Why the Death of Humor Is No Laughing Matter @thejoelstein #joke #comedy #humor

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Sorry, but it’s time for another serious and long post.

I came across an article from the Stanford Graduate School of Business last week. It cites a study that demonstrates the importance of humor to the human psyche, which in turn correlates (and presumably is the cause of) health benefits. This doesn’t surprise me at all. The subject of this post is something that wasn’t the immediate concern of the author but is quite important and was lurking in his own text.

Scrolling down a bit, you’ll find a graphic containing four quadrants. I’ve recreated the graphic here using the advanced graphic techniques of MS Word.

This chart sums up the arguments of the author. It says a few things that are relevant. First, it claims that making jokes is a good thing even if you bomb. Everyone bombs, but people respect the effort. As I’ve stated before, I have no disagreement with this. You can and should bomb as long as you learn from the mistake. Second, it states that the degree to which you generate laughter is irrelevant if the joke itself is inappropriate. In theory, I agree with this, but I have a real problem with the direction Americans are going in labeling everything as offensive. Case and point:

Microsoft feels the need to warn you about naughty language.

Clearly, if your audience is a room full of Klansmen, then you can bring down the house and still be a villain as the chart states. However, most audiences aren’t 90% or better Klansmen, yet there’s a horrible trend towards labeling everything as offensive. To justify the position, the habitually-offended simply label anyone that laughs at anything they don’t like as a Klansman, Nazi, or anything else that allows them to mask their unreasonable offense as reasonable. This, of course, leads to real harm to people’s lives, but I’m not going to dive into that. I’m instead going to point out two other consequences that concern me: Killing comedy by limiting its subject matter, and a more general problem (beyond comedy) of reasonableness transforming from a community standard to an individual standard. As to the first issue, no where was this more apparent than the show, Brooklyn 99.

Limiting Subject Matter

After seeing tons of YouTube videos containing various characters’ best moments, I decided Brooklyn 99 was probably my kind of show, so it became the latest binge watch for me. It’s clear that the writers were very talented. There were funny jokes, many characters were endearing, and there were some recurring themes (e.g., the Halloween heists) and wonderful catchphrases that these writers wisely knew not to overdo (a common error among their colleagues).

Bing-pot! - Album on Imgur

That’s great, but after five seasons, Fox cancelled it. Many were incensed, but it was cancelled because the ratings were poor. After a Star Trek-esque fan campaign, it was then picked up by NBC, but the coming 8th season will be its last. This despite the network change inevitably drawing in at least some viewers that had never seen it when it was on Fox. Despite the vocal minority of diehard fans, the show clearly couldn’t keep anyone’s attention for long. Why not? Because, contrary to the assertion of the linked article (citing writer Michael Lewis), writing jokes today absolutely carries a risk, and the writers didn’t want to bear that risk. It was clear that they were going out of their way to walk the tightrope of avoiding outrage at the hands of this vocal, minority (some of whom wouldn’t necessarily be fans of the show), but ultimately that small audience can’t support the show. When the habitually-outraged tie the hands of comedy writers, we get a modified chart.

Very little is considered appropriate by the habitually-outraged, and that small sliver of acceptable comedy that’s left can’t maintain anyone’s interest for very long. I finished it only because I can’t help myself. Once I start a task, whether business or personal, I have to complete it, which is why I generally don’t binge-watch TV shows if I see they have that many seasons. I took a chance on this one and was ultimately disappointed in the last few seasons. Despite its several strengths, it became a chore to finish it, and not because it jumped the shark. It never reached such a height. Rather, it simply grew into a tedious retread of boring, unchallenging stories because the jokes had almost no chance of offending anyone. Even where it comes to non-comedic material, it was predictable. If you didn’t know “whodunnit?” as soon as the bad guy first hit the screen, you’re an idiot. The villains were all telegraphed because the formula was always the same. Moreover, I wanted to throw Charles, Hitchcock, and Scully out a window 30 stories up, though that started within a couple of seasons. They were frustrating characters.

But killing comedy is merely a symptom of an insidious disease.

