I’m speaking today as part of this seminar on movie making in Michigan presented by the Institute of Continuing Legal Education and cosponsored by the Arts, Communications, Entertainment & Sports Section of the State Bar of Michigan.  Here’s a breakdown of the program:

Date and Time: 06/03/10, 1:30pm-4:30pm

Location: The Inn at St. John’s, Plymouth

Program:

The Grand Rapids Legal News provides a nice recap of the Program on Copyright Law and Fair Use for Creative Artists that I participated in last Saturday at Grand Valley State.  From the article:

Julie Ahrens of the Stanford Fair Use Project, speaking to a small group of attorneys gathered April 3 in Grand Rapids, quoted Lawrence Lessig’s wry observation: “‘Fair use’ in America is the right to hire a lawyer.”

The remark may be humorous, but it is also an accurate comment on what legitimately results from the fair use language.

The doctrine is written in a way that lends to each individual case having to be decided by a judge.Ahrens was at Grand Valley State University’s DeVos Center as part of a “Copyright Basics and Fair Use” conference held by the ACES (Arts,  Communications, Entertainment and Sports) Section of the State Bar, led by Matthew Bower of Safford and Baker in Bloomfield Hills. It was co-sponsored by the Right to Write Foundation, a clearinghouse on fair use law and a fund to help artists defend fair use cases which operates out of Muskegon.

You can read the whole article here.

–Matt

On Saturday, April 3, 2010, the Arts, Communications, Entertainment & Sports (“ACES”) Law Section of the State Bar of Michigan is co-hosting with the Right to Write Fund, in association with the Stanford Fair Use Project and Grand Valley State University, a lecture on copyright law basics for creative artists followed by a panel discussion on the recent fair use case Rowling v. RDR Books.

Lee VanOrsdel, Dean of University Libraries, will be providing introductory remarks.  The copyright lecture will be lead by Grand Rapids copyright lawyer Jeff Nelson of Warner Norcross.  I’m moderating the panel discussion and will be joined by Roger Rapoport, owner of RDR Books, and Julie Ahrens, Associate Director of the Stanford Fair Use Project.  The program will run from approximately 10:00 a.m. to 3:00 p.m. at the DeVos Center, 401 West Fulton, Lecture Hall 136 E, Grand Rapids, MI 49504.

The seminar will provide information and materials for Michigan creative artists and lawyers on important issues of copyright law, fair use, and the First Amendment.  The cost of the event will be $30 per participant ($20 for students), which includes a lunch.  A reception will follow the conference and sponsored by the Right to Write Fund and ACES.

If you are interested in attending, please RSVP to me, Matthew Bower, at mbower@saffordbaker.com or (248) 646-9100.

About Rowling v. RDR Books.  Muskegon publisher Roger Rapoport, owner of RDR Books, and writer Steve Vander Ark, founder of “The Harry Potter Lexicon” fansite, became embroiled in a copyright battle with J.K. Rowling, author of the hugely popular Harry Potter books, and Warner Bros., producers of the hit Potter films.  When the Michigan natives sought to publish a book version of the Lexicon website (a reference guide for all things Potter), Rowling and Warner Bros. claimed that publication would constitute copyright infringement.  RDR Books claimed the right to publish the Lexicon under the fair use doctrine.

The case began in October 2007, when Warner Bros and Rowling filed a lawsuit against RDR Books in the U.S. District Court for the Southern District of New York to block the Lexicon’s publication.  On November 8, 2007, Judge Robert B. Patterson Jr. issued a temporary restraining order, voluntarily entered into by both parties, delaying RDR’s publication of the book.  Anthony Falzone and Julie Ahrens of the Stanford Fair Use Project joined RDR’s trial team.

Following a highly publicized three-day trial in April 2008, the court issued a lengthy decision in  September 2008, ruling in Rowling’s favor and blocking RDR’s publication of the book.  In his opinion, Judge Patterson held that “because the Lexicon appropriates too much of Rowling’s creative work for its purposes as a reference guide, a permanent injunction must issue to prevent the possible proliferation of works that do the same and thus deplete the incentive for original authors to create new works.”  Judge Patterson awarded the plaintiffs less than $7,000 in damages for infringement, the minimum amount possible.

Although RDR lost the case, it may have won the larger war.  In deciding the case, Judge Patterson concluded that reference guides in general, including the Lexicon, are transformative in nature and capable of fair use protection, and that the Lexicon could be published with less appropriation from the original works.  Judge Patterson’s opinion also held that creative artists like Rowling do not have a monopoly on companion guides to their own works and encouraged authors like Vander Ark to include more original critical commentary.  On January 16, 2009, RDR Books did just that, releasing another unauthorized Harry Potter guide (The Lexicon: An Unauthorized Guide to Harry Potter Fiction and Related Materials), which included far more commentary than the original.

