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The Ridiculous History of Intellectual Property, Part 2: When Things Get Weird · Ridiculous History

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Speaker 1: Ridiculous History is a production of iHeartRadio. Welcome back to
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Speaker 1: the show Ridiculous Historians. Thank you, as always for tuning in.
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Speaker 1: We want to start with a shout out to our
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Speaker 1: super producer, Slash Legal Beagle or check this out Legal Eagle,
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Speaker 1: Max Williams.
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Speaker 2: Caca Silly Goose, a silly gander of the Michigan variety.
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Speaker 1: And what's good for the goose is of course good
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Speaker 1: for the Max. So we uh so you're no. I'm
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Speaker 1: Ben And this is part two of an exploration of
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Speaker 1: the sometimes ridiculous history of intellectual property. In part one,
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Speaker 1: nol I had made the offhand reference to legal bagal,
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Speaker 1: and I found the etymology. It's kind of uncertain, but
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Speaker 1: it seems like sometime in the nineteen forties an attorney
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Speaker 1: wrote a book called The Little Lawyer and Legal Advisa
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Speaker 1: where he used the term legal egle, and it transformed
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Speaker 1: over time.
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Speaker 2: To legal bagal rhyming, am I right, yeah, fun, yeah.
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Speaker 1: I wonder if someone's got a patent on that. Previously,
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Speaker 1: we gave everybody a lot of background on the ancient
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Speaker 1: history of IP and how it you pointed out something
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Speaker 1: I really appreciated A lot of the modern legal definitions
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Speaker 1: of intellectual property started in Italy, but then Italy picked
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Speaker 1: up the improvements that the United States made and that's
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Speaker 1: where we get our modern day definition of intellectual property.
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Speaker 1: I mean, first, let's talk about what the what benefits
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Speaker 1: would it have like if you came out with if
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Speaker 1: you came out with an album, I came out with
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Speaker 1: a novel, or let's say Max events new a new
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Speaker 1: device used in curling. Let's see I'm relevant to all
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Speaker 1: our interests here. Then what benefits would we have from
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Speaker 1: IP laws?
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Speaker 2: Exactly? Quite a few. And we've already sort of gotten
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Speaker 2: into this a good bit. But you know, once it
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Speaker 2: gets a little more kind of ensconced in the law,
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Speaker 2: we really do see these protections start to become really clear. Uh,
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Speaker 2: the idea of market value. Intellectual property rights allow creators
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Speaker 2: to generate businesses, you know, based on their original ideas
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Speaker 2: and the licensing of those ideas, the sale of products
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Speaker 2: that are based in unique ideas, and also the kind
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Speaker 2: of proliferation and commercialization of those products, goods, and services
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Speaker 2: that they are able to benefit from because of those protections.
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Speaker 1: One hundred percent. And the big thing here is the
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Speaker 1: protection so you can prohibit other people from financially benefiting
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Speaker 1: off of your ideas if they violate ip laws. So
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Speaker 1: you can take people to court if they're making money
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Speaker 1: off your ideas in a way that violates these laws,
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Speaker 1: you can file a court case, like if you are Max,
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Speaker 1: the inventor of the new curling device and someone else
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Speaker 1: starts just making those without compensating you, then you can
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Speaker 1: sue them, and if they are found guilty, the court
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Speaker 1: will give you a financial reward, or you might have
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Speaker 1: to get a certain person of whatever those folks are
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Speaker 1: profiting with.
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Speaker 2: You know, that's right. And it also we talked about,
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Speaker 2: you know, the ability to market and sell these services
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Speaker 2: or goods. It also through that control of these ideas
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Speaker 2: allows you the power to help raise financing or raise funding,
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Speaker 2: you know, for your business or idea because you hold
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Speaker 2: an exclusive right you know, to those ideas. And with
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Speaker 2: that in mind as well, it also gives you the
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Speaker 2: ability to benefit from exports, because if a country can't
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Speaker 2: just make their own version of a thing because that
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Speaker 2: intellectual property is already tied to another business, then the
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Speaker 2: only option there is to import that good rather than
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Speaker 2: create something regionally, because they you know, they would be
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Speaker 2: infringing on.
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Speaker 1: That copyright protection. And here's the kicker. This stuff, as
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Speaker 1: I said in part one, is imperfect, and these laws,
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Speaker 1: while well intentioned, kind of an inherently create their own
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Speaker 1: issues just by existing. A general term is only useful
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Speaker 1: if it subsumes related concepts. So let's start with the
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Speaker 1: idea they stole my intellectual property. That concept by itself,
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Speaker 1: without supporting evidence, is kind of uninformative. The general term
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Speaker 1: intellectual property is such a umbrella term it obscures more
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Speaker 1: than it illuminates. If you allege copyright infringement, you have
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Speaker 1: to identify exactly what it is that is being infringed
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Speaker 1: upon and exactly how it's being infringed. Right, So take
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Speaker 1: patent law. If someone says this person stole my invention
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Speaker 1: in some way or some part of my invention, then
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Speaker 1: you have to say, okay, does this quote unquote new
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Speaker 1: invention straight up copy the design of the older one?
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Speaker 1: And when you look at trademarks, you have to say, like, okay,
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Speaker 1: are these golden arches purposefully close to the McDonald's golden arches?
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Speaker 1: Are they meant to trick people into thinking they're eating
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Speaker 1: at McDonald's somehow?
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Speaker 2: Well? And that also, you know, sort of begs the
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Speaker 2: question like is it reasonable to think that a consumer
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Speaker 2: would be tricked in that way? Is that even possible
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Speaker 2: with like the ubiquity of what McDonald's is and how,
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Speaker 2: you know, just all encompassing it is, like, I don't
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Speaker 2: think it's a reasonable assumption that someone could be tricked
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Speaker 2: into thinking they're eating at McDonald's when in fact it
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Speaker 2: was something else, you know. And once you get into
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Speaker 2: like parody, uh, and the idea of like fair use
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Speaker 2: and all of that stuff, which we'll get into, it
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Speaker 2: really starts to get confusing. And we're taking a lot
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Speaker 2: of this stuff in this section here from a really
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Speaker 2: great essay by a professor of philosophy at Brooklyn College
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Speaker 2: of the City University of New York named Samir Chopra,
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Speaker 2: who has a fabulous essay literally titled in Intellectual Property
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Speaker 2: with the subtitle Copyrights, patents, and trademarks are all important,
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Speaker 2: but the term intellectual property is nonsensical and pernicious. And
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Speaker 2: it's a dear friend of mine and the show Peyton
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Speaker 2: Fisher buddy, who we all have hung out with together.
