Yes, DC and Marvel jointly own the "Super Heroes" trademark. U.S. Registration No. 1179067 for the trademark SUPER HEROES in connection with comic books and some other products. 

That still leaves a question: What does that mean for everyone else?

Martin Schwimmer at the Trademark Blog has a good post on this that collects links to the Wikipedia entry as well as to Newsarama's coverage of the instance when DC and Marvel demanded that Geek Punk stop using the name "Super Hero Happy Hour." Comic-con International instructor and lawyer Michael Lovitz was interviewed about this issue on NPR's All Things Considered.

Mr. Schwimmer explains one of the prominent issues with this jointly owned trademark. If a trademark is supposed to designate a source of origin for a good or service, how can it function when goods bearing the mark SUPER HEROES could have come from either of two different entities? Marvel and DC each use SUPER HEROES as components in their own Marks.

Reg. No. 1,073,580

Reg. No. 1,242,016

To obtain registrations for MARVEL SUPER-HEROES and for LEGION OF SUPER-HEROES, both Marvel and DC had to explain to the United States Patent and Trademark office that they were joint owners of SUPER HEROES and that the mark was used with permission of the joint owners. They asserted that use by one of the joint owners benefited the other and that the consumers would not be confused. While Mr. Schwimmer explains some of the issues related to joint ownership, I have seen no discussion of potential anti-competitive use of such jointly owned trademarks other than reference to Marvel and DC's "duopoly" power in the NPR interview. 

The other issue that seems to most concern comic-book creators is the generic nature of SUPER HEROES. How can it be a "distinctive" designation of source when common usage and dictionary definitions of the term could apply to characters created by any comic-book company. For example, Merriam-Webster defines superhero as "a fictional hero having extraordinary or superhuman powers," and Dictionary.com defines superhero as "a hero, esp. in children's comic books and television cartoons, possessing extraordinary, often magical powers." Certainly courts have used superhero in a descriptive fashion. Such descriptive use of superhero should be allowed. 

Given the absence of reported cases in which DC or Marvel have asserted their trademark registrations for SUPER HEROES, they presumably choose carefully when pursuing their enforcement efforts. The boundaries for using "super hero" in connection with comic books will likely remain undefined until someone decides to challenge DC or Marvel. 

I had the opportunity to briefly meet the Artist/Gaming Guest of Honor John Kovalic. My kids are big fans of Munchkin, a card game he illustrates. A friend directed me to this cartoon he did which has special resonance for character copyright geeks like me. Click on the image to check out the cartoon at Dork Tower.

The lesson to be learned is to plan for the future. Protect your intellectual property from the beginning because you don’t know where your creativity will lead you. Even when you have limited financial resources, good intellectual property counsel should be able to help you devise a plan for protecting your creative efforts that will let your Intellectual Property portfolio grow with you. Remember it is not just a question of applying for registrations, particularly early in the process you should make sure you have a business structure and written agreements in accord with the clear understanding you and your co-creators have for your developing portfolio and that those agreements are effective in making that understanding a reality.

If you don’t know an attorney, keep in mind there are resources like Volunteer Lawyers for the Arts that might be able to help you find affordable counsel.

: Blue Harvest has been stalking me all summer.

At Comic-Con International in San Diego, Friday was Star Wars Day and Seth MacFarlane discussed the premiere episode during the Family Guy panel. You may have noticed sketches of Yoda and an Imperial Stormtrooper (along with tagline “May the Force be With You”) on the menu I used to discuss enforcement practices. Two weeks later, I was at the ABA Annual Meeting in San Francisco attending the Intellectual Property Law Section’s activities. While there, I had the opportunity to hear David Anderman Senior Director of Business Affairs (and lead attorney) for Lucasfilm Ltd. speak on a panel entitled “‘The Whole World is Watching!’ Privacy, Copyright and Parental Control in the Age of YouTube, MySpace and Beyond,” sponsored by the Forum on Entertainment and Sports Industries. During Anderman’s portion of the panel he discussed the Lucasfilm approach to enforcement and the Family Guy premier. Anderman explained how Lucasfilm’s relationship with Family Guy exemplifies a realistic approach to enforcement that understands branding and that has evolved with technological changes in content creation and distribution.

