Trump on Copyright: How the Trump Administration will approach copyright law and potential copyright reforms

This month the International Intellectual Property Alliance published its report on the contribution of copyright industries to the US economy. It demonstrated the major economic benefits to our society that are attributable to our traditional protection of intellectual property rights. At the issuance of this report, Congressman Doug Collins, House Judiciary Committee Subcommittee on Courts, Intellectual Property, and the Internet Vice Chair, stated, “Creativity undergirds the 21st century economy, and strong intellectual property rights ensure that our economy benefits from the innovation and pluck of American workers who bring many of our dreams to life…..Our nation’s founders, in their wisdom, placed intellectual property rights under the umbrella of our protected Constitutional rights. From the beginning, Congress has had the responsibility of upholding and strengthening those rights—which fuel American ingenuity….”

We know that not only are copyrights grounded in the constitution, but core copyright industries contribute approximately $1.2 trillion to the U.S. economy annually, and employ over 5.5 million American workers. At the same time, however, we are acutely aware that, unfortunately, copyright theft online is rampant, and the Digital Millennium Copyright Act (DMCA) has increasingly become ill equipped to address even flagrant, willful copyright infringement in the digital world.

What we don’t know, however, is how President-Elect Trump and the Trump Administration will view copyright issues, and whether pro-creator copyright reforms will be on the President’s agenda come January 20, 2017. We can, however, make some educated guesses based on Trump’s entertainment industry ties, his potential Supreme Court nominees, and those he is surrounding himself with on his Transition Team and in a Trump Administration that is increasingly taking shape.

Trump Entertainment Industry Ties

People have called Trump many things, but even his most vociferous critics must admit he is a media genius. As an entertainment personality, he first became known as an author, writing: Trump: The Art of the Deal, first published in 1987. Trump has written other books since, but he became most widely known for his starring role as the host of the reality TV series The Apprentice. Trump recently tweeted that he conceived of the idea of The Apprentice with producer Mark Burnett, and he will continue to receive Executive Producer credit on the show even after he is sworn in as President. Trump also owned the Miss Universe beauty pageant from 1996 until 2015. All in all, Trump has over 30 copyrights to his name, not including any owned by his companies.

Despite this background, we cannot be certain that the new Administration will side with copyright owners. To be sure, the President-elect has been for some time a larger than life media personality and talent within the industry, and thus might be inclined to support others in the creative industries Moreover, Trump has had on-again off-again rocky relationships with broadcast networks over the years (see here and here) and the Silicon Valley giants that find themselves at cross purposes with content creators in the digital era did nothing to endear themselves to Trump during the campaign. In fact, with the exception of Peter Thiel and to a lesser extent Mark Zuckerberg (who was largely defending Peter Thiel) the Silicon Valley elite snubbed, mocked and ridiculed Donald Trump and his supporters throughout the election cycle. With all that said, however, predicting the new Administration’s position on specific copyright issues is a fool’s errand at this time.

Potential Supreme Court Nominees

One of the first things President Trump will likely do is appoint a Supreme Court Justice to fill the vacancy left by the death of Justice Antonin Scalia. Trump has released a list of possible nominees for the Supreme Court. Only a few seem to have any copyright experience or familiarity in their professional past.

Florida Supreme Court Justice Charles Canady previously served in the House of Representatives from 1993 to 2000. While in Congress, Justice Canady served on the House Judiciary Committee and its Subcommittee on Courts, Intellectual Property, and the Internet. He co-sponsored during his time in Congress two bills related to copyrights: (1) The Copyright Term Extension Act; and (2) The Intellectual Property Antitrust Protection Act.

