Samsung’s Super Bowl ad, IP enforcement, and feedback loops

So let’s talk about the SUPER BOW…[SHHHHHH!!!]

Samsung has posted a really funny video of a Super Bowl ad where a fictional Samsung executive cautions two ad writers that Samsung may not use trademarked terms such as SUPER BOWL, BALTIMORE RAVENS, or SAN FRANCISCO FORTY-NINERS.

The video is a hoot, starring Seth Rogen and Paul Rudd as the young admen, and the incomparable Bob Odenkirk (the lawyer “Better Call Saul” from Breaking Bad) as the executive who lives in deathly fear of an IP lawsuit.

Perhaps the video is only funny to me because of my IP background. But I doubt that the humor is just for IP profs: after all, why would Samsung make a commercial just for me? Sadly, in our “IP licensing” culture, overblown IP claims are ubiquitous, and I have little doubt that the general public will immediately see the absurdity in the video’s “conclusion” that Samsung may only refer to the game as “THE BIG PLATE” (watch the video, you’ll see), and to the teams as the “BALTIMORE BLACKBIRDS” and “SAN FRANCISCO FIFTY-MINUS-ONE-ERs.”

You have to love the fact that Samsung — which lost a $1 billion IP suit to Apple (for patent and trade dress, the latter a variety of trademark) — is now professing a fear of overblown IP claims. Kudos to a company that can laugh at itself after it’s been told it committed a billion dollars worth of IP infringement.

Sadly, the real-world use by some of “THE BIG GAME” to refer to the Super Bowl is an example of an all-too-common feedback loop: overblown claims by IP rights owners, leading to third parties who self-censor out of fear of suit, leading to additional overblown IP claims. These feedback loops require little real-world litigation, instead relying primarily or solely on private IP enforcement. I wrote about similar feedback loops arising from private enforcement of IP rights in this article.

The video ably underscores the importance of doctrines such as nominative fair use, which when met, allows others to refer explicitly to the “Chicago Bulls” rather than having to use tortured phrases such as “the professional basketball team from Chicago.” Or for that matter, the need to talk about the “San Francisco Fifty-Minus-One-ers.” So, shame on you, NFL — or should I say, shame on the “premier professional football sports league in the United States.” Of course, this wouldn’t be the first time somebody’s pointed out the NFL’s seeming habit of overstating its IP rights.

On to The Big Game: I wish I could say I’m excited about the game, but it’s between the Forty-Niners (meh) and the hated Ravens (grr-argh). I’m a Steelers man through and through. As one joke said, I’d rather root for an asteroid, but I think host city New Orleans has seen enough woes as of late.

Thanks to law prof Michael Risch for bringing this nominative fair use example to my attention. Cross-posted to Infoglut Tumblr.

Updated 6/10 – video link was broken, changed to another location.

Washington Declaration on Intellectual Property and the Public Interest

Despite the slings and arrows of Hurricane Irene hitting Washington a week ago, the recent Global Congress on Intellectual Property Law and the Public Interest has produced an important document calling for more transparency and public participation in the crafting of IP law.The Washington Declaration on Intellectual Property and the Public Interest is an important step in the fight for the public interest and against governments that have been co-opted by copyright and patent owners. Truly a global effort, the Global Congress included over 180 experts from 35 countries in six continents and was held (during Irene!) at American University Washington College of Law.

As argued in my recent article on private copyright enforcement and feedback loops, a deficit of transparency and public participation in private copyright enforcement has fostered gross overreach by copyright owners. A recent example of copyright overreach is amply demonstrated by the so-called Anti-Counterfeiting Trade Agreement, which was negotiated secretly and addresses far more than mere “counterfeiting.” (See here for a law professors’ letter I’ve signed against ACTA.)

It’s good to see such concerns echoed in the Congress’ just-released Declaration. For example:

International intellectual property policy making should be conducted through mechanisms of transparency and openness that encourage broad public participation. New rules should be made within the existing forums responsible for intellectual property policy, where both developed and developing countries have full representation, and where the texts of and forums for considering proposals are open. All new international intellectual property standards must be subject to democratic checks and balances, including domestic legislative approval and opportunities for judicial review.