Star Wars has been the subject of parody since its inception and pop-cultural explosion. In 1977, Hardware Wars debuted and became an underground sensation.

Ten years later, a much bigger budget parody, Spaceballs, came out. This parody, was written by Mel Brooks and approved by George Lucas after he read the script and had liked Brooks’s earlier works.

As technology has evolved, it has become much easier for fans to create their own special effects masterpieces and Star Wars parodies have proliferated. In addition to improved production value, and perhaps more significantly, these short films have easy access to worldwide distribution through sites such as YouTube.

For a copyright and trademark owner, parody fair use is one thing, but an uncritical hommage or mere reference to a famous work is something else. Think of all of the pop-cultural references to Star Wars that appear in The Simpsons and — prior to Sunday’s hour-long episode — Family Guy. Anderman confirmed that Lucasfilm “cooperates” with Fox for these references. In other words, these are all licensed uses of Lucasfilm’s intellectual property. Another example is the authorized Robot Chicken Star Wars episode by Family Guy’s Seth Green.

But what about the thousands of fan productions out there? Unable to police them all, “Lucasfilm embraced the trend.” In 2001, it struck a deal with Atom Films and created the The Official Star Wars Fan Movie Challenge. By establishing an ongoing contest, Lucasfilms creates a controlled outlet for all of these creative enterprises. Under the specific written guidelines for the contest, the entries must not contain nudity, excessive swearing, explicit sexual themes or graphic violence. Lucasfilm limits its images, music and sound that are approved for contestants’ use. Other unlicensed copyrighted material is prohibited.

Beginning in 2002, George Lucas began presenting awards to the best of the entries in this contest. For an example, you might want to check out Pink Five.

In 2003, George Lucas even presented a Pioneer award to Ernie Fosselius, the director of Hardware Wars. Originally, only parodies, documentaries, and mockumentaries were allowed in the contest (content that would have a First Amendment or fair use defense even without Lucasfilm approval). Many creative, fan-produced works such as Vader Sessions, or Star Wars George Lucas in Love,

do not necessarily fit this description. In what must be seen as an acknowledgement of the YouTube reality, Lucasfilm now allows the motion picture equivalent of fan fiction.

Anderman acknowledged the dual nature of these creative efforts which both affect and promote the brand. An IP policing and enforcement regime must take this into account. By co-opting these efforts through licensing and marketing, Lucasfilm has regained control of its IP portfolio and used the underground creative movement to further its brand. The best example of this is Lucasfilm’s role in Stephen Colbert’s Green Screen Challenge culminating in a tour de force of cross-marketing with a George Lucas appearance on the Colbert Report.

Although there are plenty of pirated clips from Sunday's episode available, if you are looking for some authorized sampling of the episode try the Star Wars site.

Individuals and companies that own valuable intellectual property could spend all of their time and resources suing people who attempt to benefit from the goodwill associated with that property. Therefore, they need to pick and choose which thefts, misappropriations, and infringements they will attempt to stop. Sometimes, they will let obvious infringement go. A great example was just two blocks outside the Comic-con door.

Click on images to see full size menu.

The menu above is the most extreme example I noticed. It mixes copyrighted images with trademark names and characters to promote and market its food for this one weekend event. It clearly targets the convention-goers for whom the intellectual property would have a higher association than the population at large.