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Speaker 2: He's a lawyer in New York, in Brooklyn himself, and
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Speaker 2: he believes this wholeheartedly. We have had conversations multiple times
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Speaker 2: about the just convoluted nature of intellectual property law and
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Speaker 2: a lot of these kind of patent troll situations where
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Speaker 2: someone is just basically bilking the system, you know, by
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Speaker 2: exploiting this idea of intellectual property, or even some of
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Speaker 2: these lawsuits around like a tune that are once you
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Speaker 2: kind of look at everything, look at all the evidence,
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Speaker 2: seemingly a bit opportunistic.
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Speaker 1: I think a lot about software law when this comes
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Speaker 1: into play, like patenting things such as the click of
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Speaker 1: a mouse right, or the idea of a window in general,
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Speaker 1: which would be familiar to any fan of the software
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Speaker 1: giant Microsoft. So also want to shout out again the
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Speaker 1: excellent work by Bruce Bugby in nineteen sixty seven The
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Speaker 1: Genesis of American Patent and Copyright Law, for an example
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Speaker 1: of what I'm talking about with impersonation of well known brands.
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Speaker 1: You can travel to Iran if you can get the visa,
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Speaker 1: and you can see that due to a lot of sanctions,
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Speaker 1: Iranian businesses have been copying or creating fake fast food
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Speaker 1: franchises for many, many years. You probably aren't going to
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Speaker 1: find a McDonald's or a Pizza Hut in Tehran, but
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Speaker 1: you might find a Pizza Hat or a mash Donald's.
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Speaker 1: There's a great NPR article about this called mash Donald's
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Speaker 1: Iranian's copy American fast food brands.
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Speaker 2: It's a great read. And that's interesting too, Ben, based
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Speaker 2: on we were just talking about earlier, where it's like
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Speaker 2: in America, where there's a McDonald's, you know, every thousand feet,
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Speaker 2: it would seem you're gonna be much less likely to
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Speaker 2: be able to make the argument that someone would be
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Speaker 2: fooled by mash donald's thinking that they were actually in
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Speaker 2: a McDonald's. But in a country where McDonald's is not
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Speaker 2: nearly as ubiquitous, you could make the opposite argument that, yeah,
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Speaker 2: definitely you could, I if the branding was close enough
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Speaker 2: that there was an attempt to trick people. But then
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Speaker 2: because of the other countries and the way the laws vary,
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Speaker 2: it might be a little harder to enforce. What do
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Speaker 2: you think, Ben, Has McDonald's gone after mash Donald's or
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Speaker 2: Pizza Hut gone after Pizza Hat.
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Speaker 1: No, you know, it's interesting they really haven't because it's
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Speaker 1: tough to given all the other geopolitical issues, it's tough
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Speaker 1: for Iran and Western governments to get on the same
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Speaker 1: page as for about anything, you know what I mean,
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Speaker 1: So how would you realistically even start that conversation, you
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Speaker 1: know what I mean? It is lower on the list
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Speaker 1: of priorities. And then this goes into again the generality
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Speaker 1: the vagueness of the term. Good legislation, good jurisprudence is
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Speaker 1: all about concrete definitions, and intellectual property has a hard
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Speaker 1: time with that because you know, if you're debating copyright law,
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Speaker 1: you have to wonder how does copying of academic papers work.
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Speaker 1: Patent law doesn't really apply to that. If you're talking
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Speaker 1: about patent law, you have to wonder whether pharmaceutical companies
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Speaker 1: should have to issue licenses to poor countries for life
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Speaker 1: saving drugs. Copyright law doesn't really matter there. And I
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Speaker 1: would also say that I have some personal feelings about
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Speaker 1: the way pharmaceutical companies behave internationally. I don't think people
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Speaker 1: should die because they don't have money. But that's, you know,
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Speaker 1: that's a philosophical thing.
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Speaker 2: And isn't there a similar thing to like the idea
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Speaker 2: of a of a trademark expiring or something entering the
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Speaker 2: public domain as it pertains to generic drugs, like after
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Speaker 2: a certain point, isn't something able to become generic and
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Speaker 2: then you know, it's it's it's kind of up for
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Speaker 2: grabs and different companies can manufacture it. Uh.
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Speaker 3: The big thing about drugs is it's a pattern, so
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Speaker 3: it has very strict protections, but only for a set
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Speaker 3: amount of time. Once that time has passed, it's become
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Speaker 3: like you know, in theory, just like well known enough
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Speaker 3: that everyone can now have the actual like basically the
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Speaker 3: script to.
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Speaker 2: How this thing was made, because right, yeah, and that's
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Speaker 2: the generic.
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Speaker 3: Right, that's that's when generics come out. That's like you know,
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Speaker 3: like you know, you get the generic like you know,
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Speaker 3: allegras and stuff like that, because it's literally the same
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Speaker 3: ingredients as the original version of the drug because we
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Speaker 3: have that script.
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Speaker 2: So that means that at that point, the original manufacturer
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Speaker 2: has to release that information. They have to like make
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Speaker 2: the recipe available.
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Speaker 3: Yeah, I'm like nine percent certain because you have to
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Speaker 3: give the recipe in the patent.
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Speaker 2: Yes, yeah, there you go.
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Speaker 1: So okay, got it, and it gets it becomes even
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Speaker 1: more complicated when you look at countries like India. So
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Speaker 1: right now, India is the largest democracy on the planet
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Speaker 1: and very much in need of some life saving medications,
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Speaker 1: and they did something that really ticked off a lot
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Speaker 1: of Western countries where they said, look, we know how
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Speaker 1: to make this. We're not going to have people die
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Speaker 1: just because they're poor, so we're going to make our
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Speaker 1: generic versions. You guys deal with it. And for some
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Speaker 1: folks that makes the Government of India villainous, and for
12:47
Speaker 1: other folks that makes them heroes, especially the people had
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Speaker 1: their lives saved as a result of that decision. So
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Speaker 1: there's a lot involved here, and the rubber does hit
12:57
Speaker 1: the road. What we're saying is this is, although it
12:59
Speaker 1: might sound dry at times, this is very much important,
13:03
Speaker 1: mission critical stuff for human society at large. We also
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Speaker 1: have the idea of fair use, which we deal with
13:11
Speaker 1: so often here in podcast land. It's the reason that
13:15
Speaker 1: we decided, with reluctance to put in our own law
13:22
Speaker 1: and order spin on the casey on the case sound
13:24
Speaker 1: cu because we didn't want Dick Wolf mad at us.
