Preparing for the overhaul...

Tuesday, October 23, 2012

Copyright: My Two Cents

One of my favorite cases in law school involved the "Dead Dog" tee: the eponymous cafe's iconic "Black Dog" turned upside down.  You know, dead.  They sued, and Marblehead's own U.S. District Chief Judge Joseph Tauro dismissed the case.  Not only does he hail from my hometown, Judge Tauro (who also ruled, in 2010, that the federal ban on equal marriage was unconstitutional) has a sense of humor!  He wrote a little poem about "black dogs, dead dogs and dead hogs," using it to illustrate the legally salient point: people weren't apt to confuse "Dead Dog" with "Black Dog."  Parodies are legal.

The issue is one of intent: are you trying, in essence, to benefit from someone else's hard work?  The Black Dog Cafe became famous through its owners' hard work (and, like Marblehead's Stowaway Sweets, through some minor presidential intervention).  Admire them all you want, but you can't--legally, anyway--ride on their coattails.  Which, really, is where the legal gray area lies and the attempts to define "parody" begin.  Peter Hall wasn't trying to steal market share from the Black Dog Tavern; his tees were geared toward a different market entirely.  And as someone who lives in a tourist trap, myself, trust me: there's plenty of us who'd like some "anti-tourist" memorabilia.

But to the extent that parody is legal, outright imitation most certainly is not.  Parody is only legal to the extent that it's obviously not imitation.  Once you've ranged out of the patently absurd and into the dark forest of "if"--where you're even courting the possibility that someone could mistake your work for theirs--you're breaking the law.  Depending on what, exactly, you're doing you could be charged with a variety of civil penalties--and crimes.  If you're making use of someone else's work (or name, or reputation) for financial gain, then, depending on the facts of the case and your particular jurisdiction, it could be fraud.  And fraud, believe me, is very serious.

I was really disappointed to see that Brae, an artisan and blogger I admire greatly, is suffering from an apparently really egregious case of plagiarism.  Whoever said "imitation is the highest form of flattery" never got ripped off.  There's nothing flattering about discovering that someone's stolen your work.  It's a violation.

I've dealt with my own copyright issues; I mention one miniatures-related experience in my "FAQ" section and, recently, someone I thought was my friend sold some revealing pictures of me.  They were from my wedding album (which covered everything from "getting ready" to "finally leaving"), digital files she had access to because, at the time, I thought she'd earned my trust.  Particularly sad was the fact that the unsuspecting third party thought they were purchasing legally licensed ad copy.  Had we chosen to make more of an issue of it than we did (I was just happy to see the photographs gone), they--despite their ignorance--might have been in some trouble.

It's not cool to steal from people.  Even if nobody can prove anything, even if you skate off, scott free, into the sunset, you're still a loser.  Reputation is everything.  I'm all for forgiving and forgetting, but I saw some things in law school that changed my opinion of certain people forever.  I might get a beer with them, but I'd never risk recommending them to a potential client.

Anyway, I'm getting off my soapbox now.  As you might have guessed, the fact that I talk for a living isn't always a good thing.  But anyway, since this does touch directly on what I do all day--and, gods forbid, by way of stating the obvious this is not legal advice--I really felt like I had to say something.  I try (and fail) not to editorialize overmuch, but dishonesty is one of those things that gets me really angry.  And I can hardly complain about the fact that it happens if I don't speak out against it once in awhile, now can I?

1 comment:

otterine said...

Thank you for the support! Even if it's a headache, just having people come to my aid -- even if only to listen -- makes it easier to get through.

I'm still boggled by your lingerie picture story. Who the @#$% would think that was acceptable? Really. I try to make my mind go there, and it just sends my brain into a blue-screen shutdown. :\