The Standard of Reasonableness

Everyone is offended by something, and that’s fine, but too often I hear the line, “You have no right to tell me whether I’m offended.” The fact that people say that means they’re missing the point. Absolutely no one is doubting you taking offense. What we’re saying is that you’re being ridiculous for doing so. But even that isn’t the problem. It would be utterly ridiculous for you to be offended by me wearing a blue shirt simply because your dad died while wearing an orange shirt (the other end of the color wheel), but it’s okay if you are. You can’t help that. Humans are emotional creatures, and certain associations will always result in illogical reactions. However, you shouldn’t impose that offense on me by demanding I always wear an orange shirt for the rest of my life.

And that’s the crux of problem. Any one element that’s deemed offensive by the online mob is composed of a miniscule percentage of people (some of whom aren’t tied to the subject matter at hand), but everyone is afraid to incur the wrath of that mob. Moreover, because these internet tough guys aren’t content with just changing the channel, but rather insist everyone get in line with their sensibilities, far too much content is labeled taboo for everyone, and we’re left with the modified chart similar to the one above for all areas of life, not just comedy. If you disobey, you’re given a horrible label that, without being questions, can cause you to lose your job, friends, and even family. This isn’t imposing accountability; it’s imposing the insecurity-driven whims of the individual on all of us. Throughout history, vigilante mobs have always swept up more innocents than the guilty because there are no protections from false accusations.

This is a troubling trend that those currently on that side are blind to. Rather than “reasonableness” being defined by the community, it’s being defined by each person on an individual basis. Going back to my crass example, if Mary’s dad died wearing a blue shirt, and Mary gets to define for me what’s reasonable, then I always have to wear an orange shirt. However, Joe’s dad died while wearing an orange shirt, so Joe demands I always wear a blue shirt. Then there’s Sally, who’s dad died while trying to break the Guinness Book of World Records record for wearing the most shirts at once (it’s 260, and as far as I know, Ted is fine), and she demands I wear no shirt at all. Finally, there’s Aloysius, and he demands I always wear a shirt with both blue and orange in it because of some other insanity I’m too lazy to invent. So, no matter what choice I make, I’m always going to offend three (a majority) of these four people, even though the majority (three) of all five of us aren’t offended by whatever choice I make. This places me in an impossible position, even though I’m not addressing the demands of 7.5 billion humans, 325 million Americans, 8.5 million Virginians, 1.1 million . . . Fairfax Countyans(?), or even 47,000 McLeananites (copyright 2021, me [not really]). Use any of those numbers, and seemingly ordinary actions or words will result in the same sort of no-win scenario. This is precisely why reasonableness must remain a community standard. We, not a few habitually-outraged, internet tough guys, should set that standard.

As bad as tyranny by the majority is, tyranny by the minority is much, much worse. We strike that balance legally by having a Constitutional democracy where a supermajority (still democratic!) creates fundamental rights that supersede the passing whims of the cops or even the legislature, protecting the individual, but still ultimately subjecting us all to the broader strokes of the majority. Your right to impose your insecurities upon the rest of us by suppressing speech is not the sort of fundamental right that’s necessary to preserve your individual dignity. Or at least it shouldn’t be, because it in fact suppresses an actual fundamental right in the internet age, where Town Square is now in the hands of the private sector. But if we can’t enjoy even jokes, there’s no hope for finding compromise on more difficult issues.

If you were looking for a miracle cure for what ails us, you’ve come to the wrong blog, but apparently our lives depend on it.

Follow me on Twitter @gsllc
Follow Joel Stein @thejoelstein

Some Thoughts on Giving Credit Where Credit is Due @Wizards_DnD #copyright #DnD

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Having worked in intellectual property law, I like to give proper credit where it’s due. I found this meme and was looking for an excuse to use it.

As I was doing my research as to who produced this, I ran into an issue. I saw this shared on Facebook by a connection (I don’t remember whom), but they shared it from another source, so that person shouldn’t get credit. It looks like they got it from thekratorianchronicles via Instagram, but based on a signature of sorts within the image, thekratorianchronicles doesn’t seem to have created it, so they also shouldn’t get credit.

So, credit belongs to “HORRORFLIX,” but who are they? Searches via Instagram, Twitter, and Facebook yielded far too many entities for me to figure out who owned it. With no logo, Twitter handle, URL, or other unambiguous identifier as part of the signature, I can’t give proper credit despite how important I think that is.

Hint, hint, hint, creators.

