- New, much-anticipated documentary Can We Take a Joke? When Outrage and Comedy Collide [on demand, Greg Lukianoff] More on the fining of comedian Mike Ward by the Quebec Human Rights Tribunal [Guardian, earlier]
- “It is not ‘freedom of the press’ when newspapers and others are allowed to say and write whatever they want even if it is completely false!” [@donaldjtrump Sunday on Twitter] 25 years ago in my stump speech on lawsuit reform I criticized Trump for his use of legal threats to silence critics. More reportage on that history, a familiar topic around here [Frances S. Sellers, Washington Post, earlier here, etc.]
- Eighth Circuit: Nebraska regulators improperly retaliated against financial adviser over (inter alia) his criticism of Obama [Eugene Volokh]
- Nine senators (Boxer, Durbin, Franken, Markey, Reid, Sanders, Schumer, Warren, Whitehouse): we demand 22 right-of-center think tanks open their donation records to us [Carolina Journal]
- “Copyright infringer issues bogus DMCA over someone calling him out. Then denies all of it” [Mike Masnick, TechDirt]
- Lawsuit demanding R ratings on films with “tobacco imagery” deserves to be hit with SLAPP sanctions; “suing the MPAA to force censorship raises the stakes.” [WSJ Law Blog, Scott Greenfield]
Some Overlawyered readers may be familiar with the work of longtime New York writer Paul Brodeur, whose best known book was a critique of the asbestos industry and who went on to write books about what were in some cases less widely accepted public health risks, such as electrical transmission lines. Now an appeals court in California has dismissed a lawsuit Brodeur brought “over a scene in the 2013 film, American Hustle, where defending the notion that microwaves take the nutrition out of food, Jennifer Lawrence comments, ‘It’s not [B.S.]. I read it in an article. Look, by Paul Brodeur.'” Defendants portrayed the film as a “screwball comedy” which explicitly added fictional elements to the real-world ABSCAM scandal, and Lawrence’s character as one whose statements were portrayed as unreliable. The judge cited a number of other factors, including Brodeur’s legal status as a public figure and well-known commentator in the 1970s. [Hollywood Reporter]
“The Language Creation Society has filed an amicus brief challenging Paramount’s claim of copyright over the Klingon language in its lawsuit against Axanar, a fan-produced film set in the Star Trek universe….The amicus brief is peppered with Klingon words and phrases.” [Ed Krayewski, Reason] More: Ken White, Popehat. Update: suit moves forward.
We took note last month that a court was unsealing the allegations of a since-settled lawsuit alleging quid pro quo payments at a prominent class-action firm that has represented the state of Mississippi. Now Alan Lange at YallPolitics has more details. “I still maintain that if this case involved any other state officeholder other than Jim Hood that there would be above the fold headlines for days on end.”
Meanwhile, the Fifth Circuit has overturned a procedural win by Google that had halted an investigation by Mississippi AG Jim Hood into Google business practices in which Hood has more or less openly acted as the cat’s paw of Hollywood studios: “in some cases demand letters that came from Hood’s office were actually written by MPAA lawyers.” Google will still have the right to challenge the investigation at a later stage. [Joe Mullin/ArsTechnica, earlier]
“Bad news for Pinocchio and Cruella De Vil.” The ever-meddlesome World Health Organization “would like to see all films that feature smoking given an adult rating.” That would exclude kids from many of the kid-oriented classics of the past, from Alice in Wonderland (hookah-smoking caterpillar) to Peter Pan (Captain Hook), to say nothing of more recent films such as “Lord of the Rings (Gandalf and his pipe) or X-Men (Wolverine and his cigar)” [The Guardian; Brian Doherty]
Contrived, artificial new “equal pay for similar work” law could hit California’s most contrived and artificial industry, the movies, which tends to bid up bankable male stars to higher compensation levels than it does their bankable female counterparts [L.A. Times]
Not the first time a Hollywood figure has lent his name to attorney promotion, but with a better-than-average disclaimer: “Danny Trejo is not an attorney or a client. He’s a paid badass.” [Lowering the Bar]
“Brad Pitt’s production company has edged out George Clooney’s to win the film rights to a book about the epic, fraud-marred Ecuadorian environmental suit against Chevron, according to two sources with indirect knowledge of the situation.” Back story: “Pitt is known to have been interested in the Lago Agrio pollution for several years, and has visited Ecuador with his wife, Angelina Jolie, to observe the situation and meet with [plaintiff lawyer Steven] Donziger’s team.” However, the book, Paul Barrett’s Law of the Jungle, includes much detail unfavorable to Donziger, who has lashed out against it and numerous other journalistic treatments of the affair such as Michael Goldhaber’s Crude Awakening. [Roger Parloff, Fortune] We’ve been covering the story for years, but alas have yet to hear from any stars interested in optioning rights.
…the speeches performed by actor David Oyelowo in the film do not contain the actual words spoken by King. This is because the King estate would not license the copyright in the speeches to filmmaker Ava DuVernay. Thus, the King estate’s aggressive stance on copyright has literally forced the re-writing of history. … [Under existing precedent] DuVernay would have had a strong fair use defense had she used King’s actual words rather than just paraphrased them. Perhaps she (or her lawyers) decided that historical accuracy was not worth the risk of litigation with the King estate.
Earlier on the Martin Luther King Jr. estate here and here.
More: reader J.B. writes:
Note that even without the hard-to-defend serial legislative extensions of copyright term for existing works, copyrightable MLK stuff from 1965 would still not be in the public domain under the rules as they then existed (assuming, as seems plausible, that the estate had remembered to renew), although that wouldn’t be all that far off (2021, or maybe 1/1/2022).
Beyond that, here’s the thing: the exact boundaries of fair use are fuzzy because the doctrine as it has evolved is very fact-driven and context-specific. This means that aggressive rights-holders can, by a threat to litigate, probably chill some unauthorized uses that would be legitimate (and there must be some situations that go the other way, where the derivative user is well-funded and lawyered-up and the under-resourced rights-holder can’t afford to have the fight even though they might well be in the right). But it seems at least possible that any crisper/cleaner doctrine (where the boundary of what the rights-holder can forbid was so clear that no one would be chilled/intimidated by an over-the-top cease and desist letter) would end up being one that made a materially narrower scope of stuff qualify as fair use and thus non-infringing. Fuzzy rules are perhaps sometimes the worst legal regime possible except for the practically available alternatives.
Quite aside from which is the right legal rule, I also think that there’s a positive incentive effect to publicizing cases like this in which estates of notable persons either appear in a light of being unreasonably prickly themselves, or heedlessly sell rights to those who squeeze them with little regard for what the notable person stood for in life. The better known these cases are, the more likely it is that notable persons and their near families will think through how they might want to plan their bequests so that their estates will rest in the hands of those willing to cooperate with scholars, encourage derivative works, etc. King himself of course was cut down too young for us to expect this, but most major figures who leave a cultural legacy have more chance to plan, or their widows/widowers do.