August 17, 2023 • 45 mins
Who owns an idea? Who should -- or should not -- profit from a concept? In part two of this special two-part series, Ben, Noel and Max explore the modern history of intellectual property... including what happens when court cases go off the rails into ridiculousness.
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Speaker 1 (00:00):
Ridiculous History is a production of iHeartRadio. Welcome back to
(00:27):
the show Ridiculous Historians. Thank you, as always for tuning in.
We want to start with a shout out to our
super producer, Slash Legal Beagle or check this out Legal Eagle,
Max Williams.
Speaker 2 (00:41):
Caca Silly Goose, a silly gander of the Michigan variety.
Speaker 1 (00:46):
And what's good for the goose is of course good
for the Max. So we uh so you're no. I'm
Ben And this is part two of an exploration of
the sometimes ridiculous history of intellectual property. In part one,
nol I had made the offhand reference to legal bagal,
and I found the etymology. It's kind of uncertain, but
(01:10):
it seems like sometime in the nineteen forties an attorney
wrote a book called The Little Lawyer and Legal Advisa
where he used the term legal egle, and it transformed
over time.
Speaker 2 (01:22):
To legal bagal rhyming, am I right, yeah, fun, yeah.
Speaker 1 (01:27):
I wonder if someone's got a patent on that. Previously,
we gave everybody a lot of background on the ancient
history of IP and how it you pointed out something
I really appreciated A lot of the modern legal definitions
of intellectual property started in Italy, but then Italy picked
up the improvements that the United States made and that's
(01:51):
where we get our modern day definition of intellectual property.
I mean, first, let's talk about what the what benefits
would it have like if you came out with if
you came out with an album, I came out with
a novel, or let's say Max events new a new
(02:15):
device used in curling. Let's see I'm relevant to all
our interests here. Then what benefits would we have from
IP laws?
Speaker 2 (02:25):
Exactly? Quite a few. And we've already sort of gotten
into this a good bit. But you know, once it
gets a little more kind of ensconced in the law,
we really do see these protections start to become really clear. Uh,
the idea of market value. Intellectual property rights allow creators
(02:47):
to generate businesses, you know, based on their original ideas
and the licensing of those ideas, the sale of products
that are based in unique ideas, and also the kind
of proliferation and commercialization of those products, goods, and services
that they are able to benefit from because of those protections.
Speaker 1 (03:11):
One hundred percent. And the big thing here is the
protection so you can prohibit other people from financially benefiting
off of your ideas if they violate ip laws. So
you can take people to court if they're making money
off your ideas in a way that violates these laws,
(03:34):
you can file a court case, like if you are Max,
the inventor of the new curling device and someone else
starts just making those without compensating you, then you can
sue them, and if they are found guilty, the court
will give you a financial reward, or you might have
(03:57):
to get a certain person of whatever those folks are
profiting with.
Speaker 2 (04:03):
You know, that's right. And it also we talked about,
you know, the ability to market and sell these services
or goods. It also through that control of these ideas
allows you the power to help raise financing or raise funding,
you know, for your business or idea because you hold
an exclusive right you know, to those ideas. And with
(04:27):
that in mind as well, it also gives you the
ability to benefit from exports, because if a country can't
just make their own version of a thing because that
intellectual property is already tied to another business, then the
only option there is to import that good rather than
create something regionally, because they you know, they would be
(04:48):
infringing on.
Speaker 1 (04:49):
That copyright protection. And here's the kicker. This stuff, as
I said in part one, is imperfect, and these laws,
while well intentioned, kind of an inherently create their own
issues just by existing. A general term is only useful
if it subsumes related concepts. So let's start with the
(05:11):
idea they stole my intellectual property. That concept by itself,
without supporting evidence, is kind of uninformative. The general term
intellectual property is such a umbrella term it obscures more
than it illuminates. If you allege copyright infringement, you have
to identify exactly what it is that is being infringed
(05:36):
upon and exactly how it's being infringed. Right, So take
patent law. If someone says this person stole my invention
in some way or some part of my invention, then
you have to say, okay, does this quote unquote new
invention straight up copy the design of the older one?
And when you look at trademarks, you have to say, like, okay,
(06:00):
are these golden arches purposefully close to the McDonald's golden arches?
Are they meant to trick people into thinking they're eating
at McDonald's somehow?
Speaker 2 (06:11):
Well? And that also, you know, sort of begs the
question like is it reasonable to think that a consumer
would be tricked in that way? Is that even possible
with like the ubiquity of what McDonald's is and how,
you know, just all encompassing it is, like, I don't
think it's a reasonable assumption that someone could be tricked
(06:33):
into thinking they're eating at McDonald's when in fact it
was something else, you know. And once you get into
like parody, uh, and the idea of like fair use
and all of that stuff, which we'll get into, it
really starts to get confusing. And we're taking a lot
of this stuff in this section here from a really
great essay by a professor of philosophy at Brooklyn College
of the City University of New York named Samir Chopra,
(06:56):
who has a fabulous essay literally titled in Intellectual Property
with the subtitle Copyrights, patents, and trademarks are all important,
but the term intellectual property is nonsensical and pernicious. And
it's a dear friend of mine and the show Peyton
Fisher buddy, who we all have hung out with together.
(07:19):
He's a lawyer in New York, in Brooklyn himself, and
he believes this wholeheartedly. We have had conversations multiple times
about the just convoluted nature of intellectual property law and
a lot of these kind of patent troll situations where
someone is just basically bilking the system, you know, by
exploiting this idea of intellectual property, or even some of
(07:42):
these lawsuits around like a tune that are once you
kind of look at everything, look at all the evidence,
seemingly a bit opportunistic.
Speaker 1 (07:50):
I think a lot about software law when this comes
into play, like patenting things such as the click of
a mouse right, or the idea of a window in general,
which would be familiar to any fan of the software
giant Microsoft. So also want to shout out again the
(08:10):
excellent work by Bruce Bugby in nineteen sixty seven The
Genesis of American Patent and Copyright Law, for an example
of what I'm talking about with impersonation of well known brands.
You can travel to Iran if you can get the visa,
and you can see that due to a lot of sanctions,
Iranian businesses have been copying or creating fake fast food
(08:36):
franchises for many, many years. You probably aren't going to
find a McDonald's or a Pizza Hut in Tehran, but
you might find a Pizza Hat or a mash Donald's.
There's a great NPR article about this called mash Donald's
(08:58):
Iranian's copy American fast food brands.
Speaker 2 (09:01):
It's a great read. And that's interesting too, Ben, based
on we were just talking about earlier, where it's like
in America, where there's a McDonald's, you know, every thousand feet,
it would seem you're gonna be much less likely to
be able to make the argument that someone would be
fooled by mash donald's thinking that they were actually in
a McDonald's. But in a country where McDonald's is not
(09:23):
nearly as ubiquitous, you could make the opposite argument that, yeah,
definitely you could, I if the branding was close enough
that there was an attempt to trick people. But then
because of the other countries and the way the laws vary,
it might be a little harder to enforce. What do
you think, Ben, Has McDonald's gone after mash Donald's or
(09:45):
Pizza Hut gone after Pizza Hat.
Speaker 1 (09:48):
No, you know, it's interesting they really haven't because it's
tough to given all the other geopolitical issues, it's tough
for Iran and Western governments to get on the same
page as for about anything, you know what I mean,
So how would you realistically even start that conversation, you
(10:10):
know what I mean? It is lower on the list
of priorities. And then this goes into again the generality
the vagueness of the term. Good legislation, good jurisprudence is
all about concrete definitions, and intellectual property has a hard
time with that because you know, if you're debating copyright law,
(10:31):
you have to wonder how does copying of academic papers work.
Patent law doesn't really apply to that. If you're talking
about patent law, you have to wonder whether pharmaceutical companies
should have to issue licenses to poor countries for life
saving drugs. Copyright law doesn't really matter there. And I
would also say that I have some personal feelings about
(10:58):
the way pharmaceutical companies behave internationally. I don't think people
should die because they don't have money. But that's, you know,
that's a philosophical thing.
Speaker 2 (11:08):
And isn't there a similar thing to like the idea
of a of a trademark expiring or something entering the
public domain as it pertains to generic drugs, like after
a certain point, isn't something able to become generic and
then you know, it's it's it's kind of up for
grabs and different companies can manufacture it. Uh.
Speaker 3 (11:26):
The big thing about drugs is it's a pattern, so
it has very strict protections, but only for a set
amount of time. Once that time has passed, it's become
like you know, in theory, just like well known enough
that everyone can now have the actual like basically the
script to.
Speaker 2 (11:43):
How this thing was made, because right, yeah, and that's
the generic.
Speaker 3 (11:47):
Right, that's that's when generics come out. That's like you know,
like you know, you get the generic like you know,
allegras and stuff like that, because it's literally the same
ingredients as the original version of the drug because we
have that script.
Speaker 2 (12:00):
So that means that at that point, the original manufacturer
has to release that information. They have to like make
the recipe available.
Speaker 3 (12:07):
Yeah, I'm like nine percent certain because you have to
give the recipe in the patent.
Speaker 2 (12:12):
Yes, yeah, there you go.
