Warner Bros. Forced To Fight For Fair Use 222
V-similitude writes with news that Warner Bros. has been forced into a position of claiming 'fair use' in the defense of an upcoming movie. From the NYTimes:
"In The Hangover Part II, the sequel to the very successful what-happened-last-night comedy, the character played by Ed Helms wakes up with a permanent tattoo bracketing his left eye. The Maori-inspired design is instantly recognizable as the one sported by the boxer Mike Tyson, which is part of the joke. (Mr. Tyson makes an appearance in both films, playing himself.) But S. Victor Whitmill, a tattoo artist formerly of Las Vegas and currently from rural Missouri, doesn't quite see the humor. Mr. Whitmill designed the tattoo for Mr. Tyson, called it 'tribal tattoo,' and claims it as a copyrighted work. ... Warner Brothers in its brief also invoked the 'fair use' defense for Hangover Part II, namely the right to parody what has become a well-known tattoo since it first appeared on Mr. Tyson’s face in February 2003."
This should be a non-issue (Score:4, Informative)
According to US copyright law, when you perform a work for hire, such as a painting or a tattoo, the work becomes the property of the person the work is performed for unless otherwise agreed upon.
So the work belonged to Tyson, not the artist at that point (unless they agreed otherwise). And if Tyson gave permission for it to be used, then there is no problem.
Re:Fair use when it suits them (Score:5, Informative)
Did you ever wonder why the movie industry is located in Hollywood? It was because Edison who owned the patent to motion pictures was very strict as to the types of movies that could be made. So all of the famous studios you know today were started out west where they could easily avoid the patent enforcement that was happening back east.
Re:A question (Score:3, Informative)
Insightful... those designs are protected in New Zealand at least via the Treaty of Waitangi.
Re:Fair use when it suits them (Score:5, Informative)
Patent and copyright are two very different beasts....
So different, in fact, that there is only one clause [wikipedia.org] in the Constitution granting Congress the power to create both of them.
Re:A question (Score:4, Informative)
Maori tribal art stems from the 1970s. Ever been to New Zealand? Thought not. It's all crap made up to create an indigenous "art" to parallel the Australian Aborigines.
Sorry if I'm feeding a troll here, but Captain Cook wrote this just a wee bit before the 1970s...
The marks in general are spirals drawn with great nicety and even elegance. One side corresponds with the other. The marks on the body resemble foliage in old chased ornaments, convolutions of filigree work, but in these they have such a luxury of forms that of a hundred which at first appeared exactly the same no two were formed alike on close examination.
Re:Fair use when it suits them (Score:5, Informative)
Both are forms of intellectual property, but both are still very different in scope and execution.
Patents cover inventions. Also, patents require thousands and thousands of dollars to apply for, and it may take millions to defend against a patent claim. It can take at least 5 figures to attempt get a patent invalidated, no matter how unfair it is or how much prior art there may be. Patents also work as a blockade, as soon as you have them, you can legally stop anyone from inventing something that is too similar or depends on similar ideas, even if the new inventor had no knowledge of the existence of your patent.
Copyright covers arts and literature. Copyrights are automatic. As soon as you write a page of a short story or do a doodle, the copyright belongs to you. Although a copyright case can also eat a lot of money, it is focused on proving the infringing artist was aware of your work before he made his. If he had no clue of it, and you had no evidence to the contrary, there is no case. If you have evidence, then things can get more complex and things like Fair Use come into play. Copyrights do not work as a creative barricade. As long as my work is unique enough, similitude or reuse of certain ideas is fair game, even if you were aware of the original art.
Without copyrights, a writer that comes up with a script and attempts to sell the script to a studio can forget about it. As soon as he shows the script, the studio would be able to just make the movie and never give a penny back. An indie developer would also get screwed. He would spend months or years working in a game, publish it, and now any big studio can decide to just copy his work and sell it in big stores without giving him a penny.
The only problem right now with copyright law, is how it's used by the music industry to harass civilians, specially the use of precedent to claim absurd amounts from theses poor people, cases that were originally ruled upon the idea that a big corporation doing the infringement should not feel the consequences of being caught to be negligible. Citizens should not be pursued under that same standard.
Patents are horrible, and turn the inventing into an over encumbered practice. You are expected to do insane amounts of research before you can even proceed with the most ridiculously small segments of inventions, you may find that a round knob in a centered position on the top of a box to be patented. It is nearly impossible to do and ends up making it a huge gamble for anyone but large corporations to invent anything without running the risk of being sued to bankruptcy.
Patents need to be killed. They are horrible and just get in the way of progress, counter to what they were designed to do. Products name and design should be allowed to be copyrighted as the only way to protect the creator from being ripped off.
Re:Fair use when it suits them (Score:4, Informative)
I used to think similar things. But I kept seeing how the system was being abused. I read the following book Against intellectual Property. As one would expect this book is public domain. It gives examples from history and ideas for the future about how creative people can still make money without intellectual property rights. Thing food and clothing. Recipes and designs cannot be copyrighted. Yet these industries thrive and the creative people make money inspire of copies. The one part of intellectual property the author finds the sleast offensive is trademarks. Copying a trade mark is akin to fraud since you are claiming the product you made is made by another company.
http://mises.org/journals/jls/15_2/15_2_1.pdf [mises.org]