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Speaker 1: And you have to be very very careful with what
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Speaker 1: qualifies as fair use well.
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Speaker 2: And of course, as we've often run against and as
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Speaker 2: our policy kind of as a company has become, fair
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Speaker 2: use isn't an ironclad protection you can't just say, ah,
13:44
Speaker 2: fair use boom, leave me alone. Now, it's just a
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Speaker 2: defense that you have to then use in court, and
13:50
Speaker 2: you still have to go to court and defend your position,
13:53
Speaker 2: and that's very, very expensive, especially for a big company.
13:57
Speaker 2: And if you're a big company, that makes you a
13:59
Speaker 2: target for these types of lawsuits. And so sometimes it's
14:02
Speaker 2: just better to err on the side of safety than
14:06
Speaker 2: it is to depend on some sort of fair use argument,
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Speaker 2: whereas like a DJ or under the radar kind of
14:14
Speaker 2: indie artist might be more likely to give it a role.
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Speaker 3: Yeah, fair use fairy much has like the self defense
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Speaker 3: the argument where if you believe you go you just
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Speaker 3: go on to court and say it was self defense
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Speaker 3: and they oh, that's okay, that's fine. You're in a
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Speaker 3: lot of trouble. You really have to make a good
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Speaker 3: case for it. It's not to say, you know, get
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Speaker 3: a jail free card exactly.
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Speaker 1: It's not like tagging base. You have to explain why
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Speaker 1: you should be able to tag base. And like you said, Noel,
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Speaker 1: you can enter into a war of attrition legally, right,
14:50
Speaker 1: especially if the other side wants to make it super inconvenient.
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Speaker 1: Then you go into appeals that can last for years
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Speaker 1: and years and years, and you can just hemorrhage money
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Speaker 1: and time. The other thing is the idea of non obviousness.
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Speaker 1: This can come up in patent law, but it can't cut.
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Speaker 1: It doesn't really come up in copyright law. So what
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Speaker 1: we're saying, essentially, and you don't have to be a
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Speaker 1: lawyer for this one. We're saying is that intellectual property
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Speaker 1: is a broad term that applies to all sorts of
15:23
Speaker 1: things that are, in truth their own distinct areas of
15:28
Speaker 1: legal concern. So copyright law is not the same as
15:31
Speaker 1: patent law. Trademarks are not the same as other IP violations.
15:37
Speaker 2: Right.
15:37
Speaker 1: So because of this, like like we're citing in this
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Speaker 1: wonderful essay, just using intellectual property as a concept all
15:47
Speaker 1: the time indiscriminately, it leads to absolutely absurd situations. Anything
15:53
Speaker 1: associated with a creator is grouped under this huge umbrella,
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Speaker 1: and that doesn't make sense.
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Speaker 2: Yeah. Well, what does make sense, though, is that it
16:02
Speaker 2: gets so murky because we know what property is for
16:06
Speaker 2: the most part. You know, it's tangible. It's an asset.
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Speaker 2: It's like a thing that you can catalog and you know,
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Speaker 2: tag and put in a ledger of some kind. Like
16:15
Speaker 2: a car or a house, you know, or a piece
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Speaker 2: of equipment or something like that. That's that's property, and
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Speaker 2: we are guaranteed to our property. But an idea is
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Speaker 2: a little more slippery than that, because what led to
16:27
Speaker 2: the idea, where what's the what are the guts, you know,
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Speaker 2: the sort of foundations of the idea, and where do
16:34
Speaker 2: those aspects come from and who owns those So it's
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Speaker 2: a lot harder to pin down an idea than it is, like,
16:40
Speaker 2: you know, evol though.
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Speaker 1: Right exactly, Yeah, that's a good way to say it.
16:44
Speaker 1: And when we see this, we also see enormous opportunity
16:48
Speaker 1: for something we alluded to import one the idea of
16:52
Speaker 1: so called patent trolls, the concept that there are people
16:56
Speaker 1: who know how to weaponize this incredibly byzantine, imperfect system.
17:02
Speaker 1: And they're not there because they want their patent to
17:05
Speaker 1: help the world. They're not there to really protect their
17:09
Speaker 1: rights and good faith. They are there to get money
17:15
Speaker 1: from other people. And there are thousands of ways to
17:19
Speaker 1: do this. And in doing that, what we see is
17:25
Speaker 1: a lot of the really important stuff about IP gets
17:28
Speaker 1: lost in this semantic mire, this war of words. The
17:32
Speaker 1: notion of borrowing, reusing, reworking, remixing stuff all. You need
17:37
Speaker 1: all of this for culture and art and science to grow.
17:40
Speaker 1: Perhaps Pablo Picasa was right when he said, what is
17:44
Speaker 1: a good artist?
17:44
Speaker 2: Copy?
17:45
Speaker 1: Great artists?
17:45
Speaker 2: Steel? You know what, dude, Even that phrase has been
17:51
Speaker 2: repurposed and associated with so many different people who maybe
17:55
Speaker 2: said that. So it's just it's like parallel thinking is
17:59
Speaker 2: also an issue. Right, two different parties thousands of miles
18:02
Speaker 2: away might legitimately come up with the same idea at
18:05
Speaker 2: the same time, and then you have all kinds of
18:07
Speaker 2: problems that can arise from that. I do want to
18:09
Speaker 2: just there's a really great definition of patent trolls from
18:12
Speaker 2: the Electronic Frontier Foundation. I'm just going to read it
18:15
Speaker 2: right off of their article on patent trolls. They describe
18:19
Speaker 2: patent trolls as someone who uses patents as legal weapons
18:24
Speaker 2: instead of actually creating any new products or coming up
18:26
Speaker 2: with new ideas. Instead, trolls are in the business of
18:29
Speaker 2: litigation or even just threatening litigation. They often buy up
18:32
Speaker 2: patents cheaply from companies down on their luck who are
18:35
Speaker 2: looking to monetize what resources they have left, such as patents. Unfortunately,
18:39
Speaker 2: the patent office is a habit of issuing patents for
18:42
Speaker 2: ideas that are neither new nor revolutionary, and these patents
18:45
Speaker 2: can be very broad, covering every day or common sense
18:49
Speaker 2: types of computing. This is specifically referring to, to your
18:52
Speaker 2: point bend, software things that should have never been patented
18:56
Speaker 2: in the first place. And this does not just have
18:59
Speaker 2: to attached to software. This is the case for any
19:03
Speaker 2: type of patent. And you know, because the patent offices
19:06
Speaker 2: it is probably overwhelmed and so they maybe something's slide
19:10
Speaker 2: through the cracks, and so these patent trolls are taking
19:13
Speaker 2: advantage of this system rather than using it as a
19:16
Speaker 2: means of innovation, and if anything, to your point bend,
19:19
Speaker 2: they're slowing it down and possibly doing serious damage. There
19:23
Speaker 2: was a patent troll that we ran up against very
19:25
Speaker 2: early on in our podcast careers because How Stuff Works
19:29
Speaker 2: was listed as a defendant in a patentrol case involving
19:34
Speaker 2: the concept of podcasts. Oh yeah, yeah, Because the idea
19:37
Speaker 2: of a podcast was that it was serialized content placed
19:41
Speaker 2: on a feed, you know, an RSS feed, which stands
19:44
Speaker 2: for really simple syndication. So a feed RSS feed was
19:48
Speaker 2: originally used for things like I believe newsgroups, or maybe
19:51
Speaker 2: it was just like reading lists and things like that.
