The Traklight Blog

It’s not often that intellectual property makes truly big news, but it’s not often the case that the fate of the world seems to hinge upon a vaccine. (Though to be fair, vaccines have shaped the course of history on those occasions when they have been introduced to curb disease or illness.)

It would come as a surprise to no one, save those too young to even consider the past reaching beyond a few scant years, that the Hollywood studio system of the past was none too kind to the writers who helped to make it what it was. You don’t even need to have a memory to get some notion of that; this year’s Best Picture nominee Mank is a vehicle for just that message, positioning its protagonist as a figure robbed by history of his due credit for his part in creating an iconic film. Even now, in an era where credit is a bit more freely given, it’s still hard for writers to reclaim their rights. 

It’s certainly not unusual to see businesses, particularly large businesses involved with a lot of different products, to be on both sides of trademark or copyright issues, but typically there’s something of an interval between their times as the offender and the offended. Credit, then, to Nike for responding to the needs of our fast-paced world and cutting down that intervening period to something like mere hours. 

It’s a generally good rule to be cautious of what images you use for your business on the grounds of copyright infringement — no company wants to be on the receiving end of a C&D or even a lawsuit, if things take that turn. It should be an ironclad one to steer absolutely clear when dealing with images of brands or athletes or celebrities or generally anyone who has the resources to take you on and the willingness - eagerness, even - to do so. 

In the category of “new products, new problems” copyright for e-books might not rank terribly high, but the relative lack of attention doesn’t mean that there aren’t underlying issues that need to be resolved, lest they come to a head. As with other creations of its type, it’s a new iteration on a very old product, and that fundamental alteration either renders moot old questions or raises entirely new ones. Copyright law as it applies to books was written at a time when the process and resources involved in creating books places constraints upon the number of books that could be printed and then sold. So what happens with e-books, which can theoretically be sold or lent ad infinitum, with the only limits being hard drive space? 

In business as in life, friends and partners can grow apart over time as one or both parties change. And in both instances, success can play no small part in shifting the nature of those relationships, particularly if one party experiences far more of it than the other. 

Trademarks are meant to protect a business’ particular brand, its unique identity and creativity that it has carved out for itself in the landscape. The best trademarks are the ones immediately evocative of a particular product or pitch, rendered in the space in your brain previously reserved for childhood memories or something else not pervaded by capitalism. Whatever you may think of branding, there is something to be said for it when done correctly and cleverly, and even the most sceptical wouldn’t begrudge it the legal protection it has earned. 

Wait long enough and you’ll live to see your favorite films come around again in a new, rebooted form, to the lamentations of those old enough to either remember the original or even care about such things. It’s trite to say that Hollywood currently is nothing but sequels, reboots and overextended franchises (and prospective overextended franchises) but the truth is in the headlines: most movies coming out came from something preexisting. And given that level of reliance upon such material, it seems only a matter of time before we see a growing docket of copyright cases against those revived films. 

Much of the narrative about IP lawsuits carters around the separate and seemingly unequal systems of justice that exist depending on net worth. Bigger businesses with more resources can afford better lawyers for longer, and in many cases indefinitely, as in-house legal teams are a thing for those select corporations. Small businesses can struggle to put together a defense, and can only maintain it for as long as the money holds out, and so are less likely to get the outcome to which they are justified. IP lawsuits are a cost of doing business for some, and an existential threat for others. 

Multiple things can be true at once; we can agree on the notion that patent trolls are bad, and that they and others who abuse the currently broken system of adjudicating IP law are doing considerable harm, and also concede that, in the case of some of the companies targeted by these entities, the eventual judgment (should there be one) isn’t enough to really cause them lost sleep. That’s not to say that something shouldn’t be done to curtail patent trolls and their practices, just that their actions serve to slow down some of these megacorporations not one bit. 

Cast your mind, if you will, back to 2010; do you recall what you were doing? Who you were, and how different your life was then to how it is now? A decade is a long time in the course of human life, and it’s a long time for a court case to wend its way up to the Supreme Court for a definitive declaration on the matter at hand. 

I’m typically loath to revisit stories too many times, but occasionally you have to see something out to its end, particularly if its end is particularly ignominious. 

If you’re not up on shoe culture, stories about old and new kicks going for occasionally eye-watering prices can boggle the mind. Regardless of how you feel about it, though, there is a lot of money in the buying and selling of collectible shoes, and notably, a lot of that money is made on secondary markets. Given that shoe companies are doing alright as it is, they’re probably ok (for now) getting only a portion of that market as opposed to the whole thing. But someone striking out on their own and using their trademarks? That’s clearly going to be a big no-no.

For those fortunate enough to go to college (or unfortunate, depending on your reaction to that first student loan bill) picking the institution to attend is a big and thrilling step in your journey into adulthood. For many it’s the first time they’ll be living independently of their parents, sometimes hundreds or even thousands of miles away from home. And a big part of choosing a school is the campus tour: your opportunity to get a feel for the feel, the environs of your potential home for the next four(ish) years. 

Any remaining pretense the NCAA may have tried to maintain about their supposedly fair and equitable treatment when it comes to men’s and women’s athletics went out the window in the early days of this year’s tournament, when it was revealed that the men’s teams were granted a full array of workout equipment and the women’s teams...well, there are better setups in hotel gyms. The NCAA at least had the decency to not simply lie to everyone’s faces after the inevitable backlash, admitting that the women’s accommodations were lesser and eventually rectifying the situation at the risk of further public embarrassment at the hands of private companies that offered to provide the missing equipment. 

Many lawsuits, by their nature, come to resemble a back-and-forth or tit-for-tat or whichever colloquialism you may prefer; few are willing to sit idly by and let a case be brought and then built against them without taking some recourse, particularly given that many suits result from an inability to resolve the matter at hand without the intervention of the courts. Thus lawsuits breed countersuits, business becomes personal and disputes turn into feuds that can potentially run for years. 

It’s probably too much to hope that those companies that have adopted trademark bullying as a course of action to change their stripes and take a more measured approach, but it is nevertheless disappointing and disheartening to see every new instance wherein they take aim at an invariably small business over some imaginary offense. For the bullying company that case is but one mark on a ledger or one chapter in an ongoing story, but for those small businesses these lawsuits can be hugely damaging, if not an existential threat.

If this March seems a little different than those in years past, well, that’s mostly the pandemic we’re hopefully nearing the end of. But it’s also different in that this year’s edition of the NCAA’s college basketball tournament is to be experienced largely alone, shorn of the communal experience that has made it the institution that it is. The tournament is both big business for the NCAA and something of a drain on business for others, costing companies billions in lost productivity over the course of the month. And on the former point, the NCAA is vigilant in protecting that business against even the notion that someone else might make a buck without their say-so. 

While Twitch may have started as a platform for gamers to stream their exploits, it’s evolved into one of the primary venues for live streaming of any sort (along with the ubiquitous YouTube.) Gaming is still a huge component of the audience, to be sure, but a quick look at the homepage reveals that the site even has a Music tab for viewers to browse live performances from any number of artists around the globe. Which makes the platform’s somewhat fraught history with songs and copyright a bit curious, or more likely vexing. 

It would be fair to say that while this blog is generally in favor of intellectual property rights and the ability of creators to protect and profit from their creations, I’m skeptical of the harm that comes from an overly muscular approach to enforcing those rights. Creation or ownership comes with benefits, but nowhere is it outlined that those rights extend so far as to prevent others from exercising their own, whether it be fair use or any other right protected under the law.