There is no head cheese on this platter of link sausages. <SARCASM> I would have fired her long ago just because I don't find her performances amusing, but as a fan of Richard Pryor I clearly don't understand contemporary stand-up and sketch comedy. </SARCASM>
- The French courts have indirectly begun prying away at some really dubious publishing/entertainment industry practices through exercising the original purpose of trademark law. Trademark law originated not as an intellectual property right, but as a consumer protection statute. In Anglo-American law, the "trademark" was specifically a mark applied to silverware by silversmiths, often in London's East End, and it was the counterfeiting of that mark on "inferior" merchandise (often containing little or no silver at all, let alone with the "authentic" craftsmanship) that led to a criminal offense for "passing off." Enforcement was eventually privatized to the proper "owners" of the respective marks except in the most egregious circumstances (usually those involving evasion of import duties), and after another hundred years or so became an intellectual property right in "modern" trademark law.
The French courts — without, so far as I can tell, ever making this comparison explicitly (one of the reasons that I rely upon the IPKat for goings-on in France is that the opinions are difficult to access, and not just due to the general language but to inconsistent legalisms) — have considered Renaissance-patronage interpretation of mark "ownership" regarding copyrighted works. A recording company registered marks related to two songs commercialized from a cartoon character. The French Supreme Court has now ruled that the recording company — the patron — had no right to claim ownership of those marks; it is not the "origin" of the related "goods," and therefore its claim of ownership in the marks deceives the public.
This has some fascinating implications for various publishing and entertainment-industry practices, well outside of the obvious question of "Who gets to be Pink Floyd after Roger Waters leaves?" In no particular order:
- Is a ghostwritten book that does not disclose the true, natural name of the ghostwriter now a deceptive designation of origin, at least in France?
- How about a celebrity-coauthored book in which the celebrity — or, more to the point, packager (I'm thinking specifically of you, J___ P___) — provides nothing more than a marketing umbrella, at least in terms of actual expression that remains in the work as published?
- Do film production companies have a right to claim a mark in character names from previously published novels, as Warner Brothers so blatantly has in the Potterverse (look at the copyright page of any American edition of the fourth and later novels)?
- What about "house names," like "Franklin W. Dixon" and his "colleagues"?
- What about publisher-forced pseudonyms for authors with existing track records (and, therefore, discernable "origins" known to the public)?
These are not easy questions. They are seldom even being asked.
- Then there's the potential mootness issue (that's just one example) concerning the racist/bigoted "travel ban." I'm a bit disturbed that the mootness analyses generally tend to confine themselves to literal mootness without looking at the most-important exception to mootness: capable of repetition but evading review. This isn't an easy question, either, but it exposes what is really at issue: May the Judicial Branch anticipate the possibility of future bad faith in fleeting actions founded on bad faith in the elected branches, and anticipatorily exercise its checks-and-balances powers on the elected branches by (essentially) stopping the clock? I would argue "yes, particularly when the purported basis is not a policy disagreement but the limits of the political branches' inherent authority," but that's not a popular opinion these days… because it can be made to seem in favor of so-called "judicial activism." Of course, that "activism" is almost always in response to someone else's action, so that's not an accurate label in the first place! And that is the point of the Rule of Law.