Les Fantaisies du Vendredi

I am shamelessly copying Eleonora’s idea of using one’s mother tongue for the title of the Whimsies and Fantasies posts, as I find it to be a wonderful way to hint that the Kats are an international bunch. So, while Jeremy is Down Under, here are my fantaisies.

Garcia v. Google, to be continued

On November 12, the 9^th Circuit accepted to rehear en banc the Garcia v. Google case. A Ninth Circuit Court of Appeals panel reversed last March a district court which had denied an actress, who had briefly appears in the Innocence of Muslims movie, a preliminary injunction to take down the movie from YouTube.

The three-judge panel found that Plaintiff had established a likelihood of success on the merit as it was likely that she had a separate copyright in her performance. This decision wasmade in order to provide actress Cindy Garcia a way to ask Google to take down the “Innocence of Muslims” movie from YouTube, as her appearance in the movie had led to death threats.

[For more information about the case, see here]

While one certainly sympathizes with Plaintiff’s ordeal, the decision was nevertheless surprising from an IP point of view. In the EU, article 2(b) of the 2001/29/EC Directive directs Member States to provide performers “for the exclusive right to authorise or prohibit direct or indirect, temporary or permanent reproduction by any means and in any form, in whole or in part of fixations of their performance,” but US law does not recognize such a right.

It will be interesting to see how the Ninth Circuit will now rule, and whether it will find another way to provide relief to the Plaintiff, without having to recognize an independent right for performers, as this would certainly be the exclusive jurisdiction of Congress.

Copyright and Marriage Equality Act is Introduced

U.S. Senator and Judiciary Committee Chairman Patrick Leahy (D-Vt.) introduced a bill this week, the Copyrightand Marriage Equality Act, which would amend the Copyright Act’s definition of a widow or a widower in order to allow survivors of a same-sex marriage to inherit the copyright owned of their deceased husband or wife.

The new §107 definition would read:

“An individual is the ‘widow’ or ‘widower’ of an author if the courts of the State in which the individual and the author were married (or, if the individual and the author were not married in any State but were validly married in another jurisdiction, the courts of any State) would find that the individual and the author were validly married at the time of the author’s death, whether or not the spouse has later remarried.”

Senator Leahy explained:

“It is wrong for the federal government to deny benefits or privileges to couples who have lawfully wed. Statutes like the Copyright Act, or laws governing the Social Security Administration and Department of Veterans Affairs which also contain remnants of discrimination, are no place for inequality in our country. It is time to fix these outdated laws once and for all.”

Senate Leahy wrote an op-ed published by Hollywood Reporter, explaining further that the bill would amend the Copyright Act “to look simply at whether a couple is married, not where a same-sex married couple happens to live when the copyright owner dies. It will ensure that the rights attached to the works of our nation's gay and lesbian authors, musicians, painters, sculptors and other creators pass to their spouses the way they now do for heterosexual creators. Artists are the creative lifeblood of our nation, and our laws should protect their families equally.”

As the US Congress is currently in a lame-duck session, it remains to be seen if this bill will be enacted, but it certainly should be.

Counterfeited Beauty Products

Let’s go to France, the country of cheese, Airbus, and cosmetics.

The Fédération des Entreprises de la Beauté, FEBEA, is a trade association which represents manufacturers of cosmetics and perfumes operating in France, and has some 300 members. According to its website, these manufacturers employ 42,000 people in France and contribute more than eight billion Euros to the French trade balance. That figure represents a lot of lipstick, crèmes de beauté, and perfume.

It recently filed a complaint against a new chain of stores, Equivalenza, which was selling perfumes using the "concordance tables" method which FEBEA claimed is illegal. Using this method, perfumes on the shelves bear a random name, or a single number, while being presented as the equivalent of well known perfume.

On November 4, the National Gendarmerie, the French army police, intervened in twenty-eight different Equivalenza shops and corners and seized merchandise deemed counterfeit.

Patrick O 'Quin, President of the FEBEA, is quoted in the press release as follows:

"It is necessary to fight against all types of infringement to preserve our heritage and expertise, and thus to stop such practices which destroy jobs in France and damage the reputation of our companies."

However, I believe that this practice is likely to develop in the next few years, as discount stores are a growing segment of the economy. Jeremy recently wrote a post about how shopping at Aldi can turn into a guessing game: this generic brand is supposed to be Pringles!

This story resonated with me, as one of my favorite perfumes ever, the Bonne Bell Skin Musk oil, is no longer sold [why, oh why?] but many copies can still be found in US drugstores. Seeing the familiar Bonne Bell package in the shelves overjoyed me several times so much that I bought several bottles over the years, only to realize, alas, too late, that there were not the real McCoy, as I found them to be cloying and sweet instead of just… perfect.

An Electronic Way to Spot Counterfeit Bags  

As reported by TheWall Street Journal, a Japanese electronics company is developing a method which would allow retailers to make sure that the designer bags they are buying are not fake ones. This is how it would go: first, manufacturers would take a picture of their bags using a lens attached to their smart phone. These pictures would be so detailed that they would reveal the hidden characteristics of a real bag. The WSJ article mentions that “brand-name luxury goods like handbags and wallets have their own unique surface patterns–just like fingerprints–“and also have special zippers or bolts.

These images would then be uploaded to a server, and retailers would then take pictures of bags they wish to purchase using the same lens. Both pictures taken by the manufacturers and the retailers could be then compared to deem if a particular bag is authentic. It remains to be seen if the technology will eventually be used by consumers as well.

Will the Public Domain Monkey Selfie Become a Trademark?

Eriq Gardner, Senior Editor at The Hollywood Reporter posted this intriguing tweet on Wednesday, which revealed an attempt to trademark a mark which “consists of a smiling monkey design.” That smiling monkey is not just any smiling monkey, but is a reproduction of the only selfie [so far] taken by a monkey. As we know, the picture is in the public domain.

The case number is 86448807 and can be found searching on the USPTO trademark search page. The mark would be registered in class 25 for : “Baby layettes for clothing; Caps; Children's and infant's apparel, namely, jumpers, overall sleepwear, pajamas, rompers and one-piece garments; Down suits; Dressing gowns; Girdles; Gloves as clothing; Hosiery; Jackets; Sashes for wear; Shawls; Shoes; Sports jerseys; Sports shoes; Tee shirts; Trousers; Underclothes; Underclothing; Waterproof jackets and pants; Wedding gowns.“

There’s  is an idea: getting married in a wedding gown featuring a design of the monkey’s selfie. I can really see the design printed all over the dress, and maybe even on the veil. At the end of the ceremony, the groom would lift it to reveal a smiling bride, who, of course, would wear a matching girdle under the dress. So romantic, and the ultimate IP wedding fantaisie, methinks.

Image of the 9th Circuit is courtesy of Flickr user Steve Rhodes under a CC BY-NC-ND 2.0 license.

Image of the perfumes is courtesy of Flickr user André Mouraux under a CC BY 2.0 license.