Along similar lines, the Declaration calls excessive IP enforcement out to task, noting that “Government and private IP enforcement are commandeering greater social resources in order to impose stricter penalties than ever before, with fewer safeguards and less procedural fairness.” The Declaration contains many other important ideas, such as making sure that new IP protections are rooted in transparent research that demonstrates the need for new IP rights, including addressing the fact that fair uses and other IP limitations also generate economic value. Other important mentions are the importance of libraries and archives, strengthening IP exceptions, rejuvenating notice-based formalities, and much more.

I’d go on, but instead you should read the full document at Even better, sign it. (I did: I’m # 95.).

New article on SSRN: “Civil Procedures for a World of Shared and User-Generated Content”

I’ve posted a draft of my forthcoming article Civil Procedures for a World of Shared and User-Generated Content to SSRN. It’ll appear in print in the University of Louisville Law Review. Here’s the abstract:

Scholars often focus on the substance of copyrights as opposed to the procedures used to enforce them.  Yet copyright enforcement procedures are at the root of significant overreach and deserve greater attention in academic literature.  This Article explores three types of private enforcement procedures: direct enforcement (cease-and-desist practice); indirect enforcement (DMCA takedowns); and automated enforcement (YouTube’s Content ID filtering program).  Such procedures can produce a “substance-procedure-substance” feedback loop that causes significant de facto overextensions of copyrights, particularly against those creating and sharing User-Generated Content (“UGC”).  To avoid this feedback, the Article proposes descriptive and normative frameworks aimed towards the creation of better procedures. Looking to the source of procedures, the relevant actors, and the functions of enforcement (the descriptive framework), the Article suggests principles of transparency, participation, and “balanced accuracy” (the normative framework) that might lead to private enforcement procedures that accommodate the reasonable cost and efficiency needs of copyright owners without trampling on UGC.

You can find the abstract and download the article here.

David Letterman’s live IP demand to Joaquin Phoenix: real or hoax?

I’ve read many a cease-and-desist letter, and I’ve even written a few, but I’ve never seen an IP demand issued personally on late-night TV. Here’s David Letterman, complaining to Joaquin Phoenix about the use of portions of Phoenix’s infamous 2009 Late Show appearance for a new movie. Many will recall Phoenix’ bizarre, bearded 2009 appearance, where Phoenix claimed to be quitting acting to become a hip-hop artist. Since then, it’s come out that the appearance was part of a Borat-style false-reality performance, as part of Casey Affleck’s mockumentary I’m Still Here.

During yesterday’s interview, the two performers (Phoenix now cleaned up) discussed the film. After pleasantries, Letterman shifted into the IP issues (about 2:45 in). According to Letterman, his lawyers said he could sue, but that Phoenix’ lawyers claimed the use was fair use because it was for a documentary. Of course, it turned out to be otherwise — in Dave’s words, “Guess what, it’s no documentary. It was a theatrical ruse.” Moreover, he said, “I’m in it . . . at a pivotal point in the film.”

And now the demand: “Now you owe me a million bucks.” Ultimately, Phoenix promised, “We’ll work it out,” asking “but, can we talk about it privately?”

I find it odd in these days of sophisticated transactional lawyering that — regardless of any possible fair use — a commercial use like this would not have been cleared, in writing, in advance. Indeed, considering the “pivotal” role that the 2009 Letterman show appearance played in the film, it would appear crucial to nail down permission for that piece of IP, fair use or not. This is a film, where real money is at stake and risk-taking is usually quite low.

So is the demand real? Who knows. But for what it’s worth, a Letterman writer earlier claimed that Dave knew that the earlier, original 2009 appearance was a hoax. So I don’t know, but I sure hope that Dave’s demand is a gag. Considering that the Affleck/Phoenix movie is intended to explore the relationship between media and celebrity, it would be fitting to add our society’s constant stream of IP demands to the mix.

But then again, sometimes a demand is just a demand.