19:54
Speaker 2: And then somebody figured out how to repurpose it and
19:56
Speaker 2: use it for you know, compressed audios in a serialized form,
20:00
Speaker 2: and therein live the advent of podcasting as we know it.
20:04
Speaker 2: But this patent troll targeted folks like Jimmy Kimmel and
20:08
Speaker 2: How Stuff Works and some other kind of early big
20:11
Speaker 2: names I think Mark Maron, but ultimately did not win
20:14
Speaker 2: because that would have been really bad.
20:16
Speaker 1: Yeah, podcasts would not have been a thing, or they
20:19
Speaker 1: would have changed. They would have had to change by necessity.
20:23
Speaker 1: So because of this, because of this indiscriminate use of
20:27
Speaker 1: the concept of intellectual property, there have been numerous legal disasters.
20:33
Speaker 1: Copyrights have grown without limit almost you know. Again, they
20:38
Speaker 1: were supposed to be temporarily limited, but that hasn't been
20:41
Speaker 1: the case. Congress drastically increased copyright terms in nineteen seventy
20:46
Speaker 1: six and then again in nineteen ninety eight. I mentioned
20:50
Speaker 1: this in Part one, but a big, big piece of
20:55
Speaker 1: this was the Disney Corporation. They were lobbying for decades
20:59
Speaker 1: to exclusivity over Mickey Mouse and not to let the
21:04
Speaker 1: poor guy get into the public domain, not to let
21:06
Speaker 1: old Steamboat become a man of the people or a
21:11
Speaker 1: mouse of the people as a word, and so in
21:14
Speaker 1: other cases you see that people who are using intellectual
21:18
Speaker 1: property also suggests that protections be passed on to an
21:22
Speaker 1: air of some sort. Like the notion of inheritance that
21:26
Speaker 1: comes from real estate would also apply to copyright laws.
21:31
Speaker 1: So like let's say your great grandfather is ts Eliott
21:36
Speaker 1: or something like that. Then does that mean that you
21:39
Speaker 1: have the copyright over the wasteland you know or wastelands?
21:44
Speaker 1: Does that mean you own little Gettings even though he
21:47
Speaker 1: didn't write it and played no role in the creation.
21:51
Speaker 2: It's a weird question, it is. And it's interesting too
21:55
Speaker 2: because when you deal with say music, I believe it's
21:59
Speaker 2: a different from ballgame because you have publishing rights versus
22:03
Speaker 2: the rights of the recording itself. So like to every
22:07
Speaker 2: album or a piece of music that's released, there are
22:09
Speaker 2: two sides of the copyright. There's the publishing side, which
22:12
Speaker 2: literally refer has to be registered as notes on a
22:15
Speaker 2: page and lyrics on a page, and that's one copyright.
22:19
Speaker 2: The other is the actual recording, the masters exactly, and
22:23
Speaker 2: those are passed down to generations you know, they'll they'll
22:28
Speaker 2: exist in the estate of a family, and usually you'll
22:32
Speaker 2: see it's members of the estate that are suing kind
22:36
Speaker 2: of down the line. But you know, I mean it's
22:38
Speaker 2: it's a long time though for something to enter the
22:40
Speaker 2: public domain. So for the fact the fact that we
22:43
Speaker 2: see Mickey Mouse, you know, finally running up against that's
22:46
Speaker 2: because it's almost these over one hundred years old at
22:49
Speaker 2: this point, right, I mean, right, I believe it was.
22:53
Speaker 1: Yeah, yeah, yeah, it's a hundred years old.
22:55
Speaker 2: But like we certainly there are classical music pieces where
23:00
Speaker 2: the publishing rights are in the public domain, but not
23:04
Speaker 2: the recording by the London Philharmonic, Right, So that's different,
23:08
Speaker 2: you know, those are there's two different sides of that,
23:11
Speaker 2: and we're gonna have a good time in a minute
23:12
Speaker 2: getting into some specific and pretty silly examples of some
23:16
Speaker 2: you know, actual court cases surrounding intellectual property. But it's
23:21
Speaker 2: a it's a murky topic because there are so many
23:24
Speaker 2: different flavors of it. So we just you know, hopefully
23:27
Speaker 2: we're not getting too bogged down. But I think we've
23:29
Speaker 2: done a decent job of kind of trying to you know,
23:31
Speaker 2: demonstrate the different ones.
23:33
Speaker 1: Yeah, what we're saying is that this is leading to
23:37
Speaker 1: a huge, messy bowl of spaghetti. Things are gonna get
23:40
Speaker 1: even weirder in the US and abroad next year, because
23:44
Speaker 1: twenty twenty four is when Mickey Mouse enters public domain.
23:48
Speaker 1: At present, you're already seeing stuff like that with the
23:52
Speaker 1: Winnie the Pooh horror movie. I think Winnie oyah Iyah
23:56
Speaker 1: just got released, and I think you can't there's certain
23:59
Speaker 1: things you can't do though, Like it's not like you
24:01
Speaker 1: just can use the character in whatever way you see
24:04
Speaker 1: fit exactly.
24:05
Speaker 3: It's the red shirt. You can't a red shirt on
24:08
Speaker 3: Winnie the Pool.
