Oh, The Places You Shouldn’t Boldly Go!

Dr. Seuss sued Star Trek because Dr. Seuss wrote a book entitled “Oh, The Places You’ll Go!” It’s a popular graduation gift. Star Trek did what they called a “parody” of that book, calling it “Oh, The Places You’ll Boldly Go!” and using Star Trek characters in a Seuss-like literary environment. The drawings evoke Seuss; the text evokes Seuss; certainly the title evokes Seuss. The Spock character’s pointed ears and the uniforms evoke Star Trek.

The US District Court where the trial was held found in favor of Star Trek; the parody was indeed a parody. However, it seems the 9th Circuit, which is the intermediate court between the District Courts and SCOTUS in several western states, disagrees. They held, on review of the evidence, that “Boldly” is not transformative enough for a parody and thus it is infringement, not “fair use.”

I’ve said many times that fair use is the murkiest of all murky areas of law. When is it ok to use others’ work in your own? Well, you can license the use of the original work; getting permission to use the original is the clearest path through the fair-use jungle. Or you can roll the dice and hope the courts agree with you. That’s not always the best option.

To determine fair use, the court weighs four factors, each on a sliding scale:

The purpose and character of the use, including whether it is of a commercial nature or for nonprofit educational purposes

Here, the work is of a commercial nature, definitely written for profit. That leans AWAY from fair use.

The nature of the copyrighted work

Is it fiction or fact? Facts can’t be protected by copyright, fiction is highly protectable. Clearly, this is a work of fiction. That the original work is highly protectable leans AWAY from fair use.

The amount of the portion used in relation to the copyrighted work as a whole

Well, Star Trek clearly did a take-off on the title, and it clearly did a take-off on Theodor Seuss Geisel’s writing and drawing styles. This new work invokes the original. The actual text is not the same, but the tone and feel sure are. That one also leans away from fair use.

Had Star Trek used just the title without the drawings or text in the style of Seuss, that may have been ok; had they used the title and either the writing OR the drawing style, that would have been less likely to be ok. But they did all three. The Star Trek work clearly takes off on the Seuss work. That was not ok.

The effect of the use upon the potential market for or value of the copyrighted work

Seuss’ book is a popular gift for graduations. Lots of high school and college graduates have a dusty copy sitting on their shelves because some aunt gave it to them when the kids collected their diplomas. Now, though, fewer kids have the original sitting on their shelves; its corner on the market has been eroded by the Star Trek version.

Seuss claims the Star Trek work cut into the market for Seuss’ book; in other words, the new work competes rather than complements. Definitely, that leans AWAY from fair use.

Muddy the waters

When that weigh-in is complete, things get really muddled. The court then takes the totality of the circumstances surrounding each of the works and adds in the weight that individual judge chooses to give each of the four factors and determines whether the new work infringes the old.

Basically, a fair use determination can spin on the whim of the federal judiciary. And therein, my friends, lies the silt floating up from the bottom of the basin of fair use jurisprudence.

Seuss-Star Trek Mash-Up Crashes and Burns at Ninth Circuit

Sojourner Truth and Copyright Innovation

Sojourner Truth Portrait
Sojourner Truth

I refer you to the Copyright Office’s blog, on which is an interesting post about Sojourner Truth’s contribution to copyright law.

Interesting stuff! I never knew this about Sojourner Truth. I knew she was a powerhouse in  history, especially black history, I knew she was enslaved as a child and young adult, I knew she was a strong advocate against slavery. I never, ever knew she was an innovator in copyright law.

Some Inventions Are Turkeys

In the spirit of Thanksgiving, I thought I’d share some of my favorite turkey patents.

US Patent 10,363,772 is entitled “Turkey Fan Favorite.” It teaches “[a] display device for spreading a turkey’s tail feathers in a fan-like display is provided. The device consists of a U-shape with 3 rubber quill clips, 1 located at the top, 1 located on one end of the device and 1 located on remaining end of the device. The rubber clips allow the quills in the middle of the fan as well as the quills near the base on opposite sides to be used to hold the turkey fan in a set position. When installed the device is invisible to view. This device is a multipurpose toot and can be used for taxidermy use in preserving the turkey fan. This device may be used as a mounting mechanism for wall display. A mounting mechanism may further be provided for the mounting of an object to the turkey fan such as the beard, or a pole for the use of the fan as a decoy in the field or a mount on the wall or shelf.” I guess you can show off the feathers of the bird on the table … hmm.

US Patent D861,828 teaches a design for a Turkey Hammock. I guess the bird needs to put its feet up after a long Thanksgiving meal.

US Patent D882,034 teaches a design for a Turkey Decoy. The turkey must be a bit desperate…

And on that note, I wish each of you a Happy Thanksgiving!

Remember, if these inventions are patentable, yours very well might be patentable also!

Inventions are Either Dogs or Cats

Some inventions actually are dogs. You’ve met the dog I’m talking about. It’s that big, friendly, in-your-face, social charmer who wants — nay, needs — to be the center of attention. They wear their hearts on their shoulders (dogs don’t generally wear sleeves) and you know exactly what this dog … of whatever breed … is thinking.