Senator Mike Lee (R-UT) has had some involvement with copyright policy in the music industry as chairman of the Senate Judiciary Subcommittee on Antitrust, Competition Policy, and Consumer Rights, but he did not tip his hand about whether he places more value on copyright as a property right or on a consumer’s ability to access the copyright. As an example, he summarized his opening statement in a hearing last congress with the non-committal statement, “As we listen today, we must remember that we have both a responsibility to encourage creativity by recognizing the value of copyrights and a duty to ensure that prices for music remain competitive for consumers.” In 2012, Senator Lee opposed the Protect IP Act, legislation supported by the copyright industries to provide the US government and copyright holders additional tools to curb access to rogue websites dedicated to the sale of infringing or counterfeit goods. In a statement Senator Lee released on January 18, 2012, explaining his opposition to the Protect IP Act, he explained he was sympathetic to the objectives of the Act, but thought the bill “would threaten Internet security, stifle the free flow of online information, and unduly burden third parties.”

Senator Lee’s brother, Utah Supreme Court Associate Chief Justice Thomas Lee, previously specialized in intellectual property law while in private practice. Justice Lee also taught intellectual property law at Brigham Young University. However, Justice Lee seems to have primarily specialized in trademark law, not copyright matters. Only two articles relating to copyright law could be located that were authored by Justice Lee, both written while he was a Law Professor at BYU. They are: (1) Eldred V. Ashcroft and the (Hypothetical) Copyright Term Extension Act of 2020 (2003); and (2) “To Promote the Progress of Science”: The Copyright Clause and Congress’s Power to Extend Copyrights (2002) (co-authored with Senator Orrin Hatch R-UT). In the 2003 article, he argued that if the Supreme Court ruled in Eldred that a term of life plus seventy years was “limited” than they would be unlikely to rule differently in the case of life plus 100 years. A thirty year increase is still not a “perpetual copyright.” In the 2002 article, however, the authors argued in favor of the Copyright Term Extension Act (CETA). Specifically, they supported their argument using the scarcely referenced preambular purpose provision of the Copyright Clause, “promot[ing] the progress of science” and took issue with the then-existing scholarly literature that asserted “that copyright fulfills its constitutional purpose only if it increases the quantity or quality of the existing body of artistic works.” They argued that progress does not inherently equal “more” but rather the physical movement forward. “The Copyright Clause,” they wrote, “encompasses the broader notion of encouraging the dissemination and preservation of existing works. Since the CTEA can be understood to advance those objectives” it should be upheld as “constitutional.”

Trump, Trump Transition Officials and Trump Nominee Statements on IP

Perhaps the closest thing the President-elect has offered as an insight into how he will treat copyright as President came during an August 8th speech outlining his economic plan. He stated (with the following underlining added for emphasis):

“At the center of my plan is trade enforcement with China. This alone could return millions of jobs into our country. They break the rules in every way imaginable. China engages in illegal export subsidies, prohibited currency manipulation, and rampant theft of intellectual property. They also have no real environmental or labor protections, further undercutting American workers. Just enforcing intellectual property rules alone could save millions of American jobs. According to the U.S. International Trade Commission, improved protection of America’s intellectual property in China would produce more than 2 million more jobs right here in the United States.”

One of the transition team members, Congresswoman Marsha Blackburn (R-TN), House Energy and Commerce Committee Vice Chair recently stated, “Creativity unleashes endless possibilities as evidenced by the results of this study. The contributions made by the creative industry to the US economy are remarkable. It’s imperative that we continue pushing to protect intellectual property rights.”

Another of Trump’s transition team members, Congressman Tom Marino (R-PA), a member of the House Judiciary Committee’s Subcommittee on Courts, Intellectual Property, and the Internet, has been a long-time copyright supporter. He noted upon introducing the Copyright Office for the Digital Economy (CODE) Act, “Creativity is the essence that has made America the most prosperous nation in the world.” At an event for music publishers and songwriters, he said, “I know firsthand what it is like to work hard for a paycheck and stretch a buck into next week. I appreciate the painstaking hours you put into your craft. When I think of songwriters, I think of the extraordinary gifts songwriters create for society. Music provides the soundtrack to our lives… Call me crazy, but if you work for hours and hours on a hit that is played around the world, your paycheck ought to reflect that success and make a good living for you and your family… There are songwriters in each district in America… If each of these songwriters reaches out to their members of Congress, we can make a difference. Advocacy is of the utmost importance.”

