Sunday, March 30, 2014

Copyright, Trademark and Ownership

Copyright infringements, ownership and trademark issues are not easy to resolve. There is often a gray area between what is okay to publish and what is not. Sturken and Cartwright state the biggest factor in determining the fair use of property is whether or not the copy is promoting or adding to the original piece. (208) As our society adopts more advanced technologies it is difficult to prove clear copyright violations. Sturken and Cartwright ask the question: How do courts find the difference between transformation and the derivation of a piece of work?
Below is an example post I have written for this discussion. This commercial definitely made me question its intentions and reminded me of the California Celebrities Rights Act of 1984 (207) mentioned in the reading. You do NOT need to answer the questions in my example. 

In 2009, Direct TV released a commercial with David Spade promoting satellite television. The advertisement used a scene from the film Tommy Boy, which caused debate among viewers. Chris Farley's family approved the commercial, making this a case of morality. David Spade and Farley's family defended the commercial; however, people felt it was in poor taste. Is this an issue of exploitation of the dead or a way to honor the late actor's career? Since Farley is synonymous with the character Tommy from the film, does this affect his likeness?
Research an article, court case or issue that interests you! What you post is not limited to legal conflicts, but can touch upon what is morally right or wrong within this week's topic. From a celebrity's likeness/persona to the pros and cons of digital images compared to analog photographic images, there are numerous options to explore. Ask questions to engage others and give your opinion. 
Lone Ranger 

Sturken, Marita, and Lisa Cartwright. “Copies, Ownership and Copyright.” 204-220. Practices of Looking: An Introduction to Visual Culture. 2nd ed. Oxford: Oxford University., 2009. Print.


  1. I found this commercial for a Dutch beer company, which depicts multiple celebrities, including Kurt Cobain, Marilyn Monroe, and Elvis Presley, among others.

    Although these are not the celebrities themselves, they are being depicted in a way that seems to have embodied their personality or otherwise their likeness.

    Although there may not be legal repercussions to this type of commercial, the morality of it is questionable.

    For example, Marilyn and Elvis are seen as much older versions of themselves, but act in the same way they would have when they were living. Even though they do not look exactly like we imagine them, it is easy to recognize them as these past celebrities.

    While this could go much deeper into morality, looking at the construction of this type of "dead celebrity island," relating this commercial to this particular discussion would ask particularly if it is morally right to represent these deceased celebrities in this way. Do you believe this commercial is morally right? Why or why not?

    Are there other commercials depicting any of these celebrities (after their death) in a more positive light?

  2. (Posting as Justin Loranger)

    For the past 3+ years, a company in Vermont has been fighting with Chick-Fil-A over the "Eat More" phrase, as the Vermont company's line was "Eat More Kale" which is close to Chick-Fil-A's "Eat mor chikin".

    This has been in litigation for over 2.5 years, but the Team Kale company is still able to sell "Eat More Kale" merchandise, which they are doing to fund their legal fees and also bring more information to this issue. I recall seeing the original video of the Team Kale owner on the channel 5 news (possibly on Chronicle or the 6pm/7pm news stories) many years ago but the issue is still prevalent.

  3. Hey Justin~
    It amazes me that company such as Chick-Fil-A would attack this company. I wonder if C.F.A. feels their "Eat Mor Chikin" slogan (what horrendous spelling) is being threatened by the small business. Personally, I doubt C.F.A. feels their phrase is in danger because of the "Eat More Kale" slogan. This seems like a case of a corporate company attempting to dismantle a local business.
    Do you think Chick-Fil-A is justified in their legal debate? Also, it is great to see the Team Kale owner still fighting the battle!

  4. An EDM EnthusiastApril 1, 2014 at 11:35 AM

    I think a large part of the debate in this is that the "Eat Mor Chikin" is supposed to be written by their personified cows, avoiding slaughter by diverting attention to chicken instead of beef.