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Dungeons & Dragons and Ravenloft are trademarks of Wizards of the Coast, LLC, who neither contributed to nor endorsed the contents of this post. (Okay, jackasses?)

Jurisdiction and Common Law Trademark Rights @lukegygax @TSR_games @tsrgames @Gygax_Jr @JaysonElliot @OrcishLaw #trademark #iplaw #DnD #RPG #TSR

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By now, most of you nerds must be aware of the newest incarnation of TSR (“newer TSR”). They exist despite the fact that the new TSR (ummmm, “new TSR”) hasn’t died yet. Among other well-known gaming people, Ernie Gygax serves as Executive Vice President. The idea behind the newer TSR is to recapture the magic (get it?!) of the old days of the original TSR and Advanced Dungeons & Dragons. Unfortunately, Ernie casted Dispel Magic in an interview that ruffled a lot of feathers. I’m not commenting on that. As I’ve said, this is a not a blog for political issues, matters of human rights, or nuclear war. That’s way too heavy for this blog. Besides, do you really need yet another voice in this massive choir of commenters? No, so instead I’m going to discuss an aspect of IP law that’s probably relevant to the case and many of you may not know.

Disclaimer

Okay, you knew this was coming, but it’s especially important here. This is not legal advice. All I’m doing is stating the law in the abstract. If someone, including either or the two TSRs, thinks it applies to their facts, then they can hire an attorney to get legal advice. But isn’t stating the law legal advice? No, it’s not. Anyone can state what the law is (e.g., “The speed limit is 55 mph.”). Only attorneys can apply that law to another person’s fact pattern (e.g., “The speed limit is 55 mph, you’re driving 65 mph, and therefore you’re violating the law.”). No district attorney is going to prosecute you for telling someone they’re speeding, but this is an easily digestible example to define “practice of law.” This is key here because I strongly suspect that I have only a fraction of the facts surrounding this case, so it would be impossible for me to practice law here. So I ain’t. Got it?

I’m My Own Inspiration, aka, The Tweet Heard ’round the World

This blog post was ultimately inspired by, well, me. That is, it was inspired by my response to Luke Gygax’s tweets with which many of you are familiar. Of course I was deflecting from the actual topic to the law. It’s what I do.

Trademarks and the Constitution

Oh, you thought you were going to get through this without any heavy-handed legal philosophy, didn’t you? Here’s some constitutional law, suckers.

The US Constitution defines a government of limited powers. That is, unlike the states, the federal government lacks power unless 1) the US Constitution expressly says it has that power; or 2) the federal government absolutely must have that power in order to use a power that the US Constitution expressly says it has. As for number two, nowhere does the US Constitution say that the feds have the power to enter into employment contracts, yet they must have that power in order to, for example, create the IRS and hire accountants, admin assistants, janitors, etc., because otherwise the power to collect taxes would be rendered useless.

This is not a controversial statement among lawyers, though lawyers are (believe it or not) human, so many of them sometimes ignore this principle as well because . . . okay, no pontificating. The notion that the feds lack the power to act by default seems to be lost on many people, but there it is. Accept it or deny it, but it’s 100% true.

Okay, back on point, the Arts & Sciences Clause grants the federal government the power to grant patents and copyrights, but it doesn’t mention trademarks. That’s left largely to the states. (Weird, huh? When have you ever heard of state trademarks?) However, there’s a back door that gets the feds into that game. The Commerce Clause allows the feds to regulate “interstate commerce” (i.e., business transactions that cross state lines). If a vendor in Arizona sells something to a consumer in Utah, then that sale could open the door to federal regulation even if the feds don’t otherwise have the power to stick their noses into it. So, the Lanham Act provides for federal registration of trademarks with the US Patent and Trademark Office only if the owner is using their trademark in multiple jurisdictions. If you’re using the trademark in only one state, you don’t qualify for a federal trademark. However, if you do qualify for a federal trademark, it applies across the entire United States. (Well, almost, which will be my ultimate point.)

There’s a limited exception for those with an “intent to use,” but I’ve given you enough to digest.

So what happens if you don’t register your trademark federally? As long as you’re using the trademark in commerce, you develop “common law trademark rights,” but unlike the federal trademark rights, those rights apply only in the jurisdiction or region where you’ve been using the trademark.