The President-elect’s nominee for Secretary of Commerce, Wilbur Ross, wrote an op-ed in July 2016 saying WTO provides “little or no protection” against IP theft. Moreover, he stated that future trade deals should have “zero tolerance” for IP theft.

Conclusion

The creative works that are supported by America’s copyright laws – music, movies, TV, books, software, and video games – bind us together as a nation. Admittedly, there are far more questions than answers with respect to how the President-elect and his Administration will approach specific copyright law issues and potential copyright reforms, but there is reason to hope that they understand the critical importance of copyright to our economy, to good American jobs, and to our global competitiveness.

http://www.ipwatchdog.com/2016/12/18/trump-administration-copyright-law-copyright-reforms/id=75793/

Trademark and Copyright Law

Because of the value of even the simplest phrase, celebrities today are utilizing copyright and trademark law to protect their intellectual rights in instances rarely before noticed. It is Copyright and Trademark Law which requires their lawyers to send cease and desist letters to unsuspecting entrepreneurs. A balance needs to be restored so celebrities can proceed against large scale pirates even if they don’t aggressively seek to protect their intellectual property rights in every case.

Recently Publicized Trademark and Copyright Actions by Attorneys for Celebrities

Individuals and small businesses have recently been surprised to receive cease and desist letters from entertainers like Taylor Swift and Katy Perry for everything from TaylorSwift song lyrics on a coffee cup to a 3D print of the left shark in Katy Perry’s Super Bowl performance. So what’s up with that?

It’s been said that entertainers are now blurring the lines between copyright, trademark and patent law simply to make more money or to prevent others from making money off of them. However, there actually is precedent for making claims that a musician’s lyrics are protected under trademark law and that other images created by a performer and likewise associated with that entertainer are protected under copyright law.

Trademark Law

The cease and desist letter sent by Taylor Swift’s attorneys to prevent her lyrics from being printed on coffee cups sold to the public is an example of how entertainers today are seeking to protect their work from being infringed by others under trademark law.

It would be difficult today for any lyricist or musician to claim that they discovered, invented or created the grouping of any few words in a song title or the song’s lyrics for the very first time and that no one ever before them had come along to do so. Although at some point, someone must have said each phrase in any language for the very first time, it’s doubtful they ever became so well known for having used the phrase that others would immediately associate the phrase with that person.

Today, while the lyrics of a songwriter would be a valid work that could be copyrighted so as to entitle the musician to bring suit for copyright infringement against anyone using them in a copyrightable work themselves, with the exception of the fair use doctrine (which is an entire subject on its own) for slight uses, the average person on the street would not expect that the lyrics could be trademarked so as to prevent the use of even a one-line lyric on a coffee cup. But they can. They can be trademarked as well as copyrighted. So what is going on here?

The theory behind an assertion that lyrics or a slogan, or a phrase can be trademarked is that the lyrics have become so distinctly associated with the entertainer themself or their song in the case of lyrics, that they have acquired secondary meaning, thus allowing the performer the right to protect the phrase in any type of commerce, such as on coffee cups or other goods.

Is it really worth it to trademark a phrase that you’re associated with? Consider the trademarked phrase, “Let’s Get Ready to Rumble.” It’s been reported that this one simple phrase has generated $400 million to it’s owner, Michael Buffer.

Is such a legal assertion going to hold water for the local street performer or even an emerging artist on a singing competition on television. In nearly every instance, the answer would be no. But for someone of Taylor Swift’s stature, or Katy Perry’s or the Beatles? Yes.

But why should it be necessary for such artists who are most assuredly making more money than we can imagine need to prevent a small entrepreneur from making a small amount of money from coffee cups with a songwriter’s lyrics on them? Because trademark law in the U.S. requires them to do just that if they want to protect their works.

