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.

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.

Phil

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.

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.

buck:
Your entire claims seems to be that there is an “infring­ing cover”. Infring­ing in what way, exactly? [. . .] The title itself is dif­fer­ent, the cover art is dif­fer­ent, the con­tent of the book is dif­fer­ent.

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.

Anderson says:
PDS = Palin Deri­sion Syn­drome? You act like it’s a bad thing.

Nice try.

You know very well what PDS stands for. Whazzamatter – shoe fits?

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.

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.

Chris: The fact that they ADDED a bunch of non-infringing mate r ial behind an infring ing cover doesn’t solve the infringe ment. You can’t put a copy righted short story in an anthol ogy, and get away with the “but look how much I added” excuse.

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.

buck:
“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.

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.

Chris: So, the covers are more than just superficially similar — they’re substantially similar — it’s clear that the par ody cover was designed to look like the real cover. Same lay out, same font choice, etc… Fair use/parody is the best defense, but I don’t think it’s a cer­tain winner.

“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.

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.

Agreed.

buck: The cov­ers are only super­fi­cially similar–the under­ly­ing pho­tos are dif­fer­ent and the title/“author” are reversed (top/bottom of front cover). … 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.

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.

Gra­tu­itous “snarky” com­ments at the mere men­tion of someone’s name are symp­to­matic of irra­tional hatred. That’s close enough to “rabid” for me.

Really? Snarky comments are close enough to count as rabid hatred? You need to get out more.

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?

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.

stevethepatentguy: The tort here is passing off. The elements of passing off include “Good will owned by a trader”, “Misrepresentation” and “Damage to good will.” Satire and fair use are not defenses to pass ing off. There is a ques tion of whether there is a misrepresentation preset in the “Going Rouge” cover.

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.

stevethepatentguy: Ms. Palin does have a self help solution to the Going Rouge book. Her face book she could ask supporters to buy “Going Rouge” open the book and dog ear it enough that it can not be sold as new and then indignantly return the book.

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!

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.

geokstr:

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.)

Don’t change the subject. There are plenty of other threads where you can discuss the Tea Party Protester tactics.

“This is not your father’s old, small Beetle”

pique the lawyer’s interests over at GM? Just wondering. ;-)

Cheers,

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.

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,

No time to read back through all these posts, and I would not want to single out individuals anyway.

So, no examples of such “rabid hatred” that people should “wipe the foam off your keyboards”, then?

Gratuitous “snarky” comments at the mere mention of someone’s name are symptomatic of irrational hatred. That’s close enough to “rabid” for me.

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.

Dave N: 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.

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.

Guest14: 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.

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.

The rabid hatred of Sarah Palin and her supporters expressed here is amazing.

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?

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.

It has been incorporated into the accepted dogma of the Religion of Leftism that Palin is evil,

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.