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trademark infringement unfair competition claims were dismissed as for the state law false advertising claim under california business professions code section 17500 it was subject to rule 9 b the allegations that defendants have further violated section 17500 committing false advertising by selling goods and services misrepresenting their identity and signing up new members who think they are joining e clampus vitus but in actuality are not were too conclusory to provide the specificity required by rule 9 b they didn t identify any allegedly false statements or state how any such statement was misleading complaint dismissed with leave to amend posted by rebecca tushnet at 11 55 am no comments email this blogthis share to x share to facebook share to pinterest labels california false advertising procedure trademark the hazards of off label promotion an off label medical device promotion that killed the story points out that atypically patients were denied even the appearance of informed consent though one has to wonder whether many patients can do more than go along with their doctors advice even when they know the use is off label one particularly interesting portion from the forbes piece which seems to be online only the culture of orthopedic surgeons is particularly aggressive predominantly male orthopods are the jocks of the surgical world sales representatives tell stories of doctors playing loud rock music in the operating room and throwing instruments at the wall when they get frustrated several surgeons tell fortune they simply don t have time to pore over labels lambert offers a blunt appraisal off label is not at all a pejorative term it s almost the opposite reading the label is for people who read labels surgeons don t always listen to the fda but they do heed the young sales representatives who bring them devices and routinely watch them operate it sounds ridiculous because here s a guy who went to medical school and did his residency and he s listening to some guy in the back of the room says one former synthes salesperson another adds it s not uncommon to have a surgeon with a drill in his hand about to drill a hole looking over his shoulder at you saying is this right the story also provides insights into why the market doesn t constrain false or unproven claims despite huge potential back end liability in cases like this one firms are made of people and individual people both have different incentives than the firm as a whole and not unrelatedly deep capacities to read evidence optimistically even as patients are dying indeed one of two case examples in a brochure given to surgeons promoting the product came from a woman who d died on the operating table though the brochure didn t say that posted by rebecca tushnet at 10 49 am no comments email this blogthis share to x share to facebook share to pinterest labels advertising commercial speech fda one difference between marketers and trademark lawyers marketers like ubiquity and recognize that top of mind status is not the same as true genericity bill morris explosion of brands and erosion of soul t he independence bowl became the poulan weed eater independence bowl lovingly known as the weed whacker bowl over all it was a net benefit evin ellis the company s marketing communications manager said we consider weed eater the kleenex of weed whacking corporations are now willing to shell out up to 5 million a year to have their name attached to a college football bowl game because they want the brand to become so common and recognizable that it enters the language as the thing itself the dream is to become generic last ellipsis in original see also posted by rebecca tushnet at 10 15 am no comments email this blogthis share to x share to facebook share to pinterest labels trademark friday december 21 2012 trademark question of the day this truck sign seemed a little familiar what do you think the washington capitals might say posted by rebecca tushnet at 4 28 pm 1 comment email this blogthis share to x share to facebook share to pinterest labels dilution trademark bigger end of year news copyright reform the uk government s copyright modernization plans modernising copyright a modern robust and flexible framework of particular note to me like everyone sensible and like the us before justice souter sent us on an unfortunate detour the uk government proposes to treat parody satire and pastiche together still it s a far cry from full fledged transformativeness though there s separate treatment for data mining by noncommercial entities and several other important exceptions the uk also proposes to prevent contracts from overriding these rights to the extent allowed by eu law also while the us tries to keep international obligations on disability limited to print the uk government proposes to offer exceptions for every form of work and for every form of disability because that s the right thing to do posted by rebecca tushnet at 4 07 pm no comments email this blogthis share to x share to facebook share to pinterest labels copyright end of year news i am 1 2 of one of the top ten most influential fans of 2012 according to the daily dot posted by rebecca tushnet at 3 06 pm no comments email this blogthis share to x share to facebook share to pinterest labels fanworks thursday december 20 2012 transformation commerce and medium here s an art show full of visual work inspired by premium cable you can buy prints etc for varying three figure sums more traditional fan art too is often sold at fan conventions and i don t expect these folks to get sued why is the anti commercialization norm so strong with fan fiction and video but not with fan art and why have copyright owners seemingly tolerated so much more commercialization in the visual field this is far from the only example of transformative visual works for sale i ve seen it s just the one i saw today is it the lingering mystique of the unique art object such that the original drawing painting etc seems to have so much more labor value than the original copy of a text or vid that a sale of the former is justified also there is no accounting for taste while my kindergartender couldn t produce any of these i think my friends do far better work and for free though i liked this alternate ending exhibit better alternate endings being a staple of traditional fanworks it does seem to me that traditional fan cultures focus more on classic aesthetics creating beautiful art objects that are also transformative works than these producers intriguingly the artist who in my opinion does the most polished work in the second exhibit has a kickstarter for a poster of every wile e coyote acme purchase during the classic cartoons and its more widespread success these acme posters aren t limited editions of small numbers like most of the works in the exhibits linked above suggests that the current art world aesthetic has something to do with avoiding mass appeal that s not a new insight but in the context of transformative works specifically i wonder does beauty make it harder to see transformativeness or easier i know in the dmca hearings we constantly had to say that it was important to vidders as artists to convey their messages in aesthetically rich ways and some people seemed to have trouble hearing that even though we ordinarily accept that attractive seductive well put together art is more effective art of course i support bad transformative works