Trademark law require a quick response from the owner of a work in which they assert ownership to prevent the unauthorized use of their work. This is normally achieved by use of a “cease and desist” letter to the alleged infringer of their work. It’s not a lawsuit, but it’s a none-too-polite way of warning the alleged infringer that if they don’t stop using the person’s work in commerce, a lawsuit will follow, which can be far more expensive to defend in most cases, with the risk of a judgement for damages, than stopping what it is they’re doing that has brought the ire of the work’s owner, in this case the lyricist or performer.

The typical cease and desist letter, whether it’s used to stop an alleged trademark infringement or an alleged copyright infringement, warns the alleged infringer that their continued use or sale of the alleged infringing products may subject them to a judgement for actual damages, statutory damages, and punitive damages as well as immediate and permanent injunctive relief if they are found to have infringed the owner’s copyright or trademark. What such a letter also fails to mention, is that the attorney fees and costs in defending such a lawsuit may be so expensive as to even force them into bankruptcy.

Even if the claim that’s made by the attorneys for the artist in a cease and desist letter is bogus, specious at best, in most cases it simply isn’t worth it for the individual or a small business to wage the fight against a deep-pocketed performer just to win a small victory that obtains only the right to sell an item rather than the damages the performer could win for the infringement of their work.

Copyright Law

The cease and desist letter sent by Katy Perry’s lawyers to the owner of an online store selling 3D printed replicas of the left shark in Katy Perry’s Super Bowl performance was based on an assertion by her lawyers that the sale of 3D print of the shark costume were infringing Katy Perry’s rights under U.S. copyright law.

Perhaps to the surprise of Katy Perry’s lawyers, in this case, they received a response from an NYU law professor representing the owner of the online store.

The law professor tweeted that he felt the left shark was not copyrightable because it qualified as a “useful article” which is not protected the same way as an artistic work. The law professor also sent a letter in response to Katy Perry’s lawyers, questioning whether the singer’s lawyers had over-asserted the strength of their client’s rights.

In his letter, the professor wondered what Katy Perry could possibly have to gain from their declared war on the left shark internet meme. He asked why the lawyers for Katy Perry could feel that the costume of a shark is copyrightable in view of the fact, he stated, that the U.S. Copyright Office has made it clear that costumes are not. It should be noted however, that another law professor has also weighed in on the subject stating that an animal costume can be copyrighted, so long as it is not generic.

Regardless, the law professor representing the online store owner made it clear that his client just wanted to go back to his business and would be grateful if Katy Perry’s lawyers would just back off. As the law professor said, going ahead with a dubious copyright claim would not benefit Katy Perry. He also questioned whether the NFL rather than Katy Perry had ownership of any copyright interest in the costume.

But indeed, if Katy Perry did design the costume or had a designer transfer their copyright interest to her, and if she felt she might use it in future shows and possibly even sell replicas herself at concerts, even if the NFL had control over the content of the Super Bowl halftime show, this is what copyright law also requires of anyone owning a copyright - a quick assertion of their rights upon learning of any infringement of them.

To a performer in today’s spotlight across all mediums of the universe which can be very bright indeed, the performer’s intellectual property is their most valuable asset. In 1985, Michael Jackson bought the publishing rights to most of the Beatles songs for a mere $47.5 million. Today this amount looks ridiculously small, and in fact it was even then. The purchase of the Beatles catalogue meant that Jackson was free to license any song previously owned by the former music publishing arm of The Beatles to any brand he chose.

Jackson was later able to sell his rights to Sony for $95 million and still acquire half ownership in Sony/ATV Publishing as well, a company which today is worth billions. (ATV had previously purchased the Beatles catalogue from Northern Songs, the Beatles publishing arm.) Due to a notoriously terrible contract John Lennon and Paul McCartney signed at the start of their career, Northern Songs owned the publishing rights to over 250 Beatles songs, including all of their hits at height of Beatlemania.