If you’re doing business in a large state, common law trademark rights may arise only in your local region. In that case, registering your trademark with that Secretary of State for that state would grant you trademark rights across the entire state.

Seniority of Trademarks

Okay, I’m finally approaching my point. Imagine a situation where I’m using a trademark, Bodine’s Bovines, on my cow farm in Virginia. Therefore, I have trademark rights only in Virginia. Only I can use that trademark in Virginia.

This probably ends as poorly for me as it did the MacDougals.

Next, Fred Bodine (no relation) opens a couple of cow farms, one in Utah and one in Nevada, both using the same Bodine’s Bovines trademark. He registers the trademark federally based on his use across state lines, so now he has a trademark that applies across the entire United States. Finally, I decide to open a second farm in North Carolina. I try to register my trademark federally, but Fred beat me to it, so my application is denied. Also, Fred sends me a cease-and-desist letter preventing me from using Bodine’s Bovines at all. Does he have a right to do that? In North Carolina, yes, but in Virginia, no. I opened my Virginia farm first, and even though I never registered the trademark with either the feds or even the Commonwealth of Virginia, my use in Virginia was “senior” to Fred’s use (i.e., because I used it in Virginia first). However, Fred can block me from using it outside Virginia because he registered the trademark federally before I opened the North Carolina farm.

What if instead I had a federal trademark based on prior use both in Virginia and North Carolina, let it lapse, and then Fred came along and grabbed it based on his use in Utah and Nevada? I’d still have senior rights in both Virginia and North Carolina.

Hint Hint GIFs | Tenor
Take a hint, people.

So, you can think of a federal registration as having the same effect of using the trademark in every state starting at the time you registered it. Where you got there first, you get to use it, but you’re blocked where you didn’t get there first. In a more complex case, you could imagine a patchwork of multiple, identical trademarks being used by several different companies in several jurisdictions, with one of those companies having a federal trademark covering the unclaimed jurisdictions. So, the company with the federal trademark could nevertheless be blocked from using that trademark in jurisdictions with senior users. This isn’t a far-fetched scenario, but if its mere possibility surprises you, then . . . surprise!

So, what happens next? Well, when the two parties each have something the other wants, they could strike a deal. For example, each could license the other the right to use their trademark in jurisdictions in which they’d otherwise be prevented from marketing. If both parties are on relatively equal footing, the license fee may be, I don’t know, as small as $10 per year. However, if one party doesn’t realize how much of an advantage they have or lack the funds to enforce their advantage, they may make the same deal.

Sound familiar? No? Well, too bad. I’m not getting into specific cases. 🙂

Epilogue

After completing this post, I found a relevant Twitter thread.

There’s a lot of overlap, but Orcish Law makes a few other relevant legal points and peppers in a lot more gifs. I left much of that out because I have a tendency to ramble, so I try to keep my posts as short as possible. We both included disclaimers though. It’s what we do.

If the trademark is valuable, and you can afford a lawyer, get one. Otherwise, you’ll have to either cut a bad deal or find a new trademark.

Follow me on Twitter @gsllc
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Dungeons & Dragons is a trademark of Wizards of the Coast, LLC, who neither contributed to nor endorsed the contents of this post. (Okay, jackasses?)

In case the tweets are deleted, here are images of them:

@Facebook: See You Next Tuesday #Facebook #censorship

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Baby Bender GIFs - Get the best GIF on GIPHY

Well, it’s Tuesday, so my second Facebook suspension is winding down. During this “one-day became three-day became four-day” suspension, I was unable to manage my charitable fundraiser for the Juvenile Diabetes Foundation, all because Facebook is afraid of people having opinions (though my expressed opinion was clearly a joke).

I see no reason to delete my Facebook account, because I’m still able to communicate with people via Messenger. After all, the whole point of social media isn’t to solve the world’s sociopolitical problems, but rather to connect. And share cat memes. However, I’m quickly shifting my focus to MeWe. My profile can be found here: https://mewe.com/i/robertbodine1. The problem with MeWe is that it’s not very good for building networks, which, again, is the point of its existence. The only way to find people is to know they’re there. So please, if you’re considering an alternative to Facebook, give MeWe a try, and invite as many people as you can to do the same. I suspect it’s only a matter of time before Facebook runs afoul of antitrust law. You may find yourself making a change eventually.

