So here’s a cute little copyright (or trademark?) problem (or, depending on your viewpoint, an outrageous rip-off). According to Entertainment Weekly (and the Gateway Pundit) start-up publisher OR Books has announced plans to publish Going Rouge: Sarah Palin An American Nightmare, a collection of essays about the former Alaska governor with a title — and cover design — remarkably similar to Palin’s upcoming memoir (entitled Going Rogue: Sarah Palin, An American Life). And the OR paperback will be released on Nov. 17, the same day that Palin’s book is scheduled to hit the shelves.
As Thom Geier at EW puts it: “don’t these jackets look too similar to be, well, fully kosher? At the very least, might some hockey-mom-loving conservatives be confused enough to pick up the wrong book? You betcha!” It may not be fully kosher, but it’s not infringement, as I see it — copyright law doesn’t protect people against “confusion,” it protects against copying. There’s a long-standing tradition in copyright law that book titles are not protected, so the going Rogue/Going Rouge similarity is not actionable. And if you look at the two covers carefully, you’ll see that actually not much else (other than the picture of Palin, about which she surely has no copyright complaint) has actually been copied. (And, if there were a viable copyright infringement claim, OR might well have a very strong fair use/parody defense).
A claim sounding in trademark (or its close state law cousin, unfair competition) might have a somewhat better chance of success here. The Lanham Act, the federal trademark statute, imposes liability on:
“Any person who . . . uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which (A) is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person . . .”
I’m no trademark expert, but I would think there’d be a reasonable case here that the use of the similar title+typeface+coverdesign, plus the release of the book on the same day as Palin’s is intended to (and likely to) cause confusion among consumers as to the “origin” or “sponsorship” of the goods.
[Thanks to Angela Canney for the link]
Bill Poser says:
It sounds like somebody is confusing copyright with trademark, where confusion is a factor.
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October 22, 2009, 9:49 pmModa says:
Seems to me that the more likely claim is a trade dress infringement. I’m not that familiar with the case law surrounding the Lanham Act, but it seems that it could confuse some consumers into buying one book instead of the other.
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October 22, 2009, 9:51 pmBill says:
yeah, that looks like a trademark issue — it seems likely that they set out to confuse people into buying their book instead of Palin’s.
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October 22, 2009, 10:05 pmDJR says:
Section 43(a) of the Lanham Act states:
The plain text pretty much covers it.
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October 22, 2009, 10:08 pmEvilDave says:
Let us be honest, any court case will turn wholly and entirely on what political party the presiding judge is a part of.
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October 22, 2009, 10:17 pmN says:
Any chance of customer confusion is minimal at most. From what I gather from the publisher’s site, “Going Rouge” isn’t being widely distributed:
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October 22, 2009, 10:17 pmAnonny says:
Yeah, the trademark issue is far closer and far more interesting.
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October 22, 2009, 10:19 pmStormy Dragon says:
Seems to me an argument could be made that this is fraud.
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October 22, 2009, 10:21 pmCrazyTrain says:
My thoughts exactly. Kinda overlooking the more obvious claim here David.
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October 22, 2009, 10:23 pmAsh says:
One cannot have a trademark for a single work like a book. Herbko Int’l, Inc. v. Kappa Books, Inc, Case No. 02–1047 (Fed. Cir. Sept. 3, 2002). “This court’s precedent also clearly holds that the title of a single book cannot serve as a source identifier.”
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October 22, 2009, 10:23 pmAlyssa says:
Agreed — potential trade dress infringement, especially if the cover mimics the original book. If it has her picture on the cover, I’d say that seals the deal.
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October 22, 2009, 10:28 pmAlyssa says:
Of course, part of the Left’s whole plan of attack on Palin has been to rope-a-dope her with legal fees, so maybe this is just another saga.
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October 22, 2009, 10:29 pmloki13 says:
*Are any of you* (other than Ash) looking at this from a legal perspective instead of through your silly partisan lenses?
Friggin’ trade dress. Uh huh.
So, did the authors of Freakonomics go after John Lott? No? Funny, that.
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October 22, 2009, 10:31 pm24AheadDotCom says:
The venture seems to have deep links to The Nation. Way back in June, I contacted that organization about one of their books containing a smear that’s been in the news lately.
Unfortunately, back in June I got no help getting a statement of out The Nation, a statement that might have made them look bad and might have made books like the current one less likely. Even after every r/w blogger in the universe has seemingly discussed this issue, I haven’t seen anyone else try to, you know, actually go after the publisher. And, because of that, you get books like the one in the post.
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October 22, 2009, 10:31 pmAnderson says:
Is there a satire exception to the Lanham Act?
... it seems likely that they set out to confuse people into buying their book instead of Palin’s.
I look forward to the class-action suit by Palin fans too stupid to look at the book before they buy it.
(The publisher could put a yellow paper ribbon on the book with SATIRE — NOT BY SARAH PALIN, which would handle any lawsuit I think, but would not deter Palin’s most devoted admirers from buying the wrong book anyway.)
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October 22, 2009, 10:43 pmSteve says:
Perhaps a state-law claim for unfair competition might lie, since this seems to fall just short of a viable copyright/trademark claim.
This sort of thing likely comes within the scope of the typical state deceptive trade practices statute (what doesn’t?), but even if you could find a plaintiff who was tricked into buying the book, not sure you can do much with that when they presumably could get a full refund just by asking.
Of course, it would be completely silly for Palin or her publishers to give this book any publicity by filing a lawsuit — although it’s a clever enough effort that it may generate some publicity on its own.
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October 22, 2009, 10:53 pmTal says:
You can say this about any trademark suit; just insert the relevant class instead of “Palin fans.”
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October 22, 2009, 10:55 pmBama 1L says:
If these trade dress/UDAP/Lanham theories were remotely viable, you’d have seen them in use, and in consequence book jackets would already look far different. Guess what? That’s right. So that means . . . .
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October 22, 2009, 11:07 pmChico's Bail Bonds says:
This seems like a strong trademark/dress case for Palin. The covers are very confusing.
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October 22, 2009, 11:24 pmOren says:
Still can’t trademark a book title.
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October 22, 2009, 11:49 pmGuesty Guest says:
Many of you must be dum-dums w/r/t IP–there’s nothing actionable here.