    Kale unfortunately cannot make a sound (but it's funny to think if someone animated it to). I don't think Chick-Fil-A should be concerned with Eat More Kale because it is a smaller homegrown company that is not saying "Don't eat Chick-Fil-A". I think Chick-Fil-A should be more concerned with their standings on gay marriage; prior Boston Mayor Menino denied Chick-Fil-A being built in Boston because of their opposition to gay marriage.

  5. Stephanie SantosApril 1, 2014 at 1:13 PM

    Do any of you remember the "Dumb Starbucks" stunt that sort of swept the nation in February? It got a ton of buzz on social media, and news outlets followed suit. I think this would be interesting to talk about in terms of intellectual property, trademark law, and parody law. A FAQ sheet outside the store's door said the following:

    “Although we are a fully functioning coffee shop, for legal reasons Dumb Starbucks needs to be categorized as a work of parody art. So, in the eyes of the law, our ‘coffee shop’ is actually an art gallery and the ‘coffee’ you're buying is actually the art. But that's for our lawyers to worry about. All you need to do is enjoy our delicious coffee!”

    What do you guys think about this?

  6. That is slightly morbid, I had no idea C.F.A. was approaching the consumption of chicken that way. Regardless, the founders of the company should be ashamed for giving millions of dollars to anti-LGBT organizations. Thanks for the post, Justin!

  7. Awesome post! This was a very hilarious stunt that I was shocked even existed. The "Dumb Starbucks" reminded me of a permanent installment of a Saturday Night Live skit because of how ridiculous it was. Since the entire concept of this coffee shop is a parody that mocks the actual Starbucks, but it does use the trademarked Starbucks name and logo. The stores were also extremely similar in exterior appearance. After a little bit of research I discovered the location was shutdown days after it was opened due to "health inspection" reasons, but do you think there is more to the story than that? Maybe it was an excuse to avoid law suits.

  8. Kayola Davis-TabbApril 1, 2014 at 7:52 PM

    I think that Direct TV was more trying to honor and possibly even shed more light on the actor's career. Since the advertisement was for cable and not something like electric collars for dogs, I think that Direct TV thought that they were making a positive statement. I think that if people liked the actor before he passed away then they continued to like him when the commercial was aired and if they did not, then they did not. I do not believe that something like a commercial post an actor's death would make their fans dislike them. (Or at least it shouldn't).

  9. An EDM EnthusiastApril 2, 2014 at 6:13 AM

  10. An EDM EnthusiastApril 2, 2014 at 6:16 AM

    I think they probably did shut down because of legal issues and to avoid all the fees that would be incurred if they had to pay for lawyers and attorneys.

    The hilarious part of this is to think about the people in the picture above and how most of them have their faces buried in their phones. Do you think they even noticed the word "dumb" or did they just flock to the location because they recognized the logo and colors associated with Starbucks?

  11. There was a copyright case some years ago that I found interesting. Joe Satriani had sued the band Coldplay for their song "Viva La Vida" due to the fact that portions of the song sounded extremely similar to his track "If I Could Fly." There was a lengthy debate among fans of both artists and the case wound up being dismissed with a settlement. It was interesting considering just how similar the melodies were, but I was never sure if Satriani's song was intentionally ripped off.

  12. I don't know if this ever became a case, but there is a freakish similarity between Chuck Berry's "Johnny B. Goode" and the Beach Boys "Surfin' USA". I'm think the Beach Boys ripped off Chuck Berry.

  13. Hey Kayola,

    I definitely agree with you on this. Direct TV used Farley because he was such a funny guy, who in the 1990's was doing a lot of comedies. Also, I like that you bring up what the commercial was used for. It did not promote anything outside of media entertainment, so it was not irrelevant. Do you think the use of use of deceased celebrities helps advertisements?

  14. I remember hearing about this some time ago. There seems to be a tough grey area in the copyright of music. Coldplay's music is fairly original sounding and does not rip off other musicians. Perhaps one member of the band heard Satriani's song and rewrote it unintentionally. I looked up some debates online regarding the case and people are of course biased about it. What do you think about the settlement? Does giving money to Satrani make the entire issue disappear? Since Coldplay is well known/liked, it may be easier for them to get away with using other musicians' material.

