Showing posts with label Trademark. Show all posts
Showing posts with label Trademark. Show all posts
Sunday, March 10, 2013

Kill a Reader, Save Book Publishing (Satire)

Hashtag #Mushdoom

Can this book save the book
publishing industry?
Google promises that the quality of information found on the internet (whether on depression, or leasing a car) can be inferred through its search rankings.  However, often the author's credentials are unclear or inaccurate, or the commercial sponsorship of a site masked.  Currency of information is another problem. 

Despite these concerns, we rely on the internet to make important health and financial decisions. However, free information can be harmful information.  Like consumer health, the internet has put the health of commercial book publishing at risk.  Among other things, it has depressed the value of commercial nonfiction.  According to the Association of American Publishers (AAP) StatShot report for October 2012, nonfiction sales are down.  So, how does an ailing industry compete with free?  What would it take to get readers to flock back to stiff backed hardcovers, quality paperbacks, or download a pricey eBook? 

Simple.  A seriously injured mushroom hunting enthusiast led astray by an anonymous Wiki contributor who misidentified a poisonous mushroom as a "safe" and delicious substitute for store bought 'shrooms.   Bad information is never cheap.  That's the "Got Milk" message the AAP  should shout from the roof tops.  Blogs and Wikis kill!  AAP member publishers bring great ideas to life!   

A dead mushroom enthusiast would open the door for the AAP to extoll the virtues of curated mushroom non-fiction.
For Immediate Release.  If you are working on any stories regarding the recent mushroom poisoning deaths and health risks associated with un-curated information found on the Internet, we at that Association of American Publishers can provide a publishing industry expert for any relevant stories you are working on. Wikis kill. We 'bring great ideas to life."
Nancy Grace & Negligent Publication Law

The Ninth Circuit Court of Appeals recently defined the term "negligent publication" as "a narrow tort in which the publication of material encourages or instructs readers to engage in harmful conduct." The internet is rife with negligent information. The internet is a creepy, shadow universe of unverifiable facts, pedophiles, snake oil salesmen, substanceless self-promoters and sock puppets. Do I really believe this?  While there's truth in that statement, there are "flowers among the weeds."  

I can envision the news coverage.  During the "negligent publication" trial, television journalist, legal commentator, and cookbook author, Nancy Grace convicts the Wiki author in the court of public opinion. The hashtag "mushdoom" starts trending.  The show runs a crawl at the bottom of the split screen. "Did blogger kill 32-year-old mushroom hunting mom?" For quick commentator analysis the show cuts to a commercial publisher, who talks about the publisher as curator, author credentials, branded content.  "The reader's death was foreseeable, and wouldn't have happened but for a poorly researched Wikipedia article on edible mushrooms."  The message being, "You should carefully consider the source of the information."

If you felt a tap on your shoulder as you read the above  paragraph, likely it was the First Amendment wishing to remind you that books are not products, and, historically negligent publication cases have gotten little traction in the courts. But, the value of a negligent publication lawsuit isn't in getting a conviction, it's the promotional value -- getting readers to question what they read.  And, to gain an appreciation for the value of a book curated by a reputable publisher. Upon books by mainstream publishers you can rely. Blogs not so much.    

Trademark is the New Copyright

The tension between copyright and free speech, which the internet has exacerbated, has hurt traditional copyright monopolists.  The way I see it, trademark is the new copyright.  It is the key to competing with free. Just like antivirus software which scans for suspicious files and protects your computer, a trademark filters high risk information.  Without trademarks, John Oathout, author of Trademarks, says "consumers would have no basis for selection or rejection, or any assurance that a particular product is the product they are seeking." Regrettably, though, publishers have undervalued the goodwill associated with their colophons and imprints for years.

Alfred A. Knopf
If publishing houses wish to remain standing, their colophons and imprints need to stand for something.  Alfred A. Knopf (the man, not the imprint) was keenly aware of that proposition when he wrote The Borzoi Credo, a publishing manifesto which appeared in the November 1957 issue of The Atlantic Monthly.  It read, in part, "I believe that a publisher's imprint means something, and that if readers paid more attention to the publisher of the books they buy, their chances of being disappointed would be infinitely less."

A Modest Proposal

If I were publisher of Peterson’s Field Guide to North American Mushrooms, I'd consider one severely ill (or, better yet, deceased), penny wise, but dollar foolish, mushroom enthusiast who relied to his detriment on a Wiki, manna from heaven.  

 Disclaimer:  This is a satire. A book published by a commercial publisher can be as dangerous to you health, wealth and well being as a blog written by a self-appointed expert, or a self-published book on a trending topic like safe self-surgery (#SSS).  As the authors of a study on the quality of web based information on the treatment of depression wrote, "The real challenge is to devise strategies that selectively eliminate the weeds but leave the flowers to bloom." Let the reader beware!