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October 22, 2009, 11:52 pmSandy MacHoots says:
Sure, but the point I think he’s making is that conservatives are particularly dumb. That’s presumably why they buy so many more books than liberals do. Liberals don’t have to, because they already know everything.
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October 22, 2009, 11:56 pmFub says:
Am I the only one who recalls Bored of the Rings?
It was still in print as of 2007, first published 1969. It contained or displayed most every element in Going Rouge: lookalike cover, “confusing” title, and then some.
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October 22, 2009, 11:58 pmChico's Bail Bonds says:
I would be surprised if that Federal Circuit case is the law anywhere else. Also, she could have a trade dress claim that doesn’t rely exclusively on the title.
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October 23, 2009, 12:00 amGuesty Guest says:
If only the Federal Circuit had IP expertise . . .
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October 23, 2009, 12:09 amChico's Bail Bonds says:
It would certainly be helpful. I would like to see the section of the Lanham Act that says you can TM a series of book titles, but not a single book.
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October 23, 2009, 12:12 amMark N. says:
Isn’t Federal Circuit precedent law nationwide as to trademark issues?
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October 23, 2009, 12:19 amChico's Bail Bonds says:
No. It is only binding on the US Patent and Trademark Office administrative proceedings. In court, the local circuit law controls.
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October 23, 2009, 12:21 amChico's Bail Bonds says:
Lookie here. Someone wrote a law review article about how other courts do not follow the Federal Circuit’s doctrine in this area.
http://www.piercelaw.edu/assets/pdf/idea-vol45-no1-harper.pdf
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October 23, 2009, 12:31 amCharles N. Steele says:
Ash is correct. One cannot copyright a book title.
You can’t even count the number of books entitled “Intermediate Microeconomics.”
Feel free to come out with your own “Going Rouge.” Or “Atlas Shrugged.”
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October 23, 2009, 12:41 amgeokstr says:
This sounds like the perfect time to release my new book — Dream(s) of My Father, with a picture of a good-looking, clean, articulate half-black on the cover who just happens by coincidence to look like the Community Organizer in Chief, in a color scheme and with cover graphics that coincidentally mirror his book. It will contain all the articles critical of Obama that I can find.
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October 23, 2009, 1:02 amLeo Marvin says:
If it isn’t illegal to be somebody I don’t like doing something I don’t like, what good is the Law?
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October 23, 2009, 1:08 amroguestage says:
Let’s act like lawyers and look at the law here before we jump to conclusions. Kudos to Ash for citing Herbko, and kudos to Guesty Guest for knowing that the Federal Circuit is tasked particularly with interpreting patent and trademark laws and that other circuits tend to follow their lead on these issues. So, no trademark claim for the title of a book. The same analysis will hold for trade dress infringement, since the two are both legal devices used to protect an established trade by helping merchants identify themselves in the market.
The truly decisive point is that (Anderson, you nailed it) parody gets protection under trademark law, just like it does under copyright law. Without pulling out a statute book, I don’t remember whether ‘fair use’ or its equivalent is in the full Lanham Act or just the dilution/tarnishment provisions, or whether it is a common law First Amendment doctrine, but either way, it is the law. This reminds me of Louis Vuitton Malletier v. Haute Diggity Dog, 504 F3d 252 (“Chewy Vuitton” dog toys are parody and not infringement).
If Ms. Palin’s publisher is foolish enough to sue, all they’ll do is pay some attorney’s fees and kick up more publicity for the satirist. And not to disappoint the trolls, but they’ll lose no matter what party’s President appointed the judge.
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October 23, 2009, 1:10 amroguestage says:
My, my, a law review article. Even assuming that it correctly states the law, the first paragraph of the article points out that the other circuits only give protection to book titles when they have acquired secondary meaning — in other words, where “the primary significance of the term in the minds of the consuming public is not the product but the producer.” Do you really want to argue that “Going Rogue” is a phrase so exclusively associated with Sarah Palin that people think of her first when they hear it? Like, say, “Chicken Soup for the Alaskan Soul”?
There’s no case here, just satire. Some might call that freedom of speech.
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October 23, 2009, 1:18 amChico's Bail Bonds says:
What do you mean “assuming that it correctly states the law?” You don’t have to assume anything. Look up the cases if you think he misstates them and then come back to me.
You should also read up some more on secondary meaning while your at it. You obviously don’t have a good grasp on it if you think the the test is whether it is so “exclusively associated with Sarah Palin that people think of her first when they hear it.”
You might also act like a lawyer and look up the fair use doctrine in trademark law. You will discover that likelihood of confusion is one of the factors, which in this case make the defense questionable.
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October 23, 2009, 1:57 amWASteve says:
Would a defense of satire depend just upon the title of the book, or the contents as well?
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October 23, 2009, 2:05 amAsh says:
“Thus, the publication of a single book cannot create, as a matter of law, an association between the book’s title (the alleged mark) and the source of the book (the publisher). As such, if a later party uses or applies for a trademark before the creation of a series (i.e., before publication of a second volume), the proprietary rights for the series title date back to the first volume of the series only if the second volume is published within a reasonable time with a requisite association in the public mind. That association requires more than publication of a single book.” Herbko Int’l, Inc. v. Kappa Books, Inc, Case No. 02–1047 (Fed. Cir. Sept. 3, 2002)
“Appellant appears to argue that there is an inconsistency in registering as a trademark the name for a series of books and in not registering the title of a single book. We see no inconsistency. The name for a series, at least while it is still being published, has a trademark function in indicating that each book of the series comes from the same source as the others.” In re Cooper, 254 F.2d 611
The Section of the Lanham Act you are looking for is the part where it says trademarks are registrable and non-trademarks aren’t. A single book title is not a trademark as per these decisions. A series can be.
But see: It is well known that the rights in book titles are afforded appropriate protection under the law of unfair competition. See Nims, “Unfair Competition and Trade-Marks,” 4th Ed., Chapt. XVIII, especially § 277; Shoemaker, “Trade-Marks,” Sec. 112 at page 325
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October 23, 2009, 2:27 amCan't find a good name says:
In this particular case, I don’t think Palin would have a successful case against OR Books for trade dress infringement. But that’s mainly because I understand that OR Books is going to sell “Going Rouge” online only, where the purchaser will see a description of the book before making the purchase. Actual customer confusion is likely to be nil.