too quality isn t the standard for transformativeness also you don t get good transformative works without a lot of space for bad ones but when classical portraiture techniques risk liability for seeming too exploitative of the subject there s something weird going on about the intersection of art and transformation posted by rebecca tushnet at 10 21 am no comments email this blogthis share to x share to facebook share to pinterest labels art law copyright fan fiction fanworks wednesday december 19 2012 i predict therefore i am copyrightable a brief note on two copyright cases from the last week a comparison of which suggests that copyright doctrine has fetishized quantifiability over other forms of knowledge making in one a court rightly denies protection to huge amounts of factual matter while in the other a court wrongly grants protection to single letter grades because they re the product of skill and judgment eric goldman has more to say about national football scouting inc v rang w d wash dec 13 2012 but the money quote from the opinion is national s player grades unlike telephone numbers are not facts they are compilations of data chosen and weighed with creativity and judgment the player grades represent national s opinion based on its data and its expertise of a player s likely success in the nfl justin hughes on microworks and james grimmelmann on rankings have written relevantly about what s wrong with this statement as an endpoint and not a beginning of a real analysis of whether there s enough copyrightable output regardless of the creativity that went into the grade contrast effie film llc v pomerance s d n y dec 18 2012 which granted summary judgment to the declaratory judgment plaintiff because any similarities between the parties screenplays came from their basis in the same historical events here s what the effie court has to say about the creative judgments involved in doing history hoehling is not an opinion about historians lack of creativity indeed the critique offered by patry and sympathetic historians insisting that historians put original work into producing facts and interpretations essentially assumes a labor desert theory of copyright law and argues that historians are entitled to more robust property protection because they are performing the requisite creative labor see jeanne c fromer expressive incentives in intellectual property 98 va l rev 1745 1753 56 2012 cf wendy j gordon a property right in self expression equality and individualism in the natural law of intellectual property 102 yale l j 1533 1993 but as its opening paragraph states hoehling is concerned primarily with the unique importance of maintaining a free flow of accessible historical information the rationale for this doctrine is that the cause of knowledge is best served when history is the common property of all and each generation remains free to draw upon the discoveries and insights of the past to achieve that end hoehling prioritizes an instrumental conception of copyright law and concludes that weak copyright protections will best facilitate the creation and dissemination of new historical knowledge creativity in history may approximate the creative process of generating works of fiction but is arguably of a different sort by virtue of historians goal of accurately representing past reality and the shared professional norms that discipline factual and interpretive adventurousness these differences coupled with the special role that historical knowledge plays in democratic deliberation may justify different treatment of originality doctrine with respect to historical facts and interpretation further incentive based arguments may ultimately support hoehling s approach for instance given the growth of a large professoriate motivated professionally personally and financially to generate new historical information even in the absence of strong copyright protections weak protection may suffice to maximize production or at least to push it above an independently specified floor these two cases accurately reflect a division in the case law creative and effortful historical judgments no protection creative and effortful judgments about the future though they are necessarily based on evidence from the past and are equally important to democratic deliberation fully copyrightable no matter how small this division strikes me as silly posted by rebecca tushnet at 2 04 pm no comments email this blogthis share to x share to facebook share to pinterest labels copyright tuesday december 18 2012 transformative use of the day nasa johnson style posted by rebecca tushnet at 8 02 pm no comments email this blogthis share to x share to facebook share to pinterest labels copyright music united states of pop ok dj earworm s unlikely to beat his 2009 united states of pop in my estimation but the 2012 mashup is up and this interview has some nice bits about the difference medium makes the interviewer describes his work as a musical equivalent of reading a really good essay about pop music that year which seems exactly right to me the juxtaposition of hits works as commentary on the hits and the zeitgeist they reflect the other thing that comes out of this interview is a sense of process and progress the work gets better as it goes which is why we shouldn t require all remix works to be awesome before they get legal protection you don t get the best stuff in any form without allowing its practitioners to experiment learn and even sometimes fail i m fascinated by pop music and i m fascinated by how it relates to culture and how the little nuances of development in the pop music landscape reflect often significant cultural developments i mean at first it was just an experiment and then i realized that it could be something more the first year my attitude was like can this be done and even the second year i was like well i might do it again we ll see if i can get it to work but by the third year i thought well not only do i have to do it but i realized what it could be at that point i thought maybe we could be from the ground up telling a story that reflects our collective experience but that also reflects the spirit of the new year in a way the passage of time and renewal and this idea of us all going through it together that s when 2009 happened i feel like every year i learn a lesson from what i did right and what i did wrong in this interview he talks further about the ways in which music expresses emotion and conveys meaning and how his editing choices emphasize particular aspects ht gk posted by rebecca tushnet at 3 40 pm no comments email this blogthis share to x share to facebook share to pinterest labels copying fanworks music monday december 17 2012 copying as speech redux this nyt article on the history of the paper trail includes a discussion of the expressive value of copying the pentagon papers mr ellsberg obsessively made copies of his copies even enlisting the help of his children in what she describes as an act of radical self publishing even though we think of copying now as perfunctorily ripping something off he was expressing himself by xeroxing professor lisa gitelman said the pentagon papers were a landmark in her view not just in the antiwar movement but in a xerox revolution that allowed citizens to seize hold of official documents and official knowledge and turn them to their own purposes as never before posted by rebecca tushnet at 3 33 pm no 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