International IP
Infringement as Artefact: The Curious Case of Paramount
Pictures v Rup Kamal Chitra
Arpan Banerjee
Film industry 60 years ago was not seen as respectable
industry in India: female actors were considered sex workers. Banks wouldn’t
give loans to filmmakers. Easiest way to make money was to make a film likely
to succeed, and copying a successful foreign plot was a good way to do so. But there
weren’t reported lawsuits against Bollywood films. Around 2010, some studios
started enforcing, e.g., Twentieth Century Fox sued over copying of plot of Phone
Booth and was successful.
But we have to revise the story: National Film Archives of
India discovered a film from famous Kishore Kumar, modeled himself after Danny
Kaye. There’s a lost film, found at NFAI. It was injuncted by a court as a copy
of a Hollywood film starring Danny Kaye, who found it on a visit to India. There’s
no record of the judgment but there is contemporaneous reporting. Can the NFAI
screen the movie? The Hollywood movie is now out of copyright according to
Indian law. Paramount waived its [apparently nonexistent?] rights so now it can
be shown.
Cross-cultural plagiarism: adaptation of a film to a
different cultural context. Disney’s Cars was remade in China as the Autobots,
unlicensed remake—Disney sued and won. Generally perceived [by elites] as
embarrassing, but can law accommodate the cultural value—e.g., that Kumar went
on to become an idol? Now, Bollywood copies Hollywood, but they use licenses—how
does that compare? Very few plaintiffs have actually won.
Marketa Trimble: Talk about effect of this on creativity?
Are the plots and stories in limited supply, so that we need this type of
borrowing? Is it bad for local culture because we might have had a different
film instead?
A: Indian gov’t wanted films made from well-known Bengali
novels. But there was pressure from the market: this is a business trying to
make money. Same reason there are so many superhero movies: a safer investment.
Licensing is also one way to do it [which seems to conflict with the idea that
without this you’d get home-grown plots etc.].
RT: Insiders/outsiders’ copying is often treated very
differently across different groups; can be heightened by racial/national
differences: this can even occur with transformative fair use: if it is a
subaltern take from within the US, e.g. The Wind Done Gone, then its critical
stance towards the original seems easier to understand, but if it is a cultural
translation it may not be understood as a critique.
A: Over 1000 cases in the US concern cinematic copying, and
very few succeed. In this case, certain gags had been copied from Knock on
Wood.
Trademarks
Trademark Free Riders
Mike Grynberg
Due to technical issues I was late to this but the basic
argument is that plaintiffs often also free ride on the industry as a whole or
other features of a product, along with the efforts of the public/associations
that the public makes, and then try to appropriate the entire value to
themselves. This should be recognized beyond the specific defenses like
functionality. Free riding stories are already part of TM law, but we are leaving
something on the table by surrendering that rhetorical ground to TM owners.
Implications: greater emphasis on acquired distinctiveness
versus inherent distinctiveness? Get rid of Ambercrombie? Is he advocating for
rewards for bigness?
Rosenblatt: The big guys will likely have done more free
riding [e.g., Disney and Cinderella, or Disney fandom creating the value for
the corporation, for whom matter may not even have been conceived of as source
identifiers]. The upside-down free riding story is just as hard to tell in
litigation as the mosaic of exceptions and limitations that we already struggle
to tell. But maybe there’s a way to tell it differently.
A: He doesn’t want to take on consumer contributions as much
here [covered by others]. You fight it when they say free riding or you don’t:
say that free riding isn’t relevant to economic considerations v. saying tu quoque.
Lisa Ramsey: worries that acquired distinctiveness is
pro-monopoly; failure to function, functionality, genericide are all better
than giving rights but trying to limit them on the back end. Comparative
advertising is another example of free riding that is actually a very good
idea.
Jeremy Sheff: skeptical about characterizing all failures of
reciprocity as free riding. Rent seeking is not the same thing as free riding.
They are different kinds of failures of reciprocity. Maybe they trigger moral
intuitions differently, which accounts for differences in doctrine. You might
want to blur the distinctions for rhetorical purposes, but our moral intuitions
might differ.
A: There is an issue where everyone thinks there was real
work done on behalf of/by the claimant, and that matters.
Mark McKenna: what happens in a lot of free riding cases is
the court has the sense “this party created the demand for this product, and so
they might be getting the benefit of competitors’ ads, but that belongs to them”—whose
characterization of free riding sticks? Student story: every CVS store is
accompanied by a Walgreens in the Midwest. One company does the market research
and the other follows. It’s obviously free riding and nobody thinks it’s a
wrong. You will have to engage with what counts as free riding.
Competition
Gendering Antitrust
Jennifer Sturiale
[Also late to this one, ack.] Things gendered female are
privatized, not considered subject to government regulation of unfairness.
Antitrust is focused on monopoly, not on consumer harms. Merger analysis: claims
of innovation from bigness should get greater scrutiny and greater
consideration of alternate measures of welfare that don’t just look at price
effects or new products as inherently good.
Q: industries gendered female v. male?
A: I’m specifically not considering that, but it is
important, e.g., the market for baby formula.
RT: Harms to labor being considered, not just consumer
welfare/prices, also may be gendered/a step to gender equality.
A: to suggest that the firm achieved monopoly profits “on
its own” is itself androcentric, but also consideration of labor would consider
more conduct to be unlawful. Our notions of contract/markets out of which the
current rules arise are themselves influenced by androcentric notions.
Social Uses of TM
Stephanie Plamondon Bair, Clark Asay, and LaReina Hingson
Early stage research on use of “TM” in casual social
discourse. Just as hashtags have expressive functions, so does “TM” appended to
one’s own expression. Themes in use: stock phrases, e.g., The Feels™ or I’ve had A Day™—also connected w/use of
capitalization. Also people trying to create their own stock phrase to describe
themselves.
Another use: stereotyping or caricaturing: a feminist v. a
Feminist™.
Another use: emphasizing or mocking the “officialness” of
information.
Another use: branding function for purposes of parody/humorously
assert rights or ownership. Relatedly: emphasize corporate aspects of a
concept, e.g., Real™.
Implications: insight into understanding of TM by ordinary
citizens; does it create misconceptions about ownership? If used all over the
place, does that impose additional cognitive costs on people?
Jeanne Fromer: Not folk conceptions of TM law, but maybe an
overlap. It’s like using quotes. Don’t treat this the way you might treat the
word on its own—read this differently, but not as a TM. Might be different than
when a company uses TM on a social media post.
Lisa Ramsey: A matter of public education/need to educate
the public about overclaims.
A: not clear if people are joking, not joking, ironic?
McKenna: strong impression that people are joking. We teach
that TM is evidence of claim, but maybe it’s not.
Rosenblatt: Aspirational but meaningless is how I teach it
[how I teach it too!]. Social uses are similarly aspirational but less
meaningless b/c they have discursive meaning. Genericide of ™ absent other context.
Grynberg: do people use ®? That is the real consequence of
the genericide: ® really means something.
RT: effect of generation hustle/be your own brand ideology—look
10 years back for all the self-help rhetoric? Consult literature on irony:
neither joking nor not joking, which may be inherently corrosive to what the TM
system is trying to do. The flip side of nonsense TMs—the function of TM has
become detached from the functioning of the actual market and maybe the system
is just degenerating into noise.
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