Speaker 1 (12:13):
So okay, got it, and it gets it becomes even
more complicated when you look at countries like India. So
right now, India is the largest democracy on the planet
and very much in need of some life saving medications,
and they did something that really ticked off a lot
of Western countries where they said, look, we know how
(12:34):
to make this. We're not going to have people die
just because they're poor, so we're going to make our
generic versions. You guys deal with it. And for some
folks that makes the Government of India villainous, and for
other folks that makes them heroes, especially the people had
their lives saved as a result of that decision. So
there's a lot involved here, and the rubber does hit
(12:57):
the road. What we're saying is this is, although it
might sound dry at times, this is very much important,
mission critical stuff for human society at large. We also
have the idea of fair use, which we deal with
so often here in podcast land. It's the reason that
we decided, with reluctance to put in our own law
(13:22):
and order spin on the casey on the case sound
cu because we didn't want Dick Wolf mad at us.
And you have to be very very careful with what
qualifies as fair use well.
Speaker 2 (13:34):
And of course, as we've often run against and as
our policy kind of as a company has become, fair
use isn't an ironclad protection you can't just say, ah,
fair use boom, leave me alone. Now, it's just a
defense that you have to then use in court, and
you still have to go to court and defend your position,
and that's very, very expensive, especially for a big company.
(13:57):
And if you're a big company, that makes you a
target for these types of lawsuits. And so sometimes it's
just better to err on the side of safety than
it is to depend on some sort of fair use argument,
whereas like a DJ or under the radar kind of
indie artist might be more likely to give it a role.
Speaker 3 (14:18):
Yeah, fair use fairy much has like the self defense
the argument where if you believe you go you just
go on to court and say it was self defense
and they oh, that's okay, that's fine. You're in a
lot of trouble. You really have to make a good
case for it. It's not to say, you know, get
a jail free card exactly.
Speaker 1 (14:37):
It's not like tagging base. You have to explain why
you should be able to tag base. And like you said, Noel,
you can enter into a war of attrition legally, right,
especially if the other side wants to make it super inconvenient.
Then you go into appeals that can last for years
(14:58):
and years and years, and you can just hemorrhage money
and time. The other thing is the idea of non obviousness.
This can come up in patent law, but it can't cut.
It doesn't really come up in copyright law. So what
we're saying, essentially, and you don't have to be a
lawyer for this one. We're saying is that intellectual property
(15:20):
is a broad term that applies to all sorts of
things that are, in truth their own distinct areas of
legal concern. So copyright law is not the same as
patent law. Trademarks are not the same as other IP violations.
Speaker 2 (15:37):
Right.
Speaker 1 (15:37):
So because of this, like like we're citing in this
wonderful essay, just using intellectual property as a concept all
the time indiscriminately, it leads to absolutely absurd situations. Anything
associated with a creator is grouped under this huge umbrella,
(15:58):
and that doesn't make sense.
Speaker 2 (16:00):
Yeah. Well, what does make sense, though, is that it
gets so murky because we know what property is for
the most part. You know, it's tangible. It's an asset.
It's like a thing that you can catalog and you know,
tag and put in a ledger of some kind. Like
a car or a house, you know, or a piece
of equipment or something like that. That's that's property, and
(16:20):
we are guaranteed to our property. But an idea is
a little more slippery than that, because what led to
the idea, where what's the what are the guts, you know,
the sort of foundations of the idea, and where do
those aspects come from and who owns those So it's
a lot harder to pin down an idea than it is, like,
you know, evol though.
Speaker 1 (16:42):
Right exactly, Yeah, that's a good way to say it.
And when we see this, we also see enormous opportunity
for something we alluded to import one the idea of
so called patent trolls, the concept that there are people
who know how to weaponize this incredibly byzantine, imperfect system.
(17:02):
And they're not there because they want their patent to
help the world. They're not there to really protect their
rights and good faith. They are there to get money
from other people. And there are thousands of ways to
do this. And in doing that, what we see is
(17:25):
a lot of the really important stuff about IP gets
lost in this semantic mire, this war of words. The
notion of borrowing, reusing, reworking, remixing stuff all. You need
all of this for culture and art and science to grow.
Perhaps Pablo Picasa was right when he said, what is
a good artist?
Speaker 2 (17:44):
Copy?
Speaker 1 (17:45):
Great artists?
Speaker 2 (17:45):
Steel? You know what, dude, Even that phrase has been
repurposed and associated with so many different people who maybe
said that. So it's just it's like parallel thinking is
also an issue. Right, two different parties thousands of miles
away might legitimately come up with the same idea at
the same time, and then you have all kinds of
(18:07):
problems that can arise from that. I do want to
just there's a really great definition of patent trolls from
the Electronic Frontier Foundation. I'm just going to read it
right off of their article on patent trolls. They describe
patent trolls as someone who uses patents as legal weapons
instead of actually creating any new products or coming up
with new ideas. Instead, trolls are in the business of
(18:29):
litigation or even just threatening litigation. They often buy up
patents cheaply from companies down on their luck who are
looking to monetize what resources they have left, such as patents. Unfortunately,
the patent office is a habit of issuing patents for
ideas that are neither new nor revolutionary, and these patents
can be very broad, covering every day or common sense
types of computing. This is specifically referring to, to your
(18:52):
point bend, software things that should have never been patented
in the first place. And this does not just have
to attached to software. This is the case for any
type of patent. And you know, because the patent offices
it is probably overwhelmed and so they maybe something's slide
through the cracks, and so these patent trolls are taking
(19:13):
advantage of this system rather than using it as a
means of innovation, and if anything, to your point bend,
they're slowing it down and possibly doing serious damage. There
was a patent troll that we ran up against very
early on in our podcast careers because How Stuff Works
was listed as a defendant in a patentrol case involving
(19:34):
the concept of podcasts. Oh yeah, yeah, Because the idea
of a podcast was that it was serialized content placed
on a feed, you know, an RSS feed, which stands
for really simple syndication. So a feed RSS feed was
originally used for things like I believe newsgroups, or maybe
it was just like reading lists and things like that.
(19:54):
And then somebody figured out how to repurpose it and
use it for you know, compressed audios in a serialized form,
and therein live the advent of podcasting as we know it.
But this patent troll targeted folks like Jimmy Kimmel and
How Stuff Works and some other kind of early big
names I think Mark Maron, but ultimately did not win
(20:14):
because that would have been really bad.
Speaker 1 (20:16):
Yeah, podcasts would not have been a thing, or they
would have changed. They would have had to change by necessity.
So because of this, because of this indiscriminate use of
the concept of intellectual property, there have been numerous legal disasters.
Copyrights have grown without limit almost you know. Again, they
(20:38):
were supposed to be temporarily limited, but that hasn't been
the case. Congress drastically increased copyright terms in nineteen seventy
six and then again in nineteen ninety eight. I mentioned
this in Part one, but a big, big piece of
this was the Disney Corporation. They were lobbying for decades
(20:59):
to exclusivity over Mickey Mouse and not to let the
poor guy get into the public domain, not to let
old Steamboat become a man of the people or a
mouse of the people as a word, and so in
other cases you see that people who are using intellectual
property also suggests that protections be passed on to an
(21:22):
air of some sort. Like the notion of inheritance that
comes from real estate would also apply to copyright laws.
So like let's say your great grandfather is ts Eliott
or something like that. Then does that mean that you
have the copyright over the wasteland you know or wastelands?
(21:44):
Does that mean you own little Gettings even though he
didn't write it and played no role in the creation.
Speaker 2 (21:51):
It's a weird question, it is. And it's interesting too
because when you deal with say music, I believe it's
a different from ballgame because you have publishing rights versus
the rights of the recording itself. So like to every
album or a piece of music that's released, there are
two sides of the copyright. There's the publishing side, which
(22:12):
literally refer has to be registered as notes on a
page and lyrics on a page, and that's one copyright.
The other is the actual recording, the masters exactly, and
those are passed down to generations you know, they'll they'll
exist in the estate of a family, and usually you'll
see it's members of the estate that are suing kind
(22:36):
of down the line. But you know, I mean it's
it's a long time though for something to enter the
public domain. So for the fact the fact that we
see Mickey Mouse, you know, finally running up against that's
because it's almost these over one hundred years old at
this point, right, I mean, right, I believe it was.
Speaker 1 (22:53):
Yeah, yeah, yeah, it's a hundred years old.
Speaker 2 (22:55):
But like we certainly there are classical music pieces where
the publishing rights are in the public domain, but not
the recording by the London Philharmonic, Right, So that's different,
you know, those are there's two different sides of that,
and we're gonna have a good time in a minute
getting into some specific and pretty silly examples of some
(23:16):
you know, actual court cases surrounding intellectual property. But it's
a it's a murky topic because there are so many
different flavors of it. So we just you know, hopefully
we're not getting too bogged down. But I think we've
done a decent job of kind of trying to you know,
demonstrate the different ones.
Speaker 1 (23:33):
Yeah, what we're saying is that this is leading to
a huge, messy bowl of spaghetti. Things are gonna get
even weirder in the US and abroad next year, because
twenty twenty four is when Mickey Mouse enters public domain.
