v23 #2 Cases of Note: Copyright

Chain of Title — Talkartoon Betty

Column Editor:  Bruce Strauch (The Citadel)  <strauchb@citadel.edu>

Fleischer Studios, Inc. v. A.V.E.L.A. et al., UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT, 2011 U.S. App. LEXIS 3487 (2011).

Max Fleischer created Betty Boop in 1930 for a series of cartoon films, and when it became big, licensed it for use in toys, dolls, and other merchandise.  Betty “combined in appearance the childish with the sophisticated — a large round baby face with big eyes and a nose like a button, framed in a somewhat careful coiffure, with a very small body …” Fleischer Studios v. Ralph A. Freundlich, Inc., 5 F. Supp. 808, 809 (S.D.N.Y. 1934).

Ah yes.  The perfect baby-voiced cigarette girl/ torch singer/ chorine.  And the first sex symbol of cartoons with high heels, garter belt and cleavage.  As the Depression bit in, she was a beguiling reminder of the vanished carefree Jazz Age.  And she was modeled on the silent movie star Clara Bow, the famous silent film “It-girl.”

Singer Helen Kane, the original “Boop-Oop-A-Doop” girl who looked much like Clara Bow and much like Betty, sued in 1932.  The court ruled the “baby” technique of singing did not originate with her.

In 1934, the National Legion of Decency imposed the Production Code on Hollywood restricting sexual innuendoes.  This dealt a severe blow to Betty and forced the newly tame Betty to seek juvenile audiences, which led to a decline in popularity.

But as an icon of her time, Betty came back for a cameo in the 1988 “Who Framed Roger Rabbit.”

Another interesting note, Fleischer’s biggest success was Popeye.  He did well in life.

Around 1940, Fleischer sold his rights to her cartoons and character.  In the 1970s, Fleischer’s family under the name Original Fleischer tried to buy back the rights.  Convinced that they are the exclusive owner, they have licensed it for toys, dolls, and other stuff such as the ceramic Betty Boop doll found with meth packages inside in the search warrant case United States v. Lakoskey, 462 F.3d 965, 971 (8th Cir. 2006).

A.V.E.L.A. and other defendants also license Betty bringing on this lawsuit.

Fleischer asserted exclusive copyright through the  following purported chain of title: Original Fleischer to Paramount Pictures (1941); Paramount to UM&M TV Corp. (1955); UM&M to National Telefilm Associates (later Republic Pictures) (1986); Republic to Fleischer (1997).

A.V.E.L.A. got a dismissal on the basis of no admissible evidence to establish the links in the chain after Fleischer to Paramount.

On Appeal

As the copied works were created before 1978, the Copyright Act of 1909 applies.

The burden is on Fleischer to show ownership via the chain of title.  Litchfield v. Spielberg, 736 F.2d 1352, 1355 (9th Cir. 1984).

No dispute that Paramount got rights from Fleischer to both Betty Boop character and the cartoons.  But in the Paramount to UM&M deal, Paramount carved out the Betty Boop character and retained it.

Subsequent conduct on the part of Paramount can be used to discern contractual intent.  See Wolkowitz v. FDIC (In re Imperial Credit Industries, Inc.), 527 F.3d 959, 966 (9th Cir. 2008).  But this works in A.V.E.L.A.’s favor.  Paramount sold its Betty Boop character copyright to Harvey Films.

Presumably to make new movies.  Although there’s no evidence they ever did.

Nonetheless, the contractual language retaining the character was clear and unambiguous.

As you can see, there’s nothing much to this case.  Just a nice opportunity to contemplate cartoons in days of yore.

Next is what is developing as a really big deal.

Copyright — Fair Use on the Web – Publisher Apocalypse  Meets Blogger Armageddon

Righthaven LLC v. Realty One Group, Inc. UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEVADA, 2010 U.S. Dist. LEXIS 111576 (2010).

Righthaven has the blogosphere in an uproar with its copyright-litigation-for-profit business model.  Righthaven trolls the Web and files copyright infringement lawsuits principally for the Las Vegas Review Journal and the Denver Post, but seems to be picking up new clients.  Rather than serving as an attorney for those papers, it buys copyright from them and files suit on its own behalf.  Which is to say it produces nothing creative it is trying to protect.

Righthaven does not attempt to mitigate damages via a cease and desist letter.  Rather it demands the flabbergasting $150,000 statutory damages plus forfeiture of the Website domain name to get a blogger’s attention and then settles for what the poor shlub can afford.  This has nonetheless proved quite lucrative if one can believe the information on the Website Welcome to Righthaven Lawsuits.  And their targets are truly random bloggers scattered throughout the U.S.  One is a woman who blogs about her cat.

Nelson is a Nevada realtor with an Internet blog with info about buying homes in Nevada.  Nelson used eight lines of a thirty-line Las Vegas Review Journal news story with both factual info about a federal housing program and reporter’s commentary on the effect on the housing market.  When Righthaven sued, Nelson fought back and raised a Fair Use defense, and the district court held in his favor.

“[T]he fair use of a copyrighted work, … for purposes such as criticism, comment [or] news reporting … not an infringement of copyright.” 17 U.S.C. § 107.

A. Purpose and Character of the Use

Nelson’s blog is both educational and commercial, but the underlying motive is to generate business for himself as a realtor.  Which would weigh against fair use.

B. Nature of the Work

Nelson only lifted factual content from the article which supports fair use.  See e.g., Los Angeles news Service v. CBS Broadcasting, Inc., 305 F.3d 924 (9th Cir. 2002) (re-publication of a video depicting a news report was a fair use because it was informational rather than creative).

C. Amount of Copyrighted Work Used

Eight out of thirty sentences, weighing in for fair use.  See e.g., CBS Broadcasting, Inc., 305 F.3d at 941 (copying only as much as necessary to provide relevant factual information weighs in favor of fair use).

D. Effect on Potential Market
for Copyrighted Work

Little or no effect on the market.  Reader would still go to the Review Journal for the other twenty-two sentences plus the author’s riveting commentary.  Does not dilute the market for the article.

This holding was by Larry Hicks, U.S. District Judge.  Since then, a Judge James Mahan, also of Nevada, has ruled in favor of fair use in Righthaven v. Center for Intercultural Organizing, but as this goes to press, the opinion is unpublished.  But incredibly in this case, the entire article was lifted.  Judge Mahan also feels Righthaven is diminishing the value of the copyright by using it purely for a lawsuit and that copyright under those circumstances is entitled to less protection.

Mind you, I don’t have any trouble seeing the other side on that one.  The newspapers are merely outsourcing their litigation.  But the defense attorney in one of the cases says Righthaven is on the edge of champerty and barratry, the old common law prohibitions against buying a piece of a lawsuit.

And, as both Righthaven losses are in Nevada, the appeal goes to those la-la land folks on the Ninth Circuit in San Francisco.  While they are infamous for creating off-the-wall new law and being reversed by the U.S. Supreme Court, in the area of copyright, they know their stuff.  And this is just the kind of brave new world cosmological thinking they delight in.

Some commentators are predicting the opening of the floodgates for soft infringement on the Web.  But whatever happens, this will have a big impact.

 

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