  15. Wow, I never even realized how similar those songs are! Very cool post! I did a little research and discovered Chuck Berry released "Johnny B. Goode" in 1958 and The Beach Boys released their song SIX years afterwards! Are you surprised there was no case for this? Personally, I am surprised that there was never a court case.

  16. Stephanie SantosApril 3, 2014 at 3:24 PM

    I'm not sure, Justin. I think people may have flocked since the store blew up on social media and locales wanted to take photos in front of the sign and try the drinks. I read somewhere that the coffee was free... If so, I'd flock anywhere someone was offering free coffee!

  17. Stephanie SantosApril 3, 2014 at 3:26 PM

    I think you may be right, Erika. The Dumb Starbucks creator could have run into some big problems if they stayed open much longer, in my opinion.

  18. There is a copyright issue currently going on between major podcasters and a patent troll that could end podcasts for good. Basically what some guy did was file a patent for "a scheduled internet broadcast", essentially a podcast, after podcasts became extremely popular in order to extort famous podcasters for money. While this guy didn't invent podcasts, he technically owns the rights to a podcast, and if the judge sees it this way, podcasts will be required to pay him to continue broadcasting or stop entirely. This guy is working the system, and stealing the idea of podcasting. Major podcasters are currently fighting him, and hopefully they are successful. Patent trolling is a very prevalent issue, and it works the copyright system to make money off of others ideas.

  19. Brittany CaldwellApril 3, 2014 at 7:45 PM

    Justin and Erika,
    I also was amazed that a big company like Chick-Fil-A would go after what sounds like a company exclusive to Vermont and probably only has one store? Is that correct Justin? Knowing many people who currently live in Vermont, I feel as though the "eat more kale" slogan fits that state significantly more than the "eat mor chikin" slogan. Right off the bat I thought that this Eat More Kale company was just trying to please their customers, it doesn't seem like their similar slogan was malicious in any way. Chick-Fil-A on the other hand has probably been hurting in the past few years, as many people are trying to eat healthier and more vegetables and seems like would do anything, including going after a tiny company in Vermont, just to earn a few dollars. To me, this represents how poor of a company Chick-Fil-A is. And what a nerve they have calling the meat they sell "chicken", maybe that's why it's not spelled correctly!!

  20. Brittany CaldwellApril 3, 2014 at 7:54 PM

    I'm a huge Beach Boys fan and have also heard "Johnny B. Goode" numerous times growing up and never once made that connection. It seems like many bands back in the 50s, 60s, and 70s, all had very similar melodies and lyrics and when something was different, then it became a hit. I think that maybe it never made it to court because so many songs back then were similar and even though "Johnny B. Goode" was released first, who's to say that there wasn't any collaboration within the years prior. There were only so many notes some bands could play, and if you listen to a whole Beach Boys album, a lot of the songs are VERY similar to each other. It's kind of like how Johnny Cash's songs all sound similar, the bands talent could only play a limited amount of music because they were self taught, they just went with that same beat and changed up the lyrics.

  21. Brittany AndersenApril 3, 2014 at 8:07 PM

    One copyright case that I found interesting involved Michael Jackson, Rihanna, and Manu Dibango. Many music lovers have heard Michael Jackson's song "Wanna Be Startin' Somethin'" and its famous chant "mama-say mama-saw mama ma-ko sa." They might also be familiar with Rihanna's rendition of the chant in her song, "Don't Stop the Music." However, listeners may not be aware that the chant originated from "Soul Makossa," a song written by Cameroonian saxophonist and songwriter Manu Dibango. Dibango's record released in 1972, 11 years before the debut of Michael Jackson's song. After "Wanna Be Startin' Something" aired, Dibango sued Michael Jackson for copying the chant and claiming it as his own. The dispute was "settled out of court, for one million French francs at the time" (Maan).

