Protecting Intellectual Property Case Study Critique

Summary:
Elvis, was a musical icon for more than 20. Elvis was very prolific, and a wide variety of
people own the copyrights to his music, videos, and films. Passport Video, produced a video
documentary of Elviss life titled The Definitive Elvis. The documentary focused on every
aspect of Elviss life and was priced at $99.00. These episode contained Elvis performance
shots, which were copyrighted and owned by Elvis Presley Enterprises or others. The
copyright holders, informed Passport Video that they objected to the production of the videos.
Passport Video continued, and the copyright holders prosecuted Passport Video for
unauthorized usage of footage and copyright defilements in August 2003. They also asked for
a preliminary injunction preventing Passport Video from selling any more copies of the
documentary, which a U.S. District Court granted.
In their defense passport videos claimed that they had a fair use of the copyrighted material
and they spent over $2 million on documentary. An assertion given by it that it interviewed
more than 200 people to make the documentary and it also stated that only 5 to 10 percent of
the length of the videos had copyright material.
U.S. District Court governed in favor of the plaintiffs. Passport persevered to appeal the
decision to the Ninth Circuit Court of Appeals, disagreeing that the documentary of Elviss
life instituted scholarly research and should be protected under fair use. The Ninth Circuit
Court banded Passport from selling any additional copies of The Definitive Elvis.
The decision made by courts was right as it protect the legal owners of Elviss material from
copyright violation.

Critique:
Passport videos made videos on Elvis life which contain the material which was copyrighted.
It was a good idea to make a documentary like that but they should know their limits. The
limitations of fair use. They claimed that it was a matter of fair use, but their main focus was
to gain profit. They didnt transform the stuff which was copy righted.
All these factors would be discussed in the following questions.

Discussion Questions:
1. Do you agree with the Ninth Circuit Court ruling? Why or why not?
In this case study 12.2 the following claim is quoted.
The Ninth Circuit Court of Appeals, quoting from the decision of the lower court, said:
Passports use of clips from television appearances, although in most cases of short duration,
were repeated numerous times throughout the tapes. While using a small number of clips to
reference an event for biographical purposes seems fair, using a clip over and over will likely
no longer serve a biographical purpose. Additionally, some of the clips were not short in
length. Passports use of Elvis appearance on The Steve Allen Show plays for over a minute
and many.

Yes I agree with the Ninth circuit court ruling because the owner of a copyright holds the
exclusive right. And its rights are subject to limitation by the doctrine of "fair use".
I agree with the decision as the work of Passport Videos was commercial in nature. It was
somehow had a new touch but contained the appearances which were copyrighted. It was
nothing transformative in it.
There is another aspect Passport's use of many of the television clips is transformative
because the TV clips play for only a few seconds and are used for reference purposes while a
narrator talks over them or interviewees clarify their context in Elvis' career. But voice
overs didnt certainly transform a work.
The court made statements out of which some are as follow:
Finding of Fact 13: "The portions of Ed Sullivan's Rock & Roll Classics Elvis Presley
included on The Definitive Elvis are exact reproductions; the Defendants did not add
anything new or transformative to the copyrighted work."
Finding of Fact 22: "Portions of `The Elvis 1968 Comeback Special,' `Elvis Aloha From
Hawaii,' and `Elvis in Concert' have been copied and appear in The Definitive Elvis. The
portions of these works included on The Definitive Elvis are exact reproductions; the
Defendants did not add anything new or transformative to the copyrighted works."
Finding of Fact 35: "Portions of the 1956 episode of The Steve Allen Show featuring Elvis
Presley are copied and appear on The Definitive Elvis. The portions of The Steve Allen Show
included on The Definitive Elvis are exact reproductions; the Defendants did not add
anything new or transformative to the copyrighted works." [1]
These are quite the statements which were given by court. I think that was acceptable.
The Copyright law made for the protection of any work of authorship. So I think under all the
facts it is better to abandoned the Passport Videos to make more video series.
2. Why do you think the copyright holders of Elviss work objected to Passports video
series? How were they harmed by the production and sale of the videos?
The copyright holders of Elvis's work objected to Passport Video's series because they were
authorized to grant permission to Passport Video so that they could use the various recordings
and shooting in their series. As a result, the copyright holders were harmed due to the fact
that they were omitted out on the profits that they were entitled to from the production and
sales of the video series, whether it included certifying fee or payments from the sales.
The important factors is the use will have on the potential market for and value of the copy
righted works. It should be considered that not only the extent of market harm caused by the
particular actions of the alleged infringer, but also whether unobstructed and extensive
conduct of the sort engaged in by the defendant would result in a substantially adverse impact
on the potential market for the original.
The Passport Videos was commercial in use and we can consider market harm. It advertised
that The Definitive Elvis contained the performances copyrighted by Plaintiffs for which it
normally charge a licensing fee. If this type of use become open then it would likely damage