However, if the OR Books “Going Rouge” were being sold in regular bookstores, and if actual customer confusion could be shown, Palin could have a plausible case for trade dress infringement. Granted, most book titles can’t be trademarked, but this wouldn’t be a trademark case, but a trade dress case. Here, the infringement would be on the overall look of the cover of Palin’s book. Not only is the OR book’s main title very similar to Palin’s (“Going Rouge” vs. “Going Rogue”), but the same typefaces are used on both covers, and both covers feature Palin in red clothing with her head positioned in similar ways. Furthermore, the OR Books “Going Rouge” relegates the names of its editors (the source of origin for the book) to the smallest type size on the cover, thus failing to alleviate potential customer confusion.
I am not saying that Palin would necessarily win a trade dress infringement case against OR Books if “Going Rouge” were sold in bookstores, but she wouldn’t be laughed out of court either.
As further evidence that the OR Books cover appears to infringe on Palin’s cover, contrast the cover of Michael Stinson & Julie Sigwart’s “Going Rouge: The Sarah Palin Rogue Coloring & Activity Book.” See here for illustration. The Stinson/Sigwart book has the same main title as the OR Books book, but its trade dress is completely different from either Palin’s or the OR Books book. (The Stinson/Sigwart book cover not only uses completely different typefaces from Palin’s book cover, but its cover art and layout are completely different, featuring a cartoon caricature of Palin sitting atop the White House, wearing a bandolier and holding a gun, with bags of money in the foreground and a gushing oil well in the background.) This illustrates the fact that one can publish a book titled “Going Rouge” which is critical of Sarah Palin without infringing on the trade dress of Palin’s own book.
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October 23, 2009, 2:31 amDoc Merlin says:
The covers are extremely similar. Similar enough that the artist for the covers could claim infringement.
Here is the two side by side.
http://hotair.cachefly.net/images/2009–10/prou.jpg
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October 23, 2009, 2:39 ambuck says:
Funny, everyone’s a trademark lawyer all of a sudden. Never mind that there is not one thing in the Palin book–other than the publisher’s name and logo–that can be registered as a trademark. So, Bill Poser is right–someone is confusing copyright and trademark issues. More to the point, they want to apply the concepts of trademark violations to copyright, which won’t fly. The covers are only superficially similar–the underlying photos are different and the title/“author” are reversed (top/bottom of front cover). The title is clearly a parody, on top of that. The content is unmistakable–one is a pretend biography, the other is collection of critical essays. If there is likelihood of confusion in the cover, there is no mistaking the content and any reasonable defense would simply state that we buy books based on content, not cover. (Except, of course, the nutjobs that would buy Palin’s oeuvres.)
Book cover is a design feature, not a trade dress. Trade dress is something that is uniquely recognizable and is associated with a business or other trade dress owner–if a publisher has a particularly successful book series with similar designed covers or if it publishes all books with similar cover art and design, that could constitute a trade dress. But a single book title? Never! (Unless, of course, it just happens to be a singularly effective book title that is associated with the publisher–and no inbred moron will be able to tell you who the publisher of the Going Rogue is–they’ll just ask you for “that one!”.) Different distribution channels help as well, coupled, in fact, with advance publicity on both books.
Get over it! There is no case here at all. There is no copyright infringement and trademark issues are nonexistent (although for different reasons). Compare this, for example, to the Izod case against the “dead alligator” brand (can’t recall the name of the company right now, but Izod claimed likelihood of confusion and won–must have been a Posner decision).
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October 23, 2009, 3:11 ambuck says:
Bottom line is, you can’t make trademark claims under the copyright doctrine and you can’t make copyright claims under the trademark doctrine. So it’s not “just short” of any violation.
And, yes, some court may well issue an injunction which will be immediately thrown out on appeal. Lower courts–especially on partisan issues–do make up law on occasion, which is why we have appeals.
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October 23, 2009, 3:24 amMark N. says:
Is this really the case with trademark law? I’m mostly familiar with patent law, and in that case, precedents from the Federal Circuit on substantive issues of patent law are binding upon all circuits, because the Federal Circuit has exclusive appellate jurisdiction.
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October 23, 2009, 3:42 amjhubme_24 says:
So, apparently it’s not trademark infringement, nor copyright infringement, but what about trade dress (which seems to be what many IP book cover suits focus on, from my brief search)? Would a court need to reach likelihood of confusion analysis, or is there some obvious defense (fair use?)? If a court would likely consider the merits of the trade dress infringement, exactly what factors are considered in deciding likelihood of confusion (for trade DRESS), and which way would a court cut on each factor when considering the two books?
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October 23, 2009, 4:25 ambuck says:
Ability to read, apparently, is not a requirement for posting blog comments. Or, perhaps, it should be “ability to read with comprehension”.
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October 23, 2009, 6:03 amjhubme_24 says:
Cut me some slack at this early (late?) hour. Though I clearly missed it the first time, I just saw your previous post, and I’m satisfied with your view of how the likelihood of confusion standard is applied to trade dress for book covers, and that it wouldn’t apply to this case.
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October 23, 2009, 6:24 amTweets that mention The Volokh Conspiracy » Blog Archive » Going Rogue, Going Rouge -- Topsy.com says:
[...] This post was mentioned on Twitter by Moshe Glickman, Peter Black. Peter Black said: pick the ip law issue — “going rogue: sarah palin, an american nightmare” v “going rogue: sarah palin, an american life” http://j.mp/2Qq2iy [...]
Chris says:
Surely there’s copyright in the cover of the book. And, all you need for a prima facie case is access and substantial similarity.
Those two covers use the same layout, same typeface, the same size type, similar backgrounds and similar pictures of Palin — she’s smiling, looking the same direction and is wearing red in both. Further, her head occupies the same portion of the page. The two covers are, in fact, substantially similar.
As far as a “strong parody defense,” I don’t see much parody in the two covers, other than substituting the word “Nightmare” for “Life.” And, even so, you can only take in parody what you need to remind people of the original. When you get to the point that you can’t tell the parody from the real thing without close inspection, you’ve taken too much.
The argument against is over-the-top deconstructionism — trying to show that, independently, none of the elements are subject to copyright protection, so the arrangement of them together also can’t be. That view has been soundly rejected by the courts. (Good thing too, or books composed of regular English words would never be copyrightable).