    In 2007, Rihanna released her single "Don't Stop the Music." Rihanna asked Michael Jackson for permission to use the chant in her song and was awarded usage. When the song released and gained prominence, Dibango sued both Rihana and Michael Jackson for copyright infringement. Upon trial, the judge "dismissed the case, determining that Rihanna had obtained Michael Jackson's permission for the use of the sample, and that Dibango had already been fairly compensated for the infringement of his copyright" (CKUA).

    When considering ethics and fairness, do you think Rihanna should have been required to pay Dibango? Or do you agree with the judge’s decision?


    CKUA Radio Article:

    Reuben Maan's article on the CBC Music Website:

    Manu Dibango - Soul Makossa:

    Michael Jackson - Wanna Be Startin' Somethin'

    Rihanna - Don't Stop the Music:

  22. Brittany AndersenApril 3, 2014 at 8:18 PM

    One copyright case that I found interesting involved Michael Jackson, Rihanna, and Manu Dibango. Many music lovers have heard Michael Jackson's song "Wanna Be Startin' Something" and its famous chant "mama-say mama-saw mama ma-ko sa." They might also be familiar with Rihanna's rendition of the chant in her song, "Don't Stop the Music." However, listeners may not be aware that the chant originated from "Soul Makossa," a song written by Cameroonian saxophonist and songwriter Manu Dibango. Dibango's record released in 1972, 11 years before Michael Jackson's song debut. After "Wanna Be Startin' Something" aired, Dibango sued Michael Jackson for copying the chant and claiming it as his own. The dispute was "settled out of court, for one million French francs at the time" (Maan).

    In 2007, Rihanna released her single "Don't Stop the Music." Rihanna asked Michael Jackson for permission to use the chant in her song and was awarded fair usage. When the song released and gained prominence, Dibango sued both Rihana and Michael Jackson for copyright infringement. Upon trial, the judge "dismissed the case, determining that Rihanna had obtained Michael Jackson's permission for the use of the sample, and that Dibango had already been fairly compensated for the infringement of his copyright" (CKUA).

    When considering ethics and fairness, do you think Rihanna should have been required to pay Dibango? Or do you agree with the judge’s decision?

    Manu Dibango - Soul Makossa:

    Michael Jackson - Wanna Be Startin' Something'

    Rihanna - Don't Stop The Music:

    -CKUA Radio:

    -Reuben Maan's article on the CBC Music Website:

    -All videos retrieved from YouTube

  23. A case I found significant which is actually still going on today involves Target and a Seattle design firm Modern Dog. Modern Dog created an image with lots of sketches of different types of dogs and included it within a compendium which was released in 2008. They later claimed that Target used their image within a t-shirt they have for sale in stores, and they filed a lawsuit in 2011. The case has not yet been resolved, but Modern Dog has been campaigning relentlessly online to garner support and try to bring this issue into the public eye. They recently were actually forced to sell their studio to cover the legal costs associated with the battle, so the situation is becoming very dire for them. Despite that it's very clear that this image was copyrighted by Target, Modern Dog is out of money and may not be able to pay for the remaining costs of their legal battle. This really brings to light the troubles you can run into if a powerful company copyrights your images and forces you into costly legal dispute - you simply may not be able to afford to fight for your rights. Obviously Target won't have any trouble putting forth all the money they need for their side of the dispute, and it may very well end up that they just starve Modern Dog out. It's admirable that Modern Dog has sacrificed so much to defend their work, and I think it will be a real tragedy if they end up losing this lawsuit due to lack of funds..

  24. Kayola Davis-TabbApril 4, 2014 at 8:00 AM

    I do think that the use of deceased celebrities helps advertisements. I think that once a person is recognizable, people will respond to the ad. Deceased celebrities are possibly more effective than living ones because a lot of the time, not everyone knows who a particular living celebrity is especially since there are so many genres.

