IPSC breakout session 2: Int'l IP. TM, Antitrust

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.