the market for selling Plaintiffs' copyrighted material. Everyone would like to buy their
documentary on Elvis instead of paying for a licensed product.
Moreover Passport Videos work on The Definitive Elvis contained the appearances like
original work, not transformative, thus it can affect the market because it was same as the
Plaintiffs' original works.
3. Do you think Passport Video acted ethically and honestly and believed that its
production was protected by fair use, or do you think the firm was simply using fair use
as a way of avoiding paying royalties for the copyrighted material it was using?
Fair use is a doctrine in U.S. copyright law that allows limited use of copyrighted material
without requiring permission from the copyright holder.
The Passport Videos work was commercial in nature. It wanted to take profit with getting
some license.
According to a website one of the most salient selling points on the box of The Definitive
Elvis is that Every Film and Television Appearance is represented.
It was not advertising a scholarly critique, but instead pursue to profit at least in part from the
inherent entertainment value of Elvis' appearances on such shows as The Steve Allen Show
etc. But it claimed that this was scholarly research holding biographical comments on the life
of Elvis was not dispositive of the fair use inquiry.
There is another aspect Passport's use of many of the television clips is transformative
because the TV clips play for only a few seconds and narrator voice over it. But it didnt
transform the work completely.
I think that they didnt acted ethically and they used the fair use doctrine just to avoid paying
royalties for the copyrighted material. As it is stated that in the case study that Passport Video
was evidently informed by the copyright holders that they did not have authorization to use
their materials, and nevertheless Passport Video continued to produce and distribute the video
series.
They were under the confidence that they could use fair use.
4. What can entrepreneurs who are interested in trademark law learn from this case?
In my opinion from this case, any entrepreneur who is concerned with trademark law can use
the acquaintance to obtain the appropriate licensing whenever there is any question about
whether or not fair use plays into effect.
It would do its complete homework entering in such kind of work to avoid violation of
copyrighted material.
An entrepreneur can learn from this case study to do all the study about what is or is not safe.
If any entrepreneur wanted to use the fair use than consider its limitations.
He should be careful, admit misuse if occurs unintentionally.
An entrepreneur if wanted to use fair use, then he should bring newness to its work, thus
never leaving of any violation of copyright law.

He should do a transformative work if wanted to use copyrighted work.

He should keep his margin at low if he interested in trademark law.

Application Questions:
1. Do some Internet research and find another case of copyright infringement. Write a
brief summary of the case. Indicate whether the case has been decided, and whether you
sympathize with the defendants or the plaintiffs in the case. If the case has been decided,
indicated whether you agree with the ruling.

Case of copyright infringement:

The Associated Press vs. Fairey:
Shephard Fairey, street artist made the Hope poster in 2008 during President Obamas first
run for presidential election. The poster quickly became a representation for Obamas
campaign, officially independent of the campaign but with its approval.
The photograph on which Fairey supposedly based the design was publicized by the
Associated Press as one shot by Associated Press freelancer Mannie Garcia with the
Associated Press demanding reimbursement for its use in Faireys work and they claim
compensation for infringement of their copyright. Fairey defense was that it is a case of fair
use and he did not reduce the value of the original work.
The case was settled out of court and the artist and the Associated Press came to a private
settlement in January 2011, part of which included a riven in the profits for the work.
This case created a lot of dissertation around the value of work in these copyright battles
although there wasnt a court case.
Garcias photo would never have got the fame it did if it had not been for Faireys poster.
Garcia stated he was so proud of the photograph and that Fairey did what he did artistically
with it, and the effect it has had, but still had a problem with the fact that Fairey took the
image without permission and without credit for its originator.
This case was settled out of the court so there was no ruling, but they agree on settlement.
I think they shouldnt be settle .One does not approve with the settlement as it indicates again
a case of something lying valueless and then the person who does something to bring value to
it ends up reimbursing for his exertions.

Another case of copyright infringement:

Cariou vs. Prince:
Richard Prince is a famous appropriation artist who transforms the work of others to create
new meaning in his own work. Prince appropriated 41 images from a photography book by
French photographer Patrick Cariou for an exhibition in the Gagosian Gallery, he claimed fair
use that he generated new meaning out of the photographs. Cariou claimed that it wasnt fair
use, but copyright infringement.
In 2011, a judge ruled,claiming the changes made to Carious photographs werent
noteworthy enough to constitute a change in meaning. The case is currently in appeal and the
final decision has not been done yet, but according to my opinion if Richard Prince didnt

introduce any momentous features in the photographs. Then the decision should be ruled in
favor of Patrick Cariou.
2. The You Be the VC 12.1 feature in this chapter focuses on Bolt-A-Blok, a company
that has developed a new approach to concrete block production that requires no water,
has immediate occupancy (no cure time), is faster than current procedures, and is
stronger and more resistant to weather-related disasters such as hurricanes and
earthquakes. Write a short intellectual property plan for Bolt-A-Blok. Include in the
plan all facts of Bolt- A-Blok that should be protected, and the form of intellectual
property protection that should be used in each instance.
In You Be the VC 12.1 Bolt-A-Blok change old methods of concrete block construction to
enable the assembly of the blocks to be completed in a manner that requires no water, has
immediate occupancy is faster than current procedures.
There is an immediate need for temporary and permanent housing that can be built quickly
onsite, Bolt-A-Blok gave solutions to that. It uses patent bending system. Its system is faster
and easier than traditional concrete block construction methods, requires no water, requires
no cure time, and results in a structurally sturdier building. These characteristics make the
Bolt- A-Blok system ideal for use in multiple settings, certainly including disaster recovery
situations.

Intellectual property plan:

It has patent pending system so it should be protected and should make it possible that it cant
be copied by any other firm. The patent should be promoted also.
It is relatively new system which provides faster services.
Its licensing should be done.
Excessive commercialization should be done.

References:
[1] www.preslaw.info