(no subject)

[heidi]

This is probably
Not what Alex wanted, but
It makes lawyers smile.

---

Discussion topic of the day: Someone posted the images shown


to HPfGU-OTChatter, so praetorianguard, gwendolyngrace and I started wondering if we could ask the artist to display the little people in the Gallery at Nimbus - 2003 without running afoul of copyright laws. praetorianguard and I both believe that the parody defenses would apply, as the little people do poke fun at both the merchandising of the HP books and the books themselves.

Then, we started talking about trademark. And LEGOs. And genuine fans engaging in commentary about the books by creating and photographing scenes LEGOs engage in interpersonal contact with other LEGOs, and similar commentary and occasionally satire in the form of recording images of HP action figures, similar to the way the courts have allowed parodies of and commentary about the BARBIE product via photos of the dolls in clothing never produced by Mattel.

So now I'm here, wondering whether it's possible to tarnish the VOLDEMORT mark with such artistic expression, even presuming there was a commercial motive twinned with the artistic expression (such as the sale of a book containing the images).

Lawyers o'the fandom? What sayeth you?

Comments

[praetorianguard.livejournal.com]

Why do you do this to me when I'm supposed to be writing HIPAA policies and procedures? This is so much more fun.

I'm adopting your allowance for a commercial assumption. I'm also assuming that JKR, et al, still has trademark rights in her characters. Then the answer turns on a couple issues:

1. Why are you making Lego!Voldemort do such horrible things? Are you truly parodying him? Are you dressing Lego!Voldemort up in black leather and performing the Lego Musical of Power Achievement and Domination. You're probably OK. I'd call that parody. Are you dressing Lego!Voldemort up in a hot pink boa and spandex unitard and having him kill the Muggles over their bad fashion sense while giggling maniacally? I'd call that satire. Then you're fine, trademark-wise.

2. Let's assume you're dressing Voldemort up in his pink spandex outfit just becaue you like to distribute pictures of Voldemort in pink spandex. (You perv!) The question becomes, can you tarnish Voldemort with bad fashion sense? Is Voldemort even tarnishable? You know, he mercilessly tortures and kills people. Can you tarnish that?

Interestingly, this argument came up in the Spam case, but that case was decided on other grounds. Can you tarnish Spam? *shrug* Probably somehow. I think if some company had coined the term 'spam' for it's irritating e-mails in a cute ad campaign that tells you that they know they're being irritating, but please read their 'spam' anyway, I think I'd argue Spam has been tarnished. (Can't do that now, because the term 'spam' for irritating junk e-mail is not acting as a source-identifier.)

So I'm thinking you can tarnish Voldemort somehow. The question is, is pink spandex and all that it implies about Voldemort's fashion sense enough to tarnish him, assuming there's no parody or satire involved? Sure, I think so. Considering his penchant for black. Of course, given that skin, maybe not. Can you tarnish Voldemort by making Lego!Voldemort pull the heads off all the other Lego HP characters. Nope, he's just like that.

3. And then the truly interesting issue. Let's assume you can't tarnish Voldemort because he just sucks that much. At everything. But you can tarnish Tom Riddle (although certainly not by making him a sex offender and writing a fic about his legal crusades to get the sex offender registration law overturned). Does the fact that you can tarnish Tom mean that Voldemort is also tarnishable? Or that Tom isn't tarnishable? (Is 'tarnishable' even a word?)

I think it depends on whether you can separate the characters. And certainly adults can. But should there be a child specific test, since the HP books are 'children's literature' (leaving aside my pet peeve argument that says they aren't)? Is there a special test for whether children can differentiate?

And while we're at it, is there a separate test for tarnishment of children's products? Would children have to see it as tarnishment? Would we have to give Lego!Voldemort cooties instead of pink spandex?

I think there's a case that talks about trademarks and children's products, but I can't remember what it was and I think it was decided on different grounds.

And I think my brain just blew up. *hugs trademark law and its potential for outrageous legal discussions*

Spam!Voldemart

[(Anonymous)]

Hello, I am not sure of the netiquette governing an LJ conversation, since I am not an LJ member. I apologize if I am being intrusive. If this message ought to have been sent privately to Heidi Tandy, I am sorry. Am new to this version of e-mode. Also, have no idea if you will even notice this message, as it is not in a new thread. I am clueless about how this works.

