Blonde Ambition

In the fight against copyright infringement, trademark violation, etc… is the on-going battle against bootlegged copies of CDs, DVDs and the like.  It appears there is a new hurdle bootleggers will have to overcome in transporting their knock-off and illegal goods into the United States. Two labrador retrievers, on loan from the U.S., are sniffing out polycarbonate - the chemical used in the manufacture of discs.  Apparently the dogs are so successful at catching the counterfeit DVDs in transport that a bounty has been taken out for their lives.  Unfortunately, the bootleggers are still attempting to stay a step ahead - now a chemical is being sprayed on the counterfeit merchandise in an attempt to confuse the DVD sniffing dogs. It seems that this is a battle that will continue to rage on in the world of entertainment and copyright infringement.

For more information, please see http://news.yahoo.com/s/ap/20070326/ap_on_re_as/malaysia_movie_piracy

Looks like an Indian coffee chain is trying to cash-in on the global appeal of the Seattle based phenomenon. Starbucks is already opposed to Starstrucks, which accoriding to the founder would have a totally different theme than the famous Starbucks. Starstrucks apparently would have a glamour theme with movie posters scattered throughout. Shahnaz Husain, the founder of Starstucks, is planning to battle it out to keep her name - as she claims that there are hundreds of other coffee shops which are deceptively similar.  Husain is probably right about that. When I was in Prague a couple summers ago, there were no Starbucks, but there was “Star Cafe” with a green round symbol.  Now, as someone who is all too familiar with Starbucks, their logo, and their product, I was able to tell the difference. But…on first glance coming around the corner I almost stopped in my tracks in the delight of seeing a Starbucks in the Czech Republic of all places, only upon later inspection to see that it was just a copycat. So, the question remains whether Husain’s Starstrucks is deceptive enough and similar enough that Starbucks will win this dispute.  As someone who drinks Starbucks regularly and is quite aware of their product and store, I can’t imagine being fooled by Starstrucks. But - I do think that Husain is acting in bad faith on this one and is clearly looking to confuse people - at least long enough to get them in the store, or giving them the sudden desire to have a $5 cup of coffee!

For more info: http://biz.yahoo.com/rb/070304/starbucks_starstrucks.html?.v=3

It seems society hasn’t come too far since the days of Ulysses.  Novels which were at one-time considered too risque or vulgar were defended on grounds that although scenes depicted might offend some, the reality was that these scenes were mere fiction and were not actually involving real people - in essence, no one was truly being harmed.  Fast-forward to 2007 and the newest target is 13 year old actress Dakota Fanning.  In the movie Hounddog, which was premiered at the Sundance Film Festival earlier this year, Fanning depicts an abused girl who listens to Elvis Presley to deal with the abuse she has endured.  The controversial scene in the movie depicts Fanning’s character, Lewellen being raped while another child watches. The scene, however, does not show anything but Fanning’s face and hands; there is no nudity or explicit violence. Fanning herself has defended the scene as just acting.  She says, “It’s not really happening. It’s a movie, and it’s called acting. And for me, when it’s done it’s done.”  However, many people have strongly criticized the movie as promoting child abuse and subjecting Fanning to a situation which should be deemed criminal.

It seems, however, that the 13 year old actress has a very valid point. Not only did she not experience anything, but the truth is, this is life.  “I know my mom would take me to see it,” said Fanning, who turns 13 in February. “You have to prepare your children for things that happen in the world. Everything isn’t rosy.”  Going back to what was said in class today, it appears that more than anything many Americans are just scared. They don’t want to see scenes such as this because they don’t want to deal with the truth of the reality. So, instead many want to censor such things.  Maybe this is why there are so many children who are raped, kidnapped, and sexually molested and abused each days - because so many people turn a blind eye to the problem. I don’t find a problem with this scene as described - maybe it will wakeup society to the realities of the atrocities that are happening to children.

For more information, see http://www.usatoday.com/life/movies/news/2007-01-23-fanning-hounddog_x.htm

Sean “P. Diddy” Combs, lost the “P” and wound up in a pickle. Combs was sued over the use of his moniker “Diddy” being used in the United Kingdom. Richard “Diddy” Dearlove brought the suit against Combs.  Dearlove had been using the Diddy moniker since 1992 and claimed that he was being contacted by people seeking to contact Combs. The court ruled in Dearlove’s favor.  Here is a brief analysis of Dearlove’s claim analyzed under the 8 Factor Polaroid Test:

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    • 1. Strength of the Mark

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      • Sean “Diddy” Combs is a widely recognized trademark and name internationally. Richard “Diddy” Dearlove is a little-known
        London music producer. It is indisputable that much of the world is familiar with Sean “Diddy”Combs, thus this factor would be favorable to him.

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    • 2. Degree of Similarity Between the Marks

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      • The degree of similarity between the marks is very high, as the names are identical.

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    • 3. Proximity of the Products

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      • While Sean “Diddy” Combs has endeavored in many markets – including, music, producing, fashion, etc… he is most notably known for his work in the music industry. In comparison, Richard “Diddy” Dearlove is also in the music industry. Additionally, both men are producers of music, so the proximity of the markets is close.

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    • 4. Bridging the Gap

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      • Bridging the gap refers to the senior user’s interest in preserving avenues of expansion and entering into related fields.
      • The likelihood of Richard “Diddy” Dearlove expanding into the fashion industry is probably remote, but the possibility of him expanding to other areas of the music industry, or more importantly, to expanding his producing from
        England to other parts of the world is greater.

