TWoP

[rivkat]

Oh, TWoP, we hardly knew you. Okay, we knew you as Mighty Big TV for a while. But anyhow, they're in trouble. I went to buy some TWoP merchandise in support, because I love the Slashville -- er, Smallville -- recaps, and because I can always use more coasters. Really, because my husband is paranoid about leaving marks on our new table. I like the designs, though I wish the coasters had the snarky slogans on them too. I would have bought the big WWSD? poster with the bats on it, but I feared making students uncomfortable if I put it up in my office, so I ended up with Post Snark, Ergo Propter Snark, which has the benefit of being pro-voting (it's the West Wing-related one, and I despise the WW recapper but like the design).

If the site survives, it would make an interesting case study for the trademark course I hope to teach someday. Clearly, they're attempting to profit, in part, off of recognition of the underlying intellectual property. But there's been so much value added that consumer confusion seems minimal -- even in an age of postmodernism, I doubt anyone thinks that the TV studios sponsor the recaps and related merchandise. Trademark dilution, that creepy concept slowly expanding to take over trademark law entirely, doesn't require confusion, however, which is the main reason it's evil. But that's a story for another day.

Anyway, TWoP is sexy fun, and I hope it survives. It's promising to recap "Birds of Prey," and I think I'll definitely need the snark to watch that show. I've been watching the preview ads, and when the random law enforcement-type guy asks the costumed girl something along the line of, "Don't you have any weapons?" I feel the need to shout out, "Other than *those*?" (pointing to seriously exposed cleavage). I think she actually says "I am the weapon," which is close to the right response, but still.

Comments

Are you sure I don't know you?

[rivkat.livejournal.com]

Because my spies are everywhere. Seriously, after finding out that the woman who had the same clerkships as I did had also corresponded with me while I was RivkaT and she was someone else, I don't discount the possibility. I also met a fan on one of my job interviews, which was flattering beyond belief.

The summaries raise copyright issues, along the lines of The Seinfeld Companion (name might not be exactly right) that got sued for having summaries and quizzes. But the massive level of snark or, in legalese, criticism, probably insulates the recaps from liability. Frankly, I'm quite impressed that they dared to do it, because "probably" is usually not good enough when funding a new media outlet is an issue. Still, fair use is on the upswing when it comes to non-pure-copying uses such as TWoP recaps, so they're on reasonably solid ground.

Hmm, maybe I should use them as an example in my article-that-really-needs-to-get-off-the-ground, which uses The Wind Done Gone case as a jumping-off point to discuss the renascence and reshaping of fair use as a proxy for the First Amendment in copyright.

As for dilution, I hope and pray that TWoP's icons etc. would fail the test for similarity to the trademark owner's mark. Sure, the onion/bulb of garlic *evokes* Buffy, but it's really not very similar to any BtVS mark. And there's a reasonable argument that the use to which the trademark owners' word marks are put is non-commercial even if TWoP is trying to make money. For an interesting discussion, with the ever-amusing Judge Kozinski tying the dilution law in knots to explain why "Barbie Girl" is both a commercial use in commerce and also non-commercial, check out Mattel, Inc. v. MCA Records, Inc. (http://caselaw.lp.findlaw.com/data2/circs/9th/9856453p.pdf), 296 F.3d 894 (9th Cir. 2002). He's got the right result, of course, but it's fun to watch him gyrate around the silliness of the statute.

[revely.livejournal.com]

I had about ten too few law classes in journalism school to follow all of this discussion, but it's darn interesting just the same. *g*

*waves to Rivka and Chris and shuffles off to check out Mattel v. MCA Records*

Re: Are you sure I don't know you?

[lilydale.livejournal.com]

It would be very bizarre to meet a fic person in RL job circumstances. I'm quite sure it has not happened to me. Yet. *g* Frankly, I didn't really think I'd ever run into anybody in the IP line of work for some reason, but now I know I am wrong.

I think you're probably right about the fair use issues with the TWoP summaries. They're heavily couched in criticism and opinion, sort of like TV Guide or Entertainment Weekly but with more depth (or, uh, less depth, as the case may be). It's more the way that the recaps are just that: recaps. They read as transcripts of the shows in a way, and that is the angle I saw as more problematic. It's not just commentary, it's a blow by blow account of copyrighted works, sometimes using the exact language of the shows. That brings you to stickier copyright issues and the nitty gritty of fair use, things that I haven't really dealt with since school (I do mostly patent work).

As for the TWoP icons, if *those* violate trademarks, then I'd probably implode. Then again, I always find it very difficult to argue that anything can be confusingly similar to a known mark because I like to believe that people are smart enough to know the difference between a stylized Buffy logo and a big tilted head of garlic that nobody could really sue on except maybe The Lost Boys. (Kidding. The Lost Boys are just the only big vampire clan I can think of. *g*) It's a similar thing as in the Mattel case. I always have a hard time understanding how most things could not be understood to be about a trademarked product/service but clearly not be associated with the trademark owner or do anything other than draw more attention to and widen the distinction between the marks. And that, in a nutshell, is why I don't think I could ever only do trademark law. I'd implode.