At present, you're already seeing stuff like that with the
Winnie the Pooh horror movie. I think Winnie oyah Iyah
(23:56):
just got released, and I think you can't there's certain
things you can't do though, Like it's not like you
just can use the character in whatever way you see
fit exactly.
Speaker 3 (24:05):
It's the red shirt. You can't a red shirt on
Winnie the Pool.
Speaker 2 (24:09):
Because that's a more recent iteration, right or well.
Speaker 3 (24:13):
I think that is what made it Disney's property, because
Winning the Pooh obviously predated Disney.
Speaker 2 (24:20):
That's right. So we're talking about the book Winnie the
Pooh entering the public domain, not necessarily the Disney version,
but with Mickey Mouse, we are talking about a character
that was originally created by Disney. So what happens if
you if over time a character's design changes, then does
(24:40):
that restart the clock?
Speaker 1 (24:43):
Maybe?
Speaker 3 (24:43):
Probably that is probably in the minutia of the argument,
and probably the corporations would love discussing that minutia as
long as you continue this clock further and further.
Speaker 1 (24:55):
Out running the clock. And it depends on how good
your lawyer is and frankly, what their relationship with the judges.
I'm just gonna say the quiet part out loud. I mean,
let's you know what, let's get into We've done our
due diligence on the background and some of the legal
and philosophical concerns. Let's get into the fun stuff. Let's
talk about Louis Vaton and Hote Diggity Dog exactly.
Speaker 2 (25:26):
Louis Vuitton, of course, famous storied fashion house, you know,
fashion brand known for its hote couture. Hote Diggity Dog
probably not as much of a household name, but there was.
In fact, they lost sue Louis Vitton versus Hot Diggity
Dog when in two thousand and six Louis Vuitton sued
(25:50):
this little little little doggy toy company, Hote Diggity Dog,
for trademark, trade dress and copyright infringement when Hote Diggity
Do created these little plush dog toys under the name
chew Evaton and you've probably seen the iconic Louis Viton
handbags that are like kind of brown leather with the
(26:10):
LV sort of like stamped in like a pattern on them. Uh.
And that is what Chewyvaton used, you know, for their
dog toys. So it really you know, they're obviously not handbags,
and I don't think anyone would ever confuse them for that.
They're little squishy toys that kind of look like handbags.
And say Chewyvaton and.
Speaker 1 (26:29):
Have the little with one T.
Speaker 2 (26:31):
Not too it is with one te Sorry you're right, Ben,
good point. Now it's with two.
Speaker 1 (26:37):
Chewyvaton is with one mm hmm.
Speaker 2 (26:39):
Look at it right now.
Speaker 1 (26:40):
I'm looking at it too. I've got it pulled up here.
Speaker 2 (26:42):
V U I T T O N.
Speaker 1 (26:45):
I'm seeing, I'm seeing multi.
Speaker 2 (26:46):
I'm looking at their actual website.
Speaker 1 (26:48):
Okay, I'm looking at the images. Let me go to
their website and check.
Speaker 2 (26:52):
You're right on the on the actual things, it's one T,
but the but the U R L is two t's
and the actual logo of the top is suit cheese.
I wonder why they did that.
Speaker 1 (27:05):
I think we can tell.
Speaker 2 (27:06):
Okay, well, I think we keep all this in because
this is exactly the kind of stuff we're talking about.
So chewey Vaton argued that they were essentially doing a parody.
You know, it's like, oh, it's silly, this is like
high fashion stuff. Let's make it for doggies, and the
courts agreed. Louis Vuitton argued that the toys were going
to cause brand confusion, but then Louisittan doesn't make dog toys, right,
(27:31):
so where's the brand confusion. No one is going to
mistake a little, you know, cuddly squeaky dog bag for
you know, an overpriced handbag.
Speaker 1 (27:42):
And then the court makes the decision that chewey Vatan
is a quote joking and amusing parody and nothing more.
So parody again qualifies for its own set of considerations,
which we we mentioned briefly, but just you know, this
is part of the reason why weird Al does a
(28:04):
lot of uh does so much great work, you know,
And and the weird Al situation I love because interestingly enough,
a lot of other musicians consider it a great honor
at a right of passage for weird Al to parody them.
Speaker 3 (28:20):
Who's I believe that he didn't like it. There's one
guy who really didn't like it.
Speaker 2 (28:25):
There was Chris I think he ever did it. He
didn't he never do did a prince.
Speaker 1 (28:28):
He never got the permission to do a prince. When
can you ask people in advance? He usually does. I
think he almost always does, whether as a courtesy or what.
Coolio didn't like it, You're right, Coolio. Coolio later apologized
to weird Al.
Speaker 3 (28:43):
Because he would always beforehand reach out and I think
he got it from the record label, and he thought
he had got it directly from Coolio, and Coolio was
very mad, saying, hey, you're using my work man, and
so like it was one of these situations where he
was like legally right, but I believe he was like
really like he bad about it. He's like, hey, man,
I didn't I don't want to ever do that to people.
Speaker 2 (29:03):
Well, also, like you could argue that Ku Coulio was
thinking it was disrespecting what he considered to be kind
of like a serious song about a real problem in
terms of like young people getting tied up in gang
violence and all of that, and to make it sort
of like a silly goof he might have felt was
in poor tastes. And you know, you could argue that
(29:25):
it is in poor taste, but it does come with
some protections that it's so funny. I just have to
add Chewy Vaton is a brand in and of itself.
So Hote Diggity Dog had their line of Chewy Vaton toys.
But if you look online, there actually is a website
that's just Chewy Vuton and that's spelled with two tea's,
(29:47):
whereas the one in the Hote Diggity Dog line is
spelled with one tea. So now we're really getting into
parodies of parodies, you know, I mean, it gets deep
and weird.
Speaker 1 (29:56):
And this is far from the only example. Let's look
at Slater versus Peta on behalf of none other than
the Ruto the Monkey. So David Slater is a British
nature photographer and he was hanging out with a group
of monkeys in Indonesia celebs crested maccox and he had
(30:17):
no idea that his photography would make a huge legal quagmire.
So while he's hanging out with these monkeys, some of
them picked up his camera. And monkeys are very intelligent.
They took a lot of cool selfies. You could see these.
They were viral for a while and surprise, surprise, when
(30:38):
our pal Dave Slater gets home he sees these photos
have been published in all sorts of newspapers, not just
like kind of tabloidy stuff like the Daily Mail, but
the Guardian and the Telegraph as well. And someone took
these photographs, an editor at Wikimedia Commons and uploaded them
to the wikimedia website. Slater found this and he said, hey,
(31:01):
can you take these off your website because this is
my work, and Wikimedia said, hey, sorry, David, that might
have been your camera, but you didn't take those photos.
The monkeys did, and we'll go to court over it
if you want.
Speaker 2 (31:17):
And in fact, there's still a note attached to that license,
this Wikimedia Commons thing, which is a very useful tool
for let's say, documentary filmmakers or podcasters you know where.
If it's got a Wikimedia Commons license attached to that
is a damn good sign that they've done their homework
and that it is, in fact something that is public domain.
But the note reads, this file is in the public
(31:38):
domain because as the work of a non human animal,
it has no human author in whom copyright is vested.
Speaker 1 (31:47):
So unless the monkeys go to court, what are you
going to say? And like I said at the beginning
this one, you heard the name PETA ridiculous historians. How
did PETA get in there? Well, PETA takes Slater Court
because of something called the next friend principle of law.
The next friend principle of law allows you to sue
(32:08):
in the name of another person. In this case, the
organization PETA is suing on behalf of one of those
monkeys whose name is Naruto. And so in twenty eighteen,
a judge at the Ninth Circuit Court of Appeals has
probably one of the weirdest cases in their entire career,
(32:28):
and they rule against the selfie taking monkey. They throw
out the copyright lawsuit, and along the way they heavily
criticize PETA and they say, don't make Naruto an unwitting
pawn in your quote ideological goals.
Speaker 2 (32:42):
We talked about this case in our Animals in Court
episode around the concept of animal personhood and PETA. Whatever
you think of them as an organization, you can't really
deny the fact that they do often do kind of
I guess let's call them symbolic lawsuits that maybe are
wasting a lot of folks time, but ultimately are an
(33:05):
excuse for them to create a press release. But nothing
really comes of that.
Speaker 1 (33:08):
Or a legal precedent that's so like two for a
dollar so that you can get something some jurisprudence on
the books. We're going to end on two from the
world of pop culture. Let's go to Mattel Incorporated versus
MnGa Entertainment Incorporated. So these are two companies suing each other,
and they're suing because of beef between Barbie and the
(33:33):
Brats with a Z.
Speaker 2 (33:35):
Yeah, that's right. And this really goes into that whole
concept of like something being so derivative that it could
be considered an infringement, you know, But that's for the
courts to decide, isn't it. And no one's going to
make that decision unless the lawsuit is file. So Barbie
at this point, obviously Barbie's having a real moment right now,
(33:55):
real glow up. But at this point in two thousand
and one, Barbie as a brand is our forty two
years young when the Brats Dolls with a Z because
they're edgy, you know, hit the scene. I believe the
first run of Brats Dolls included Chloe, Jade, Sasha, and Yasmin.