Why didn't Marvel, DC, or Lucas put a stop to it? It is not that they didn't know. I saw some folks with logoed shirts that indicated they worked the floor booths for LucasArts walk right by. It is not that there was not enough time. Myself and my fellow Fair Use Bloggers have threatened, sought, or obtained emergency injunctive relief to stop event-related infringements on a number of occasions. It is not that the dedicated comic-book aficionado would already know that Human Torch and Thing are Marvel characters, Batman and Batgirl are DC, and Yoda and Imperial Stormtroopers are Lucas Arts. (In fact a give away that this is unlicensed use is the failure to include a notice of copyright and trademark ownership for each of the characters used.)

This type of use often goes unchallenged because the publicity associated with an enforcement action may be more damaging to the owner's goodwill than the erosion of their IP over the course of one week. However, just because pragmatism may cause them to let it go this time, do not believe that more extended or more high-profile use will be allowed. See DC Comics v. Kryptonite Corp., 336 F. Supp.2d 324 (S.D. N.Y. 2004) (KRYPTONITE for bike locks); DC Comics, Inc. v. Powers, 482 F. Supp. 494 (S.D. N.Y. 1979) (DAILY PLANET for store); DC Comics Inc. v. Reel Fantasy, Inc., 696 F.2d 24 (2nd Cir. 1982) (BATCAVE for store); DC Comics Inc. v. Unlimited Monkey Business, Inc., 598 F. Supp. 110 (N.D. Georgia 1984) (SUPERMAN and WONDER WOMAN for singing telegrams); DC Comics v. Wella Corp., 34 Fed. Appx. 811 (2nd Cir. 2002) (KRYPTONITE for hair gel); Marvel Entertainment Group, Inc. v. Hawaiian Triathalon Corp., 132 F.R.D. 143 (S.D. N.Y. 1990) (IRON MAN for triathlon); Marvel Entertainment Group, Inc. v. Young Astronaut Council, 747 F. Supp. 945 (S.D. N.Y. 1990) (YOUNG ASTRONAUT COUNCIL for charitable organization).

How about a bumper sticker. Can't get much shorter.

The creator, Jonathan Rosenberg, apparently leveraged this marketable item from a witticism in one of his online comic strips from August 8, 2003. LORD VOLDEMORT is a registered trademark for toys and is owned by Time Warner Entertainment Company LP. None of the merchandise I saw at Comic-Con bears any trademark registration indicia. If it is not a licensed use, would the use of "Voldemort" on T-shirts or bumper stickers infringe Time Warner's registration for LORD VOLDEMORT? Assuming that Time Warner has a valid registration and priority (Registration No. 2,669,605 for toys issued December 31, 2002, Time Warner abandoned Application Serial No. 75,857,772 for clothes on August 29, 2003), and that a fact finder would find a likelihood of confusion, Rosenberg would presumably rely on the nominative fair use doctrine.

This doctrine is explained in Playboy Enterprises, Inc. v. Terri Welles, 279 F.3d 796 (9th Cir. 2002). In that case, Playboy sued Terri Welles, its 1981 Playmate of the Year, for her Internet use of certain marks on her own website that identified her as the recipient of that honor. The Ninth Circuit applied its test for nominative fair use:

"First, the product or service in question must be one not readily identifiable without use of the trademark; second, only so much of the mark or marks may be used as is reasonably necessary to identify the product or service; and third, the user must do nothing that would, in conjunction with the mark, suggest sponsorship or endorsement by the trademark holder."

It affirmed a ruling in Ms. Welles favor. Would such a test help Voldemort's fictional campaign or end it before it reaches New Hampshire?

There was a similar image in today’s St. Louis Post-Dispatch, which collected a political cartoon by Cam Cardow from the Ottawa Citizen.

Mike’s explanation of copyright parody raises a question about whether these two cartoons infringe the copyrights in Dr. Strangelove or in the character Major T.J. “King” Kong. Neither is a parody.

Copyright does not prevent cartoonists from copying ideas from Dr. Strangelove, it merely prevents them from copying the particular expression of those ideas. It is o.k. for Cardow to copy the idea of an out-of-control hawk whose love for military confrontation surpasses his own interest in self-preservation. It is not o.k. for Cardow to copy the way Kubrick and Pickens expressed that idea.

