Re: "Seinfeld" Case(s)?

On Wed, 25 Aug 1999, Mike Oliver <mikeoliver[_at_]home.com> wrote:
>
> On Tue, 24 Aug 1999, Lionel English <lenglish[_at_]mail.sdsu.edu> wrote:
> >
> > On 8/23/99, Robert Cumbow <rcumbow[_at_]grahamdunn.com> wrote:
> > >
> > > I grant that the Seinfeld case was wrongly decided.
> >
> > What was the Seinfeld case?
>
> The "Seinfeld Case" is a 1998 2nd Circuit case located at
> http://laws.findlaw.com/2nd/977992.html. It is the case where the
> lady wrote a book (entitled "The Seinfeld Aptitude Test") which was
> in essence an "index" of Seinfeld episodes, presented in a creative
> way -- trivia quiz style (well, maybe not so novel ... )
>
> The owners of the Seinfeld TV show sued, arguing that the book was
> an adaptation of the show, and therefore an infringement of copyright
> (they also sued on trademark issues, which to me seemed the better
> argument). The author of the book and publisher were held liable
> for copyright infringement, over strong defenses, including fair use,
> summarized by the court as follows:
>
> "The more critical inquiry under the first factor and in fair use
> analysis generally is whether the allegedly infringing work "merely
> supersedes" the original work "or instead adds something new, with
> a further purpose or different character, altering the first with
> new ... meaning [] or message," in other words "whether and to what
> extent the new work is `transformative.'" Id. at 579 (quoting Leval
> at 1111). If "the secondary use adds value to the original -- if
> [copyrightable expression in the original work] is used as raw
> material, transformed in the creation of new information, new
> aesthetics, new insights and understandings -- this is the very type
> of activity that the fair use doctrine intends to protect for the
> enrichment of society." Leval at 1111. In short, "the goal of
> copyright, to promote science and the arts, is generally furthered
> by the creation of transformative works." Campbell, 510 U.S. at 579."
>
> The decision is worth reading for its analysis of the issues, but
> Bob Cumbow and I (and I suspect a goodly number of others) think
> that the end result on copyright infringement was wrong. A tough,
> factually and legally complex case. Though I do not agree with the
> result, I understand the argument of the Court and the TV show, and
> the argument is not without some force.
>
> It also happens to be a perfect example (IMO) of the many grey areas
> in copyright that cannot be adequately addressed by what some on this
> list have proposed as a bright line fair use test, or safe harbor.

That Seinfeld decision sounds extraordinary in almost every way. Just the excerpt of the judgement appears to show a Court headed into legal wasteland. Seems like a court wanting to find a remedy regardless of legal theory (it happens to any copyright litigatos a some time, but at least it's good grounds for an appeal).

Copyright certainly does not look like the basis for a proper decision. Can see passing off issues and Trade Practices (i.e Lanham Act) but unless the authors transcribed substantial portions of the scripts (i.e substantial reproduction of the underlying literary work), it seems a bizarre decision.

Even if the show's character's were trademarked, it would be hard to argue infringement of the marks. The Rolling Stones ran a trademark case here a few years ago, to try to stop release & sale bootleg albums of their performances, but the Federal Court held that the use of the Rolling Stones' name on the record cover etc. was not an infringing use in terms of the Australian Trade Marks Act, nor was there any unlawful passing off as the covers were clearly marked "Unauthorised".

Disappointing result to many in the record company, but the correct one nonetheless.

CS

"Galvanising Ideas"

Colin Seeger, Consultant, Management of Intellectual Property. P.O Box 3227, Tamarama, Sydney, Australia 2026 Tel: (61) (02) 9365 1186, Fax (61) (02) 9365 1286 <seeger[_at_]ozemail.com.au> Received on Sun Aug 29 1999 - 12:44:16 GMT