24:09
Speaker 2: Because that's a more recent iteration, right or well.
24:13
Speaker 3: I think that is what made it Disney's property, because
24:17
Speaker 3: Winning the Pooh obviously predated Disney.
24:20
Speaker 2: That's right. So we're talking about the book Winnie the
24:23
Speaker 2: Pooh entering the public domain, not necessarily the Disney version,
24:27
Speaker 2: but with Mickey Mouse, we are talking about a character
24:31
Speaker 2: that was originally created by Disney. So what happens if
24:35
Speaker 2: you if over time a character's design changes, then does
24:40
Speaker 2: that restart the clock?
24:43
Speaker 1: Maybe?
24:43
Speaker 3: Probably that is probably in the minutia of the argument,
24:48
Speaker 3: and probably the corporations would love discussing that minutia as
24:52
Speaker 3: long as you continue this clock further and further.
24:55
Speaker 1: Out running the clock. And it depends on how good
25:00
Speaker 1: your lawyer is and frankly, what their relationship with the judges.
25:03
Speaker 1: I'm just gonna say the quiet part out loud. I mean,
25:05
Speaker 1: let's you know what, let's get into We've done our
25:08
Speaker 1: due diligence on the background and some of the legal
25:12
Speaker 1: and philosophical concerns. Let's get into the fun stuff. Let's
25:15
Speaker 1: talk about Louis Vaton and Hote Diggity Dog exactly.
25:26
Speaker 2: Louis Vuitton, of course, famous storied fashion house, you know,
25:32
Speaker 2: fashion brand known for its hote couture. Hote Diggity Dog
25:39
Speaker 2: probably not as much of a household name, but there was.
25:43
Speaker 2: In fact, they lost sue Louis Vitton versus Hot Diggity
25:46
Speaker 2: Dog when in two thousand and six Louis Vuitton sued
25:50
Speaker 2: this little little little doggy toy company, Hote Diggity Dog,
25:54
Speaker 2: for trademark, trade dress and copyright infringement when Hote Diggity
25:59
Speaker 2: Do created these little plush dog toys under the name
26:03
Speaker 2: chew Evaton and you've probably seen the iconic Louis Viton
26:07
Speaker 2: handbags that are like kind of brown leather with the
26:10
Speaker 2: LV sort of like stamped in like a pattern on them. Uh.
26:15
Speaker 2: And that is what Chewyvaton used, you know, for their
26:18
Speaker 2: dog toys. So it really you know, they're obviously not handbags,
26:23
Speaker 2: and I don't think anyone would ever confuse them for that.
26:25
Speaker 2: They're little squishy toys that kind of look like handbags.
26:28
Speaker 2: And say Chewyvaton and.
26:29
Speaker 1: Have the little with one T.
26:31
Speaker 2: Not too it is with one te Sorry you're right, Ben,
26:34
Speaker 2: good point. Now it's with two.
26:37
Speaker 1: Chewyvaton is with one mm hmm.
26:39
Speaker 2: Look at it right now.
26:40
Speaker 1: I'm looking at it too. I've got it pulled up here.
26:42
Speaker 2: V U I T T O N.
26:45
Speaker 1: I'm seeing, I'm seeing multi.
26:46
Speaker 2: I'm looking at their actual website.
26:48
Speaker 1: Okay, I'm looking at the images. Let me go to
26:50
Speaker 1: their website and check.
26:52
Speaker 2: You're right on the on the actual things, it's one T,
26:57
Speaker 2: but the but the U R L is two t's
27:00
Speaker 2: and the actual logo of the top is suit cheese.
27:03
Speaker 2: I wonder why they did that.
27:05
Speaker 1: I think we can tell.
27:06
Speaker 2: Okay, well, I think we keep all this in because
27:08
Speaker 2: this is exactly the kind of stuff we're talking about.
27:11
Speaker 2: So chewey Vaton argued that they were essentially doing a parody.
27:16
Speaker 2: You know, it's like, oh, it's silly, this is like
27:19
Speaker 2: high fashion stuff. Let's make it for doggies, and the
27:22
Speaker 2: courts agreed. Louis Vuitton argued that the toys were going
27:25
Speaker 2: to cause brand confusion, but then Louisittan doesn't make dog toys, right,
27:31
Speaker 2: so where's the brand confusion. No one is going to
27:34
Speaker 2: mistake a little, you know, cuddly squeaky dog bag for
27:40
Speaker 2: you know, an overpriced handbag.
27:42
Speaker 1: And then the court makes the decision that chewey Vatan
27:47
Speaker 1: is a quote joking and amusing parody and nothing more.
27:51
Speaker 1: So parody again qualifies for its own set of considerations,
27:57
Speaker 1: which we we mentioned briefly, but just you know, this
28:00
Speaker 1: is part of the reason why weird Al does a
28:04
Speaker 1: lot of uh does so much great work, you know,
28:08
Speaker 1: And and the weird Al situation I love because interestingly enough,
28:13
Speaker 1: a lot of other musicians consider it a great honor
28:17
Speaker 1: at a right of passage for weird Al to parody them.
28:20
Speaker 3: Who's I believe that he didn't like it. There's one
28:23
Speaker 3: guy who really didn't like it.
28:25
Speaker 2: There was Chris I think he ever did it. He
28:27
Speaker 2: didn't he never do did a prince.
28:28
Speaker 1: He never got the permission to do a prince. When
28:31
Speaker 1: can you ask people in advance? He usually does. I
28:34
Speaker 1: think he almost always does, whether as a courtesy or what.
28:37
Speaker 1: Coolio didn't like it, You're right, Coolio. Coolio later apologized
28:42
Speaker 1: to weird Al.
28:43
Speaker 3: Because he would always beforehand reach out and I think
28:46
Speaker 3: he got it from the record label, and he thought
28:48
Speaker 3: he had got it directly from Coolio, and Coolio was
28:51
Speaker 3: very mad, saying, hey, you're using my work man, and
28:54
Speaker 3: so like it was one of these situations where he
28:55
Speaker 3: was like legally right, but I believe he was like
28:59
Speaker 3: really like he bad about it. He's like, hey, man,
29:01
Speaker 3: I didn't I don't want to ever do that to people.