Both images clearly invoke the idea and ethos of Dr. Stangelove, but neither comments on the movie or the character. They are not parody. They both use elements of the scene from Dr. Strangelove to comment upon other things. In that sense they are both transformative, but the transformative use test applied to the images at issue in Comedy III Productions, Inc. v. Saderup, 21 P.3d 797 (Cal. 2001) or Winter v. DC Comics, 69 P.3d 473 (Cal. 2003), applies to the right of publicity, not copyright.

Assuming no license to create a derivative work, if a jury found substantial similarity between these images, Cardow and the Olympia Comic Festival would have to base their defense on the fair use doctrine. Cardow’s image makes a specific political comment about an issue of public concern, it does not advertise anything, and he used only as much of the Major Kong iconography as needed to make his point. I suspect that Cardow’s fair use defense would prevail. How would the Olympia Comic Festival do?

No there isn't one yet, but the New York Post's Page Six reported that Katie Holmes, former Dawson's Creek ingenue, is considering available recourse (presumably legal) to pursue against Katee Holmes. Apparently Ms. Holmes ("ee" not "ie"), a self-proclaimed virgin, announced her intention to launch a career as a porn star by filming her first sexual encounter. I will  not provide the link to her website (with its countdown clock), but the Defamer blogs about it.

Normally the career choices and self-promotional efforts of eighteen-year-old fashion students do not merit much serious consideration for litigation. The difference in this case: the New York Post reports that the young woman in question "changed her name" to Katee Holmes to launch her direct-to-video career. Such a calculated move invites a right of publicity lawsuit, the crux of which is invoking a celebrity's identity to obtain a commercial advantage.

The fashion student who is drawing designs for her birthday suit has done more than merely change her name. Her manager, Shy Love, is quoted in the New York Post as saying, "Katee is using the name as a tribute to Katie, who has always portrayed an innocence in everything she's done, beginning with 'Dawson's Creek.'" Now she has gone and done it. She has clearly invoked a celebrity's identity, not just her name.

I do not know if the eventual exhibitionist has legally changed her name or merely adopted a nom de guerre. Would it matter? The issue is not one of self-identification, but rather it turns on invoking the identity of the celebrity. Name alone is not enough.

Unfortunately, the boundaries between First Amendment freedom of speech and the right of publicity remain unclear. Our blogging crew here was involved with one significant decision in this field, Doe v. TCI Cablevision, 110 S.W.3d 363 (Mo. 2003) (en banc) that stands in sharp contrast with another decision, Winter v. DC Comics, 69 P.3d 473 (Cal. 2003). Both of those cases involved the creation of fictitious and fantastic comic-book characters that allegedly invoked the identity of celebrities. 

The issue for the two Ms. Holmeses involves the use of one person's name to intentionally invoke the celebrity and marketing power of another persons identity. How would the courts analyze such a case? When considering whether the use of a name in a title is protected by the First Amendment, courts have applied a relatedness test to see whether the name in the title is related to the content of the First-Amendment protected work. Even something seemingly as simple as this has prolonged litigation when the seminal case on this issue, Rogers v. Grimaldi, 857 F.2d 994 (2d Cir. 1989) was applied in Parks v. LaFace Records, 329 F.3d 437 (6th Cir. 2001).

Ultimately, I think the court would have to determine whether the First Amendment prevents the Mother of Suri from testing the reasons for this wilting maiden's name change, or whether those reasons must be determined by a jury. Is it sufficient to state that you chose a nearly identical stage name as an hommage? Is the allusion to the innocence of Joey on Dawson's Creek enough to assert that a pornographic film's exploration of virginity is a parody?