And these are like they're kind of a cob like
(34:16):
giant headed, you know, puffy lipped, cartoony sort of you know,
seem girls.
Speaker 1 (34:22):
They're like bad powder puff girls.
Speaker 2 (34:24):
Really yeah, exactly in terms of the proportions of head
to body. But they did really well, very quickly. I
think in the span of just five years, they took
about forty percent of the market share away from Barbie
in terms of I guess dolls portraying fashioning young women
right right.
Speaker 1 (34:44):
Because it's a specific demographic that these toys are for.
And so Mattel does what any company would reasonably do there,
They try to make a new iteration of Barbie dolls
that will bring back some of that market share. And
this line of barbiees is called my Scene Barbies. They
(35:06):
they echo the big headed, slim bodied build of the
Bratz dolls. And MGA Entertainment doesn't cot into this. So
in April two thousand and five, they sue Mattel and
they say, you are infringing upon our Brats thing. And
then Mattel comes back in court because both of these
are companies so they can afford to bleed a little money,
(35:27):
they say, well, Bratz has a designer named Carter Bryant,
and Carter Bryant made the Bratz doll design while we
at Mattel were paying Carter. And this is true. Carter
worked for Mattel from nineteen ninety five and September to
April nineteen ninety eight, and then worked for him again
(35:47):
in nineteen ninety nine to October two thousand and the
contract that Carter Bryant signed stipulated that his designs during
this time would all be property in Mattel. And you
can see this in a lot of other industries, like,
please read your employment contracts carefully, because you might sign
something that says any software you create while you're employed,
(36:12):
or any thing you make on a work computer becomes
the ip of your employer, so be very careful with that.
Speaker 2 (36:20):
That becomes a big plot point in the HBO series
Silicon Valley, where like there's an algorithm that one of
the main characters is working on, like a compression algorithm,
and at some point it becomes a subject in core
proceedings as to whether he did that on a computer
owned by the sort of Google you know stand in
(36:41):
that's in the show. Huli is what it's called, And
that's a big deal. Like if you do anything like
that in a work computer technically it is the product
of the company. Like, even maybe if it's not within
the scope of your work, you got to wonder that, Like,
what if you're like, you know, I have my own
computer that I that I use in my home setup
my home studio that I record music on. But if
(37:03):
I was using a work computer all of the stuff
that I did with that computer, if I one day
sold a song for a million dollars or whatever, technically
the company could claim that I did it on a
work computer, and therefore they would be party to that
those earnings. Right, I think, even if it's not under
(37:23):
the scope of my employment.
Speaker 1 (37:25):
It can happen that way. Again, this we cannot emphasize
this enough. You've got to read those contracts carefully because
another example would be whether or not it matters that
you were working on company time, which takes precedent using
company equipment or using company time. For example, I have
(37:47):
I've had to negotiate some pretty specific things with non
competes in regards to being a writer independent of the
podcast and stuff, and that that is Like, we're very
fortunate in that the our colleagues and the folks we
work with are all for some reason, big fans of us.
(38:10):
So when we have outside projects or work, ninety nine
times out of one hundred, they're like, you guys are awesome,
Go do the thing.
Speaker 2 (38:18):
That's great.
Speaker 1 (38:19):
Yeah and yeah, But that doesn't apply to everyone. We're
quite fortunate in that regard.
Speaker 2 (38:24):
For sure. We also do know that typically noncompete clauses
are a little difficult to enforce. You know, they're not
always ironclad. But in this case, it did not go
in favor of Carter Bryant and the Brats brand. In
July two thousand and eight, the Jewelry took the side
of Mattel and MGA, the Brat's I guess parent company
had to pay Mattel a whopping one hundred million dollars
(38:46):
and also oh insults and injury remove Bratz dolls from shells.
But something's changed because there's been Brats movies and stuff,
and I think Brats are back in a big way.
Speaker 3 (38:59):
One year, they had to take him off a shell
for one year.
Speaker 2 (39:02):
Okay, okay, got it.
Speaker 1 (39:03):
And then MGA ultimately prevailed and they said, we're proving
that Mattel has stolen our trade secrets. So these cases
are almost never fully done thanks to appeals processes. These
can go on for so long. Li'sten on one more.
(39:23):
This is one for the eighties babies in the crowd today.
You may recall the mid nineteen eighties, the Reagan administration
started something called the Strategic Defense Initiative or SDI, and
immediately everyone in the United States called it the Star
Wars program. Most people loved this. One guy who didn't
(39:44):
love this was George Lucas, who you may be familiar with.
Speaker 2 (39:49):
Yeah, George Lucas said, it's like history at rhymes. Yeah,
that guy. He and his production company, Lucasfilm, were an
at Uncle Sam or Uncle Ronnie, and it didn't want
this association with its brand, with his brand. And by
this association, I'm referring to one tied up in war
(40:12):
efforts and missile launching, missiles into space and all of that.
You know, you wanted kind of a clean slate. In
Star Wars, there's very little threat of global annihilation. You know,
there's kind of dog fights in space. I mean, there
is the Death Star and all of that stuff, but
you know, there really isn't much of like an apocalypse
vibe in Star Wars. There's sort of a nice, kind
(40:35):
of diplomatic wave of things working themselves out.
Speaker 3 (40:39):
Oh, by the way, the blockade that was Phantom Menace,
not Clone War.
Speaker 1 (40:45):
Oh.
Speaker 2 (40:46):
It starts with the weird aliens and they're talking about
the blockade, but it comes into play in the second one.
And that one really slip of debating.
Speaker 3 (40:55):
To really date this recording. I was editing the Lucian
Islands episode and I watched a clip and it's it's
very weird, and it's like, wow, I didn't realize the
Phantom Menace was this weird. It all just feels weird.
It has a whole of jury's getting blown up on
R two D two survives it, so they introduced our
two D two. It's really ham fisted in there. All
(41:15):
that whole movie was it's just a joyless cash grab.
Speaker 1 (41:18):
Now this is interesting. I'm glad we're ending on this
one because it's a larger question for us and all
the ridiculous historians in the crowd in nineteen eighty five,
when this lawsuit comes to bear, Lucas doesn't sue the
US government, right because officially the US government just has
(41:39):
a few politicians who start using the phrase Star Wars program.
But he can sue two public interest groups, one called
High Frontier and one called the Committee for Strong Peaceful America.
They run these TV messages, these like PSA's, and they
refer to this program as star Wars, and Lucasfilm has
a t for Star Wars, the movies, the brilliant film
(42:03):
franchise that goes into all sorts of things, toys, books, merch,
you name it. The Federal District Court said, sorry, George,
we're ruling in favor of the interest group. They are
totally fine to call their program whatever they want, even
Star Wars, so long as they don't attach it to
(42:24):
a product or service for sale. And the court decision
even said, look, forever, creators of fictional worlds have seen
their vocabulary for fantasy appropriated to describe reality. So that's
stuff like you know, like George, orwell, people reference nineteen
eighty four and double think all the time. I don't know,
(42:47):
what do you guys think about that decision.
Speaker 2 (42:49):
I think it's right on the money, because first of all,
it wasn't even officially the name of the program. Sure
it was sort of shorthand that was just being thrown around,
And that's what happens when you have such a brand
that's so ubiquitous as as Star Wars, people are going
to start using terms from it, you know, in normal
kind of parlance, whether it be in conversation or in
(43:11):
to describe, you know, things that are bigger than just
like civilian kind of activities. Right, It's just it's it
makes sense. But you can't put that genie back in
the bottle. That's part of having something that sort of
really invades the public consciousness. It's gonna get appropriated.
Speaker 1 (43:29):
M h yeah, well said, and these conversations continue in
the modern day. There are so many other strange examples
we can give you of intellectual property beefs, but for
now I think we can say safely that this stuff
often gets very, very ridiculous.
Speaker 2 (43:51):
So no question about it, man, Yeah, this is cool.
It's something that we often find ourselves kind of in
the midst of is in podcasting and have kind of
seen some of these things sort of evolve, you know,
in our lifetimes, and they're going to continue to do
so because it is still based on the history of
it not so clear. You know, ideas are like you know,
(44:15):
made of spider's webs and magic. As Noel Fielding might
say on the mighty boosh. It's really hard to pin down.
Speaker 1 (44:22):
And one thing we can say is that we are
continually grateful for all of all of you folks playing
along at home, Ridiculous Historians. Thanks to you. We're also
grateful for the help of everybody in the Ridiculous crew.
Let's start with a big thanks for super producer mister
Max Williams.
Speaker 2 (44:41):
Jonathan Strickland. Ever may he you know, live under our
symbolic podcast bridge and we'll always pay that sol because
at the end of the day, you know, he's our troule.
Chris rosciotis here in spirit.
Speaker 1 (44:55):
Yeah, Eve's Jeff Coat. Let's also give a shout out
to Gabeluesier. Let shout out to our researchers Associe It
for this episode, Doctor Z and Noel.
Speaker 2 (45:04):
Shout out to you Surgy with you as well, my friend.