  25. A band that I had heard being involved in multiple cases of copyright issues (both against them and pursuing them) are the Red Hot Chili Peppers. In 2006, the band released a song called "Dani California" a song that became incredible popular upon its release. This song, however, had an incredibly similar sound to Tom Petty's "Mary Jane's Last Dance". Tom Petty, however, decided not to pursue any charges against them, cited as saying, "The truth is, I seriously doubt that there is any negative intent there. And a lot of rock & roll songs sound alike. Ask Chuck Berry. The Strokes took "merican Girl"[for their song "Last Nite"], and I saw an interview with them where they actually admitted it. That made me laugh out loud. I was like, "OK, good for you." It doesn't bother me." Petty maintained a positive attitude about the entire situation, as he recognizes there is an incredibly large amount of idea replication in music. Do you agree with him that this similarity isn't a large concern in the world of music and that imitation should be embraced and expected? Would you have reacted to the situation differently if you were Tom Petty? Do you think the Red Hot Chili Peppers should've been held accountable based on what we've learned about copyright?

    The Red Hot Chili Peppers seem to have a slightly different attitude, for in 2007 they decided to sue Showtime for the series "Californication" (named after one of their most popular albums/songs). They cited their offense as being upset that the show used a title associated with one of their most successful works to date. The band was reflected to have a very different outlook on idea replication than Petty. Do you think that they justified in being upset over the title? Or do you think they should've adopted the more laid-back approach of Tom Petty?

    Dani California - Red Hot Chili Peppers
    Mary Jane's Last Dance - Tom Petty

  26. Professor VinsonApril 4, 2014 at 8:48 AM

    Great example Brett. It is a lot about money. In class we discussed the cost of re-producing visuals for analysis or parody (and I offered the example of not being able to afford to re-produce all the images I analyzed in my article). However, this example brings up the financial issues for the producer. Sure, everyone has a right to the "expression of their idea," but to protect that expression takes funds (not to mention time--court battles take so much time!) and endurance.

  27. Professor VinsonApril 4, 2014 at 9:04 AM

    I hear that: free coffee! This is an excellent example of how tricky "fair use" is. In the Guardian article you provided a link to, they quote a lawyer at the end stating that in order to qualify as a parody, the art/coffee shop would have needed to be clearly distinct from the Starbucks chain.
    But. . .
    Then how do people know it is a parody? Part of what parody is includes making sure people can recognize the original thing you are mocking so that you can mock it.
    While I enjoy this stunt as a stunt, I am a bit disappointed that it is part of a reality-prank-type show. I wanted it to be an artist's statement about corporate coffee chains or something :-)

  28. Professor VinsonApril 4, 2014 at 9:20 AM

    Wow Brittany, great analysis here. You are closely reading the situation for whether Eat More Kale has transformed the original slogan. Because, as we discussed in class, visual rhetorical artifacts that transform the original are not violating copyright.
    The Eat More Kale company/approach does seem different in terms of purpose, audience, and visual rhetoric. I mean, the slogan is grammatically correct "More" versus "mor" and there are no personified characters forwarding the message (as you point out). So it is not just a derivative message. The colors and fonts are also different.
    They are clearly using the idea, but they have changed the expression of that idea.
    However, both producers are still encouraging consumption and furthering their commercial aims. That is, one encourages consuming chicken, the other encourages consuming kale. One encourages patronizing Chick-fil-A, the other encourages purchasing T-shirts.
    Great conversation here Justin, Brittany, Stephanie, Brittany, and Erika. A tricky example, once again, and another instance of the financial issues that we do not often discuss in terms of art/visuals. As the Eat More Kale website states "Justice is expensive."

  29. Professor VinsonApril 4, 2014 at 9:37 AM

    Interesting example Chris! I love the Petty response and how it reflected a lesson he had learned in the music business. This reminded (along with Dani and Brittany's examples below) of the Vanilla Ice lawsuit.

    For me, this example demonstrates the clashing of an underlying cultural logic that most of the examples posted in this thread bring to light:

    1) We should be able to draw from each other's work to build on ideas/expressions/sounds and create new things. A sharing is caring kind of approach that refuses the notion that art is "original" or can be owned.

