blog

Falzone will talk about these cases and the importance of fair use for scholars and universities in a talk at Duke on MARCH 2, 2009 in the Schiciano Auditorium (Fitzpatrick CIEMAS engineering building) at 5 pm. He will emphasis that fair use is vital in higher education not only to prevent copyright from stifling scholarship but also to support free speech and academic freedom.

His lecture is entitled “From James Joyce To Harry Potter And John Lennon: The Impact Of Fair Use On Scholarship And Free Expression.” A reception will follow.

This event is open to the whole Duke community, but it is especially relevant for scholars and teachers who rely on fair use to create their own scholarship or to distribute scholarly works to students and colleagues, as well as to those interested in the role of free speech in the academy.

...Falzone’s lecture will be repeated at UNC Chapel Hill on March 3 at 5:30 pm in the Wilson Library. These events are jointly sponsored by UNC University Library, Duke University Libraries, UNC’s Center for Media Law and Policy, and Triangle Research Libraries Network.

As soon as there is a transcript of the speech, I will definitely post it here.

Second, there is another brouhaha going on in which a writer named Jason Mittel who had problems with ABC Disney over screen captures of some TV shows. The book is called Television and American Culture. The writer admits that he and the editor made a conscious decision to test Fair Use with the pictures:

Fair Use Held Hostage by ABC-Disney

( Read more... )


So what are the lessons to be learned here? Many media companies want to assert their copyright privileges beyond legal limits - not for petty cash, but for petty power. They aim to establish the precedent that they are in control, regardless of their legal standing. I’d guess the last thing ABC-Disney would want is to sue me or OUP over the frame grabs, as a loss in court would firmly establish the limits of their claims (and an unlikely win would yield little in revenue anyway). What they really want is bully power, the ability to make outsiders assume that rights holders also hold all the power. Unfortunately because the book was already in press, we had to yield - if we were able to, both my editor and I wanted to swap out the cover Lost image to avoid having to pay for the frame grabs that we had the right to use, thereby implying that fair use did not apply.

Mr. Mittel brings up an interesting factoid - he believes that screencaptures inside a book are Fair Use, but that those on a book cover are not.
ABC-Disney demanded payment for a picture from the TV show "Lost," and they also demanded payment for pictures inside the book which were probably Fair Use anyway. Oxford University Press had to pay up or lose revenue from a book that had already been printed. It's blackmail, but the alternative is to go to court where the law is murky and the verdict can go either way. Geez - will this ever end?

Attorneys with the Stanford Fair Use Project were in court today to file a lawsuit against the Associated Press in a preemptive strike because AP was threatening to sue artist Shepard Fairey tomorrow. Once again this is over the use of an AP photograph in the famous Obama pic.

First he pleaded "Not Guilty" to the vandalism charges in Boston:
Boston Herald: Shepard Fairey pleads not guilty to Hub vandalism

Then he appeared in New York District Court:

California Artist Sues AP

Lawyers for Fairey acknowledged that the artist used the photograph. But they said he transformed the literal depiction into a "stunning, abstracted and idealized visual image that creates powerful new meaning and conveys a radically different message."

AP spokesman Paul Colford said the company would have no immediate comment until its lawyers reviewed the lawsuit. The AP had said in a statement last week that it was in discussions with Fairey's attorney and hoped for an amicable solution.

The AP has not taken legal action against Fairley. But the lawsuit noted that the AP had threatened twice to sue Fairey, possibly as early as Tuesday, and that it considered all works that incorporate the imagery of the "Obama Hope" poster to be infringements of its copyrights.

Huff Post: Jonathan Melber: The AP has no case against Shepard Fairey

Take, for example, an influential 2006 decision vindicating Jeff Koons. A fashion photographer named Andrea Blanch sued Koons for using a picture of hers in one of his paintings without paying her. Koons had scanned her photograph, which she had taken for a Gucci ad, and cut and pasted it into a digital composition he then painted. The federal appeals court said that Koons didn't need to pay Blanch to do what he did, because of how thoroughly Koons had transformed the photograph.

Markos himself on Daily Kos: AP still having a hard time with "fair use" concept

How the AP can argue that use of this picture hasn't been transformed by Fairey to offer "new information, new aesthetics, new insights and understandings" is beyond comprehension. Perhaps they are feeling the pinch of newspapers abandoning their product -- they've been dropped by Dow Jones, Tribune, NY Daily News, Minneapolis Star Tribune, Spokane Spokesman-Review, while newspapers in New York and Ohio have banded together to create competing networks to rid themselves of the AP blight.

Throw in the newspapers that are simply going out of business, and apparently the AP's new business model is to legally intimidate artists basing their artwork at least partly on AP images. Like going after small bloggers for blockquoting material from their news stories, It's morally bankrupt, legally questionable (at best), and a direct assault on the very notion of intellectual property fair use. The day the AP finally shutters its doors can't come soon enough.

People commenting on Lawrence Lessig's blog call it Plagiarism! (How predictable is that?) I will add links as I find them - this is an interesting case about transformative works and Fair Use. I'm sure the legal bloggers are going to knock themselves out on this, plus the art bloggers.

Well, here we go ~ this story just got bigger. Shepard Fairey, the artist of the famous Obama painting, was arrested in Boston on a warrant for painting Graffiti on walls and billboards. I think it is connected to THIS story about Graffiti arrests in LA. More HERE, with a picture of some of Fairey's graffiti art.



I'm not condoning Graffiti, which is a a type of vandalism. It's a problem everywhere, and costly. But the timing of this arrest is just a bit odd since it happens to be the very week that he is having his art show in Boston, which includes the controversial Obama Poster. I think the outcome of this will be that his reputation will only grow, and he'll become an outlaw martyr for the art world. Just an opinion.

( Read more... )

Reminds me of this song ~

I'm having such a good day ~ my daughter Charlotte was accepted into Memphis School of Law!!! She's at the dorm studying for exams, and we opened her acceptance letter and read it to her over the phone.

Hopefully this is the first of many, since she's applied to twelve schools. I don't know how much financial aid she will get until we file the forms in January, but I don't even care about that.

I'm just so happy!

I would offer cigars all around, but I don't smoke. So chocolate and champagne all around!!!

Thanks to bnmc2005  for sending me a link to an extremely detailed article by Grace Wescott, an attorney in Canada, all about Fan Fiction in general, and how laws pertain to it in particular. She discusses the idea of "Fair Dealing" compared to "Fair Use" in the United States. You folks who write alot of Fan Fic might want to take a look and post your thoughts.

However, the tone of the article is pro-copyright owner. She basically says that all Fan Fic writers are infringing, which I believe is an absurdly strict view. How can anyone take that seriously? Ms. Wescott, Esq., must be fishing for some rich Intellectual Property clients.

Secondly, Remember that guy from Missouri, George Lippert, who had the website about the "Elder's Crossing" Sequel to HP starring Harry's son, James? He's baaa-aack! I wrote about it first Here then Here. He's got another website going now and the graphics are just as much like WB this time around, yet they are not suing him. I find that fascinating.


http://www.gatekeeperscurse.com/