We'll see you next time. Folks. For more podcasts from iHeartRadio,
visit the iHeartRadio app, Apple Podcasts, or wherever you listen
to your favorite shows.
Ridiculous History is a production of iHeartRadio. Welcome back to
(00:27):
the show Ridiculous Historians. Thank you, as always for tuning in.
We want to start with a shout out to our
super producer, Slash Legal Beagle or check this out Legal Eagle,
Max Williams.
Speaker 2 (00:41):
Caca Silly Goose, a silly gander of the Michigan variety.
Speaker 1 (00:46):
And what's good for the goose is of course good
for the Max. So we uh so you're no. I'm
Ben And this is part two of an exploration of
the sometimes ridiculous history of intellectual property. In part one,
nol I had made the offhand reference to legal bagal,
and I found the etymology. It's kind of uncertain, but
(01:10):
it seems like sometime in the nineteen forties an attorney
wrote a book called The Little Lawyer and Legal Advisa
where he used the term legal egle, and it transformed
over time.
Speaker 2 (01:22):
To legal bagal rhyming, am I right, yeah, fun, yeah.
Speaker 1 (01:27):
I wonder if someone's got a patent on that. Previously,
we gave everybody a lot of background on the ancient
history of IP and how it you pointed out something
I really appreciated A lot of the modern legal definitions
of intellectual property started in Italy, but then Italy picked
up the improvements that the United States made and that's
(01:51):
where we get our modern day definition of intellectual property.
I mean, first, let's talk about what the what benefits
would it have like if you came out with if
you came out with an album, I came out with
a novel, or let's say Max events new a new
(02:15):
device used in curling. Let's see I'm relevant to all
our interests here. Then what benefits would we have from
IP laws?
Speaker 2 (02:25):
Exactly? Quite a few. And we've already sort of gotten
into this a good bit. But you know, once it
gets a little more kind of ensconced in the law,
we really do see these protections start to become really clear. Uh,
the idea of market value. Intellectual property rights allow creators
(02:47):
to generate businesses, you know, based on their original ideas
and the licensing of those ideas, the sale of products
that are based in unique ideas, and also the kind
of proliferation and commercialization of those products, goods, and services
that they are able to benefit from because of those protections.
Speaker 1 (03:11):
One hundred percent. And the big thing here is the
protection so you can prohibit other people from financially benefiting
off of your ideas if they violate ip laws. So
you can take people to court if they're making money
off your ideas in a way that violates these laws,
(03:34):
you can file a court case, like if you are Max,
the inventor of the new curling device and someone else
starts just making those without compensating you, then you can
sue them, and if they are found guilty, the court
will give you a financial reward, or you might have
(03:57):
to get a certain person of whatever those folks are
profiting with.
Speaker 2 (04:03):
You know, that's right. And it also we talked about,
you know, the ability to market and sell these services
or goods. It also through that control of these ideas
allows you the power to help raise financing or raise funding,
you know, for your business or idea because you hold
an exclusive right you know, to those ideas. And with
(04:27):
that in mind as well, it also gives you the
ability to benefit from exports, because if a country can't
just make their own version of a thing because that
intellectual property is already tied to another business, then the
only option there is to import that good rather than
create something regionally, because they you know, they would be
(04:48):
infringing on.
Speaker 1 (04:49):
That copyright protection. And here's the kicker. This stuff, as
I said in part one, is imperfect, and these laws,
while well intentioned, kind of an inherently create their own
issues just by existing. A general term is only useful
if it subsumes related concepts. So let's start with the
(05:11):
idea they stole my intellectual property. That concept by itself,
without supporting evidence, is kind of uninformative. The general term
intellectual property is such a umbrella term it obscures more
than it illuminates. If you allege copyright infringement, you have
to identify exactly what it is that is being infringed
(05:36):
upon and exactly how it's being infringed. Right, So take
patent law. If someone says this person stole my invention
in some way or some part of my invention, then
you have to say, okay, does this quote unquote new
invention straight up copy the design of the older one?
And when you look at trademarks, you have to say, like, okay,
(06:00):
are these golden arches purposefully close to the McDonald's golden arches?
Are they meant to trick people into thinking they're eating
at McDonald's somehow?
Speaker 2 (06:11):
Well? And that also, you know, sort of begs the
question like is it reasonable to think that a consumer
would be tricked in that way? Is that even possible
with like the ubiquity of what McDonald's is and how,
you know, just all encompassing it is, like, I don't
think it's a reasonable assumption that someone could be tricked
(06:33):
into thinking they're eating at McDonald's when in fact it
was something else, you know. And once you get into
like parody, uh, and the idea of like fair use
and all of that stuff, which we'll get into, it
really starts to get confusing. And we're taking a lot
of this stuff in this section here from a really
great essay by a professor of philosophy at Brooklyn College
of the City University of New York named Samir Chopra,
(06:56):
who has a fabulous essay literally titled in Intellectual Property
with the subtitle Copyrights, patents, and trademarks are all important,
but the term intellectual property is nonsensical and pernicious. And
it's a dear friend of mine and the show Peyton
Fisher buddy, who we all have hung out with together.
(07:19):
He's a lawyer in New York, in Brooklyn himself, and
he believes this wholeheartedly. We have had conversations multiple times
about the just convoluted nature of intellectual property law and
a lot of these kind of patent troll situations where
someone is just basically bilking the system, you know, by
exploiting this idea of intellectual property, or even some of
(07:42):
these lawsuits around like a tune that are once you
kind of look at everything, look at all the evidence,
seemingly a bit opportunistic.
Speaker 1 (07:50):
I think a lot about software law when this comes
into play, like patenting things such as the click of
a mouse right, or the idea of a window in general,
which would be familiar to any fan of the software
giant Microsoft. So also want to shout out again the
(08:10):
excellent work by Bruce Bugby in nineteen sixty seven The
Genesis of American Patent and Copyright Law, for an example
of what I'm talking about with impersonation of well known brands.
You can travel to Iran if you can get the visa,
and you can see that due to a lot of sanctions,
Iranian businesses have been copying or creating fake fast food
(08:36):
franchises for many, many years. You probably aren't going to
find a McDonald's or a Pizza Hut in Tehran, but
you might find a Pizza Hat or a mash Donald's.
There's a great NPR article about this called mash Donald's
(08:58):
Iranian's copy American fast food brands.
Speaker 2 (09:01):
It's a great read. And that's interesting too, Ben, based
on we were just talking about earlier, where it's like
in America, where there's a McDonald's, you know, every thousand feet,
it would seem you're gonna be much less likely to
be able to make the argument that someone would be
fooled by mash donald's thinking that they were actually in
a McDonald's. But in a country where McDonald's is not
(09:23):
nearly as ubiquitous, you could make the opposite argument that, yeah,
definitely you could, I if the branding was close enough
that there was an attempt to trick people. But then
because of the other countries and the way the laws vary,
it might be a little harder to enforce. What do
you think, Ben, Has McDonald's gone after mash Donald's or
(09:45):
Pizza Hut gone after Pizza Hat.
Speaker 1 (09:48):
No, you know, it's interesting they really haven't because it's
tough to given all the other geopolitical issues, it's tough
for Iran and Western governments to get on the same
page as for about anything, you know what I mean,
So how would you realistically even start that conversation, you
(10:10):
know what I mean? It is lower on the list
of priorities. And then this goes into again the generality
the vagueness of the term. Good legislation, good jurisprudence is
all about concrete definitions, and intellectual property has a hard
time with that because you know, if you're debating copyright law,
(10:31):
you have to wonder how does copying of academic papers work.
Patent law doesn't really apply to that. If you're talking
about patent law, you have to wonder whether pharmaceutical companies
should have to issue licenses to poor countries for life
saving drugs. Copyright law doesn't really matter there. And I
would also say that I have some personal feelings about
(10:58):
the way pharmaceutical companies behave internationally. I don't think people
should die because they don't have money. But that's, you know,
that's a philosophical thing.
Speaker 2 (11:08):
And isn't there a similar thing to like the idea
of a of a trademark expiring or something entering the
public domain as it pertains to generic drugs, like after
a certain point, isn't something able to become generic and
then you know, it's it's it's kind of up for
grabs and different companies can manufacture it. Uh.
Speaker 3 (11:26):
The big thing about drugs is it's a pattern, so
it has very strict protections, but only for a set
amount of time. Once that time has passed, it's become
like you know, in theory, just like well known enough
that everyone can now have the actual like basically the
script to.
Speaker 2 (11:43):
How this thing was made, because right, yeah, and that's
the generic.
Speaker 3 (11:47):
Right, that's that's when generics come out. That's like you know,
like you know, you get the generic like you know,
allegras and stuff like that, because it's literally the same
ingredients as the original version of the drug because we
have that script.
Speaker 2 (12:00):
So that means that at that point, the original manufacturer
has to release that information. They have to like make
the recipe available.
Speaker 3 (12:07):
Yeah, I'm like nine percent certain because you have to
give the recipe in the patent.
Speaker 2 (12:12):
Yes, yeah, there you go.
