Tuesday, July 9, 2013

The show business equivalent of a patent troll -- more from the post pretense stage of intellectual property

Back on the IP beat, take a look at this item from Entertainment Weekly:
The Weinstein Company’s upcoming movie The Butler, which stars Forest Whitaker as the African-American servant who worked in the White House for more than 40 years, has tripped over an industry obstacle on the way to its Aug. 16 release in theaters. As Deadline reported Monday, Warner Bros. is claiming protective rights to the film’s title due to a 1916 silent short film with the same name that resides in its archives, and both sides are heading to arbitration to reach a resolution. 
Technically, this isn’t a legal issue, since you can’t typically copyright or trademark a movie title. But the MPAA has a voluntary Title Registration Bureau that the industry uses to self-regulate and avoid title conflicts that might confuse audiences. In this case, it’s unlikely that moviegoers are even aware of the 1916 silent film that Warner Bros. is citing, but TWC apparently never cleared the title.
Just so we're clear, my obscurity bar is alarmingly high, but the Butler (1916) clears it in street shoes. This short subject seems to have been forgotten almost on its release. No one of any note was involved either in front of or behind the camera. It doesn't seem to have had any airings in any media after the late Teens. There's no plot synopsis on IMDB or, as far as I can tell, anywhere else on line and though we can only guess at what the film is about, one thing we can say with near certainty is that it has nothing whatsoever to do with the Forest Whitaker movie.

None of the standard defenses of copyright apply here. This is a work completely forgotten by the general public, unseen for almost a century, created by people long dead, of no conventional value as a piece of intellectual property. There's no way Warner Bros. (which didn't even produce the 1916 film) can argue this is anything more than rent seeking and the harassment of smaller competitors.

That's what I meant when I called this the post-pretense stage of intellectual property rights. Up until a few decades ago, I believe we were in the sincere stage: patent and copyright laws were, for the most part, honest attempts at protecting creators' rights and encouraging the creation of socially and economically beneficial art and technology. Then came the pretense stage, where the arguments about protecting creators and encouraging invention were used as cover for powerful interests to hang on to valuable government-granted monopolies (or in this case industry-granted -- not that surprising since the same major players that dominate industry organizations are the ones that benefit most from and lobby hardest for these laws). Now we're entering the stage where even the pretense of fairness and social good can no longer be maintained with a straight face.

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