15 January 2005

See Spot Litigate. Litigate, Spot, Litigate!

In an entirely unsurprising development, Pearson Education—a unit of Penguin USA—has sued the Little, Brown unit of Warner Books for a parody. That happens all the time… but a parody of Dick and Jane in Yiddish? If nothing else, this lawsuit will do three things:
  1. It will prove to anybody who had any remaining doubts whatsoever that neither lawyers nor publishing executives have anything remotely resembling a sense of humor;
  2. It demonstrates the truly ridiculous lengths to which those humorless lawyers must advise their clients to go because the Lanham Act is a "rabid Rottweiler" statute (you either use it to protect your turf, or the animal-control authorities come around and take it away); and, last but not least,
  3. It will be settled at some point so that the publishers don't risk setting an adverse precedent… in either direction.

There are a couple of points to consider, though. For the morbidly curious, the case is captioned Pearson Education Inc. v. Little Brown and Company et al., No. 2:05-cv-00033-CBM-JWJ (C.D. Cal.) (03 Jan. 2005) (before Conseulo B. Marshall, J.). That's right: a New York publisher suing a Boston publisher in LA. Why? Because it can; the Boston publisher's "supervisor" in the corporate food chain is in LA. And because the Ninth Circuit is the home of that stupid Cat-in-the-Hat/OJ doctrine of the "target parody."

The second thing to consider, though, is that a settlement of this case would probably not be in the public interest. There is a significant public interest in having uniform national law regarding copyrightability of various aspects of literary works. There is an even more significant public interest in getting some coherent law on that murky, grey overlap between trademark and copyright for characters and settings. As it stands, there is a serious, but iceberg-like, three-way circuit split presented by this case. Details are obviously for a law review article with too many footnotes, too many "on the one hand…" explanations, and too few declarative sentences; and I don't have the time to do the research and writing with everything else I have going on (including a closely related piece); but some enterprising student looking for a law review note topic is welcome to it! If you e-mail me politely, I'll even point you toward the eleven cases that delineate that three-way split. I'm patient, too; I know that the current round of topics has already been selected, and that the next round isn't until August or September.