Regardless, there are much less risky ways to come up with your porn star name. If the "pet-plus-street" approach doesn't work for you, just think of your favorite common law or Supreme Court cases. My contracts professor in law school advised that Hadley V. Baxendale was credited with a role in Behind the Green Door. Anyone for Mack Merryland or Berry Madison? How about Loving Virginia, Fletcher Peck, or Hammer Dagenhart?

This is a very big deal. The Art Law Blog has had three posts on this decision.

So far, the journalists are outperforming the law bloggers on the analysis. To its credit, the Law Blog at the Wall Street Journal linked to the pre-decision Wall Street Journal story about the case, which has great background on the post-mortem commercialization of Marilyn's identity. The Art Law Blog had a link to CMG’s own Indianapolis Business Journal, which had a more thorough discussion of the possible ways this decision could play out.

Normally one of the better legal voices on intellectual property issues, The Center for Internet and Society misses the point in this case. The folks at Stanford read the case to hold “that Marilyn Monroe’s heirs cannot claim post-mortem publicity rights because she died before the enactment of the statute that creates them in California (and, for reasons that are not important here, Indiana). So, according to this Court, her image, likeness and persona are all in the public domain.” That is not the holding.

The Trade Regulation Talk stated that “any publicity rights that Monroe enjoyed during her lifetime were extinguished at her death by operation of law.” This too, is not quite accurate.

This very important decision held that the post-mortem right of publicity could not be bequeathed by testamentary conveyance because the right did not exist at the time of Marilyn’s death. Accordingly, Marilyn Monroe, LLC — and by connection its agent CMG — did not acquire any post-mortem right of publicity because all of its rights arose from Marilyn’s will. The decision — extremely well-reasoned — does not hold Indiana’s attempt to create a retroactive post-mortem right invalid. It leaves that for another decision and leaves open the possibility that such a statutorily created right might vest in the dead celebrity’s statutory heirs.

The power of this decision and its future impact are not in suddenly delegating the post-mortem right of publicity to the public domain waste basket. Its power is in its sensible approach to a post-mortem right. Undoubtedly the decision will be appealed, either through a certified interlocutory appeal, or when the there is a final judgment; but, its careful position seems solid. According to the Indianapolis Business Journal, CMG manages a bundle of rights that “include branding rights, trademarks on Marilyn Monroe’s name and signature, and copyrights of certain photographs.” I suspect these trademarks and branding rights may be subject to attack if the putative owner has no corresponding right to Marilyn’s identity.

The real issue is how to fairly treat concurrent right of publicity and copyright rights in works, just as in the June Toney case last year (discussed in the Photoshop Blog and the Patry Copyright Blog). Surely it cannot be fair to require a photographer to negotiate a model contract for a post-mortem right of publicity that does not exist. Nor could it possibly be fair to make a photographer's heirs negotiate with a model's heirs over their respective inherited rights when the model and photographer could not have contemplated the issue.

Here is an image of Koons’s challenged work, “Niagra” from the Court record (see the Guggenheim Museum’s website for the work in color).

You can compare that with the plaintiff’s appropriated work “Silk Sandals by Gucci” from Avedon protégé Andrea Blanch in the Allure advertisement from the Court record.

A good and fair result.

However, last Wednesday, the District Court in Blanch v. Koons, Case No. 03-cv-8026, (S. D. N.Y., Doc. 71, entered May 9, 2007), announced that his “fair use” cost Koons over $1 million in attorneys’ fees and costs.

As the District Court wrote:

17 U.S.C. § 505 provides in copyright actions that:

In any civil action under this title, the court in its discretion may allow the recovery of full costs by or against any party other than the United States or an officer thereof. Except as otherwise provided by this title, the court may also award a reasonable attorney’s fee to the prevailing party as part of the costs.

