everything but the girl

But no Supernatural tonight, and I entirely forgot until I didn't see any squee about it on Twitter. ALAS, what am I to watch?

Oh yeah, Yankees game! That'll do. Oh, and legomymalfoy, could you email me re a mood theme issue when you have a sec?


1. The Nation is going to be releasing a book about Sarah Palin the same day her book comes out, and it's called Going Rouge and the cover looks very similar to the autobiography book that she wrote actually had ghostwritten for her. ( Covers are behind the cut )

So, what do you think? Permissible parody, fair use or copyright infringement? Can the cover be a parody even if the content inside is not a parody? In general, one cannot have a trademark or a copyright in the title of a book, but the trade dress of Palin's book may be protectable, and it's possible that a court would decide that the cover of Going Rouge is not a parody.

So I wonder if The Nation came up with the cover and title for PR/shock value and to get people talking about the book, or whether they actually expect to get taken to court and be forced to change it. Very interesting, very curious.

2. Michelle Obama with a green hula hoop!

3. Totally lost track of time at the gym today, and didn't realise that 50 minutes had passed until they had. That's what happens when you listen to Walking on Sunshine/Halo, Sweet Caroline, It's My Life/Confessions and Last Name, then re-watch the Pilot episode of Glee! Loved it last night, thought the musical numbers were all terrific, and am *thrilled* that the soundtrack is available as a prepurchase on iTunes, comes out right after Halloween and includes ( a song that hasn't been on the show yet )

4. Check out the updated Infinitus website! I was at Universal yesterday for a brief meeting after spending two days with DD, Princessing at Disney World, and Hogsmeade and Hogwarts are looking fantastic. I also got to see an artist's rendition of the inside of the Triwizard Tournament-inspired rollercoaster refurb, and it looks fantastic. I don't plan to actually ride that ride, as it goes upside-down and I won't do that, but I will definitely walk through the pre-show thing to see this amazingness in person.

The Infinitus CFP is also up, and I'll babble more about that next week.

5. gwendolyngrace and other fandomers are at the preview night for the Harry Potter Exhibition in Boston tonight and I wish I'd been able to get up there for that - and the Jason Manns concert tonight, too! - but I couldn't travel again this week, not with Aaron and I planning to go to LA in November. Must find out who (other than Kris Allen) is supposed to be on Conan that night, and score tickets if it's anyone interesting.

6. Is on a plane.

7. laughingirl has another round of auctions up right now, including bears signed by Donny Osmond, Kerry Butler, Olivia Newton-John, future GLEE director Joss Whedon, Lance Bass and more. Check it out, and bid! It's all for a terrific cause - breast cancer research!

8. Next week, glockgal and I are going to launch a CafePress store to raise money for DonorsChoose projects, so stay tuned!

9. Definitely planning to come to Wincon next October. Chicago is so much easier for me to get to than Denver was, and it'll be fantastic to meet so many of you, and see so many of you again. And speaking of SPN events, Creation's added a New Jersey event in July of 2010 to its website. Definitely not planning to go as it's only a week before Infinitus, and I'm going to be, um, busy. And there's no guests listed yet either. But it's a bit of a surprise to see it there.

10. I got a few concerned emails last week re the Sidekick outage, but I haven't had a Sidekick in almost 15 months. I ditched it when the second iPhone came out, and then unloaded it on my dad when the G1 came out. And now I am surreptitiously eyeing the newer phones Verizon is bringing out this fall that have Android. SO glad I'm no longer on the Sidekick system!

1. The Nation is going to be releasing a book about Sarah Palin the same day her book comes out, and it's called Going Rouge and the cover looks very similar to the autobiography book that she wrote actually had ghostwritten for her. ( Covers are behind the cut )

So, what do you think? Permissible parody, fair use or copyright infringement? Can the cover be a parody even if the content inside is not a parody? In general, one cannot have a trademark or a copyright in the title of a book, but the trade dress of Palin's book may be protectable, and it's possible that a court would decide that the cover of Going Rouge is not a parody.

So I wonder if The Nation came up with the cover and title for PR/shock value and to get people talking about the book, or whether they actually expect to get taken to court and be forced to change it. Very interesting, very curious.

2. Michelle Obama with a green hula hoop!

3. Totally lost track of time at the gym today, and didn't realise that 50 minutes had passed until they had. That's what happens when you listen to Walking on Sunshine/Halo, Sweet Caroline, It's My Life/Confessions and Last Name, then re-watch the Pilot episode of Glee! Loved it last night, thought the musical numbers were all terrific, and am *thrilled* that the soundtrack is available as a prepurchase on iTunes, comes out right after Halloween and includes ( a song that hasn't been on the show yet )

4. Check out the updated Infinitus website! I was at Universal yesterday for a brief meeting after spending two days with DD, Princessing at Disney World, and Hogsmeade and Hogwarts are looking fantastic. I also got to see an artist's rendition of the inside of the Triwizard Tournament-inspired rollercoaster refurb, and it looks fantastic. I don't plan to actually ride that ride, as it goes upside-down and I won't do that, but I will definitely walk through the pre-show thing to see this amazingness in person.

The Infinitus CFP is also up, and I'll babble more about that next week.

5. gwendolyngrace and other fandomers are at the preview night for the Harry Potter Exhibition in Boston tonight and I wish I'd been able to get up there for that - and the Jason Manns concert tonight, too! - but I couldn't travel again this week, not with Aaron and I planning to go to LA in November. Must find out who (other than Kris Allen) is supposed to be on Conan that night, and score tickets if it's anyone interesting.

