Tuesday, April 09, 2013

Selling a Jayne Cobb hat? Keep selling!

The short-lived Fox series "Firefly" has developed a cult following that has given life to any number of t-shirts, character statues, and other fan tributes.  Among them are a certain silly knit cap worn by the character Jayne Cobb (supposedly knit for him by his mother).  Fans have been able to buy "Jayne Cobb" hats from Etsy sellers and others for years.

(This is an official "Jayne Cobb" hat, available via ThinkGeek.  Attractive, no?) 

Until now. Apparently, Fox has been threatening these independent producers of lookalike hats with all manner of perdition.  But here's the problem - unless the sellers are calling them "Jayne Cobb" or "Firefly" or "Serenity" (the name of the ship and a follow-on feature film) hats, Fox really has little legal basis to stop third parties from making and selling these hats.

That's because hats are "useful articles" under US Copyright Law - and so can't be protected by copyright.  This peculiarity of copyright law has bedeviled fashion designers for years, and while there has been some chipping away of the concept (costumes, for example, can be protected), in general an article of clothing can't be.

So if you've received a cease-and-desist letter because you are selling "Jayne Cobb" hats, give me a call.  I'm a big "Firefly" fan and will be happy to review your situation and give you some idea of where you stand.   Browncoats do need to stick together, after all.  Especially when the Alliance comes a calling.  

(Update: The folks at ThinkGeek have decided to donate profits from the sales of officially-licensed Jayne Cobb hats to the Firefly-inspired "Can't Stop the Serenity" charity.  Well-played, Geeks, well-played!)

Monday, April 08, 2013

Bittorrent Subpoena Notice? Check the Case Status!

These pesky bittorrent lawsuits continue to propagate themselves throughout the court system.  Content owners -- which frankly may have a legitimate beef with having their films distributed for free -- persist in using them as tools to issue subpoenas seeking the identity of alleged file sharers.  If you receive a notice from your ISP that it has received a subpoena and that your personal information will be disclosed to the plaintiff unless you take steps to stop that from happening, don't despair.

One of the first things you should do is check the status of the lawsuit.  Many of these cases are getting dismissed by judges who are increasingly skeptical of both the methods used by the plaintiffs, and the quality of the rights they claim to hold.  If your case has recently been dismissed, then you may have a great argument that the subpoena is no longer valid.  Even the most compliant of ISPs will be nervous about disclosing customer information in response to a subpoena that has no legal force.

Those of us who handle these cases can quickly let you know what the status of the underlying lawsuit is.  Make sure you double check that before deciding how to respond to the ISP notice.