The standard for determining whether a party is entitled to attorneys’ fees is the same whether the prevailing party is the plaintiff or defendant. Fogerty v. Fantasy, Inc., 510 U.S. 517, 534 (1994). The following factors may be used to guide a court’s discretion so long as they are faithful to the purposes of the Copyright Act: “‘frivolousness, motivation, objective unreasonableness (both in the factual and in the legal components of the case) and the need in particular circumstances to advance considerations of compensation and deterrence.’” Id. at 534 n.19, quoting Lieb v. Topstone Industries, Inc., 788 F.2d 151, 156 (3d Cir. 1986).

The District Court seems to have relied heavily on the fact that Koons is an “appropriation artist” who has been sued before for copyright infringement. Appropriation art has a long lineage in the visual arts, extending back at least as far as Picasso and Duchamp, but it raises very difficult copyright issues, including derivative works and fair use. For an interesting discussion of the appropriation art intersection with law and economics, see William M. Landes, Copyright, Borrowed Images and Appropriation Art: An Economic Approach, (December 2000). University of Chicago Law & Economics, Olin Working Paper No. 113. Koons has been sued — and lost — several times for copyright infringement over his use of pre-existing images in his work: Rogers v. Koons, 960 F.2d 301 (2d Cir. 1992) (use of photograph of couple with puppies as basis for sculpture “String of Puppies”); United Features Syndicate, Inc. v. Koons, 817 F. Supp. 370 (S.D.N.Y. 1993) (use of Garfield comic strip character “Odie” in sculptures entitled “Wild Boy and Puppy”); and, Campbell v. Koons, Case No. 91-cv-6055, 1993 WL 97381 (S.D.N.Y. Apr. 1, 1993) (use of photograph of boy with pig as basis for sculpture “Ushering in Banality”).

Koons clearly pushes the fair-use envelope, but if it costs over $1 million dollars to defend a victorious fair use, how many people will risk it. If Blanch had prevailed, would she have recovered her attorneys’ fees and profits? Although fair use is now codified, it implicates the First Amendment. When the costs of litigation chill First Amendment expression, it certainly seems that attorneys fees and costs should be paid. Compare this in light of the Supreme Court concurrence recently noted at the Volokh Conspiracy regarding fee shifting in a First Amendment political speech case. Koons’s past cases may suggest that little would chill his speech, but what about other artists. If there is a post-modern/consumer-culture comment to be made with appropriation of a visual image, won’t the commentator think twice about making the comment before incurring the risk of substantial defense costs? If most commentators agree that in this particular instance, the fair-use defense was clearly right, then should the defendant bear the costs of the defense? It seems that the attorneys’ fee shifting provision in the Copyright Act would have remedied any past misjudgments and that each instance of speech should be examined on its own merits.

It strikes me that the litigation pendulum has swung back and forth in its appreciation of the First Amendment litigant. Some champions of the First Amendment have been heralded as heroes and others reviled as villains. As Larry Flynt is depicted as saying in The People v. Larry Flynt, “ If the First Amendment will protect a . . . scumbag like me, then it will protect all of you . . . ‘cause I’m the worst. Certainly some might place Koons into the same category as Larry Flynt. (Koons created sexually explicit artwork with his former wife Ilona Staller in arte Cicciolina, in a series entitled “Made in Heaven — this website has links to galleries of several of Koons’s series of works, including “Made in Heaven”). Regardless, I question whether the right to recover defense fees and costs should be based upon a judge’s subjective determination of the societal value of the challenged expression. I wonder whether the fee decision in Blanch v. Koons would have been different if fair use were a First Amendment action rather than a statutory defense? Should fair-use defendants assert a First-Amendment declaratory judgment counterclaim to increase their chances of recovering their defense costs as a prevailing party?.

Several years back, we got my youngest a LeapPad® that he liked to read in the car. If you haven’t seen or used one, they are pretty cool. It is a hinged plastic case (kind-of a cross between a binder and a clam-shell) into which you can insert certain books and their related memory cartridges.

According to LeapFrog®, you ”Put a book on the LeapPad player and pop in the cartridge. Stories suddenly come to life with the light tap of the Magic Pen. Touch a word and sound out each letter. Then spell it and define it. Silly songs serenade. Characters charm everyone with their hilarious sense of humor.”