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October 23, 2009, 7:27 amPersonFromPorlock says:
The thing’s a tar baby and I suspect Palin is smart enough not to get involved with it, so all this discussion of legal tactics is moot. I would be mildly interested to see who’s behind this ‘start-up’ publisher.
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October 23, 2009, 7:34 amcboldt says:
– other than the picture of Palin, about which she surely has no copyright complaint –
Agreed she has no copyright in what she didn’t create, but I recall there is some legal doctrine that permits celebrities to control how and where there likeness is used.
Other than that, I the book is a tag-along parody, and writers / publishers have every right to take advantage of public fancy.
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October 23, 2009, 7:44 amAnderson says:
but the point I think he’s making is that conservatives are particularly dumb
No, just Palin-admiring conservatives.
... Fub, I do remember Bored of the Rings — parodied those godawful Ballantine covers from the 1960s, the “first authorized edition.” (Now that was some real infringement — Ace published LOTR in the U.S., as I recall, w/out paying royalties.)
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October 23, 2009, 7:47 amFloridan says:
Stormy Dragon: “Seems to me an argument could be made that this is fraud.”
Which book are you talking about?
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October 23, 2009, 8:10 amrpt says:
And nothing will stop you from doing so, assuming that it hasn’t been done already. Would you prefer if Obama/Palin could use the courts to ban books which are critical or satirical of them? Yours sounds like a pefect Regnery title.
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October 23, 2009, 8:37 amArkady says:
Ah, damn, Anderson got there first. Well...
Sdragon:
Which one?
[Jesus Christ, Floridan, give a brother a break :) ]
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October 23, 2009, 8:38 amdavod says:
Going Rouge could be a marketing bonus for the Palin book.
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October 23, 2009, 8:54 amCan't find a good name says:
Davod: The Palin book was already the #1 nonfiction best seller at Amazon.com several weeks before publication, before “Going Rouge” was even announced. The latter book is also being distributed in a much more limited way than Palin’s.
It’s hard to see how the OR Books book could benefit Palin’s sales, except to the extent that people read it, get fed up with the excessive criticism of Palin, and decide to buy her book as well.
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October 23, 2009, 9:49 amAnderson says:
except to the extent that people read it, get fed up with the excessive criticism of Palin, and decide to buy her book as well
That’s about two, maybe three sales right there!
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October 23, 2009, 10:03 amRichard Nieporent says:
To follow up on what Can’t find a good name said, I just did a search of the Amazon and Barnes and Noble websites for the book Going Rouge: Sarah Palin An American Nightmare and there were no hits. If you can only buy it from the OR website then there is no real concern about people buying the wrong book by mistake. Thus, other than giving some people a chance to vent their feelings about Sarah Palin, this discussion about copyright/trademark infringement is just academic.
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October 23, 2009, 10:11 amDave! says:
This post and most of the comments just affirm that I do *not* read VC for IP law topics. Seriously.
(Patry’s guest posts excepted.)
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October 23, 2009, 10:12 amroguestage says:
Chico’s Bail Bonds, I’m acting like a lawyer who doesn’t represent Sarah Palin’s publisher. I skimmed the law review article for its major propositions and didn’t bother checking it like I would if I was in litigation — I’m going to assume it’s correct, as I’m sure you did, and argue that it doesn’t support your argument anyway.
The article itself states that the test for whether a term has acquired secondary meaning (necessary for a book title to attain trademark status) is whether “the primary significance of the term in the minds of the consuming public is not the product but the producer.” I don’t think that paraphrasing that as ‘whether the primary significance of [Going Rogue] in the minds of the consuming public is not the [book] but the [author/publisher]’ is anywhere near as outlandish as you seem to.
But if I’m going to go back to my very brief time working on trademark cases, sure, there’s more to it. Courts use a six-part test to evaluate secondary meaning:
btw, that’s from your law review article, citing a 2d Circuit case. I’m still assuming that it correctly states the law, as I was before.
So let’s evaluate the factors: lots of advertising expenditures; no studies linking Palin or her publisher to the phrase “Going Rogue”, and they probably can’t get any, since it was a common phrase long before it was her title. Media coverage cuts both ways — there would have been coverage of anything Palin did regardless of the title/book cover because she’s a public figure. Lots of sales are in her favor. If “Going Rouge” is an attempt to plagiarize the mark, it’s the first — a wash, maybe in Palin’s favor. But she’s only had this title/book cover for a couple of months, and neither the title nor the photo on the jacket are particularly original or exclusive. So, in my opinion, no secondary meaning, which means no trademark, even if you throw Herbko out the window.
And I did look up fair use in trademark law, which is why I cited the Louis Vuitton case before. I suggest you read it, as it’s very solicitous of satirical uses of trademarks. Of course, that would only apply if Palin’s book jacket and title can be trademarked, which they cannot.
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October 23, 2009, 10:18 amWaste93 says:
Could the copyright holder of the picture however go after the parody book for using the picture without permission? The satire exemption I would think would cover the rest of it but the picture itself may not be covered.
Disclaimer: I’m not a lawyer nor do I play one on TV.
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October 23, 2009, 10:39 amzuch says:
Bill Poser:
I don’t think that Palin can establish a valid “trademark” capable of being infringed here (particularly when her book is hitting the stores at the exact same time as the other). And just exactly what (outside of the book) is her “product”?
Cheers,
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October 23, 2009, 10:57 amMalvolio says:
To summarize, everybody is telling me that book titles cannot be copyrighted (which I knew), book jackets of single books cannot be trademarked (which makes sense) or considered trade dress (which surprised me).
But look at the consequences: I can write my own piece-of-crap book, call it “Angel & Demons”, put it under the same cover as Dan Brown’s piece-of-crap book, and sell it to an unsuspecting public, without breaking the law or committing a tort? That doesn’t seem right.
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October 23, 2009, 10:58 amzuch says:
Alyssa:
Oh yeah, it’s a big conspiracy. But FWIW, the one most plausibly initiating a lawsuit here (if anyone) would be Palin. Hard to say she’s getting “rope-a-dope[d]” into legal fees in such circumstances. She should just STFU (legally) and remember the show biz maxim that “any publicity is good publicity”.