But I wanted to tip my hat to you: this exchange is painful and hilarious at once. It raises a number of interesting questions, which I’d like to pose in a minute. I'm not a lawyer, but an editor at a nonprofit org that works with a lot of contemporary art and artists & therefore we grapple with copyright issues relating to appropriative material in the visual realm pretty often. (We grapple with; we rarely solve.) We sponsored an amicus brief in the Eldred appeal

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Hello, I am not sure of the netiquette governing an LJ conversation, since I am not an LJ member. I apologize if I am being intrusive. If this message ought to have been sent privately to Heidi Tandy, I am sorry. Am new to this version of e-mode. Also, have no idea if you will even notice this message, as it is not in a new thread. I am clueless about how this works.

But I wanted to tip my hat to you: this exchange is painful and hilarious at once. It raises a number of interesting questions, which I’d like to pose in a minute. I'm not a lawyer, but an editor at a nonprofit org that works with a lot of contemporary art and artists & therefore we grapple with copyright issues relating to appropriative material in the visual realm pretty often. (We grapple with; we rarely solve.) We sponsored an amicus brief in the Eldred appeal <RIP :-( > on the fair use side. I've been lurking about in the HP fandom because I am interested in the issue of "appropriation" in text. (Oh OK, that's why I started nosing; now I'm mainly just enjoying the fictions and the splendid conversations. A slightly voyeuristic experience, but fascinating.) A while ago I found a fine rant on your blog, Heidi (if I may), about the issue of transformative use of (c) text; but didn’t mark it and now can’t find it again. Perhaps you have removed it.

And at a literary or artistic level I’m also interested in the question of <jargon alert> metafiction. I don't think I've ever seen so many kinds of meta operating at once as in some of the texts on fictionalley.

Was thinking of how these layers of reuse would translate into a painting, where the tradition of direct borrowing is deeply established (e.g., Manet appropriating Goya) but is also currently under attack from several quarters (e.g., the burgeoning industry that brokers licenses and permissions), esp. following some celebrated cases, such as Jeff Koons and the Puppies. (I keep trying to interest someone in that name for a sixties retro girlgroup, but no luck, so far.) Though the law doesn't distinguish between textual and visual reuses, in practice images seem especially vulnerable to action--possibly because, like a poem, one is likely to appropriate a whole image, rather than elements of it. That is, in (c) situations. I don’t know much about the TM side.

Questions:

1. Am I right that the protection in (c) law (for the reuse of the Rowling character) is the opposite of the protection in TM law (of the Lego product)? That is, if the protection is the transformative nature of Lego!Voldemart, then dressing him in black leather or pink Spandex doesn’t sound transformative to me. I mean: as youall have said, Voldemart is Bbbad to the bone. Dressing in black leather or pink spandex is Bbbad. Sounds like infringement to me. But if you were to dress Voldemart in, say, a flowered chintz pinafore, and give him some of Jeff Koons’s leftover puppies, you’d probably be OK, parodywise. But then you’d be tarnishing him, or rather, detarnishing him, right? Which would present a TM problem. The law is a beautiful thing.

2. Does TM law allow both satire and parody as transformative, or does it distinguish, as (c) law tries to do? In visual-art appropriation, this is terrifying because it turns the courts into accredited art critics, judging degrees of transformation--and ultimately deciding whether they think the art is good enough to excuse the reuse. E.g., a really good artist like Warhol (or rather, his estate, at this point) can reuse images without permission (the estate sells posters of Warhol screenprints with (c) photos embedded in them, frex); but some unknown dork artist whose transformative adaptation is badly executed may get sued for having been an inept artist. Not to mention an artist like Koons, who offends all sorts of sensibilities.

3. IMO, Voldemart is a great deal like Spam. Not in legal terms, just basically: he and spam (both kinds) belong to the same universe, along with Sonny Bono. I mean, when Rowling refers to Death Eaters, what sort of death are they eating? Need we ask? Spam.

Ak, apologies again, now for taking up your bandwidth to indulge myself. Some of the above is meant seriously, and I would enjoy hearing more about it.

Yours,
Eve S.
NYC

[rivkat.livejournal.com]

The Spam/Muppet Spa'am case went off on other grounds, sort of, but the 2nd Circuit did point out that, given the contumely Spam routinely suffers, "one would think that Spam would be pleased to be associated with a genuine source of pork." Other uses mentioned were uses in art, including a project labeled "Spampers." Imagining this work is left as an exercise for the reader.

I think Voldemort isn't tarnishable, because he's eeevil. Tarnishment really is only for things with good reputations. Voldemort is pre-tarnished for your convenience. If you think that's unfair, the problem lies with tarnishment law. Heroes shouldn't get that protection any more than villains should; the last thing we need is to expand the concept further.

Blurring is a possibility, though. A strong one, if the use is commercial. But if the Lego works are at all artistic, and not just used as ads for something else, then what we have is a "noncommercial commercial use in commerce," according to Judge Kozinski.

I love the law.