When we first got this slick, new, electronic toy, I thought it was very clever. It won awards. My nieces and nephews each got them. It is made by LeapFrog®, which had rights in U.S Patent No. 5,813,861 (“the ‘861 Patent”) related to the technology used in this toy.

When my youngest broke his LeapPad®, we wanted to get him something else to use on those long trips to the family in Michigan or on the East Coast.

Along came Fisher-Price® with its PowerTouch™. What a great idea! Wait, there is something familiar about this. It is a hinged plastic case (kind-of a cross between a binder and a clam-shell) into which you can insert certain books and their related memory cartridges.

Apparently LeapFrog® took issue with appropriation of this great idea by Fisher-Price® and sued for patent infringement.

What does that have to do with fair use?

Yesterday, the Federal Circuit, for the first time since the U.S. Supreme Court decided KSR International Co. v. Teleflex Inc., affirmed a district court invalidity decision based upon obviousness. It was the LeapFrog case. This decision cites the Supreme Court twice. KSR will clearly have a significant impact on this area of the law and a single decision will not sort all of this out. If you’d like to jump straight to the two citations and find a collection of discussions about the impact of KSR, check out today’s post (KSR Teleflex Obviousness Standard Applied by the Federal Circuit in Leapfrog v. Fisher-Price & Mattel) by Andy Kaulins at Law Pundit.

The LeapFrog case does not provide significant new insight into KSR, but for those of us with little kids who play with these things, it suggests something very basic about obviousness. It is the patent-law version of fair use. Fundamentally, in every IP lawsuit, there is an assessment of what is fair. Patent cases are no different. The standards for this fairness assessment are the legal guidelines for liability and the defenses. In litigation (more in motion practice rather than trial), and particularly on appeal we tend to focus on one narrow issue at a time. Copyright law makes fairness a single legal issue. In patent law it is not.

As a result, the legal standards in patent law develop without a firm grounding in what is fair. Not to be too philosophical about it, patent law is the most “positive law” discipline of the various IP disciplines. Consequently, from time to time, the standards get misaligned from the fairness assessment that is at the heart of these disputes. Then either Congress or the Supreme Court must step in and realign the standards.

Perhaps KSR will be one of those instances. This post on fedcirc.us analyzing KSR certainly suggests that the Court was pulling things back and directing the lower courts to look at obviousness with a flexibl ecommon sense approach. If a patented invention was “obvious,” it should be freely available to the public. Perhaps the Supreme Court — and now the Federal Circuit — are merely saying that patent law has made it too easy to prevent the public from using unearned ideas. I don’t know.

I do know, obvious or not, getting my kid to read is a great idea.

According to the world's leading treatise on legal issues -- Wikipedia -- parody is an allowed fair use and the artist does not need to get permission. "However, as a personal rule, and as a means of maintaining good relationships within the music community, Yankovic has always requested permission from the original artist before recording his parodies."

So without permission, although Yankovic has apparently performed "It's Still Billy Joel to Me" in concert, he has not recorded the song for release. If that is the case, who is getting the royalty when a DJ plays the "bootleg" performance?

And . . .  because "you can't copyright a name," there are other "It's Still Billy Joel to Me," parodies out there.

It is a little unclear to me how much Weird Al's personal code of conduct requiring permission is driven by his desire to maintain good relationships and how much it is driven by record company concerns. Some of the problems in getting permission over the years appear to have involved differences of opinion between artists and their labels.

When it is not a produced song on one of his albums, Weird Al doesn't shy away from throwing a punch or two. When Eminem refused permission for Weird Al to parody the Eminem music video "Lose Yourself" after previously giving permission for an audio parody called "Couch Potato, " Weird Al pieced together an "interview" he did with Eminem in which he explored the rapper's views on the First Amendment. This is probably more interesting than the song parody itself.