Cheers,
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October 23, 2009, 11:03 amAnderson says:
Just remember, Palin fans: if you’re asked what’s your favorite Palin book, the correct answer is: “All of them!”
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October 23, 2009, 11:29 amJust Dropping By says:
It’s difficult to generalize about right of publicity law because it varies significantly state-to-state, but reporting on “matters of public interest” is usually exempt. (That’s why you don’t hear about celebrities suing the National Enquirer every week.) Also, in at least some jurisdictions, the right of publicity only covers situations where the seller is making an expressly commercial use of the celebrity’s likeness, not just publishing the likeness on something that is sold in a commercial transaction.
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October 23, 2009, 11:31 amBama 1L says:
Does Malvolio’s book say that it was written by Dan Brown?
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October 23, 2009, 11:53 amWhadonna More says:
Goodness. The commenters all need a field trip to the local adult video shop — it’s a standard trope of pr0n to parody mainstream works in a very similar fashion. The major difference is the use of an actual photo of Palin, but that’s neither a dilution, Tm infringement nor (C) infringement issue. Parody is good — parody of the (near-)powerful is great. Lawful all the way around.
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October 23, 2009, 12:00 pmAnderson says:
The commenters all need a field trip to the local adult video shop
That goes for many threads, including most of DB’s rants on HRW.
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October 23, 2009, 12:20 pmPhil says:
What about misappropriation of name or likeness on the basis that Palin’s name appears on the book as though she wrote it or in some way endorsed it? They are using her name and image for commercial gain. Yes, you could argue it’s a book about Palin... but this is where the “fraud” and “confusion” arguments above come in. They could certainly write a book about Palin with no problem... but this is an attempt to use Palin’s name and image to create the impression that she had something to do with their book (confusingly similar to Palin’s own book).
Is it a strech? I probably wouldn’t file it... but for 30 seconds of my lunch break I thought it was worth writing the comment.
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October 23, 2009, 12:40 pmstevethepatentguy says:
The tort here is passing off. The elements of passing off include “Goodwill owned by a trader”, “Misrepresentation” and “Damage to goodwill.” Satire and fair use are not defenses to passing off. There is a question of whether there is a misrepresentation preset in the “Going Rouge” cover.
Ms. Palin does have a self help solution to the Going Rouge book. Her facebook she could ask supporters to buy “Going Rouge” open the book and dog ear it enough that it cannot be sold as new and then indignantly return the book.
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October 23, 2009, 12:45 pmChico's Bail Bonds says:
I love it you how assume a book cover cannot be trade dress with absolutely no authority for the proposition. Note the case you rely on is about trademark in book titles and says nothing about trade dress in book jackets.
That is also the screwiest secondary meaning analysis I have ever seen. How in the heck can media coverage cut both ways? This is a situation where the old cliche “there is no such thing as bad publicity” applies.
What relevance is it that “Going Rogue” is a common phrase long before it was a title? All trademarks that require secondary meaning are common descriptive words.
Where did you get the idea that a trademark has to be “original”?
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October 23, 2009, 12:48 pmAnderson says:
What about misappropriation of name or likeness on the basis that Palin’s name appears on the book as though she wrote it or in some way endorsed it?
I don’t think anyone thinks that the Regnery Press books with “Obama” on the cover are written or endorsed by Obama.
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October 23, 2009, 12:55 pmbuck says:
That’s your first mistake!
Well, no. If you’re attempting to sell content that is similar to Brown’s–that is, a novel–you may well get in trouble. But if you have a collection of critical essays about Brown’s book and call it, say, “Of Angels & Demons: Dan Brown and the decline of the written word”, with “Angels & Demons” and “Dan Brown” highlighted, there would be no cause for alarm. In fact, it is quite common for critical essays themed to a particular work to get a cover treatment that specifically evokes the work–that’s the whole point. No one in his right mind would be able to confuse a novel with a collection of essays about the novel. The same applies here.
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October 23, 2009, 1:00 pmroguestage says:
Phil, the misappropriation argument is a good idea, but I doubt it would fly. There are plenty of books critical of plenty of politicians that have pictures of the criticized politician on their cover, and nobody thinks that the pictured pol endorses the contents of the book. If that argument carried any legal merit, than all of the anti-Bush or anti-Obama or anti-whomever books that have a picture of the criticized pol on their cover would be subject to suit, and that would clearly be an absurd result.
This is a book of political speech, and it has chosen to use a parody cover to promote itself. The First Amendment/fair use arguments should win the day over any claims, be they grounded in copyright, trademark, or misappropriation.
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October 23, 2009, 1:01 pmCan't find a good name says:
Waste93: While OR Books would definitely need permission from the copyright holder of the photograph to use the picture of Palin on their book cover, there must have been thousands of photos of Palin taken over the last two years which were available for licensing, and until I hear otherwise I would assume that they are using one of those with a proper license. (Note that the photo of Palin on “Going Rouge” is not the same as the one on “Going Rogue.”)
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October 23, 2009, 1:04 pmroguestage says:
I love how the only authority you’ve cited this entire time is a law review article, and yet you’ve managed to come up with an entirely different interpretation of IP law than everyone in this thread citing to actual precedent. And the case I rely on was a case you cited, from the article that you seem to think makes your argument a winner.
I’m going to defer to Buck here on the trade dress issue:
Chico’s Bail Bonds, if you think there is a different analysis for trade dress confusion and trademark confusion claims, please cite to a case that supports the proposition.
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October 23, 2009, 1:14 pmgeokstr says:
What a coincidence.
Everyone commenting here who already has an obviously crippling case of PDS finds absolutely nothing wrong with this, not on any level whatsoever, not legally, or ethically, or civilly.
And there is no need for a leftwing “conspiracy” against Palin to account for BS like this. It has been incorporated into the accepted dogma of the Religion of Leftism that Palin is evil, so all the acolytes are perfectly justified in taking every possible shot at her that can be imagined. All part of the leftist playbook:
RULE 5: “Ridicule is man’s most potent weapon.” There is no defense. It’s irrational. It’s infuriating. It also works as a key pressure point to force the enemy into concessions.
RULE 12: Pick the target, freeze it, personalize it, and polarize it.” Cut off the support network and isolate the target from sympathy. Go after people and not institutions; people hurt faster than institutions. (This is cruel, but very effective. Direct, personalized criticism and ridicule works.)