A dog-invention is one that, once introduced, you can reverse engineer. You know what it’s made of, and you know what it does. It becomes clear from tinkering with the invention just exactly how the invention works.

Dog Interacting
Dogs Love to Interact

 

A dog-invention is something you need a patent to protect. You cannot protect a dog-invention in any other way. For a patent to issue, the best mode of making and using the invention must be disclosed at the time of filing the application for patent. No problem! The dog-invention’s best mode is disclosed when you publish the dog-invention to the world. You can’t hide it; its very nature is to be a big, friendly, in-your-face invention.

Some inventions are cats. You’ve met the cat I’m talking about. It’s that shy, skittish kitty that hides from the world and watches with distrustful eyes as you try to tease it out of its spot. The very last thing it wants in the world is to be the center of attention. It is the diametric opposite of a friendly dog. It is secretive.

Cat In Box
Cats LOVE to hide…

 

A cat-invention can also be protected by patent, but we need to remember that a patent is an exercise in disclosure, which is the diametric opposite of this cat-invention’s nature; for a patent to issue, the best mode of making and using the invention must be disclosed in the application … which is then published to the public. We also need to remember that a patent’s enforceability is finite; it expires, at most, 20 years from the date you file the application. This cat-invention might be happier, and its profitability could potentially last much longer, if you simply keep it as a trade secret and let it do what cat-inventions do — hide from the world, watching with distrustful eyes as others try to tease it out.

ATTRIBUTION: The dog photo is a free download from pexels.com (since I don’t have a dog); the original filename is pexels-pixabay-97082.jpg. The cat is a photo of of my class-clown-cat, Linus.

 

The Day The Music Died

US Supreme Court Associate Justice Ruth Bader Ginsburg (3/15/1933-9/18/2020), the unlikely rock star and cultural icon known affectionately as “Notorious RBG,”  who loved her family, loved the law, loved the opera, and loved her country (not necessarily in that order), left this earth yesterday. She had just reached the halfway point between 87 and 88.

Words cannot express how her passing saddens me. I never met Justice Ginsburg (though I did see her on the SCOTUS bench on the day I was admitted to practice before SCOTUS), but I certainly knew her. I knew her through the humanity reflected in her decisions. I knew her through her fast friendship with her SCOTUS foil Antonin Scalia. I knew her through the many quips and quotes that trickled down from her lips to the public’s lives. I knew her for the gargantuan impact this tiny woman had on the law and on the world. I miss her. I join the world in praying for her and her family.

One of my cats is named Ginsburg, after her; that cat’s littermate is named after Justice Scalia. When they came into my life two years ago, I thought it would be fun to commemorate that unlikely friendship with these kittens’ names.

I can’t remember the Notorious RBG in any better way than in her own words. CBS News did a good interview with her when she was only 83 years old. Here’s the segment of that interview that is available on YouTube.

Rest in peace, Justice Ginsburg. If anyone deserves a rest, you do. You leave us with one hell of a great legacy.

Cool Foam Technology From NFL Concussion Experience

.The USPTO has a very cool article on its site. It seems former #NFL cornerback Shawn Springs holds a patent on helmet foam technology that minimizes  the effects of those skull-crushing impacts that football players suffer as part of the game. The technology is adapted from a child safety seat used in automobiles.

Enjoy the read!

USPTO’s Invention-Con 2020 Is Happening Now

If you’ve invented something, or are even thinking about inventing something, the US Patent and Trademark Office’s 2020 Invention-Con is The Place To Be. It started yesterday (8/20/2020) and continues through tomorrow (8/22/2020). This year’s theme is Your IP: A power tool for building success.

Click one, click all and get your FREE tickets to this premier USPTO event now!

Black Lives Matter

Today, Delain Law Office, PLLC joins the world in mourning the loss of George Floyd. We pray for his family and friends as they lay him to rest, and we pray for every family who has lost a loved one at the hands of violence … especially police violence. We pray for their strength and for their healing. And we pray that they forgive us all for failing them so completely.
It has been more than one hundred and fifty years since Abraham Lincoln signed the Emancipation Proclamation, more than 50 years since the Civil Rights Act of 1964, more than 10 years since we elected our first African American president. Many, many lives have been lost. Still, there is still no justice under the law for African Americans. It is still not safe to be Black in this country.
We live in a nation divided by race. African Americans have glaringly different outcomes than do those of European descent when it comes to nearly every system that has been erected in this country. Racism negatively impacts employment, housing, health, safety, and financial wellbeing.
We at Delain Law Office are shocked and saddened by the actions of the officers who callously and needlessly took Mr. Floyd from his family. That his six-year-old daughter can see that her daddy changed the world is amazing … and tragic. The world should already have undergone this change. We find it reprehensible that it so clearly has not.
I am a white woman, and I recognize that I sadly hold a privilege in our society based solely on the color of my skin. That privilege rings truly hollow when it comes at the price of innocent lives, regardless of the color of that life’s skin. Today, and every day, I stand in solidarity with the Black community. I stand ready to listen and to serve.
#BlackLivesMatter.