Facebook should be ashamed of itself, but it isn’t.

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@Facebook Screws up . . . Again! #Facebook #censorship

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Less than an hour ago, I deleted a post from this Twitter account. It’s my daily, automated paper, and because this account is meant to be fun and/or silly, I use every filter at my disposal to make sure nothing too serious appears in that paper. Unfortunately, that doesn’t always work, and today’s paper included articles I simply didn’t want appearing on this stream. That said . . . .

I have to share this bullshit. I just got this message from Facebook.

This is clearly a joke, I can’t imagine why they would even hide the post, let alone give me a 24-hour ban (UPDATE: 3 days now, including my birthday). Ironically, I received this ban on the day I received my first vaccine shot.

Let me remind you of the problem with Facebook, et al. In the old days, the ordinary citizen’s standard means of political discourse was to stand in the middle of town square, get on a soap box, and bitch. Such acts would result in counterarguments from the crowd, but even more importantly the bystanders got to listen and form opinions somewhere in the middle of the lunatics. Because town square is public property, the Free Speech clause protected such discourse. Now the ordinary citizen’s standard is to use social media, and it’s what everyone relies upon for such discourse. The problem is that social media platforms are private property, and even clear jokes can be censored legally. Speech is going to be chilled at a time when we need reasonable discussion — and a sense of humor — the most. Our only recourse will be antitrust law, and Twitter has certainly flirted with that in the Parler case (see the section entitled This Isn’t the End of the World, but It’s No Small Matter), but it’s going to be a long time before that dust settles and the common person’s everyday speech will once again be free.

UPDATE!!!! Facebook has decided to extend my suspension to three days, which means I won’t be able to thank anyone for all the birthday wishes I’m sure to receive on Monday. If you’re reading this, thanks in advance. Also, my MeWe profile is at https://mewe.com/i/robertbodine1. Just sayin’. No reason.

Side note: I tried to use the back door that used to work but apparently no longer does. I posted to Instagram, which shares to Facebook automatically. Unfortunately, my post violated community standards over there. I’m going to try again but with a picture of a kitten. We’ll see what happens.

Facebook should be ashamed of itself, but it isn’t.

Follow me on Twitter @gsllc

Bruno’s Earth: I Just Had to Do It @Wizards #copyright #DnD #RPG

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I bought something that arrived on Thursday. It’s stupid, and it appears to be the most brazen example of copyright infringement since Napster (though with far fewer consequences). For that reason, I didn’t want to support it. But I had to. It cost less than $15 with shipping.

I discovered via Facebook a game system known as Bruno’s Earth. I’m not going to post photos because of the nature of the infringement. Instead, I point you to the Amazon listings.

Bruno’s Earth Game Book
Bruno’s Earth Creature Manual

This book shamelessly copies the artwork from the AD&D Players’ Handbook and Monster Manual (and perhaps others), including the covers of the books. There’s no way you know about these books and not know that it’s infringement, yet Wizards of the Coast, who enforces and threatens a hell of a lot more than they have any right to, has apparently taken no action. It’s bizarre. I’d be surprised to hear that Wizards licensed it, but it’s certainly possible. Until I hear otherwise, I’m assuming that. Besides, as Kermit the frog might say, “But that’s none of my business.”

Oh, by the way, I haven’t had much of a chance to review the material beyond the artwork, but I can tell you that it’s riddled with language errors/typos. I’ve been told the game system itself rather sucks. I’ll let you know what I think of that when I’ve had the chance to really look it over.

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Dungeons & Dragons is a trademark of Wizards of the Coast, LLC, who neither contributed to nor endorsed the contents of this post. (Okay, jackasses?)

Litigation Sucks @mc_frontalot #lawyer #litigation

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Sundays are now lazy days for me. Going forward, I’m just going to re-post other people’s work or just do something silly. Today it’s a comic that hits home.

Image

I’ve been there, but the damn judge told me, “Yes, you are. Now get to it.” H/T @mc_frontalot

Litigation sucks. Never again.