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October 23, 2009, 1:22 pmOren says:
geosktr, personal ridicule and parody has been a part of the (Anglo) American political system since its inception. Read about what Adams and Jefferson said about each other during the campaign for the election of 1800.
If you want to advocate for a multilateral disengagement from personal attacks (providing you can speak for the PDSers on the left and the Birthers on the right), go ahead. Somehow I doubt that the American populace will be interested in the dispassionate analysis — they save that for the policy wonks.
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October 23, 2009, 1:48 pmloki13 says:
1. It was only a matter of time before Alinsky.... um, geokstr commented. I think we need a new Godwin’s for that.
2. I go back to my previous comment. I think the legal analysis was long done. There is no legal case. Period. Just because you *rly rly* don’t like something doesn’t make it actionable.
3. For those who find it “ethically or civilly” wrong to have a book bashing Palin with Palin on the cover, I recommend going to the bookstore (or Amazon) and looking at the covers of, inter alia, the various anti-Hillary books. Hell to Pay, Extreme Makeover, Dossier etc. And so on. Welcome to the 1st Am.
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October 23, 2009, 2:00 pmDave N says:
Oren,
Not wading into the technical debate, but Buck, who otherwise sounds like he knows what he is talking about, takes cheap shots at Palin while making his analysis, which makes it personal — and frankly, weakens his argument.
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October 23, 2009, 2:03 pmSteve P says:
Really? I’ve heard more people make comments about her incompetence, not evilness. There probably are a few people who think she’s unadulterated evil, but there are a few people who think that about any politician.
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October 23, 2009, 2:05 pmAnderson says:
PDS = Palin Derision Syndrome? You act like it’s a bad thing.
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October 23, 2009, 2:07 pmM-K says:
The rabid hatred of Sarah Palin and her supporters expressed here is amazing. Why are you people so terrified of her? If she were really as stupid as you pretend, she’d be no threat at all, and not worth the effort to hate. Try to wipe the foam off your keyboards before you comment–it’s very unbecomming.
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October 23, 2009, 2:32 pmGuest14 says:
It’s funny how authoritarian the right gets when someone pokes a little fun at one of their heroes.
What happened to freedom and limited government? Suddenly, nothing is more important than stretching and twisting the law to somehow supress this nasty, nasty speech.
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October 23, 2009, 2:38 pmSteve P says:
Following up on my previous comment, I haven’t really seen a lot of “rabid hatred”. What I’ve mostly seen are snarky comments about her competence/intelligence. Could you point to some examples of “rabid hatred” so I know what to look for?
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October 23, 2009, 2:41 pmM-K says:
No time to read back through all these posts, and I would not want to single out individuals anyway. Gratuitous “snarky” comments at the mere mention of someone’s name are symptomatic of irrational hatred. That’s close enough to “rabid” for me.
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October 23, 2009, 2:52 pmPhil says:
I can only speak for myself, but I was just having fun trying to come up with an argument. I see very few (if any) comments actually advocating a lawsuit in this situation.
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October 23, 2009, 3:00 pmbuck says:
Thanks for the endorsement. You’re right about swinging at the low-hanging fruit–Palin makes it too temptingly easy. Can’t help it, really–too many years of anti-totalitarian sarcasm translates all too easily to the current state of the GOP. Taking the names and specific references to “isms” and parties out of the equation and Glenn Beck and Rush Limbaugh rants could have just as easily come from Xinhua or APN, Palin sounds just like Gus Hall (if anyone even remembers what Gus Hall sounds like) and teabaggers are barely out of reach form college trotskyites. The only thing that’s missing is the reference to “capitalist pigdogs”–or whatever the opposite of that might be.
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October 23, 2009, 3:10 pmSteve P says:
So, no examples of such “rabid hatred” that people should “wipe the foam off your keyboards”, then?
Mentioning Pee-wee Herman’s name usually instantiates gratuitously snarky comments, but I don’t think there’s a lot of rabid hatred of him.
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October 23, 2009, 3:14 pmzuch says:
stevethepatentguy:
How is satire not “damage to goodwill”? The best satire may very well be the most caustic. And why didn’t Falwell’s lawyers take this tack in Hustler v. Falwell? (they actually did to an extent; they didn’t sue for libel, but rather on “intentional infliction of emotional distress”; the principle is the same, “I’ve been hurt, make them stop saying mean things about me....”).
Cheers,
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October 23, 2009, 3:37 pmzuch says:
Would an ad for the new Volkswagen Beetle:
pique the lawyer’s interests over at GM? Just wondering. ;-)
Cheers,
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October 23, 2009, 3:40 pmLeo Marvin says:
Don’t change the subject. There are plenty of other threads where you can discuss the Tea Party Protester tactics.
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October 23, 2009, 4:17 pmCan't find a good name says:
loki13: I don’t think it is necessarily wrong in any way for a book critical of Palin to have a picture of her on the cover.
I do think it is wrong — or at least, potentially legally actionable — for a book (whether favorable or unfavorable to Palin) to have a cover design which imitates the design of Palin’s book in such a way as to cause potential customer confusion.
For comparison, The Obama Nation by Jerome Corsi and Culture of Corruption: Obama and His Team of Tax Cheats, Crooks, and Cronies by Michelle Malkin both have images of Barack Obama on the cover. But their overall cover designs don’t look anything like the covers of Obama’s own books Dreams from My Father or The Audacity of Hope, or each other.
The book cover of Going Rouge, on the other hand, looks a lot like the book cover of Going Rogue.
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October 23, 2009, 5:27 pmbuck says:
You mean counterfeiting? Because that’s what “passing off” is. You sell one product posing as another–but it is quite obvious that the goal is to do quite the opposite here.
It is interesting how one can openly advocate committing a crime when he finds that there is legal remedy for something that he believes ought to be a crime. I very much hope that anyone who follows this advice ends up with his day in court.
And, of course, in this case, Alinsky would be proud!
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October 23, 2009, 5:35 pmKarl Lembke says:
Speaking strictly as a layman, I don’t have a lot of patience with the some of the infringement suits I’ve heard about. I think some people have to really work to find some things “confusingly similar”.