    [see the "about" video on Creative Commons website for a interesting visual rhetorical strategies that persuade us to accept this logic:]

    2) I created the idea/expression/sound so I am the only one who gets to reproduce and profit from it or say how it can be used. An ownership/profit kind of approach that constructs artists/producers as the originators/owners of art.
    To get at your questions, I would point out a bit of a difference in the Red Hot Chili Peppers examples. In terms of their use of the Petty sound, music is often influenced by other sounds--it is kind of a part of the creation of new sounds right? I think about, in literature, how certain plot lines become predictable because writers learn by reading other writing and become influenced by it.
    However, the Californication show is a different genre/thing. They have taken the title of the song to use as the title of their television show. I am not sure if I am able to articulate this clearly here, but it seems different. . . This gets at the #2 cultural logic I point out above: artists/producers need a way to make sure that their work does not get co-opted and used for a purpose they would not approve of. This is how Petty explained his approval of the Red Hot Chili Peppers sound "there is not negative intent." Perhaps the Peppers thought the show had negative intent and did not want to be associated with it?

  30. Professor VinsonApril 4, 2014 at 9:45 AM

    I am ashamed to say that I did not know about Manu Dibango! I had wondered how Rhianna was able to use the chant in her "Don't Stop the Music" song because I so associate it with Jackson's song; I am glad to hear that she secured permission.

    Something about the dismissal of Dibango's case is bothering me. The artist had to sue Michael Jackson because he did not ask permission to use and profit from the chant. I am guessing that "out of court" Jackson did end up purchasing permission to keep the chant in and continue to profit from that song. However, that does not mean that Dibango granted permission for Rhianna to use it.
    I speak from my own experience. As I showed you all in class, when I purchased the right to re-produce the images from magazine articles, the legal form said I only had the right to reproduce it in that specific academic journal. I would never be able to grant others the permission to reproduce the images.
    That said, Rhianna's version sounds much more like Jackson's than Dibango.

  31. I agree, Professor Vinson! It was interesting to see to very different forms of copyright issues take place revolving around one band. As a musician myself (especially having played in bands and written music), I can understand the tension an artist may feel in the replication of their artwork. I was very happy with how Petty reacted to the situation, because like you've pointed out, it's incredibly difficult for an artist to possess true "originality" over an artwork or idea. Petty's outlook should be embraced, particularly in the realm of music, which may be one of the most common places that idea-replication occurs, as many artists have struggled with this kind of copyright issue in the past. From what I've heard being interested in music, it seems as though some genres are very cold about sharing ideas (particularly rock music), while other genres, such as country, are very embracing of sharing their ideas and content with one another.
    I did find it relatively odd that the Chili Peppers were upset over the name duplication. You would think that this show would have ended up giving more attention to their already famous CD and song. I've never seen the show, but as you said, perhaps there was some kind of negative connotation the show brought to the Title that the Peppers did not agree with. According to the Peppers, they wanted the name "Californication" to be associated solely with their band, as they value it as a landmark of their music career. From what I've been reading, it seems as though they were more upset over how no one should be using such an "iconic RHCP album and song" in anyway that doesn't involve the band. This could tie back to be a very interesting contrast to Petty's outlook, as they are both world famous musicians but have very different relationships with sharing their music (or appreciating the replication).

  32. I agree, and I also don't think he sued because Chuck Berry knew that the Beach Boys were a fan of his and he took it as a compliment rather than his music being stolen, similar to the Tom Petty example above.

  33. I never realized how similar these songs were either! I'm so glad you posted this. It's crazy how bands get away with this, like Chris said, Red Hot Chili Peppers have done it with Dani California, (along with MANY other bands). There was also a metal band named Ligeia that ended up breaking up and there was a lot of speculation about them ripping off other metal bands and using the same three guitar cords for every song. It's good they decided to break up before any legal issues surfaced - artists truly need to be original. Copyrights protect authentic works of art, bands (and everyone else) certainly need to abide by these laws. I'm very surprised a court case didn't come from this particular issue though, I think it's important to protect all authentic and original work, music or not.

  34. Stephanie SantosApril 4, 2014 at 2:47 PM

    Agreed, Professor Vinson. I was hoping it was a bold statement against corporate America, but unfortunately, it didn't work out that way!