My Other Joke - 'Getting' the Joke not Relevant to Parody, Says US Court of Appeals

Jokes are rarely ubiquitous, and one that you might get won't necessarily translate as well to your friends, which even could be construed as offensive by some. This clear subjectivity when it comes to humor is well known by most, but this has been rarely introduced as an argument in a court of law (at least in this writer's knowledge). With that said, would 'getting' a joke be a part of the considerations surrounding parody or satire, or would a genuine attempt at being funny be such, even if some don't 'get' the joke? A question many didn't know they wanted to know the answer to was addressed recently by the US Court of Appeals.

The case of Louis Vuitton Malletier SA v. My Other Bag, Inc. dealt with the sale of canvas tote bags by My Other Bag, which feature the name of the company on one side and a caricature image of iconic and well-known designer handbags on the other, including brands like Louis Vuitton Chanel, and Fendi. The joke is a carry-over from bumper stickers with the wording "my other car" that plays to the idea of owning both the luxury item and an inexpensive alternative (without actually having the former, most likely). Louis Vuitton didn't take well to the use of their designs on MOB's tote bags and took the company to court for trademark infringement, trademark dilution and copyright infringement.



Daniela didn't understand why she was arrested because of
her 'other' bag

The Court of Appeals dealt with the matter of trademark infringement first, and quickly saw that there was no infringement by MOB as there were "…obvious differences in MOB's mimicking of LV's mark, the lack of market proximity between the products at issue, and minimal, unconvincing evidence of consumer confusion". This follows the decision by the District Court of New York at first instance, who determined that while the mark and its use are similar, there are clear, distinctive differences that distinguish MOB's image of Louis Vuitton's design, and that the two products compete in an entirely different marketplace (with Louis Vuitton clearly catering to an exclusive, luxury market, and MOB to a very casual market).

The Court then moved onto the question of trademark dilution (a case of using a well-known trademark in a different product type entirely, diminishing the distinctive value of the original mark), which at first instance was dismissed due to the defence of fair use through parody by MOB. Similarly to the above consideration, the Court of Appeals didn't take long to explain their findings, affirming that "…[MOB's bags] mimic LV's designs and handbags in a way that is recognizable, they do so as a drawing on a product that is such a conscious departure from LV's image of luxury… as to convey that MOB's tote bags are not LV handbags". Even though Louis Vuitton's marks were used, albeit in a humorous way, they still did not act as a 'designation of source', since the bags did have the MOB branding present in addition to the caricature image that shows a clear designation of origin contrary to Louis Vuitton. Clearly the trademark couldn't have been diluted in any way, as the products didn't cross over into each other's markets, nor shared features that would lead to them being confused by consumers.

The final point of consideration was that of copyright infringement, which the Court dispatched in very short terms. The Court saw that "…MOB's parodic use of LV's designs produces a "new expression [and] message" that constitutes transformative use". This, in addition to the benefit derived from the remaining fair use considerations or their irrelevancy to the matter, aided MOB's case under copyright infringement, with the claim being dismissed entirely. One can appreciate the transformative use of Louis Vuitton's designs, as the cartoonish image along with a changed logo (featuring, instead of the LV logo, a MOB version of the same) made the design something new through its humorous portrayal of the design. Ultimately, the Court of Appeals dismissed Louis Vuitton's appeal entirely.

The case illustrates the strength in a genuine parody defence, and as was discussed by Justice Furman "...the fact that Louis Vuitton at least does not find the comparison funny is immaterial; Louis Vuitton's sense of humor (or lack thereof) does not delineate the parameters of its rights (or MOB's rights) under trademark law". Many proprietors of high-end, well-known brands might not like, or even get, the parodies that make fun of them, but the law should allow this type of commentary or use, provided it is bona fide parody. It serves these brands well to pick their fights carefully, since a well placed joke can make fun of you, but rash acts of litigation can do more damage.

Source: JDSupra

Happy Birthday to Us All? The Challenge Over the Well-Known Birthday Song

If there ever has been a song that most people on Earth have heard, it's the one sang in celebration of one's birthday; Happy Birthday to You. The copyright owners of the song, Warner/Chappell Music, have kept the rights in a tight grip, charging as much as $1500 dollars for a single use of the song, but recently the rights to the song have come into question.

In a recent court filing, Jennifer Nelson, an American film-maker, is seeking for the song to be declared to being in the public domain (and having been there since the 1920s) as opposed to under the ownership of Warner/Chappell. If the song were to be declared to being in the public domain, anyone and everyone could be free to use it as they wish.

Birthdays aren't always so happy

The song's origin is in the old folk song of 'Good Morning to All', published as far back as 1893.The rights were subsequently bought by several entities, originally from the authors Patty and Mildred Hill, ending up with Warner/Chappell in 1988. The song brings in 2 million dollars per year for the owners through licensing fees.

Should the courts not make the declaration being sought, the copyright for the song should end sometime in 2016 in Europe, due to the passing of Patty Hill in 1946 and copyright terms extending to 70 years after the death of the last author of the work. Should a European nation have a longer period, the changes made under European Union legislation will not affect that period and the song will enjoy copyright protection for that extended period. In the United States the song's copyright should have expired in 1991, however the period was extended twice; initially by the Copyright Act of 1976 and further by the Copyright Term Extension Act and protection should therefore extend till 2030.

What Jennifer Nelson is arguing in her case is that the song belongs to everyone, and should not be owned by any entity. When thinking of the important role the song plays in a very simple event, the celebration of someone's birthday and the commonality of the song's use, she could have a solid case. Unlike trade marks, copyright doesn't face the effects of genericization, where the trade mark has become eponymous with the product it represents - in other words the name has become intrinsically what most products in that category are called. Even if a song is deemed to being incredibly common or 'everyone's', it is still protected by copyright.

With the great extensions of American copyright terms and the strict nature of copyright as a means to protect your intellectual property, I have my doubts about the song being in the public domain. Albeit not the exact same case, the popularity or commonality of a book doesn't automatically place it out of strict protection and into the free use of the public, so what would make a song any different?

Source: Thomson Reuters