That being said, I personally, viewing the two covers side-by-side, at first thought they were two different treatments of the same book. (E.g., one hardcover, one trade paper.) If I saw one in a store, I could easily pick it up, thinking I had picked up the other.
If that’s not “confusingly similar”, it’s close enough for government work.
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October 23, 2009, 5:55 pmChrisTS says:
Karl Lembke:
Even if one overlooked the different titles (Going Rogue and Going Rouge), wouldn’t the very diffferent subtitles (An American Life and An American Nightmare) and/or the different attributions (By SP and Edited by somebody) be — you know — tip offs?
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October 23, 2009, 6:04 pmChrisTS says:
M-K:
Really? Snarky comments are close enough to count as rabid hatred? You need to get out more.
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October 23, 2009, 6:08 pmChris says:
So, the covers are more than just superficially similar — they’re substantially similar — it’s clear that the parody cover was designed to look like the real cover. Same layout, same font choice, etc... Fair use/parody is the best defense, but I don’t think it’s a certain winner.
As to the “you buy books based on content, not cover,” argument while that’s true at a high level, the cover gives you a very strong clue to what the content is. And, somebody shopping for the original could easily buy the parody thinking it was the original. I don’t know about you, but when I shop for a specific book, I never check to make sure that the contents match the cover.
The fact that they ADDED a bunch of non-infringing material behind an infringing cover doesn’t solve the infringement. You can’t put a copyrighted short story in an anthology, and get away with the “but look how much I added” excuse.
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October 23, 2009, 7:07 pmCan't find a good name says:
ChrisTS: For “Going Rouge,” the words “Sarah Palin” are printed on the cover in a type size about five times the size of the typeface used for the editors’ credit. The OR Books cover tends to obscure the attribution rather than publicize it.
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October 23, 2009, 8:32 pmOren says:
Agreed.
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October 23, 2009, 8:43 pmbuck says:
“Substantially similar”–is there a legal test for that one?
“Same layout”–really? Sarah Palin (author) at the top of page vs. Sarah Palin (subject) at the bottom of page
“Best defense”–against what, exactly? Everyone here seems to be throwing out “parody/fair use” as defense without considering what it is a defense against. Can we please match the issues correctly?!
This thread is completely crazy. Looks like a bunch of dilettantes opining about what they think the law should be instead of actually giving knowledgeable opinion about what the law is.
There is no question that there is a parody element to the Going Rouge cover–for one, the clouds in the photo appear to have been darkened, to go with the title. But that has little to do with the trademark unless you get to the point where there is a trademark, trademark infringement and the need for a defense against an infringement claim. I am yet to see a convincing argument that there is a trademark, let alone the other two.
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October 24, 2009, 3:02 amChris says:
So, I’m suggesting that parody/fair use is a defense to copyright infringement.
As to substantial similarity, the wikipedia entry on substantial similarity actually has a surprisingly good discussion of the legalities. So, I’d refer you there. (It does get a few things wrong, though...)
I note that you’re pointing out the differences between the two — “You claim that they’re similar, but look at all the ways that they’re different.” But, note that substantial similarity is not the same as “identical” — you can still be substantially similar even if you move things around a bit.
Even more, would the parody cover look as it does if they didn’t have access to the original? It seems clear that it could not have.
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October 24, 2009, 12:20 pmbuck says:
Your entire claims seems to be that there is an “infringing cover”. Infringing in what way, exactly? Trademark? You can’t trademark a single cover, unless your business is based on it and there is secondary meaning to the cover. A simple survey would easily produce the requisite information–how many people can tell you what publisher put out the book (without looking it up)? Remember, the publisher would have to own the trademark, not the author. And the rules here are fairly straight forward.
If it’s not trademark, it must be copyright, right? The title itself is different, the cover art is different, the content of the book is different. The only claim you could have is that they have a similar typeface and a similar layout–neither one is copyrightable. So there is no copyright infringement in the cover.
And it’s not counterfeit either–it’s quite clear that the intent of the content is the opposite in the Rouge book from the Rogue book, so there is no attempt to imitate. That also covers “passing off”.
So, tell me again, how is it that the cover is “infringing”?
If there is any infringement claim, it would have to come from Palin and she’d have to make a case for defamation. If the information in the book is factual, you can forget that one–and if it simply reproduces previously published claims, with attribution, it’s not hard to make a case that it’s factual. “Unauthorized” biographies are quite common, as are analytical essays on public figures’ careers. This dog won’t hunt either.
Palin and the publisher certainly can bring a lawsuit, claiming some form of infringement (copyright, trademark, right of publicity, defamation, etc.). But 1) it would be tossed right away, and 2) why would a lawyer want to subject himself in what would be a very public case to potential Rule 11 consequences?
The best the publisher can do is send a threatening letter claiming that it would pursue vague “legal action” against the offending publisher. And the response would simply say, “Kiss off!” And that would be the end of the case.
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October 24, 2009, 12:37 pmChrisTS says:
Can’tFindaGoodNAme:
Look, if someone is simply going to purchase — from the publisher online — a book that has the words ‘Sarah Palin’ on the cover and without caring whether she is the author or the subject of the book, then, yes, that someone might end up with this book.
I know some people are stupid; we all know that. But the idea that a parody should be faulted for the fact that stupid people mistake it for what it parodies is unsupportable.
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October 24, 2009, 2:10 pmstevethepatentguy says:
Aw Buck, we’re just having fun here.
Counterfeiting is selling a shirt with Ralph Lauren’s little polo player. Parody is not damage to good will. Selling a book that people will believe Sarah Palin wrote and will take home and say “this book is a piece of crap” is damage to good will.
I wonder if your feelings on this would be different if it was a Barack Obama book and National Review had published the rip off. Based on your comments I think it would.
Good of you to spot the criminal conspiracy; a much funnier retort for you would be to mention the “Moron in a hurry” test. I’m sure you can finish the rest of the joke.
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October 24, 2009, 3:29 pmgeokstr says:
Nice try.
You know very well what PDS stands for. Whazzamatter — shoe fits?
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October 24, 2009, 3:45 pmChris says:
Infringing as a whole — the entire cover, when taken as a whole, is substantially similar to the original. So, you either have a violation of the reproduction right or a violation of the derivative work right. The thing being infringed is the set of creative choices made by the original cover designer. Any one of those choices, individually, may be too de minimus to be protected, but collectively, they are protected.
