The Artful Jurist

This being Martin Luther King Day, I'm reminded not only of the famed civil rights leader and the words of his renowned "I Have a Dream" speech but also of the intellectual property issues that speech has raised for the arts and entertainment industry.

You see, Dr. King registered the speech with the U.S. Copyright Office. (This was 1963 when formal copyright registration was necessary to the process of claiming a copyright.) Since then, various people have attempted to republish the speech, either in text or video/sound recording, only to find that the heirs to Dr. King's estate are quick to put the legal kibosh on unauthorized uses.

In King v. Mister Maestro, Inc., a federal court issued an injunction to stop both Mister Maestro and 20th Century Fox from distributing recordings of the speech they were selling to the general public. The King estate also sued USA Today and CBS over their uses of the speech or its text.

Note that there is a fair use exception to copyright when portions of a public speech are republished for the purpose of what's called "bono fide new reporting." However, other purposes -- such as documentary filmmaking, where the line between news and entertainment is blurred to make it more of the latter than of the former -- the fair use exception may not come into play.

The day has arrived when the Artful Jurist can celebrate its first birthday. It was January 1, 2009, when the very first entry was posted to this blog. And here it is now the first day of 2010. (Makes it easy to remember the anniversary if you choose New Year's Day to make your entrance into the world.) So happy birthday, AJ, and may there be many happy returns of the day.

To those who have been readers of this blog, thank you very much for sharing your time here. And a very special thanks to those who've taken the time to write questions and comments. They're all much appreciated.

This being a holiday when people tend to reflect back on the year that has just passed, I think it's an appropriate occasion to look back with a certain amount of nostalgia on the legal profession as it has been portrayed on popular television over the years. And, apparently, so does the American Bar Association, which has published a listing of its Top 25 TV Law Shows in its ABA Journal. You can click through the list on its website by clicking here.

The New York Times reports that a recently deceased woman in Scotland has left the Metropolitan Opera in New York $7.5 million dollars in her will. Mona Webster was apparently a great fan of opera and especially impressed with the Met. (According to the story, she left only $167,000 to the U.K.'s Royal Opera Trust.)

Most of us aren't in a position to be as generous as Ms. Webster was. However, everyone should have a will or a living trust, or both, to set out how her or his worldly possessions will be distributed after death. Leaving some portion to an arts-related entity is no more complicated than leaving it to anyone else, and arts patrons should know that's an option.

One caution though...Cash gifts will likely always be welcomed. Gifts of other sorts (such as art collections) may not always be something an arts entity can absorb into its own collection. If such gifts are refused by the intended beneficiary, the property would then likely pass to someone other than whom you intended to receive it. So, if you're planning to leave something other than cash to the arts, the smart move is to first contact that entity to make certain the gift will be accepted.

A question came up recently in which a friend was inquiring about a fair use exception to the copyright law. Among the things my friend pointed out was that there was no admission charge involved.

Just so we're all clear on this important point, whether or not anyone's charged for the experience has no impact on whether or not an appropriation of someone else's copyrighted material is a fair use. The reason is simple.

Let's say I've written a play, and someone gets ahold of a copy of the script and decides to produce it without attaining the necessary permission from me. Even if there's no admission charge to the people who come to see the show, the unauthorized production still causes me an economic harm because, now that everyone in that city who was interested in seeing the play has already had the opportunity to see it for free, what chance is there that those same people will pay to see the show again. My ability to market the play to a theater that charges admission has been diminished.

Bottom line...No charge is no defense to copyright infringement.

Just in case you thought only musicians have an intellectual property interest in the sounds they make professionally, there's a case that was filed in California in which the dispute centers around a kazoo that makes a duck-like quack.

It seems a San Francisco based, amphibious tour company, called Bay Quackers, is being sued by the Georgia based, national sightseeing company, Ride the Ducks, for what's being alleged as trademark infringement. Apparently, Bay Quackers' kazoo sounds a lot like Ride the Ducks' own quacking sound for which it claims a trademark — or, in this case, a sound mark. Result: a quacking litigation.

No word as yet as to whether Donald or Daffy will be called as expert witnesses...