The online store owner attempting to sell Katy Perry’s shark costume perhaps summed up the perspective of the small entrepreneur who receives cease and desist letters today with a few choice words. He said it appeared to be easier to deal with world leaders like Kim Jong Un or Chris Christie and that he would go back to making pieces about them and other world leaders (although we’re not sure Chris Christie would qualify as such). His final thought on the subject was more astute - “All this lawyer crap is very stressful.”

Dealing with lawyers preventing a small business person from making a little money can indeed be very stressful. But this is what trademark and copyright law requires of the attorney who has been tasked with protecting every possible intellectual property asset of their client. The lawyer may not like putting the strong arm on a business person just trying to make a living, but for the business person who now has to give up a line of products he or she may have invested some money in producing, and who may have done so without thinking of the consequences when they should have known better, there is considerably more stress felt upon receipt of a lawyer’s cease and desist letter.

While the seller of the coffee cups with Taylor Swift lyrics printed on them and the maker of the 3D prints of the left shark in Katy Perry’s Super Bowl performance may not have anticipated they were infringing anyone’s copyright or trademark interest, neither should Taylor Swift nor Katy Perry be criticized when trademark law and copyright law requires them to have their lawyers do exactly what they did, namely to aggressively protect their clients’ intellectual property rights.     

Is it necessary for a lyricist or songwriter to prevent their lyrics from being sold on any type of item? Under trademark law as it exists today, probably so, if the lyrics are so distinctly associated with the songwriter and performer that they have acquired secondary meaning under the law.

Is it necessary for a performer to prevent others from selling the same costume they create or have someone else create for them to use in a performance? Under copyright law, probably so as well, if the artist wants to retain the exclusive right to use the costume in future performances thus acquiring an even stronger acquired secondary meaning that will allow that artist to copyright the costume and later sell it themselves as a Halloween costume.

If Jimmy Buffet had a Parrothead costume, which for all we know he may have, and he used it in his performances, no one would question his right to have it copyrighted. The name, Parrothead, is already trademarked by Jimmy Buffet and his company, Margaritaville Enterprises, for various products.

Today, however, the brand of a performing artist, sports figure or model is so much bigger than just their music, their achievements on the field or their photos, it’s everything else that allows them to market themselves across all the different platforms available to them today. And that is why too a celebrity must also be careful not to appear to be petty at the expense of the little person.

Unfortunately for the celebrity, in today’s world when their every action and those of their attorneys are publicized, even when they do exactly what is required of them by trademark and copyright law, their actions can appear to be unjustified.

While it may be important to protect one’s intellectual property, because of he importance of their brand’s image, a celebrity would not be wise to sic their lawyers on an autistic little girl’s lemonade stand selling hand drawings of their celebrity client to help pay for her mother’s cancer treatment. And let’s be clear, we know of no such instance having occurred to date and we doubt any celebrity would ever knowingly have their attorneys take such an action.

We should also make it clear that copyright and trademark laws are essential and are crucial to protecting the rights of the creative artist who develops a screenplay or produces a film, writes music or a book or creates a line of clothing or jewelry or anything else due to their talent as artists and creative people against those who would sell pirated copies of their films, produce knock offs of women’s handbags or designs of clothing, or of an artist’s paintings. Our firm, just like any other firm who practices copyright and trademark law will proceed against such a copyright or trademark infringer without a second thought.

But there must obviously be some balance between protecting one’s intellectual property while allowing the little person to sell a product that has only a tangential relationship with a celebrity. What is thus needed is a change in the law that allows both parties to coexist peaceably and which does not, by their coexistence, cause the celebrity to forfeit their intellectual property rights if they choose to allow the little girl at her lemonade stand to sell her drawings without receiving a letter from an attorney.

Perhaps when the copyright and trademark laws are rewritten, that balance and peace between the celebrity and the little guy or girl will be restored while still allowing the creative artist’s lawyers to proceed with all the resources at their disposal against pirates who would seek to profit in large scale off the back of the creative artist.

http://www.hg.org/article.asp?id=34586