You are deconstructing — basically, saying, “Well, none of the elements individually is an infringement of the corresponding elements of the original, so the entire thing cannot be an infringement of the original.” That’s invalid because there’s also copyright in the selection and arrangement of otherwise non-copyrightable material. (See, for example, Feist v. Rural, which did not have that copyright, but mentioned that specialized directories could.)
Basically, they took the original cover and made a handful of fairly subtle changes: Swapping the positions of “Sarah Palin” and “Going Rogue,” swapping two letters in the word “Rogue”, replacing the word “Life” with “Nightmare,” replacing the picture with one with very similar composition, and adding an “edited by” bar at the bottom. It’s no surprise that the end result is very similar to the original.
Now, it may be that the copiers have a fair use defense, claiming that their version is a parody. In parody, you’re allowed to take enough to remind people of the original, but at some point, you’ve taken too much. See Campbell v. Acuff-Rose. But, in contrast to that case, Factor 4 of the fair-use analysis turns against the parody here: the covers are so similar that an inattentive shopper could easily confuse the two, which would have a negative effect on the market for the original.
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October 24, 2009, 4:38 pmJohn L. says:
If people would put aside their feelings about Sarah Palin — for good or ill — they’d see that the legal questions presented here aren’t simple at all. In fact, they’re quite complex and would be perfect law school exam questions.
As creative IP litigators know, if you can’t win your case on the basis of copyright, trademark, or right of privacy or publicity (and I agree Palin would probably lose under those legal theories), there are at least 2 related legal theories that aren’t subject to the technical requirements of copyright, trademark, privacy and publicity rights, which might provide Palin with grounds for suit. They are: (a) Section 43A of the Lanham Act, and (b) common law unfair competition.
The advantage of these 2 legal theories is that neither would require Palin to prove she owns a trademark. Instead, Palin could prevail on either theory if she could show that the design, title and marketing of Going Rouge are likely to deceive a non-trivial number of consumers into buying Going Rouge instead of Going Rogue. One of the key questions in this inquiry would be whether the Going Rouge publishers intended to deceive consumers into buying Going Rouge instead of Going Rogue. And that intention seems pretty clear. The publisher’s choice of title (all they did was move a single letter 1 space to the left), cover font (identical), cover photo (very similar), cover layout (nearly identical), and especially publication date (identical) of Going Rouge, go WAY beyond parody, and seem cleverly intended to confuse as to which book is which. (Indeed, just go to Amazon.com and search their book section for “Going Rouge.” You’ll get an immediate prompt: Did you mean Going Rogue?) The intention to deceive seems so obvious, it’s almost comical.
Of course this doesn’t mean Palin would necessarily win an action based on 43A or unfair competition. That outcome would probably turn on other factors such as market channels and evidence of actual deception. E.g., if Going Rouge were only available on its publisher’s website, and wasn’t sold on Amazon or at major book chains, then there’d be very little likelihood of deception, and Palin’s claim would be extremely weak. But if it started showing up everywhere Palin’s book is sold, were displayed prominently in book stores, and fooled a substantial number of buyers into buying the wrong book, I think a 43A or unfair competition claim would be strong.
Of course, my discussion has nothing to do with the wisdom of bringing such a suit; but we shouldn’t let that question diminish the legal issues presented, which, as noted, are more substantial than some people admit.
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October 24, 2009, 6:13 pmDJR says:
Thanks John L., for explaining at comment 108 what I said at comment 4. There is a colorable claim here for a violation of Section 43(a) of the Lanham Act because the cover of Going Rouge is likely to be confused with the cover of Going Rogue.
What I find more interesting about this thread, however, is that the original post ended after David Post’s paragraph stating that this is not copyright infringement. He subsequently edited the post (without comment) to include a discussion of the Lanham Act, which made him look less clueless.
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October 26, 2009, 11:15 amPhil says:
Not that I’m advocating this, but when I read above that the books will be printed on demand, what would happen if a lot of Palin fans bought the wrong book, sat on it a few days, then returned it to the store? I assume the store would have to take it back, and the publisher would be stuck with a pile of printed but not sold books. Sure, the publisher might complain, but how do you complain about customers who claim they were deceived when that’s your very goal?
Phil
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October 26, 2009, 3:12 pmJohn L. says:
Thanks John L., for explaining at comment 108 what I said at comment 4.
I suppose you’re being sarcastic, DJ, but if so, please note the reason I needed to explain at comment 108 what you said at comment 4 is that numerous posts between comments 4 and 108 ignored or contradicted your post, by erroneously asserting that Palin would need to own a trademark in order to prevail under the Lanham Act. The truth, however, is that under 43A, one doesn’t need to own a trademark in order to prevail.
I also noticed that no one had pointed out that it’s unnecessary to own a trademark in order to prevail under the theory of unfair competition.
Hence, my comment.
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October 26, 2009, 10:55 pmDJR says:
My thanks was sincere, John. My comment was meant to express surprise that few or none of the intervening 103 comments– some of them quite heated on either side–took up the simplest and most meritorious claim that Palin might have against the Going Rouge folks.
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October 27, 2009, 11:22 amJohn L. says:
Thanks for the clarification, DJ, and please accept my apologies for misunderstanding your original post! I too was very surprised that no one between posts 4 and 108 saw Section 43A as “the one right tool for the job” (as Anton Chigurh might say if he were a trademark lawyer).
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October 27, 2009, 12:29 pmmatt s. says:
I am curious about this book due to the fact I entered in a contest on the web titled “re-name palin’s book” This was on Oct4th. I entered in the name Going Rouge, An American Nightmare....I did not win the contest, but 3 weeks later I see The Nation is putting out a book with the same title.
Since I released this on the web to the public is there any legal recourse to finding out if the name was stolen from that contest?
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November 6, 2009, 2:55 pmCAJ says:
To me, this just seems like pure CAPITALISM. They’re trying to make money.
That’s particularly funny because most Sarah bashers seem to HATE capitalism, except when they’re the ones making money off it.
If anyone buys this book by accident, they just need to return it and get their money back. About 80% returns should cut into the bottom line of the publishers and authors of this.
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November 23, 2009, 1:01 pm