About the Fair Use Project.  The Fair Use Project (FUP) is part of the Stanford Law School Center for Internet & Society and is the only organization in the country dedicated specifically to providing free and comprehensive legal representation to authors, filmmakers, artists, musicians and other content creators who face unmerited copyright claims. Founded in 2006 by Professor Lawrence Lessig and Executive Director Anthony Falzone, the FUP defends and promotes the right to create, speak and communicate freely through two principal areas of activity. The FUP litigates copyright cases across the country to secure the rights of its clients to create and distribute their work. It has litigated several precedent-setting cases and won national recognition for its work. In addition, the FUP counsels clients to minimize legal risk, and helps them insure against it where necessary. Through its Documentary Film Program, the FUP works with filmmakers to help them understand and exercise their fair use rights, and obtain insurance against potential claims.

Julie A. Ahrens is associate director of Stanford Law School’s Fair Use Project, where she represents writers, filmmakers, musicians, and others who rely on fair use in creating their art, documentaries, scholarship, critiques, or comments.  Before joining Stanford, Ahrens was a litigation attorney in the San Francisco office of Kirkland & Ellis LLP.

About the Right to Write Fund.  The Right to Write Fund was formed to be an educational repository and clearinghouse for the 21st century freedom of expression and “fair use” issues writers and publishers encounter when moving between the worlds of print, internet, film, the fine arts, and new media.  The Fund will collect and disseminate legal briefs, facts and analyses as well as literary and media accounts of copyright, trademark and other intellectual property statutes in order to define first amendment rights in a technological age.  The Fund will promulgate and protect the democratic values of our founding fathers – free speech, the freedom to write, fairness, openness and honesty – while establishing the ground rules for future artistic expression.

About the ACES Law Section of the State Bar.  For thirty years the Arts, Communications, Entertainment & Sports Law Section and its members have helped thousands of artists and entertainers by participating in and supporting the cultural organizations and activities of the arts, communications, entertainment and sports industries of Michigan.  ACES supports these industries through partnerships, seminars, public service programs, advocacy, and publications, as well as through fostering and developing the professional skills and knowledge of its members.  Membership in the ACES is open to all members of the State Bar of Michigan.

–Matt

On Saturday, April 3, 2010, the Arts, Communications, Entertainment & Sports (“ACES”) Law Section of the State Bar of Michigan is co-hosting with the Right to Write Fund, in association with the Stanford Fair Use Project and Grand Valley State University, a lecture on copyright law basics for writers followed by a panel discussion on the recent fair use case Rowling v. RDR Books.  Joining the panel discussion will be Rodger Rapport, owner of RDR Books, and Julie Ahrens, Assistant Director of the Stanford Fair Use Project.  The program will run from approximately 10:00 a.m. to 3:00 p.m. at the DeVos Center, 401 West Fulton, Lecture Hall GV, Grand Rapids, MI 49504.

The Seminar will provide information and materials for Michigan writers on important issues of copyright law, fair use, and the first amendment.  More details concerning the event, including the cost to participants, will be forthcoming.  Stay tuned for details.

If you are interested in attending, please RSVP to me, Matthew Bower, at mbower@saffordbaker.com

About Rowling v. RDR Books

Muskegon publisher Roger Rapoport, owner of RDR Books, and writer Steve Vander Ark, founder of the fansite called The Harry Potter Lexicon, became embroiled in a copyright battle with J.K. Rowling, author of the hugely popular Harry Potter books, and Warner Bros., producers of the hit Potter films.  When the two Michigan natives sought to publish a book version of the Lexicon website (a reference guide for all things Potter), Rowling and Warner Bros. claimed that publication would constitute copyright infringement.  RDR Books claimed the right to publish the Lexicon under the fair use doctrine.

The case began in October 2007, when Warner Bros and Rowling filed a lawsuit in the U.S. District Court for the Southern District of New York to block the Lexicon’s publication.  On November 8, 2007, Judge Robert B. Patterson Jr. issued a temporary restraining order, voluntarily entered into by both parties, delaying RDR’s publication of the book.  Anthony Falzone and Julie Ahrens of the Stanford Fair Use Project join RDR’s trial team.