29:03
Speaker 2: Well, also, like you could argue that Ku Coulio was
29:06
Speaker 2: thinking it was disrespecting what he considered to be kind
29:10
Speaker 2: of like a serious song about a real problem in
29:14
Speaker 2: terms of like young people getting tied up in gang
29:16
Speaker 2: violence and all of that, and to make it sort
29:18
Speaker 2: of like a silly goof he might have felt was
29:23
Speaker 2: in poor tastes. And you know, you could argue that
29:25
Speaker 2: it is in poor taste, but it does come with
29:28
Speaker 2: some protections that it's so funny. I just have to
29:30
Speaker 2: add Chewy Vaton is a brand in and of itself.
29:35
Speaker 2: So Hote Diggity Dog had their line of Chewy Vaton toys.
29:40
Speaker 2: But if you look online, there actually is a website
29:43
Speaker 2: that's just Chewy Vuton and that's spelled with two tea's,
29:47
Speaker 2: whereas the one in the Hote Diggity Dog line is
29:50
Speaker 2: spelled with one tea. So now we're really getting into
29:52
Speaker 2: parodies of parodies, you know, I mean, it gets deep
29:55
Speaker 2: and weird.
29:56
Speaker 1: And this is far from the only example. Let's look
29:59
Speaker 1: at Slater versus Peta on behalf of none other than
30:03
Speaker 1: the Ruto the Monkey. So David Slater is a British
30:07
Speaker 1: nature photographer and he was hanging out with a group
30:11
Speaker 1: of monkeys in Indonesia celebs crested maccox and he had
30:17
Speaker 1: no idea that his photography would make a huge legal quagmire.
30:23
Speaker 1: So while he's hanging out with these monkeys, some of
30:27
Speaker 1: them picked up his camera. And monkeys are very intelligent.
30:31
Speaker 1: They took a lot of cool selfies. You could see these.
30:35
Speaker 1: They were viral for a while and surprise, surprise, when
30:38
Speaker 1: our pal Dave Slater gets home he sees these photos
30:41
Speaker 1: have been published in all sorts of newspapers, not just
30:44
Speaker 1: like kind of tabloidy stuff like the Daily Mail, but
30:47
Speaker 1: the Guardian and the Telegraph as well. And someone took
30:52
Speaker 1: these photographs, an editor at Wikimedia Commons and uploaded them
30:57
Speaker 1: to the wikimedia website. Slater found this and he said, hey,
31:01
Speaker 1: can you take these off your website because this is
31:04
Speaker 1: my work, and Wikimedia said, hey, sorry, David, that might
31:10
Speaker 1: have been your camera, but you didn't take those photos.
31:13
Speaker 1: The monkeys did, and we'll go to court over it
31:16
Speaker 1: if you want.
31:17
Speaker 2: And in fact, there's still a note attached to that license,
31:21
Speaker 2: this Wikimedia Commons thing, which is a very useful tool
31:24
Speaker 2: for let's say, documentary filmmakers or podcasters you know where.
31:28
Speaker 2: If it's got a Wikimedia Commons license attached to that
31:31
Speaker 2: is a damn good sign that they've done their homework
31:34
Speaker 2: and that it is, in fact something that is public domain.
31:36
Speaker 2: But the note reads, this file is in the public
31:38
Speaker 2: domain because as the work of a non human animal,
31:42
Speaker 2: it has no human author in whom copyright is vested.
31:47
Speaker 1: So unless the monkeys go to court, what are you
31:50
Speaker 1: going to say? And like I said at the beginning
31:53
Speaker 1: this one, you heard the name PETA ridiculous historians. How
31:57
Speaker 1: did PETA get in there? Well, PETA takes Slater Court
32:00
Speaker 1: because of something called the next friend principle of law.
32:04
Speaker 1: The next friend principle of law allows you to sue
32:08
Speaker 1: in the name of another person. In this case, the
32:14
Speaker 1: organization PETA is suing on behalf of one of those
32:17
Speaker 1: monkeys whose name is Naruto. And so in twenty eighteen,
32:22
Speaker 1: a judge at the Ninth Circuit Court of Appeals has
32:25
Speaker 1: probably one of the weirdest cases in their entire career,
32:28
Speaker 1: and they rule against the selfie taking monkey. They throw
32:31
Speaker 1: out the copyright lawsuit, and along the way they heavily
32:34
Speaker 1: criticize PETA and they say, don't make Naruto an unwitting
32:39
Speaker 1: pawn in your quote ideological goals.
32:42
Speaker 2: We talked about this case in our Animals in Court
32:45
Speaker 2: episode around the concept of animal personhood and PETA. Whatever
32:50
Speaker 2: you think of them as an organization, you can't really
32:53
Speaker 2: deny the fact that they do often do kind of
32:57
Speaker 2: I guess let's call them symbolic lawsuits that maybe are
33:02
Speaker 2: wasting a lot of folks time, but ultimately are an
33:05
Speaker 2: excuse for them to create a press release. But nothing
33:07
Speaker 2: really comes of that.
33:08
Speaker 1: Or a legal precedent that's so like two for a
33:11
Speaker 1: dollar so that you can get something some jurisprudence on
33:15
Speaker 1: the books. We're going to end on two from the
33:18
Speaker 1: world of pop culture. Let's go to Mattel Incorporated versus
33:23
Speaker 1: MnGa Entertainment Incorporated. So these are two companies suing each other,
33:28
Speaker 1: and they're suing because of beef between Barbie and the
33:33
Speaker 1: Brats with a Z.
33:35
Speaker 2: Yeah, that's right. And this really goes into that whole
33:37
Speaker 2: concept of like something being so derivative that it could
33:41
Speaker 2: be considered an infringement, you know, But that's for the
33:46
Speaker 2: courts to decide, isn't it. And no one's going to
33:48
Speaker 2: make that decision unless the lawsuit is file. So Barbie
33:52
Speaker 2: at this point, obviously Barbie's having a real moment right now,
33:55
Speaker 2: real glow up. But at this point in two thousand
33:58
Speaker 2: and one, Barbie as a brand is our forty two
34:01
Speaker 2: years young when the Brats Dolls with a Z because
34:04
Speaker 2: they're edgy, you know, hit the scene. I believe the
34:08
Speaker 2: first run of Brats Dolls included Chloe, Jade, Sasha, and Yasmin.
34:14
Speaker 2: And these are like they're kind of a cob like
34:16
Speaker 2: giant headed, you know, puffy lipped, cartoony sort of you know,
34:21
Speaker 2: seem girls.
34:22
Speaker 1: They're like bad powder puff girls.
