Copyright

Happy Public Domain Day!

It’s a New Year, and in the world of copyright law it’s truly a new day. Because of extensions granted by Congress no copyrighted work has entered the public domain through expiration in 20 years. But that changes today, January 1, 2019. Happy public domain day!

As of today all works first published in 1923 are free to use for any purpose. This opens up new opportunities for re-mix, exhibition, and enjoyment. Google Books and The Internet Archive have already begun making thousands of works available free to the public. Somewhere a great adaptation has finally begun.

The works entering the public domain include early Charlie Chaplin and Buster Keaton works, as well as Cecil Demille’s silent masterpiece The Ten Commandments. Various books by authors like Agatha Christie, Aldous Huxley, and Edgar Rice Burroughs will be free to use. So go out and enjoy something today.

For those looking to protect a current work of art, the Law Firm of Dillon McCarthy stands waiting to assist creators.

Bethesda Blocks Sale of a Pre-Owned Game: The Material Difference Exception Explained

Recently Bethesda, publisher of the popular Fallout and Elder Scrolls video game series, blocked someone from selling his legally purchased second-hand copy of one of their games on Amazon. The law involved is more complex than is being cited in the media.

Ryan Hupp legally purchased his copy of Bethesda’s The Evil Within 2, a survival horror game released in 2017. Instead of playing the game, Hupp listed it for sale on Amazon. His listing stated that, because he had never opened the game, he was selling a new copy. Soon after he received a letter from Bethesda’s law firm instructing him to remove the listing or face legal action.

Hupp complied with the demand under protest. The internet has debated his right to sell the game, pointing to the first sale doctrine. Bethesda clarified that do not intend to stop the sale of all pre-owned games but objected to the product being labeled new. What’s less clear in this rationale is what legal arguments they relied on in the first place. All litigation is fact-specific so this will not be a definitive analysis of the current situation, but Bethesda’s position illustrates the first sale doctrine and its specific exceptions. The most important element isn’t readily apparent: it’s the warranty.

The First Sale Doctrine

Products like video games are protected by both copyright and trademark law. No one but Bethesda could make their own Elder Scrolls game and place it for sale alongside copies of Skyrim at GameStop. But the entire secondary market, from used games to libraries to rentals, works because of one limitation: the first sale doctrine.

The first sale doctrine limits control over a protected product to its first legal sale. Once a customer purchases a copy of a protected work, they are usually free to resell that work without permission of the intellectual property owner. In most cases, if one purchases a copy of a video game, one can then sell that game to another person.

This is the part of the law that many people know. But copyright and trademark law is rarely so simple. There are exceptions to the first sale doctrine. The relevant one here is the material difference exception.

The Material Difference Exception

The first sale doctrine is a defense against trademark infringement. However, it only protects a seller if the product sold is not “materially different” from the original product. Any difference that a consumer is likely to find relevant to their purchase may be a material difference.

On its face a sealed copy of a game may seem to be identical to its original condition. But a material difference need not be physical. This brings us back to the warranty.

Most companies provide a short warranty window during which customers may exchange or have their defective products repaired. These warranties often only apply if the copy is sold by an authorized seller. A small number of states outlaw these clauses, but in most states this is allowed. While a game publisher cannot stop the resale of its games, it can control the terms of its warranty.

In most cases a game publisher would not honor the warranty for a resold game. Bethesda’s game warranties are fairly standard in this regard, providing a 30-day warranty that is only valid for the “original purchaser.” Courts have ruled that the lack of a warranty constitutes a material difference, leaving re-sellers open to the possibility of trademark infringement lawsuits. Bethesda’s statements on the matter have not made it clear whether they would honor the warranty of a fully sealed resold game, but it’s this ability to deny warranties at all that allows them to sidestep the first sale doctrine in the first place. Some courts have held that the lack of an original short warranty constitutes a material difference.

The Complexity of IP Law in the Modern Marketplace

Cases hinge on very specific facts, so this should not be taken as a definitive statement on the situation surrounding Bethesda and Mr. Hupp. But in general, the lack of a warranty in a second-hand game opens up resellers to liability. Proper disclaimers may solve the problem, but they would have to be enough to make the differences clear to an average consumer.

Complex exceptions to well-known legal principles illustrate that businesses of all kinds need affordable legal representation to navigate the modern marketplace. Contact The Law Firm of Dillon McCarthy for help in protecting your business.

Does Your Production Need a Script Clearance Report?

The legal challenges of a production begin far before the cameras start rolling. For smaller productions, taking the proper steps in pre-production can make the difference in whether the project receives distribution at all. One of the most vital steps in the pre-production process is obtaining a script clearance report.

What is a Script Clearance Report?

A script clearance report identifies the potential legal conflicts of a script well before production begins. Both fiction and non-fiction projects should consider receiving one before issues become major problems later.

These reports detail legal issues that could present a problem if the script were produced as is. These range from small easy-to-miss details like determining whether character names conflict with those of real living people, to larger issues like the need to obtain release forms from people or brands. If drafted by an attorney with knowledge in the field, it should go beyond these typical issues and address whether copyright infringement, trademark infringement, personality rights, privacy rights, and more might be a legal concern.

What Does a Script Clearance Report Get a Production?

A clearance report lets a production know what it might need to change or prepare for. A production lawyer can work closely with the writers and producers to fix or mitigate issues. This can take the form of changing parts of the script or preparing defenses to potential litigation issues in advance.

Perhaps just as importantly, many methods of distribution close without one of these reports. Most well-known distributors will want the production to obtain Errors and Omissions (E&O) insurance. These insurance policies help cover the cost of lawsuits that might be filed against the production for a variety of reasons. These companies usually require something like a script clearance report before they will issue a policy. Without a policy, most distributors will not consider a project.

 

The Law Firm of Dillon McCarthy offers script clearance reports written by licensed attorneys. If your production needs a report contact us today.