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Talkartoon Betty Bruce Strauch the Citadel, Strauchb@Citadel.Edu Against the Grain Volume 23 | Issue 2 Article 26 April 2011 Cases of Note -- Copyright: Chain of Title -- Talkartoon Betty Bruce Strauch The Citadel, [email protected] Follow this and additional works at: https://docs.lib.purdue.edu/atg Part of the Library and Information Science Commons Recommended Citation Strauch, Bruce (2011) "Cases of Note -- Copyright: Chain of Title -- Talkartoon Betty," Against the Grain: Vol. 23: Iss. 2, Article 26. DOI: https://doi.org/10.7771/2380-176X.5803 This document has been made available through Purdue e-Pubs, a service of the Purdue University Libraries. Please contact [email protected] for additional information. LEGAL ISSUES Section Editors: Bruce Strauch (The Citadel) <[email protected]> Bryan M. Carson, J.D., M.I.L.S. (Western Kentucky University) <[email protected]> Jack Montgomery (Western Kentucky University) <[email protected]> Cases of Note — Copyright Chain of Title — Talkartoon Betty Column Editor: Bruce Strauch (The Citadel) <[email protected]> Fleischer Studios, Inc. v. A.V.E.L.A. et Fleischer asserted exclusive copyright carved out the Betty Boop character and al., UNITED STATES COURT OF APPEALS through the following purported chain of retained it. FOR THE NINTH CIRCUIT, 2011 U.S. App. title: Original Fleischer to Paramount Pic- Subsequent conduct on the part of Para- LEXIS 3487 (2011). tures (1941); Paramount to UM&M TV mount can be used to discern contractual Max Fleischer created Betty Boop in Corp. (1955); UM&M to National Telefilm intent. See Wolkowitz v. FDIC (In re Imperial 1930 for a series of cartoon films, and when it Associates (later Republic Pictures) (1986); Credit Industries, Inc.), 527 F.3d 959, 966 (9th became big, licensed it for use in toys, dolls, Republic to Fleischer (1997). Cir. 2008). But this works in A.V.E.L.A.’s fa- and other merchandise. Betty “combined in A.V.E.L.A. got a dismissal on the basis of vor. Paramount sold its Betty Boop character appearance the childish with the sophisticated no admissible evidence to establish the links in copyright to Harvey Films. — a large round baby face with big eyes and the chain after Fleischer to Paramount. Presumably to make new movies. Although a nose like a button, framed in a somewhat there’s no evidence they ever did. careful coiffure, with a very small body …” On Appeal Fleischer Studios v. Ralph A. Freundlich, As the copied works were created before Nonetheless, the contractual language Inc., 5 F. Supp. 808, 809 (S.D.N.Y. 1934). 1978, the Copyright Act of 1909 retaining the character was clear and unam- Ah yes. The perfect baby-voiced cigarette applies. biguous. girl/ torch singer/ chorine. And the first sex The burden is on Fleischer symbol of cartoons with high heels, garter to show ownership via the chain As you can see, belt and cleavage. As the Depression bit in, of title. Litchfield v. Spielberg, there’s nothing much she was a beguiling reminder of the vanished 736 F.2d 1352, 1355 (9th Cir. to this case. Just a nice carefree Jazz Age. And she was modeled on 1984). opportunity to contem- the silent movie star Clara Bow, the famous No dispute that Paramount plate cartoons in days silent film “It-girl.” got rights from Fleischer to both of yore. Singer Helen Kane, the original “Boop- Betty Boop character and the Next is what is de- Oop-A-Doop” girl who looked much like Clara cartoons. But in the Paramount veloping as a really Bow and much like Betty, sued in 1932. The to UM&M deal, Paramount big deal. court ruled the “baby” technique of singing did not originate with her. In 1934, the National Legion of Decency Copyright — Fair Use on the Web – Publisher imposed the Production Code on Hollywood Apocalypse Meets Blogger Armageddon restricting sexual innuendoes. This dealt a severe blow to Betty and forced the newly tame Betty to seek juvenile audiences, which led to Righthaven LLC v. Realty One Group, Inc. This has nonetheless proved quite lucrative if a decline in popularity. UNITED STATES DISTRICT COURT FOR one can believe the information on the Website THE DISTRICT OF NEVADA, 2010 U.S. And their But as an icon of her time, Betty came Welcome to Righthaven Lawsuits Dist. LEXIS 111576 (2010). targets are truly random bloggers scattered back for a cameo in the 1988 “Who Framed throughout the U.S. One is a woman who Roger Rabbit.” Righthaven has the blogosphere in an up- roar with its copyright-litigation-for-profit busi- blogs about her cat. Another interesting note, Fleischer’s big- ness model. Righthaven trolls the Web and files is a Nevada realtor with an Internet gest success was Popeye. He did well in life. Nelson