In September 2008, the court ruled in Rowling’s favor, and publication of the book was blocked.  In his opinion, Judge Patterson claimed that “because the Lexicon appropriates too much of Rowling’s creative work for its purposes as a reference guide, a permanent injunction must issue to prevent the possible proliferation of works that do the same and thus deplete the incentive for original authors to create new works.”  Judge Patterson awarded the plaintiffs less than $7,000 in damages for infringement; the minimum amount possible.

Although RDR lost the case, it may have won the larger war.  In deciding the case, Judge Patterson concluded that reference guides in general, including the Lexicon, are transformative in nature and capable of fair use protection, and that the Lexicon could be published with less appropriation from the original works.  On January 16, 2009, RDR Books did just that; releasing another unauthorized Harry Potter guide (The Lexicon: An Unauthorized Guide to Harry Potter Fiction and Related Materials), which include far more commentary than the original.

About the Fair Use Project

The Stanford Center for Internet and Society’s Fair Use Project (the “Project”) was founded in 2006. Its purpose is to provide legal support to a range of projects designed to clarify and extend the boundaries of “fair use” in order to enhance creative freedom.  The Project represents filmmakers, musicians, artists, writers, scholars, and other content creators in a range of disputes that raise important questions concerning fair use and the limits of intellectual property rights.  In doing so, it relies on a network of talented lawyers within the Center for Internet and Society, as well as attorneys in law firms and public interest organizations who are dedicated to advancing the mission of the Project.

Julie A. Ahrens is associate director of Stanford Law School’s Fair Use Project, where she represents writers, filmmakers, musicians, and others who rely on fair use in creating their art, documentaries, scholarship, critiques, or comments.  Before joining Stanford, Ahrens was a litigation attorney in the San Francisco office of Kirkland & Ellis LLP.

About the Right to Write Fund

The Right to Write Fund is formed to be an educational repository and clearinghouse for the 21st century freedom of expression and “fair use” issues writers and publishers encounter when moving between the worlds of print, internet, film, the fine arts and new media. The Fund will collect and disseminate legal briefs, facts and analyses as well as literary and media accounts of copyright, trademark and other intellectual property statutes in order to define first amendment rights in a technological age. The Fund will promulgate and protect the democratic values of our founding fathers – free speech, the freedom to write, fairness, openness and honesty – while establishing the ground rules for future artistic expression.

About the ACES Law Section of the State Bar

For thirty years the Arts, Communications, Entertainment & Sports Law Section and its members have helped thousands of artists and entertainers by participating in and supporting the cultural organizations and activities of the arts, communications, entertainment and sports industries of Michigan.  ACES supports these industries through partnerships, seminars, public service programs, advocacy, and publications, as well as through fostering and developing the professional skills and knowledge of its members.  Membership in the ACES is open to all members of the State Bar of Michigan.

–Matt

In May 2006, Cingular Wireless issued a press release containing information about Cingular’s preparedness for disasters, such as hurricanes, through its “MACH1” and “MACH2” mobile command centers.  Playing off the “MACH” name, the press release compares the significance of Cingular’s mobile command centers with the achievement of legendary test pilot Chuck Yeager in breaking the sound barrier and achieving Mach 1.

General Yeager sued bringing claims for, among other things, violation of California common law and statutory right of publicity.  Cingular, now AT&T, brought a motion for summary disposition on the grounds that (1) the First Amendment protects the press release because it contains newsworthy matter and is not commercial speech, and (2) the use of Yeager’s name was “fleeting and inconsequential”.

After all, AT&T argued, the press release did not include a picture of Yeager, did not mention his name in any headline or headings, did not offer for sale any specific products or services, and certainly did not state that Yeager endorses the company or any of its products or services.  The connection between the new mobile service and Yeager’s feat may be tenuous (and, okay, stupid) but Yeager’s accomplishment is, after all, an historical fact.  Is this really something Yeager should be able to control, even in a quasi-commercial context, where there isn’t a clear message of endorsement?

The district judge apparently thought so, and earlier this month denied AT&T’s motion.  Although press releases serve both commercial and news reporting functions, the judge determined that the press release, in this case, was primarily commercial in nature.  The judge held that “Yeager’s name and accomplishments were used to attract attention to [AT&T]’s unrelated wireless services,” and that his “name and accomplishments in breaking the sound barrier are wholly unrelated to [AT&T]’s mobile command centers and cellular service in emergency situations.”  The court further noted that the use of Yeager’s name and accomplishment may have been a small part of the press release but was, nevertheless, used to uniquely enhance the marketability of AT&T’s service.

The scope of protection for a celebrity’s name, likeness, and, in this case, accomplishments continues to expand.  In an abundance of caution, those in the PR industry should avoid even fleeting references to celebrities in press releases, or get permission for the use.

–Matt