6. Is on a plane.

7. laughingirl has another round of auctions up right now, including bears signed by Donny Osmond, Kerry Butler, Olivia Newton-John, future GLEE director Joss Whedon, Lance Bass and more. Check it out, and bid! It's all for a terrific cause - breast cancer research!

8. Next week, glockgal and I are going to launch a CafePress store to raise money for DonorsChoose projects, so stay tuned!

9. Definitely planning to come to Wincon next October. Chicago is so much easier for me to get to than Denver was, and it'll be fantastic to meet so many of you, and see so many of you again. And speaking of SPN events, Creation's added a New Jersey event in July of 2010 to its website. Definitely not planning to go as it's only a week before Infinitus, and I'm going to be, um, busy. And there's no guests listed yet either. But it's a bit of a surprise to see it there.

10. I got a few concerned emails last week re the Sidekick outage, but I haven't had a Sidekick in almost 15 months. I ditched it when the second iPhone came out, and then unloaded it on my dad when the G1 came out. And now I am surreptitiously eyeing the newer phones Verizon is bringing out this fall that have Android. SO glad I'm no longer on the Sidekick system!

I am very upset, probably more than I should be, by (a) MPAA's letters and emails sent to fanfic website hosts where the ficcers use information culled from the MPAA ratings in rating their stories, (b) the fact that so many people seem to have no idea that a bunch of lawyers with IP and fandom experience have been discussing the issues right here over the last few weeks, and (c) the fact that FFN has decided to be insane and/or stupid about IP law *yet again* and has changed their ratings.

First, a quick FA note - FA has no plans to change our ratings scheme, because our ratings scheme is derived from the British Board of Film Classification as well as the Canadian, Australian and Motion Picture boards, and doesn't mesh 100% with any of them. We have talked about adding a "15" rating, and if we do so, it'll be when our new fic archive system goes live, ideally this summer.

Here are a few of my problems with the MPAA's letters:
1. They claim that they have taken action against other infringers, but the problem for *them* is that they have not, in the last 10+ years, taken action against other alleged infringers who have used the marks they claim ownership in for (1) noncommercial purposes, or for (2) written works in general. I've said elsewhere that I can see this being problematic for vidders, who should probably say that "the motion picture(a) contained in this vid were rated ___ by the MPAA", with a link to IMDB or something else. The reason this is a problem for the MPAA is because a trademark owner can lose its rights to a mark for a certain category of goods or services under the doctrine of laches, without losing all its rights to said mark for ALL goods & services. Or it's possible that they never owned the mark for certain goods & services in the first place.

2. The MPAA letter notes that they are the "owner" of certain ratings marks, but they never say that they are the *exclusive* owner of those marks. In other words, there may be other entitites who can claim ownership in those marks as well. It's sort of like APPLE Computers and APPLE Records - they can co-exist in this world, even though the primary word in each mark is identical. Further, they probably only own the marks for *motion picture certification services*, per their trademark registrations. A mark can only be registered for specific goods and services. The goods and services listed will establish the scope of the applicant's rights in the relevant mark. In other words, noncommercial fanfiction writings are outside the scope of the MPAA's rights in the relevant mark. If they have no rights in the mark, they can't enforce anything, because they have *nothing* to enforce. Here's what the Trademark Manual on Examinaiton Procesure has to say about the recitation of goods/services:

Ordinarily it is only necessary to indicate general kinds of goods and services, such as food, agricultural commodities, electrical products, textile materials, printed material, or insurance agency services, machinery repair, restaurant services. However, if the certification program itself is limited to specific goods or services, for example, wine, wood doors, bakery machinery, then the identification in the application should be more specific.

I'm going to wrap this section up by quoting Judge Posner in the Ty Beanie Babies case:

Although there is a social cost when a mark becomes generic -- the trademark owner has to invest in a new trademark to identify his brand -- there is also a social benefit, namely an addition to ordinary language. An interpretation of antidilution law as arming trademark owners to enjoin uses of their mark that, while not confusing, threaten to render the mark generic may therefore not be in the public interest.

Guys, please, if you get a letter from the MPAA, don't capitulate before talking it over with an attorney who actually has worked on IP law cases before. I know letters from lawyers can be very scary. But the thing is, cease & desist letters aren't written by people with your best interests in mind, and on occasion, they may just not really state the full extent of the legal issues at play. IP and trademark law is a very precise area for arguments, and a random real estate or PI or healthcare lawyer won't necessarily understand the specifics of it, especially in a certification mark situation.

And most importantly, do not panic.

---

ETA:
I just got an email from a FAPer asking:

Fanfiction.net has already changed their ratings to the copyright-free ones used for gaming. I have a link to that somewhere, but since y'all have such a huge website, you're probably already aware of all of this. I just want to know if I need to go back and re-rate all of my chapters, or if they'll be automatically changed as they were on ff.net? Thanks!

And here's what I replied:
FFN has not changed to copyright-free anything. The MPAA ratings are not copyrighted, they are trademarked, and the gaming industry owns trademarks in and to their ratings as well. You can see their informational page at http://www.esrb.org/esrbratings_guide.asp and an example of their "T" rating at http://tarr.uspto.gov/servlet/tarr?regser=serial&entry=75227207 - nowhere do they give the right to just anyone to use them. If FFN fears getting into trouble with the MPAA, then FFN should fear just as much getting into trouble with the ESRB.

Anyone know what FFN is on? Or where this rumor re the ESRB got started?

ETA again.
Thanks to ancarett who discovered that fanficratings.com *is* owned by Xing of FFN, and it was registered in late February, about a week after likebunnies got her C&D.

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

---

Discussion topic of the day: Someone posted the images shown ( here ) 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?