Public Domain or Dangerous Minefield?

Is public domain material a free-for-all for any and every purpose?? Maybe not.

One of my students in the playwriting class I'm currently teaching called my attention to the case of Warner Bros. Entertainment, Inc., et al., v. X One X Productions, et al., which was recently decided in the U.S. Court of Appeals for the Eight Circuit.? The case involved a manufacturer?who was incorporating into novelty items public domain publicity images of the films Gone With the Wind and The Wizard of Oz as well as publicity images of the cartoon characters Tom and Jerry.? Warner Bros., which owns the?characters depicted in the images, sued for copyright infringement.

The case was tricky because, first, most characters aren't usually copyrightable.? But, in the case of cartoon characters or very distinctive characters, sometimes they are.? The Court had to decide whether publicity photos of actors in costume?alone constituted an image of a copyrighted character.? The Court said no to that.? That came too close to claiming the actor, himself, was copyrightable.

But another?issue was whether the publicity images, which were undisputed to be in the public domain, were fair game to be incorporated into other products by the manufacturer.? The Court's basic ruling goes something like this:

So long as the public domain property is merely duplicated, there can be no copyright infringement.? However, if you include copyrighted material into the duplication without permission, that constitutes an infringement of copyright.

An example the Court gave was this: a public domain photo of the actress Judy Garland in her "Dorothy" costume could be duplicated without violating copyright law unless you also include with the photo her movie character's famous last line, "There's no place like home."? That line is the copyrighted intellectual property of Warner Bros., and the use of public domain property doesn't open the door to the inclusion of that which isn't in the public domain.

When Is Public Art Not for the Public?

The answer to the question posed in the title of this post is:  Possibly when the "public" is a professional photographer who sells a photo that includes an image of someone else's public art creation.

In this case, I'm talking about a Seattle public artwork known as "Broadway Dance Steps," which was created by sculptor Jack Mackie.  In 2009, Mr Mackie sued photographer Mike Hipple after Mr Hipple sold to a stock photo agency a picture he took of a woman dancing next to the work of art.

Mr. Mackie claimed copyright infringement.  Mr. Hipple claimed fair use.

The issue remains undecided because the case was recently settled before it went to trial.  In his blog, Mr. Hipple said the financial stakes made it such that it wasn't worth continuing the fight.  "I did not realize then that selling a photograph which includes part of a copyrighted public artwork can violate that copyright," his blog states.

Adios to Latin Jazz Category Could Mean a Class Action Against the Grammys

The Grammy Awards' decision to eliminate several awards categories has at least one group of musicians riled up enough to threaten litigation.  According to the New York Times ArtsBeat Blog, a New York law firm says it's going to file a class action suit against the Grammys on behalf of musicians who play Latin jazz (one of the dropped categories).

Suggestions of racism may be at the heart of the threatened suit's allegations.  According to Latin jazz musician Bobby Sanabria, who's quoted in ArtsBeat, almost three-quarters of the eliminated awards categories are related to ethnic or racially oriented music.

Goodbye, Columbo

No one upheld the law like the tenacious, rumpled, raincoat-wearing Detective Columbo, whose trademark "Oh, just one more thing..." kept clever killers off balance and kept audiences coming back episode after episode.  But there will be no more "one more thing" returns for Columbo.  The actor who played him, Peter Falk, has died.

When he began playing Columbo in the 1970s, Mr. Falk's portrayal of a law enforcement officer was a marked turn-around from his earlier days as an actor, when he typically played people on the other side of the law.  I also can't help but also think that Columbo was a marked contrast to several of the present-day TV detectives whose gonzo police techniques often push, or seem to go beyond, the boundaries of constitutional limits.  I can't recall any episodes where Columbo had to be reprimanded by his superiors for violations of the Fourth or Fifth Amendments.  Those types of scenes are almost cliché for today's cops shows.

Although I have to admit that I have no recollection of Columbo ever reciting the Miranda rights to anyone.  Maybe that was one of those "one more thing" moments the cameras just never stuck around long enough to catch.

Harper Lee Prize Finalists Announced

The American Bar Association Journal and the University of Alabama announced the three finalists for the Harper Lee Prize for Legal Fiction.? The finalists are: The Reversal, by Michael Connelly; The Confession, by John Grisham; and Fatal Convictions, by Randy Singer.

The Prize was created in honor of the 50th anniversary of the publication of Ms. Lee's novel, To Kill a Mockinbird, and, according to the ABA's website,?"will be given to the novel published in 2010 that best exemplifies the role of lawyers in society and their power to effect change."

A panel of judges will make the final award, which will be presented in September.? Among the criteria used to make the award will be public popularity.? If you care to vote for your favorite, you can do that at the ABA Journal website.