copyright infringement lawsuits principally for blog with info about buying homes in Nevada. Around 1940, Fleischer sold his rights the Las Vegas Review Journal and the Denver Nelson used eight lines of a thirty-line Las to her cartoons and character. In the 1970s, Post, but seems to be picking up new clients. Vegas Review Journal news story with both Fleischer’s family under the name Original Rather than serving as an attorney for those factual info about a federal housing program Fleischer tried to buy back the rights. Con- papers, it buys copyright from them and files suit and reporter’s commentary on the effect on the vinced that they are the exclusive owner, they on its own behalf. Which is to say it produces housing market. When Righthaven sued, Nel- have licensed it for toys, dolls, and other stuff nothing creative it is trying to protect. son fought back and raised a Fair Use defense, such as the ceramic Betty Boop doll found with Righthaven does not attempt to mitigate and the district court held in his favor. meth packages inside in the search warrant case damages via a cease and desist letter. Rather “[T]he fair use of a copyrighted work, … for United States v. Lakoskey, 462 F.3d 965, 971 it demands the flabbergasting $150,000 statu- purposes such as criticism, comment [or] news (8th Cir. 2006). tory damages plus forfeiture of the Website reporting … not an infringement of copyright.” A.V.E.L.A. and other defendants also li- domain name to get a blogger’s attention and 17 U.S.C. § 107. cense Betty bringing on this lawsuit. then settles for what the poor shlub can afford. continued on page 55 54 Against the GrainApril / 2011 <http://www.against-the-grain.com> 305 F.3d at 941 (copying only as much as nec- right under those circumstances is entitled Cases of Note essary to provide relevant factual information to less protection. from page 54 weighs in favor of fair use). Mind you, I don’t have any trouble seeing the other side on that one. The newspapers A. Purpose and Character of the Use D. Effect on Potential Market are merely outsourcing their litigation. But Nelson’s blog is both educational and com- for Copyrighted Work the defense attorney in one of the cases says mercial, but the underlying motive is to gener- Little or no effect on the market. Reader Righthaven is on the edge of champerty and ate business for himself as a realtor. Which would still go to the Review Journal for the barratry, the old common law prohibitions would weigh against fair use. other twenty-two sentences plus the author’s against buying a piece of a lawsuit. B. Nature of the Work riveting commentary. Does not dilute the And, as both Righthaven losses are in Ne- market for the article. Nelson only lifted factual content from the vada, the appeal goes to those la-la land folks on article which supports fair use. See e.g., Los This holding was by Larry Hicks, U.S. the Ninth Circuit in San Francisco. While they Angeles news Service v. CBS Broadcasting, District Judge. Since then, a Judge James are infamous for creating off-the-wall new law Inc., 305 F.3d 924 (9th Cir. 2002) (re-publica- Mahan, also of Nevada, has ruled in favor and being reversed by the U.S. Supreme Court, tion of a video depicting a news report was a of fair use in Righthaven v. Center for in the area of copyright, they know their stuff. fair use because it was informational rather Intercultural Organizing, but as this goes And this is just the kind of brave new world than creative). to press, the opinion is unpublished. But cosmological thinking they delight in. incredibly in this case, the entire article was Some commentators are predicting the C. Amount of Copyrighted Work Used lifted. Judge Mahan also feels Righthaven opening of the floodgates for soft infringement Eight out of thirty sentences, weighing in is diminishing the value of the copyright by on the Web. But whatever happens, this will for fair use. See e.g., CBS Broadcasting, Inc., using it purely for a lawsuit and that copy- have a big impact. Questions & Answers — Copyright Column Column Editor: Laura N. Gasaway (Associate Dean for Academic Affairs, University of North Carolina-Chapel Hill School of Law, Chapel Hill, NC 27599; Phone: 919-962-2295; Fax: 919-962-1193) <[email protected]> www.unc.edu/~unclng/gasaway.htm QUESTION: An academic author wants but some copyright owners have pointed out especially for orphan works legislation but also to use a digital image of a painting owned by that people would benefit from bank robber- for public funding of a national digital books a museum. The painting appears to be in the ies if the proceeds were distributed to those in project.
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