34:24
Speaker 2: Really yeah, exactly in terms of the proportions of head
34:27
Speaker 2: to body. But they did really well, very quickly. I
34:31
Speaker 2: think in the span of just five years, they took
34:33
Speaker 2: about forty percent of the market share away from Barbie
34:38
Speaker 2: in terms of I guess dolls portraying fashioning young women
34:43
Speaker 2: right right.
34:44
Speaker 1: Because it's a specific demographic that these toys are for.
34:47
Speaker 1: And so Mattel does what any company would reasonably do there,
34:54
Speaker 1: They try to make a new iteration of Barbie dolls
34:58
Speaker 1: that will bring back some of that market share. And
35:01
Speaker 1: this line of barbiees is called my Scene Barbies. They
35:06
Speaker 1: they echo the big headed, slim bodied build of the
35:09
Speaker 1: Bratz dolls. And MGA Entertainment doesn't cot into this. So
35:14
Speaker 1: in April two thousand and five, they sue Mattel and
35:17
Speaker 1: they say, you are infringing upon our Brats thing. And
35:21
Speaker 1: then Mattel comes back in court because both of these
35:23
Speaker 1: are companies so they can afford to bleed a little money,
35:27
Speaker 1: they say, well, Bratz has a designer named Carter Bryant,
35:31
Speaker 1: and Carter Bryant made the Bratz doll design while we
35:36
Speaker 1: at Mattel were paying Carter. And this is true. Carter
35:40
Speaker 1: worked for Mattel from nineteen ninety five and September to
35:44
Speaker 1: April nineteen ninety eight, and then worked for him again
35:47
Speaker 1: in nineteen ninety nine to October two thousand and the
35:52
Speaker 1: contract that Carter Bryant signed stipulated that his designs during
35:57
Speaker 1: this time would all be property in Mattel. And you
36:00
Speaker 1: can see this in a lot of other industries, like,
36:03
Speaker 1: please read your employment contracts carefully, because you might sign
36:07
Speaker 1: something that says any software you create while you're employed,
36:12
Speaker 1: or any thing you make on a work computer becomes
36:17
Speaker 1: the ip of your employer, so be very careful with that.
36:20
Speaker 2: That becomes a big plot point in the HBO series
36:23
Speaker 2: Silicon Valley, where like there's an algorithm that one of
36:27
Speaker 2: the main characters is working on, like a compression algorithm,
36:31
Speaker 2: and at some point it becomes a subject in core
36:34
Speaker 2: proceedings as to whether he did that on a computer
36:38
Speaker 2: owned by the sort of Google you know stand in
36:41
Speaker 2: that's in the show. Huli is what it's called, And
36:43
Speaker 2: that's a big deal. Like if you do anything like
36:45
Speaker 2: that in a work computer technically it is the product
36:48
Speaker 2: of the company. Like, even maybe if it's not within
36:52
Speaker 2: the scope of your work, you got to wonder that, Like,
36:55
Speaker 2: what if you're like, you know, I have my own
36:57
Speaker 2: computer that I that I use in my home setup
37:00
Speaker 2: my home studio that I record music on. But if
37:03
Speaker 2: I was using a work computer all of the stuff
37:06
Speaker 2: that I did with that computer, if I one day
37:10
Speaker 2: sold a song for a million dollars or whatever, technically
37:14
Speaker 2: the company could claim that I did it on a
37:16
Speaker 2: work computer, and therefore they would be party to that
37:19
Speaker 2: those earnings. Right, I think, even if it's not under
37:23
Speaker 2: the scope of my employment.
37:25
Speaker 1: It can happen that way. Again, this we cannot emphasize
37:30
Speaker 1: this enough. You've got to read those contracts carefully because
37:34
Speaker 1: another example would be whether or not it matters that
37:38
Speaker 1: you were working on company time, which takes precedent using
37:41
Speaker 1: company equipment or using company time. For example, I have
37:47
Speaker 1: I've had to negotiate some pretty specific things with non
37:51
Speaker 1: competes in regards to being a writer independent of the
37:57
Speaker 1: podcast and stuff, and that that is Like, we're very
38:01
Speaker 1: fortunate in that the our colleagues and the folks we
38:05
Speaker 1: work with are all for some reason, big fans of us.
38:10
Speaker 1: So when we have outside projects or work, ninety nine
38:14
Speaker 1: times out of one hundred, they're like, you guys are awesome,
38:17
Speaker 1: Go do the thing.
38:18
Speaker 2: That's great.
38:19
Speaker 1: Yeah and yeah, But that doesn't apply to everyone. We're
38:22
Speaker 1: quite fortunate in that regard.
38:24
Speaker 2: For sure. We also do know that typically noncompete clauses
38:26
Speaker 2: are a little difficult to enforce. You know, they're not
38:28
Speaker 2: always ironclad. But in this case, it did not go
38:32
Speaker 2: in favor of Carter Bryant and the Brats brand. In
38:35
Speaker 2: July two thousand and eight, the Jewelry took the side
38:38
Speaker 2: of Mattel and MGA, the Brat's I guess parent company
38:43
Speaker 2: had to pay Mattel a whopping one hundred million dollars
38:46
Speaker 2: and also oh insults and injury remove Bratz dolls from shells.
38:50
Speaker 2: But something's changed because there's been Brats movies and stuff,
38:56
Speaker 2: and I think Brats are back in a big way.
38:59
Speaker 3: One year, they had to take him off a shell
39:01
Speaker 3: for one year.
39:02
Speaker 2: Okay, okay, got it.
39:03
Speaker 1: And then MGA ultimately prevailed and they said, we're proving
39:08
Speaker 1: that Mattel has stolen our trade secrets. So these cases
39:13
Speaker 1: are almost never fully done thanks to appeals processes. These
39:18
Speaker 1: can go on for so long. Li'sten on one more.
39:23
Speaker 1: This is one for the eighties babies in the crowd today.
39:27
Speaker 1: You may recall the mid nineteen eighties, the Reagan administration
39:32
Speaker 1: started something called the Strategic Defense Initiative or SDI, and
39:36
Speaker 1: immediately everyone in the United States called it the Star
39:41
Speaker 1: Wars program. Most people loved this. One guy who didn't
39:44
Speaker 1: love this was George Lucas, who you may be familiar with.
39:49
Speaker 2: Yeah, George Lucas said, it's like history at rhymes. Yeah,
39:54
Speaker 2: that guy. He and his production company, Lucasfilm, were an
40:00
Speaker 2: at Uncle Sam or Uncle Ronnie, and it didn't want
40:05
Speaker 2: this association with its brand, with his brand. And by
40:09
Speaker 2: this association, I'm referring to one tied up in war
40:12
Speaker 2: efforts and missile launching, missiles into space and all of that.