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    • 5. Actual Confusion
      • In bringing his claim against Sean “Diddy” Combs, Dearlove claimed that there had been actual confusion in the form of girls calling and emailing him in the hopes of being in his videos. If true, this would proovide support for infringement
    • 6. Bad Faith
      • Sean “Diddy” Combs has been known by a variety of names throughout his career. Diddy was actually a shortened version of P. Diddy. So it is highly unlikely that Combs had any bad faith in shortening the moniker by dropping the “P”. In reality, Combs probably have no idea that Dearlove even existed.
    • 7. Quality of the Products

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      • The quality of a junior user’s product can be relevant in two ways: (1) an inferior product may cause injury to the plaintiff trademark owner because people may think that the senior and junior products came from the same source; (2) products of equal quality may tend to create confusion as to source because of this very similarity.
      • Combs is obviously known for quality. The music he has produced, the music he has himself rapped, and his other endeavors have all been widely praised and have made millions world-wide.
      • Dearlove is considered a little-known producer in
        London. This unfortunately tells us little about the quality of Dearlove’s product, only that it hasn’t been as successful as Combs’s.

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    • 8. Consumer Sophistication
      • A child or adult who is seeking out Combs’s music would be likely to do so because they are a fan of Combs, not because they are mistaking his music with that of Dearlove.

In the end, the court determined that Combs could not use “Diddy” moniker in his commercial activities in
Britain. This wasn’t the end of the story, however. Combs’s continued use of “Diddy” on both MySpace and YouTube has resulted in a second lawsuit being filed by Dearlove against Combs. Combs currently has his website set up to redirect
UK users to a different page where “Diddy” isn’t used. MySpace and YouTube, however, don’t have this feature.  Maybe Combs should just go back to P. Diddy…

For more info:

http://www.nypost.com/seven/09122006/business/brit_in_a_snit_sues_no_p_diddy_business_janet_j__witty_whitman.htm

http://jam.canoe.ca/Music/Artists/P/Puff_Daddy/2007/02/02/pf-3507294.html

Unless you live under a rock or avoid any and all media having to do with Hollywood starlets, you’ve probably seen or heard about the current Paris Hilton debacle.  Just in case you’ve somehow missed Ms. Hilton’s current misstep a quick summary is in order.  Basically Paris defaulted on a storage unit bill and after many failed attempts to collect their $200 bill, the storage company auctioned Paris’s belongings off for $2,775, which was then sold to Bardia Persa for a cool $10 million. Mr. Persa then set up the website Parisexposed.com which was basically an online inventory of Paris’s belongings that could be accessed for a monthly fee. The website contained personal effects including health and financial information and photos and videos depicting rampant drug use and sexual escapades.  Paris, through her celebrity lawyer Howard Weitzman, filed a lawsuit against Mr. Persa seeking an injunction against the website for copyright infringement and invasion of privacy.  Ms. Hilton got her wish, as a federal district judge filed a temporary restraining order shutting the website down - however, the damage has likely been done as the site was burning up the web from the moment it was launched.

Mr. Persa might be embarking on an uphill battle in his copyright infringement defense. While numerous videos and photos of Paris and her rich friends have surfaced, it is an undeniable fact that these are copyrighted - but by who?  Some of the videos and photos were taken by Paris herself, but many were not. Joe Francis, supreme sleaze and creator of the famed Girls Gone Wild, did his share of filming, including a film where Paris and friends partied, drank, and snorted cocaine on a private yacht in St. Tropez and Ibiza. In addition to Francis’ filming, Paris and ex-boyfriends co-filmed some of her now infamous sex tapes.

The one thing we know for sure is Mr. Persa does not likely own the copyright to these “works of art.”  Even if Mr. Persa is the rightful owner of the actual physical film and photos (and this is debatable), that would not translate into him owning the copyright to these items.  The original copyright owners (whoever they may be) would still own the actual copyright to these items and Mr. Persa has no right to publish, distribute, or otherwise profit from such.

One of the most important aspects of copyright protection is the right to first publication.  It goes without saying that none of these videos or photos were published (& it probably would have stayed that way).  Thus, Ms. Hilton and the other rightful copyright owners have definitely been deprived of this inherent copyright entitlement.

Another clear issue regarding Ms. Hilton’s copyright infringement suit is who in fact owns the copyright to these materials.  As stated previously, Mr. Persa does not own the copyright to the photos and videos, but that doesn’t end the inquiry.  In regards to the videos and photos where Paris herself was not behind the camera she could likely claim joint-authorship of the copyright ownership.  In order to be a joint-author, each of the authors must intend to act as joint-authors and each of their contributions must have been independently copyrightable.  For example, regarding the video of Paris and an ex-boyfriend in bed each one shared both the spotlight and the filming responsibilities. If they both intended to co-author this Oscar-worthy documentary, then they would each be joint copyright owners.

Only time will tell who wins Round 1 of the Hilton vs. Persa fight.  Regardless what you think about Paris Hilton and her rich friends, Mr. Persa is likely in violation of copyright infringement and hopefully those who wanted to see Ms. Hilton in all her glory already did because it might be a while, if ever, before Parisexposed.com is up and running again. Although, lucky for all of us it probably won’t be long before Paris is involved in another Page Six scandal that will eventually make its way to the internet for the world to see.  But what do you think - is Mr. Persa guilty of copyright infringement? Does Paris Hilton even own the copyright to these videos and photos? What do you think the future of Parisexposed.com will be?

Hey Everyone, Just wanted to say hi and welcome to our blog. This blog is for our Entertainment Law class at Barry University.  Hope you enjoy all the fabulous posts that are to come.   ~Steph & Gail~