Sunday, December 28, 2008
Friday, December 26, 2008
The Eleventh Circuit that architectural works such as floor plans are necessarily compilations of many standard elements, such as"common windows and other staple building components." Thus, what is protectible is an architect's arrangement of such standard features. Citing the U.S. Supreme Court's Feist decision, the court found the author's copyright in such a compilation to be "thin" and limited to the selection and arrangements of non-copyrightable elements. Thus, a "narrow analysis" of only the original arrangement is appropriate. In such a case, where there is a "substantial dissimilarity" of the potentially protectable elements, summary judgment is appropriate.
The Eleventh Circuit found that the district court appropriately did not consider the similarities in the plans which related mainly to such standard features, and instead properly analyzed the arrangement of such features, which was the potentially protected copyrightable contribution of the architect. Agreeing with the district court that "no reasonable, properly instructed jury could find the works substantially similar", the Eleventh Circuit affirmed.
Sunday, December 21, 2008
In Halicki Films LLC v. Sanderson Sales and Marketing, 547 F.3d 1213 (9th Cir. Nov. 12 2008), the Ninth Circuit Court of Appeals considered a dispute over the rights to merchandise the rights to a car named Eleanor in the 1974 film "Gone in 60 Seconds". The owner of the rights to the 1960 film licensed the rights to make a remake of the film (a "derivative work" under the Copyright Act). But the owner retained the right to "manufacture, sell and distribute merchandise utilizing the car known as 'Eleanor' from the Original [Gone in 60 Seconds]". The main question presented was whether the license agreement retained the rights to merchandise the "Remake Eleanor". The court found that the owner had retained the rights to "Remake Eleanor". An additional question presented was whether a car in a film could be a copyrighted character. The court discussed the caselaw distinguishing literary characters from comic book characters. Literary characters, such as Sam Spade are "difficult to delineate and may be based on nothing more than an unprotected idea". But comic book characters have "physical as well as conceptual qualities [and are] more likely to contain some unique elements of expression."
The Ninth Circuit found that "the Eleanor character"..."can be seen as more akin to a comic book character than a literary character." The court found that Eleanor "displays consistent, widely identifiable traits" and is "especially distinctive". The court based its finding on the fact that whenever a human tried to steal Eleanor, it became very difficult, and because the main human character referred to his long history with Eleanor. The Ninth Circuit remanded for a finding of whether Eleanor is entitled to copyright protection and for the district court to "examine whether Eleanor's physical as well as conceptual qualities and ... unique elements of expression" qualify Eleanor for copyright protection.
So the perfect gift for the copyright litigator who has everything? A DVD of the original 1974 and the 2000 Gone in 60 Seconds www.imdb.com. Spend your holidays discussing whether Eleanor is a copyrighted character. Compare Chitty-Chitty-Bang-Bang, Herbie the Love Bug and Stephen King's murderous Plymouth "Christine Plymouth "Christine". While Rudolph the Red-Nose Reindeer has my vote as a copyrighted character-component of Santa's sleigh, it is hard for me to see the copyrightable expression of a Ford Mustang outside its existance as an object, and no matter what the actions of humans surrounding the Ford Mustang may be, I can't see how that can be attributed to Eleanor.