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Some More Wild Speculation on Margaret Weis, LLC & Tracy Hickman v. Wizards of the Coast, LLC Lawsuit @WeisMargaret @trhickman @Wizards @TheCancerThati1 @daflyondawall #WotC #DnD #RPG #Dragonlance

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I’m one of a wake of attorneys that was asked to comment on the recent filing of the above-referenced lawsuit. I’ve spoken my mind but always included my statements with the stereotypical legal caveat that we don’t have all the facts yet. This caveat exists for good reason and is clearly applicable here. All we have is one side of the story, and we don’t have the licensing agreement on which the entire case turns. Ergo, everything at this point is speculation, and I feel that there are enough people commenting that I don’t need to add to the chorus.

That said, there’s one thing that came up in a Twitter conversation that’s important to me, and I felt it was important to expand on it.

As I’ve written before, I no longer play D&D, but in my 19 years of playing it, I’ve never played anything in the Dragonlance setting, and I’ve certainly never read one of their novels. (I prefer non-fiction.) This suit has no bearing on my life personally, but certainly does so philosophically.

Why Do We Have Intellectual Property (“IP”)?

Many people assume that the goal of IP is to reward the creator, inventor, or producer. That’s incorrect. The reward is the means to achieve the real goal, which is to make sure that the public — you and I — has access to plenty of art (copyrights) and technology (patents); can instantly know whether they want to purchase particular goods or services based on brand names (trademarks); and have access to lots of other products not otherwise protectable (trade secrets). We assure that goal is reached by giving those creators, inventors, and producers a financial incentive to do what they do by granting them a “limited monopoly” on their endeavors. However, in the end, the point is to serve the public interest. If that interest isn’t being served, why grant the limited monopoly in the first place? There are several exceptions to IP that prove my point, but they’re not relevant here.

Campaign Settings Gone AWOL

Wizards of the Coast (“WotC”) owns the rights to several campaign settings that haven’t had anything significant published in years. We know that WotC will be publishing works within three classic campaign settings in the near future, but we don’t know how extensive those efforts will be, or what their nature will be (e.g., novels, campaign settings, living campaigns). However, it’s been a long time coming, and there are still plenty of other campaign settings that won’t be published soon. How long will we have to wait for those?

When I raised that issue via Twitter, someone with a better sense of their profitability pointed out that it made no financial sense for WotC to publish them. I believe him, and in fact it’s hard not to. After all, WotC isn’t publishing them (or is just getting around to doing so). Obviously, despite their popularity, WotC can’t financially justify producing them. A smaller (yet still competent) company could do so, but only if WotC’s contract terms aren’t so draconian as to make it unprofitably even for them. To my knowledge, this licensing is open only for novels anyway, so we’re still looking at the suppression of the IP with respect to the actual game where they belong.

My Philosophical Issue

The entire point of IP is to get that IP to the public. As steward of these properties, WotC should (not must) get that material to the public. However, the situation effectively uses IP to do the very opposite. The limited monopolies are being used to horde the material, so there’s no legal, viable means through which that material can be marketed to the public. That’s a big problem for me. As I asked above, what’s the point of granting the rights if it means the public won’t get access to the material?

Wies/Hickman v. WotC

According to the Complaint, WotC wants to walk away from the deal altogether. If that’s true, then WotC stands to gain nothing from the Dragonlance IP. We’re right back to square one with that property, but the important point is that WotC themselves have nothing to gain from the property, so they have nothing to lose if the property is transferred to Weis and Hickman.

There’s no legal basis of which I’m aware for stripping WotC of their copyrights in these other campaign settings, so I don’t want to see that happen by force. They acquired the property fair and square. However, if WotC is in the wrong here, and this suit gives Weis and Hickman the leverage to take ownership of the Dragonlance IP, WotC breaks even, and everyone else wins. I wouldn’t be upset if that happened. I suspect that if Weis and Hickman did get the license back, then they’d produce a lot more Dragonlance content than WotC ever would. When I suggested that on Twitter, I received this response:

Infer what you will from that. I did.

What are the odds of this happening? Probably slim to none, but wouldn’t that be something else?

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Dungeons & Dragons is a trademark of Wizards of the Coast, LLC, who neither contributed to nor endorsed the contents of this post. (Okay, guys?)

The Merger Doctrine of Copyright Law #iplaw #law #copyright

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Blog posts cannot substitute for legal advice. If the topics discussed in this post are relevant to a real case you have, please consult an attorney.

