Tuesday, April 15, 2008

Tales from the IP Wars

There are a couple of lawsuits, pending on separate continents, that raise some interesting issues of copyright, trademarks, and the role of fans in building the brands.

In Germany, Gail Zappa - widow of Frank and head of the Zappa Family Trust - is suing a long-running festival that has been promoting his music for years. Zappanale - which featured in the big finish of the documentary Rock School - has roots behind the Iron Curtain:

The Zappanale was first held in 1989 prior to the fall of the Berlin Wall. It was, says Arf Society President Thomas Dippel, a small affair made up of "about 80 Zappa freaks" and two cover bands. And it certainly wasn't without risk. Zappa records were banned in communist East Germany and were expensive on the black market. Arf Society treasurer Wolfhard Kutz, who first heard Zappa as a 17-year-old in 1972, found out after the Wall fell that he had been a favorite target for East German secret police snoops. The Stasi even wrote in Kutz's file that he "knows how to influence the youth with Zappa."

Since then, the Zappanale, has grown to its current three-day format with 17 bands playing for Zappa fans who come from around Europe to attend -- and pay €80 ($125) for the pleasure, a price that also comes with a campsite.
The Arf Society doesn't make much money on the event, plowing what little profit there is into next year's festival. Unfortunately, part of the merchandise they sell has:
the unmistakable logo depicting Zappa's unique facial hair, the moustache-soul patch combo. And that, says Gail Zappa, Frank's widow and head of the Zappa Family Trust, violates the Zappa trademark.
She's probably right, on that discreet issue. But the suit against the fest is part of a long running legal campaign on Gail's part to control Frank's musical legacy, aimed at everyone from YouTubers to bands that want to play his music. Does that, ultimately, help "protect the intent and integrity of his music," as Gail insists? It's hard to tell. As the article points out:
Despite all his blasting of the government and of efforts at what he called 'social engineering,' Zappa was also a great believer in American-style capitalism -- and in strictly obeying copyright laws. He even made sure to pay royalties for the use of John Cage's completely soundless composition '4'33'.
But that doesn't ultimately mean that now, at age 67, he wouldn't take a more charitable view of admirers like Zappanale? Who knows. I just wish Gail would plow some of the energy she displays going after the likes of the Arf Society and get around to releasing the goddamn Roxy DVD already!

Meanwhile, in a federal courtroom in New York City, JK Rowling and Warner Brothers are suing a small publisher over The Harry Potter Lexicon. The Lexicon began as a website, cataloging the characters, places, and other details in the the Harry Potter universe. It even won praise from the author:
The case also explores the line between free Web content created by fans and a commercially published book. Ms. Rowling has openly praised the Web site on which the Lexicon is based, giving it a “fan site award” in 2004 and commenting in interviews that she even relied on the site — which provides an annotated catalog of characters, spells, magic potions, locations and events in her books — while writing. It was only when RDR decided to transform the site into a book that she objected.
It appears that Rowling has a legitimate beef. For one thing, a free fan-run website is different than a for-profit hard copy book being produced. For another, it appears from the Times article that much of the original content of the web site didn't make it into the book, for some reason. Finally, Rowling has had plans of doing a similar book herself and having another one on the market would dilute its value, although probably not by much.

What links these two cases, I think, is that they both involve copyright holders using legal force to attack fans, in one form or another. Neither likely has anything really to do with money - Rowling is fabulously wealthy even if she never writes another word and Frank Zappa is, well, dead and no longer in need of funds. In both cases, the legal arguments seem to line up with the rights holders. But does that mean they should deploy them? Is it really that essential to the protection of something that the defendants care so much about in the first place?


MountainLaurel said...

Though IANAL, I have to deal with some issues of copyright and intellectual property (esp. fair use) in my line of work. Do you deal with these issues as part of your practice, or is it more of a side interest with you.

I had a different take on the Rowling case. I didn't think that it was an infringement; I thought it fell under the Fair Use proviso Can you elaborate on why you think it's an infringement?

JDB said...

No, I don't deal with IP issues in my practice, although I know the office occasionally gets a criminal copyright infringement case (like, every 5-6 years). I took a class in law school, but that's about it.

Generally, fair use (as I understand it) involves using a part of a work in some type of critical way, either as an example in a history of the form or as the subject of a critical work. From what I've read, the book in question here is basically 90% words taken right from the Potter books, without any real analysis or critical work.

MountainLaurel said...

That makes sense. I deal with fair use under more of an educational standpoint, and I try to educate current and future educators as to what it is and how common practices may be infringements. I've heard some horror stories even in my rural and fairly isolated area.

I was thinking that it would be less likely to be an infringement under the encyclopedic idea: that cataloging information is less likely to be an infringement, and that nonfiction is more likely to be a fair use. Guess I read too much Harry Potter, as I consider Harry's lineage to be biography and not fiction! :-)

I'd hope that the two could start to collaborate on the book as she has publicly commended his website before.

Thanks for the tips. This will be an interesting example should I need to teach Copyright and Fair Use for educators again.