Speaker 1 (12:13):
So okay, got it, and it gets it becomes even
more complicated when you look at countries like India. So
right now, India is the largest democracy on the planet
and very much in need of some life saving medications,
and they did something that really ticked off a lot
of Western countries where they said, look, we know how
(12:34):
to make this. We're not going to have people die
just because they're poor, so we're going to make our
generic versions. You guys deal with it. And for some
folks that makes the Government of India villainous, and for
other folks that makes them heroes, especially the people had
their lives saved as a result of that decision. So
there's a lot involved here, and the rubber does hit
(12:57):
the road. What we're saying is this is, although it
might sound dry at times, this is very much important,
mission critical stuff for human society at large. We also
have the idea of fair use, which we deal with
so often here in podcast land. It's the reason that
we decided, with reluctance to put in our own law
(13:22):
and order spin on the casey on the case sound
cu because we didn't want Dick Wolf mad at us.
And you have to be very very careful with what
qualifies as fair use well.
Speaker 2 (13:34):
And of course, as we've often run against and as
our policy kind of as a company has become, fair
use isn't an ironclad protection you can't just say, ah,
fair use boom, leave me alone. Now, it's just a
defense that you have to then use in court, and
you still have to go to court and defend your position,
and that's very, very expensive, especially for a big company.
(13:57):
And if you're a big company, that makes you a
target for these types of lawsuits. And so sometimes it's
just better to err on the side of safety than
it is to depend on some sort of fair use argument,
whereas like a DJ or under the radar kind of
indie artist might be more likely to give it a role.
Speaker 3 (14:18):
Yeah, fair use fairy much has like the self defense
the argument where if you believe you go you just
go on to court and say it was self defense
and they oh, that's okay, that's fine. You're in a
lot of trouble. You really have to make a good
case for it. It's not to say, you know, get
a jail free card exactly.
Speaker 1 (14:37):
It's not like tagging base. You have to explain why
you should be able to tag base. And like you said, Noel,
you can enter into a war of attrition legally, right,
especially if the other side wants to make it super inconvenient.
Then you go into appeals that can last for years
(14:58):
and years and years, and you can just hemorrhage money
and time. The other thing is the idea of non obviousness.
This can come up in patent law, but it can't cut.
It doesn't really come up in copyright law. So what
we're saying, essentially, and you don't have to be a
lawyer for this one. We're saying is that intellectual property
(15:20):
is a broad term that applies to all sorts of
things that are, in truth their own distinct areas of
legal concern. So copyright law is not the same as
patent law. Trademarks are not the same as other IP violations.
Speaker 2 (15:37):
Right.
Speaker 1 (15:37):
So because of this, like like we're citing in this
wonderful essay, just using intellectual property as a concept all
the time indiscriminately, it leads to absolutely absurd situations. Anything
associated with a creator is grouped under this huge umbrella,
(15:58):
and that doesn't make sense.
Speaker 2 (16:00):
Yeah. Well, what does make sense, though, is that it
gets so murky because we know what property is for
the most part. You know, it's tangible. It's an asset.
It's like a thing that you can catalog and you know,
tag and put in a ledger of some kind. Like
a car or a house, you know, or a piece
of equipment or something like that. That's that's property, and
(16:20):
we are guaranteed to our property. But an idea is
a little more slippery than that, because what led to
the idea, where what's the what are the guts, you know,
the sort of foundations of the idea, and where do
those aspects come from and who owns those So it's
a lot harder to pin down an idea than it is, like,
you know, evol though.
Speaker 1 (16:42):
Right exactly, Yeah, that's a good way to say it.
And when we see this, we also see enormous opportunity
for something we alluded to import one the idea of
so called patent trolls, the concept that there are people
who know how to weaponize this incredibly byzantine, imperfect system.
(17:02):
And they're not there because they want their patent to
help the world. They're not there to really protect their
rights and good faith. They are there to get money
from other people. And there are thousands of ways to
do this. And in doing that, what we see is
(17:25):
a lot of the really important stuff about IP gets
lost in this semantic mire, this war of words. The
notion of borrowing, reusing, reworking, remixing stuff all. You need
all of this for culture and art and science to grow.
Perhaps Pablo Picasa was right when he said, what is
a good artist?
Speaker 2 (17:44):
Copy?
Speaker 1 (17:45):
Great artists?
Speaker 2 (17:45):
Steel? You know what, dude, Even that phrase has been
repurposed and associated with so many different people who maybe
said that. So it's just it's like parallel thinking is
also an issue. Right, two different parties thousands of miles
away might legitimately come up with the same idea at
the same time, and then you have all kinds of
(18:07):
problems that can arise from that. I do want to
just there's a really great definition of patent trolls from
the Electronic Frontier Foundation. I'm just going to read it
right off of their article on patent trolls. They describe
patent trolls as someone who uses patents as legal weapons
instead of actually creating any new products or coming up
with new ideas. Instead, trolls are in the business of
(18:29):
litigation or even just threatening litigation. They often buy up
patents cheaply from companies down on their luck who are
looking to monetize what resources they have left, such as patents. Unfortunately,
the patent office is a habit of issuing patents for
ideas that are neither new nor revolutionary, and these patents
can be very broad, covering every day or common sense
types of computing. This is specifically referring to, to your
(18:52):
point bend, software things that should have never been patented
in the first place. And this does not just have
to attached to software. This is the case for any
type of patent. And you know, because the patent offices
it is probably overwhelmed and so they maybe something's slide
through the cracks, and so these patent trolls are taking
(19:13):
advantage of this system rather than using it as a
means of innovation, and if anything, to your point bend,
they're slowing it down and possibly doing serious damage. There
was a patent troll that we ran up against very
early on in our podcast careers because How Stuff Works
was listed as a defendant in a patentrol case involving
(19:34):
the concept of podcasts. Oh yeah, yeah, Because the idea
of a podcast was that it was serialized content placed
on a feed, you know, an RSS feed, which stands
for really simple syndication. So a feed RSS feed was
originally used for things like I believe newsgroups, or maybe
it was just like reading lists and things like that.
(19:54):
And then somebody figured out how to repurpose it and
use it for you know, compressed audios in a serialized form,
and therein live the advent of podcasting as we know it.
But this patent troll targeted folks like Jimmy Kimmel and
How Stuff Works and some other kind of early big
names I think Mark Maron, but ultimately did not win
(20:14):
because that would have been really bad.
Speaker 1 (20:16):
Yeah, podcasts would not have been a thing, or they
would have changed. They would have had to change by necessity.
So because of this, because of this indiscriminate use of
the concept of intellectual property, there have been numerous legal disasters.
Copyrights have grown without limit almost you know. Again, they
(20:38):
were supposed to be temporarily limited, but that hasn't been
the case. Congress drastically increased copyright terms in nineteen seventy
six and then again in nineteen ninety eight. I mentioned
this in Part one, but a big, big piece of
this was the Disney Corporation. They were lobbying for decades
(20:59):
to exclusivity over Mickey Mouse and not to let the
poor guy get into the public domain, not to let
old Steamboat become a man of the people or a
mouse of the people as a word, and so in
other cases you see that people who are using intellectual
property also suggests that protections be passed on to an
(21:22):
air of some sort. Like the notion of inheritance that
comes from real estate would also apply to copyright laws.
So like let's say your great grandfather is ts Eliott
or something like that. Then does that mean that you
have the copyright over the wasteland you know or wastelands?
(21:44):
Does that mean you own little Gettings even though he
didn't write it and played no role in the creation.
Speaker 2 (21:51):
It's a weird question, it is. And it's interesting too
because when you deal with say music, I believe it's
a different from ballgame because you have publishing rights versus
the rights of the recording itself. So like to every
album or a piece of music that's released, there are
two sides of the copyright. There's the publishing side, which
(22:12):
literally refer has to be registered as notes on a
page and lyrics on a page, and that's one copyright.
The other is the actual recording, the masters exactly, and
those are passed down to generations you know, they'll they'll
exist in the estate of a family, and usually you'll
see it's members of the estate that are suing kind
(22:36):
of down the line. But you know, I mean it's
it's a long time though for something to enter the
public domain. So for the fact the fact that we
see Mickey Mouse, you know, finally running up against that's
because it's almost these over one hundred years old at
this point, right, I mean, right, I believe it was.
Speaker 1 (22:53):
Yeah, yeah, yeah, it's a hundred years old.
Speaker 2 (22:55):
But like we certainly there are classical music pieces where
the publishing rights are in the public domain, but not
the recording by the London Philharmonic, Right, So that's different,
you know, those are there's two different sides of that,
and we're gonna have a good time in a minute
getting into some specific and pretty silly examples of some
(23:16):
you know, actual court cases surrounding intellectual property. But it's
a it's a murky topic because there are so many
different flavors of it. So we just you know, hopefully
we're not getting too bogged down. But I think we've
done a decent job of kind of trying to you know,
demonstrate the different ones.
Speaker 1 (23:33):
Yeah, what we're saying is that this is leading to
a huge, messy bowl of spaghetti. Things are gonna get
even weirder in the US and abroad next year, because
twenty twenty four is when Mickey Mouse enters public domain.
At present, you're already seeing stuff like that with the
Winnie the Pooh horror movie. I think Winnie oyah Iyah
(23:56):
just got released, and I think you can't there's certain
things you can't do though, Like it's not like you
just can use the character in whatever way you see
fit exactly.