40:18
Speaker 2: You know, you wanted kind of a clean slate. In
40:21
Speaker 2: Star Wars, there's very little threat of global annihilation. You know,
40:25
Speaker 2: there's kind of dog fights in space. I mean, there
40:28
Speaker 2: is the Death Star and all of that stuff, but
40:30
Speaker 2: you know, there really isn't much of like an apocalypse
40:32
Speaker 2: vibe in Star Wars. There's sort of a nice, kind
40:35
Speaker 2: of diplomatic wave of things working themselves out.
40:39
Speaker 3: Oh, by the way, the blockade that was Phantom Menace,
40:44
Speaker 3: not Clone War.
40:45
Speaker 1: Oh.
40:46
Speaker 2: It starts with the weird aliens and they're talking about
40:50
Speaker 2: the blockade, but it comes into play in the second one.
40:53
Speaker 2: And that one really slip of debating.
40:55
Speaker 3: To really date this recording. I was editing the Lucian
40:59
Speaker 3: Islands episode and I watched a clip and it's it's
41:03
Speaker 3: very weird, and it's like, wow, I didn't realize the
41:06
Speaker 3: Phantom Menace was this weird. It all just feels weird.
41:08
Speaker 3: It has a whole of jury's getting blown up on
41:10
Speaker 3: R two D two survives it, so they introduced our
41:12
Speaker 3: two D two. It's really ham fisted in there. All
41:15
Speaker 3: that whole movie was it's just a joyless cash grab.
41:18
Speaker 1: Now this is interesting. I'm glad we're ending on this
41:21
Speaker 1: one because it's a larger question for us and all
41:25
Speaker 1: the ridiculous historians in the crowd in nineteen eighty five,
41:30
Speaker 1: when this lawsuit comes to bear, Lucas doesn't sue the
41:34
Speaker 1: US government, right because officially the US government just has
41:39
Speaker 1: a few politicians who start using the phrase Star Wars program.
41:44
Speaker 1: But he can sue two public interest groups, one called
41:47
Speaker 1: High Frontier and one called the Committee for Strong Peaceful America.
41:52
Speaker 1: They run these TV messages, these like PSA's, and they
41:55
Speaker 1: refer to this program as star Wars, and Lucasfilm has
41:59
Speaker 1: a t for Star Wars, the movies, the brilliant film
42:03
Speaker 1: franchise that goes into all sorts of things, toys, books, merch,
42:06
Speaker 1: you name it. The Federal District Court said, sorry, George,
42:12
Speaker 1: we're ruling in favor of the interest group. They are
42:16
Speaker 1: totally fine to call their program whatever they want, even
42:21
Speaker 1: Star Wars, so long as they don't attach it to
42:24
Speaker 1: a product or service for sale. And the court decision
42:28
Speaker 1: even said, look, forever, creators of fictional worlds have seen
42:33
Speaker 1: their vocabulary for fantasy appropriated to describe reality. So that's
42:39
Speaker 1: stuff like you know, like George, orwell, people reference nineteen
42:43
Speaker 1: eighty four and double think all the time. I don't know,
42:47
Speaker 1: what do you guys think about that decision.
42:49
Speaker 2: I think it's right on the money, because first of all,
42:51
Speaker 2: it wasn't even officially the name of the program. Sure
42:54
Speaker 2: it was sort of shorthand that was just being thrown around,
42:58
Speaker 2: And that's what happens when you have such a brand
43:00
Speaker 2: that's so ubiquitous as as Star Wars, people are going
43:03
Speaker 2: to start using terms from it, you know, in normal
43:07
Speaker 2: kind of parlance, whether it be in conversation or in
43:11
Speaker 2: to describe, you know, things that are bigger than just
43:14
Speaker 2: like civilian kind of activities. Right, It's just it's it
43:17
Speaker 2: makes sense. But you can't put that genie back in
43:21
Speaker 2: the bottle. That's part of having something that sort of
43:25
Speaker 2: really invades the public consciousness. It's gonna get appropriated.
43:29
Speaker 1: M h yeah, well said, and these conversations continue in
43:34
Speaker 1: the modern day. There are so many other strange examples
43:38
Speaker 1: we can give you of intellectual property beefs, but for
43:43
Speaker 1: now I think we can say safely that this stuff
43:48
Speaker 1: often gets very, very ridiculous.
43:51
Speaker 2: So no question about it, man, Yeah, this is cool.
43:55
Speaker 2: It's something that we often find ourselves kind of in
43:57
Speaker 2: the midst of is in podcasting and have kind of
44:01
Speaker 2: seen some of these things sort of evolve, you know,
44:04
Speaker 2: in our lifetimes, and they're going to continue to do
44:06
Speaker 2: so because it is still based on the history of
44:09
Speaker 2: it not so clear. You know, ideas are like you know,
44:15
Speaker 2: made of spider's webs and magic. As Noel Fielding might
44:18
Speaker 2: say on the mighty boosh. It's really hard to pin down.
44:22
Speaker 1: And one thing we can say is that we are
44:25
Speaker 1: continually grateful for all of all of you folks playing
44:29
Speaker 1: along at home, Ridiculous Historians. Thanks to you. We're also
44:32
Speaker 1: grateful for the help of everybody in the Ridiculous crew.
44:37
Speaker 1: Let's start with a big thanks for super producer mister
44:40
Speaker 1: Max Williams.
44:41
Speaker 2: Jonathan Strickland. Ever may he you know, live under our
44:47
Speaker 2: symbolic podcast bridge and we'll always pay that sol because
44:51
Speaker 2: at the end of the day, you know, he's our troule.
44:54
Speaker 2: Chris rosciotis here in spirit.
44:55
Speaker 1: Yeah, Eve's Jeff Coat. Let's also give a shout out
44:58
Speaker 1: to Gabeluesier. Let shout out to our researchers Associe It
45:01
Speaker 1: for this episode, Doctor Z and Noel.
45:04
Speaker 2: Shout out to you Surgy with you as well, my friend.
45:08
Speaker 2: We'll see you next time. Folks. For more podcasts from iHeartRadio,
45:18
Speaker 2: visit the iHeartRadio app, Apple Podcasts, or wherever you listen
45:21
Speaker 2: to your favorite shows.