Alfred A. Knopf's Borzoi Credo

Winder v. GP Putnam's Sons (9th Cir. 1991) (Federal Appeals Court Decision concerning mushroom enthusiast who became seriously ill picking and eating mushrooms after reading The Encyclopedia of Mushrooms) 

Quality of web based information on treatment of depression: cross sectional survey Griffiths, K., Christensen, H.

Friday, December 31, 2010

Halloween Copyright Suit: Albert Einstein Costume Case

Did Albert Einstein's right of publicity go to the grave with him? 

That's what a Halloween what a costume manufacturer alleged in a declaratory relief action recently filed in New York federal court.  The suit was brought to challenge Hebrew University of Jerusalem's claim that using Einstein's name, image and likeness for a "Heroes in Disguise" costume kit , without their consent violated Einstein's postmortem right of publicity. 

Forum Novelties claims that Einstein's right of publicity, which Hebrew University allegedly obtained under Einstein's will, was not descendable since Einstein did not exploit it during his lifetime.  Einstein who once said, "Why is it that nobody understands me, and everybody likes me?," would likely consider Forum's argument nonsensical, as he clearly knew his identity had commercial value beyond his field of professional activity.

Like copyrights and trademarks, the right of publicity can be assigned or licensed, or in the case of Einstein, a former New Jersey resident, bequeathed by will.  Eighteen states recognize a right of publicity that continues after death - some have statutes that cover both the living and the dead, and others, like New Jersey, recognize a common law right of publicity.

Some states have a controversial requirement that the deceased personality must have exploited their right of publicity during their lives.  Professor J. Thomas McCarthy, in his well-regarded treatise, The Rights of Publicity and Privacy (2d Ed), states that the "overwhelming majority rule under either statute or common law is that the right of publicity . . . is not conditioned on lifetime exploitation."

First Amendment Defense

Separate and distinct from the failure to exploit during his lifetime defense, Forum also lays a foundation for a First Amendment defense.   In its complaint it refers to the Heroes in Disguise kits as "intended to be worn by children acting in historically based school plays and in every day play."  Free speech concerns often factor into right of publicity cases.  In this instance, Forum is hoping that the court will see its Einstein disguise kit not just as a commercial product, but as an expressive or communicative work, like a biographic book or film conveying some historical fact.  Whether a mixed use disguise kit used in connection with Halloween "trick or treating" and school plays, takes the use out of the realm of commercial speech, remains to be seen.

While filed in the Southern District of New York, the case ultimately turns on New Jersey law.  New Jersey was the place where Einstein last lived, as such, that state's law governs the postmortem right of publicity issue.  Had Einstein last lived in New York, he would have had no descendible right of publicity, as New York does not recognize postmortem publicity rights. 

New Jersey has a well developed body of right of publicity law.  In fact, New Jersey was one of the first states to recognize a right of publicity.  In Edison v. Edison Polyform Mfg., 67 A. 392 (N.J. Ch. 1907), the court granted Edison an injunction, restraining the use of his name and likeness in the corporate name and in advertisements for a company that sold pain killers.   In Edison, the court reasoned that "[i]f a man's name be his own property ... it is difficult to understand why the peculiar cast of one's features is not also one's property, and why its pecuniary value, if it has one, does not belong to its owner, rather than to the person seeking to make an unauthorized use of it."  Another famous New Jersey  lawsuit, which involved a photograph of an Elvis look-alike entertainer, held that  New Jersey recognized a  postmortem right of publicity.  Presley's Estate v. Russen, 513 F. Supp. 1339 (D. N.J. 1981) (Presley imitator's live concert "experience" neither social commentary nor parody).  In dicta, Russen touched on the lifetime exploitation issue, but according to McCarthy, did not resolve it.

Trademark Claim

In addition to the right of publicity, Albert Einstein, like Marilyn Monroe, Babe Ruth and Al Capone, is a federally registered trademark.  Right of publicity and trademark claims often overlap.  Hebrew University owns several Albert Einstein federal trademarks (Reg No. 3591305) for among other things, clocks, bumper stickers, socks, imitation luggage, cookie jars, flower pots, toy butterfly nets and sweatshirts -- but curiously, not sweaters, for which he is closely associated.

In order to prevail on a federal trademark claim, Hebrew University must show that Forum's use of the words "Albert Einstein" is likely to create confusion as to the origin or source of the costumes.  In its complaint, Forum attempts to deflect federal trademark or Lanham Act claims for public confusion, by emphasizing the ample use of disclaimers, such as its house mark and its "Heroes in History" trademark on the packaging.  

Where the commercialization of celebrity rights seems to be forever expanding, the Forum case is a rare, somewhat risky, preemptive attempt to expand the bounds of permissible use of a celebrity's name and likeness.  Exploitative or informational?   A First Amendment protected costume or an advertisement in disguise?  Whatever the court decides, Einstein is clearly a bankable cultural icon worth fighting over.

Forum Novelties, Inc. v. Greenlight, LLC and Hebrew Univ. of Jerusalem (10 Civ. 9414, SDNY), filed 12/17/10

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