Speaker 3 (24:05):
It's the red shirt. You can't a red shirt on
Winnie the Pool.
Speaker 2 (24:09):
Because that's a more recent iteration, right or well.
Speaker 3 (24:13):
I think that is what made it Disney's property, because
Winning the Pooh obviously predated Disney.
Speaker 2 (24:20):
That's right. So we're talking about the book Winnie the
Pooh entering the public domain, not necessarily the Disney version,
but with Mickey Mouse, we are talking about a character
that was originally created by Disney. So what happens if
you if over time a character's design changes, then does
(24:40):
that restart the clock?
Speaker 1 (24:43):
Maybe?
Speaker 3 (24:43):
Probably that is probably in the minutia of the argument,
and probably the corporations would love discussing that minutia as
long as you continue this clock further and further.
Speaker 1 (24:55):
Out running the clock. And it depends on how good
your lawyer is and frankly, what their relationship with the judges.
I'm just gonna say the quiet part out loud. I mean,
let's you know what, let's get into We've done our
due diligence on the background and some of the legal
and philosophical concerns. Let's get into the fun stuff. Let's
talk about Louis Vaton and Hote Diggity Dog exactly.
Speaker 2 (25:26):
Louis Vuitton, of course, famous storied fashion house, you know,
fashion brand known for its hote couture. Hote Diggity Dog
probably not as much of a household name, but there was.
In fact, they lost sue Louis Vitton versus Hot Diggity
Dog when in two thousand and six Louis Vuitton sued
(25:50):
this little little little doggy toy company, Hote Diggity Dog,
for trademark, trade dress and copyright infringement when Hote Diggity
Do created these little plush dog toys under the name
chew Evaton and you've probably seen the iconic Louis Viton
handbags that are like kind of brown leather with the
(26:10):
LV sort of like stamped in like a pattern on them. Uh.
And that is what Chewyvaton used, you know, for their
dog toys. So it really you know, they're obviously not handbags,
and I don't think anyone would ever confuse them for that.
They're little squishy toys that kind of look like handbags.
And say Chewyvaton and.
Speaker 1 (26:29):
Have the little with one T.
Speaker 2 (26:31):
Not too it is with one te Sorry you're right, Ben,
good point. Now it's with two.
Speaker 1 (26:37):
Chewyvaton is with one mm hmm.
Speaker 2 (26:39):
Look at it right now.
Speaker 1 (26:40):
I'm looking at it too. I've got it pulled up here.
Speaker 2 (26:42):
V U I T T O N.
Speaker 1 (26:45):
I'm seeing, I'm seeing multi.
Speaker 2 (26:46):
I'm looking at their actual website.
Speaker 1 (26:48):
Okay, I'm looking at the images. Let me go to
their website and check.
Speaker 2 (26:52):
You're right on the on the actual things, it's one T,
but the but the U R L is two t's
and the actual logo of the top is suit cheese.
I wonder why they did that.
Speaker 1 (27:05):
I think we can tell.
Speaker 2 (27:06):
Okay, well, I think we keep all this in because
this is exactly the kind of stuff we're talking about.
So chewey Vaton argued that they were essentially doing a parody.
You know, it's like, oh, it's silly, this is like
high fashion stuff. Let's make it for doggies, and the
courts agreed. Louis Vuitton argued that the toys were going
to cause brand confusion, but then Louisittan doesn't make dog toys, right,
(27:31):
so where's the brand confusion. No one is going to
mistake a little, you know, cuddly squeaky dog bag for
you know, an overpriced handbag.
Speaker 1 (27:42):
And then the court makes the decision that chewey Vatan
is a quote joking and amusing parody and nothing more.
So parody again qualifies for its own set of considerations,
which we we mentioned briefly, but just you know, this
is part of the reason why weird Al does a
(28:04):
lot of uh does so much great work, you know,
And and the weird Al situation I love because interestingly enough,
a lot of other musicians consider it a great honor
at a right of passage for weird Al to parody them.
Speaker 3 (28:20):
Who's I believe that he didn't like it. There's one
guy who really didn't like it.
Speaker 2 (28:25):
There was Chris I think he ever did it. He
didn't he never do did a prince.
Speaker 1 (28:28):
He never got the permission to do a prince. When
can you ask people in advance? He usually does. I
think he almost always does, whether as a courtesy or what.
Coolio didn't like it, You're right, Coolio. Coolio later apologized
to weird Al.
Speaker 3 (28:43):
Because he would always beforehand reach out and I think
he got it from the record label, and he thought
he had got it directly from Coolio, and Coolio was
very mad, saying, hey, you're using my work man, and
so like it was one of these situations where he
was like legally right, but I believe he was like
really like he bad about it. He's like, hey, man,
I didn't I don't want to ever do that to people.
Speaker 2 (29:03):
Well, also, like you could argue that Ku Coulio was
thinking it was disrespecting what he considered to be kind
of like a serious song about a real problem in
terms of like young people getting tied up in gang
violence and all of that, and to make it sort
of like a silly goof he might have felt was
in poor tastes. And you know, you could argue that
(29:25):
it is in poor taste, but it does come with
some protections that it's so funny. I just have to
add Chewy Vaton is a brand in and of itself.
So Hote Diggity Dog had their line of Chewy Vaton toys.
But if you look online, there actually is a website
that's just Chewy Vuton and that's spelled with two tea's,
(29:47):
whereas the one in the Hote Diggity Dog line is
spelled with one tea. So now we're really getting into
parodies of parodies, you know, I mean, it gets deep
and weird.
Speaker 1 (29:56):
And this is far from the only example. Let's look
at Slater versus Peta on behalf of none other than
the Ruto the Monkey. So David Slater is a British
nature photographer and he was hanging out with a group
of monkeys in Indonesia celebs crested maccox and he had
(30:17):
no idea that his photography would make a huge legal quagmire.
So while he's hanging out with these monkeys, some of
them picked up his camera. And monkeys are very intelligent.
They took a lot of cool selfies. You could see these.
They were viral for a while and surprise, surprise, when
(30:38):
our pal Dave Slater gets home he sees these photos
have been published in all sorts of newspapers, not just
like kind of tabloidy stuff like the Daily Mail, but
the Guardian and the Telegraph as well. And someone took
these photographs, an editor at Wikimedia Commons and uploaded them
to the wikimedia website. Slater found this and he said, hey,
(31:01):
can you take these off your website because this is
my work, and Wikimedia said, hey, sorry, David, that might
have been your camera, but you didn't take those photos.
The monkeys did, and we'll go to court over it
if you want.
Speaker 2 (31:17):
And in fact, there's still a note attached to that license,
this Wikimedia Commons thing, which is a very useful tool
for let's say, documentary filmmakers or podcasters you know where.
If it's got a Wikimedia Commons license attached to that
is a damn good sign that they've done their homework
and that it is, in fact something that is public domain.
But the note reads, this file is in the public
(31:38):
domain because as the work of a non human animal,
it has no human author in whom copyright is vested.
Speaker 1 (31:47):
So unless the monkeys go to court, what are you
going to say? And like I said at the beginning
this one, you heard the name PETA ridiculous historians. How
did PETA get in there? Well, PETA takes Slater Court
because of something called the next friend principle of law.
The next friend principle of law allows you to sue
(32:08):
in the name of another person. In this case, the
organization PETA is suing on behalf of one of those
monkeys whose name is Naruto. And so in twenty eighteen,
a judge at the Ninth Circuit Court of Appeals has
probably one of the weirdest cases in their entire career,
(32:28):
and they rule against the selfie taking monkey. They throw
out the copyright lawsuit, and along the way they heavily
criticize PETA and they say, don't make Naruto an unwitting
pawn in your quote ideological goals.
Speaker 2 (32:42):
We talked about this case in our Animals in Court
episode around the concept of animal personhood and PETA. Whatever
you think of them as an organization, you can't really
deny the fact that they do often do kind of
I guess let's call them symbolic lawsuits that maybe are
wasting a lot of folks time, but ultimately are an
(33:05):
excuse for them to create a press release. But nothing
really comes of that.
Speaker 1 (33:08):
Or a legal precedent that's so like two for a
dollar so that you can get something some jurisprudence on
the books. We're going to end on two from the
world of pop culture. Let's go to Mattel Incorporated versus
MnGa Entertainment Incorporated. So these are two companies suing each other,
and they're suing because of beef between Barbie and the
(33:33):
Brats with a Z.
Speaker 2 (33:35):
Yeah, that's right. And this really goes into that whole
concept of like something being so derivative that it could
be considered an infringement, you know, But that's for the
courts to decide, isn't it. And no one's going to
make that decision unless the lawsuit is file. So Barbie
at this point, obviously Barbie's having a real moment right now,
(33:55):
real glow up. But at this point in two thousand
and one, Barbie as a brand is our forty two
years young when the Brats Dolls with a Z because
they're edgy, you know, hit the scene. I believe the
first run of Brats Dolls included Chloe, Jade, Sasha, and Yasmin.
And these are like they're kind of a cob like
(34:16):
giant headed, you know, puffy lipped, cartoony sort of you know,
seem girls.