This one’s a little dry, but it’s secretly relevant to the interests of the majority of readers of this blog. Also, it’s short.

A copyright protects the expression of an idea. For example, an author can write a poem about springtime, and because the text is sufficiently complex, it can give rise to a copyright as long as there’s at least some reasonable amount of creativity (a.k.a., originality) in that text. However, that doesn’t mean the author now owns the idea of springtime; the author owns only the particular expression of it (and all “substantially similar” variations of it). The reason the idea isn’t protected, but the expression is, should be obvious: If an author copyrighted the idea, then no one else could write about springtime during the life of the copyright. The public must be able to discuss springtime. It’s part of life. (Note: This is also why a single word is never sufficiently complex to earn a copyright. If someone could copyright the word, “spoon,” then the public couldn’t discuss spoons for quite some time.) On the other hand, the author’s particular expression of springtime can be copyrighted because there are a seemingly infinite number of ways for the rest of the public to write about springtime. That is, there are many other options that will allow others to write about springtime while still allowing the author the sole right to copy and profit off of their particularly clever and enjoyable expression, as well as any substantially similar variations of it. This is the essence of copyright.

However, what if there aren’t a seemingly infinite number of ways to express and idea, or what if all the other ways to express it are all substantially similar to one another? This is where the merger doctrine comes into play. In such a case, the expression is said to merge with the idea, such that the expression cannot be copyrighted regardless of how complex the expression is, and regardless of whether the author was actually the first person ever to express it. (In the case of my example of a poem about springtime, that was first done long before the concept of copyright existed.) This is an important doctrine for the reason given above: If not for the merger doctrine, in situations where there aren’t a reasonable number of options available to express and idea, then no one would be able to express it as long as that copyright exists. That is, the copyright would effectively extend to the underlying idea itself. Under current law, the term of copyright is far too long in my opinion, but even if the term of copyright were more reasonable, any amount of time to prohibit expression of an idea is too long. Fortunately, the law recognizes that.

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Rob Bodine is a Virginia attorney focusing his practice on real estate and intellectual property law. He’s currently Virginia counsel with Cardinal Title Group, a Virginia title insurance and settlement company. Rob is also a licensed title insurance agent in Maryland and Virginia.

The First Sale Doctrine #iplaw #law #copyright

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Blog posts cannot substitute for legal advice. If the topics discussed in this post are relevant to a real case you have, please consult an attorney.

A copyright is a bundle of exclusive rights, including the right to make copies of an item, However, once someone purchases a copy of a copyrighted work, the purchaser owns that specific copy of that work. For example, if Ann purchases a copy of Bob’s book, Ann may not make copies of that book, but she may resell the specific copy she purchased without fear of infringement.

This gets a bit more complicated with respect to the resale of software. Most software comes with a “shrinkwrap license,” which is a contract packaged with the software. Under the terms of such a contract, just using the software is considered acceptance of the terms of that contract, and those terms indicate that software is merely licensed to rather than owned by the purchaser. If there isn’t actually a sale, then does the “no transfer” clause in the license prevent resale?

In Vernor v. Autodesk, Inc., Vernor was reselling unused copies of Autodesk’s “Release 14” auto-cad software on eBay. In determining that Vernor was a licensee rather than an owner of a copy, the Court developed and applied a three-part test: (i) whether the copyright owner specifies that a user is granted a license; (ii) whether the copyright owner significantly restricts the user’s ability to transfer the software; and (iii) whether the copyright owner imposes notable use restrictions.

Note that this is an exception applicable to digital works. In the context of nondigital, copyrighted works, the first-sale doctrine still applies but may be limited in cases involving illegally obtained goods. If you steal it, you can’t resell it.

Summary

  1. Once you purchase a copy, the First Sale doctrine allows you to dispose of that particular copy as you see fit.
  2. Most software is licensed, not sold, so the First Sale doctrine doesn’t apply.
  3. You can’t rely on on the First Sale doctrine when selling stolen goods.

Follow me on Twitter @gsllc (please retweet!)

Rob Bodine is a Virginia attorney focusing his practice on real estate and intellectual property law. He’s currently Virginia counsel with Cardinal Title Group, a Virginia title insurance and settlement company. Rob is also a licensed title insurance agent in Maryland and Virginia.