Speaker 1 (34:22):
They're like bad powder puff girls.
Speaker 2 (34:24):
Really yeah, exactly in terms of the proportions of head
to body. But they did really well, very quickly. I
think in the span of just five years, they took
about forty percent of the market share away from Barbie
in terms of I guess dolls portraying fashioning young women
right right.
Speaker 1 (34:44):
Because it's a specific demographic that these toys are for.
And so Mattel does what any company would reasonably do there,
They try to make a new iteration of Barbie dolls
that will bring back some of that market share. And
this line of barbiees is called my Scene Barbies. They
(35:06):
they echo the big headed, slim bodied build of the
Bratz dolls. And MGA Entertainment doesn't cot into this. So
in April two thousand and five, they sue Mattel and
they say, you are infringing upon our Brats thing. And
then Mattel comes back in court because both of these
are companies so they can afford to bleed a little money,
(35:27):
they say, well, Bratz has a designer named Carter Bryant,
and Carter Bryant made the Bratz doll design while we
at Mattel were paying Carter. And this is true. Carter
worked for Mattel from nineteen ninety five and September to
April nineteen ninety eight, and then worked for him again
(35:47):
in nineteen ninety nine to October two thousand and the
contract that Carter Bryant signed stipulated that his designs during
this time would all be property in Mattel. And you
can see this in a lot of other industries, like,
please read your employment contracts carefully, because you might sign
something that says any software you create while you're employed,
(36:12):
or any thing you make on a work computer becomes
the ip of your employer, so be very careful with that.
Speaker 2 (36:20):
That becomes a big plot point in the HBO series
Silicon Valley, where like there's an algorithm that one of
the main characters is working on, like a compression algorithm,
and at some point it becomes a subject in core
proceedings as to whether he did that on a computer
owned by the sort of Google you know stand in
(36:41):
that's in the show. Huli is what it's called, And
that's a big deal. Like if you do anything like
that in a work computer technically it is the product
of the company. Like, even maybe if it's not within
the scope of your work, you got to wonder that, Like,
what if you're like, you know, I have my own
computer that I that I use in my home setup
my home studio that I record music on. But if
(37:03):
I was using a work computer all of the stuff
that I did with that computer, if I one day
sold a song for a million dollars or whatever, technically
the company could claim that I did it on a
work computer, and therefore they would be party to that
those earnings. Right, I think, even if it's not under
(37:23):
the scope of my employment.
Speaker 1 (37:25):
It can happen that way. Again, this we cannot emphasize
this enough. You've got to read those contracts carefully because
another example would be whether or not it matters that
you were working on company time, which takes precedent using
company equipment or using company time. For example, I have
(37:47):
I've had to negotiate some pretty specific things with non
competes in regards to being a writer independent of the
podcast and stuff, and that that is Like, we're very
fortunate in that the our colleagues and the folks we
work with are all for some reason, big fans of us.
(38:10):
So when we have outside projects or work, ninety nine
times out of one hundred, they're like, you guys are awesome,
Go do the thing.
Speaker 2 (38:18):
That's great.
Speaker 1 (38:19):
Yeah and yeah, But that doesn't apply to everyone. We're
quite fortunate in that regard.
Speaker 2 (38:24):
For sure. We also do know that typically noncompete clauses
are a little difficult to enforce. You know, they're not
always ironclad. But in this case, it did not go
in favor of Carter Bryant and the Brats brand. In
July two thousand and eight, the Jewelry took the side
of Mattel and MGA, the Brat's I guess parent company
had to pay Mattel a whopping one hundred million dollars
(38:46):
and also oh insults and injury remove Bratz dolls from shells.
But something's changed because there's been Brats movies and stuff,
and I think Brats are back in a big way.
Speaker 3 (38:59):
One year, they had to take him off a shell
for one year.
Speaker 2 (39:02):
Okay, okay, got it.
Speaker 1 (39:03):
And then MGA ultimately prevailed and they said, we're proving
that Mattel has stolen our trade secrets. So these cases
are almost never fully done thanks to appeals processes. These
can go on for so long. Li'sten on one more.
(39:23):
This is one for the eighties babies in the crowd today.
You may recall the mid nineteen eighties, the Reagan administration
started something called the Strategic Defense Initiative or SDI, and
immediately everyone in the United States called it the Star
Wars program. Most people loved this. One guy who didn't
(39:44):
love this was George Lucas, who you may be familiar with.
Speaker 2 (39:49):
Yeah, George Lucas said, it's like history at rhymes. Yeah,
that guy. He and his production company, Lucasfilm, were an
at Uncle Sam or Uncle Ronnie, and it didn't want
this association with its brand, with his brand. And by
this association, I'm referring to one tied up in war
(40:12):
efforts and missile launching, missiles into space and all of that.
You know, you wanted kind of a clean slate. In
Star Wars, there's very little threat of global annihilation. You know,
there's kind of dog fights in space. I mean, there
is the Death Star and all of that stuff, but
you know, there really isn't much of like an apocalypse
vibe in Star Wars. There's sort of a nice, kind
(40:35):
of diplomatic wave of things working themselves out.
Speaker 3 (40:39):
Oh, by the way, the blockade that was Phantom Menace,
not Clone War.
Speaker 1 (40:45):
Oh.
Speaker 2 (40:46):
It starts with the weird aliens and they're talking about
the blockade, but it comes into play in the second one.
And that one really slip of debating.
Speaker 3 (40:55):
To really date this recording. I was editing the Lucian
Islands episode and I watched a clip and it's it's
very weird, and it's like, wow, I didn't realize the
Phantom Menace was this weird. It all just feels weird.
It has a whole of jury's getting blown up on
R two D two survives it, so they introduced our
two D two. It's really ham fisted in there. All
(41:15):
that whole movie was it's just a joyless cash grab.
Speaker 1 (41:18):
Now this is interesting. I'm glad we're ending on this
one because it's a larger question for us and all
the ridiculous historians in the crowd in nineteen eighty five,
when this lawsuit comes to bear, Lucas doesn't sue the
US government, right because officially the US government just has
(41:39):
a few politicians who start using the phrase Star Wars program.
But he can sue two public interest groups, one called
High Frontier and one called the Committee for Strong Peaceful America.
They run these TV messages, these like PSA's, and they
refer to this program as star Wars, and Lucasfilm has
a t for Star Wars, the movies, the brilliant film
(42:03):
franchise that goes into all sorts of things, toys, books, merch,
you name it. The Federal District Court said, sorry, George,
we're ruling in favor of the interest group. They are
totally fine to call their program whatever they want, even
Star Wars, so long as they don't attach it to
(42:24):
a product or service for sale. And the court decision
even said, look, forever, creators of fictional worlds have seen
their vocabulary for fantasy appropriated to describe reality. So that's
stuff like you know, like George, orwell, people reference nineteen
eighty four and double think all the time. I don't know,
(42:47):
what do you guys think about that decision.
Speaker 2 (42:49):
I think it's right on the money, because first of all,
it wasn't even officially the name of the program. Sure
it was sort of shorthand that was just being thrown around,
And that's what happens when you have such a brand
that's so ubiquitous as as Star Wars, people are going
to start using terms from it, you know, in normal
kind of parlance, whether it be in conversation or in
(43:11):
to describe, you know, things that are bigger than just
like civilian kind of activities. Right, It's just it's it
makes sense. But you can't put that genie back in
the bottle. That's part of having something that sort of
really invades the public consciousness. It's gonna get appropriated.
Speaker 1 (43:29):
M h yeah, well said, and these conversations continue in
the modern day. There are so many other strange examples
we can give you of intellectual property beefs, but for
now I think we can say safely that this stuff
often gets very, very ridiculous.
Speaker 2 (43:51):
So no question about it, man, Yeah, this is cool.
It's something that we often find ourselves kind of in
the midst of is in podcasting and have kind of
seen some of these things sort of evolve, you know,
in our lifetimes, and they're going to continue to do
so because it is still based on the history of
it not so clear. You know, ideas are like you know,
(44:15):
made of spider's webs and magic. As Noel Fielding might
say on the mighty boosh. It's really hard to pin down.
Speaker 1 (44:22):
And one thing we can say is that we are
continually grateful for all of all of you folks playing
along at home, Ridiculous Historians. Thanks to you. We're also
grateful for the help of everybody in the Ridiculous crew.
Let's start with a big thanks for super producer mister
Max Williams.
Speaker 2 (44:41):
Jonathan Strickland. Ever may he you know, live under our
symbolic podcast bridge and we'll always pay that sol because
at the end of the day, you know, he's our troule.
Chris rosciotis here in spirit.
Speaker 1 (44:55):
Yeah, Eve's Jeff Coat. Let's also give a shout out
to Gabeluesier. Let shout out to our researchers Associe It
for this episode, Doctor Z and Noel.
Speaker 2 (45:04):
Shout out to you Surgy with you as well, my friend.
We'll see you next time. Folks. For more podcasts from iHeartRadio,
visit the iHeartRadio app, Apple Podcasts, or wherever you listen
to your favorite shows.
Ridiculous History News
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Noel Brown
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