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Perfect 10 v. Google, 04-9484 (C.D. Cal Feb 17, 2006). via News.com.
Initial reaction from two different leading Internet figures: wow.
The holding turns on the fair use analysis of Google’s display of thumbnail images (the Court held that Google neither displayed nor distributed full size images, as it utilizes inline linking to, and does not nost nor serve, full size images).
An essential fact here is that P10 now sells thumbnail images of its photos for the cellphone market. Thus, Google making such images available for download made its use ‘consumptive’ (in addition to transformative), with a negative effect on P10’s market.
The thought occurs as I read this section that Google makes this go away by cropping a corner off the thumbnail (or perhaps reproduces thumbs using sepia tone).
The second half of the decision discusses P10’s theory of vicarious and contributory infringement. P10 asserted that Google directly benefits from third-party sites that infringe P10’s copyrights, through its Googel AdSense program. However P10 did not substantiate this allegation with sufficent evidence and the Court did not buy the basic premise, noting that adult-oriented websites existed before Googe Image Search, and would likely continue were it to go away.
The decision contains a useful analysis of Google’s indexing activities in a post-Grokster ‘incuding infringing’ context.
Trademark Blog Perfect 10 v. Google archives here.

Australian reaction from Weatherall’s Law here.
TechLawAdvisor provides visuals.

Wouter Pors, friend of the blog from Bird & Bird from its Amersterdam office, read our post regarding the protection of scent in France, and writes to inform me that I am sadly behind the times: the Netherlands granted protection to scent two years ago in Lancome v. Kecofa.
English decision in Lancome here.
Dutch decision here.

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NY TImes: ‘Man-Child In The Promised Land’: David Johnston has a bi-polar disrder. He is in his 40’s and lives with his parents in Texas. He composes music and creates drawings, mostly with magic markers. His work is popular and has a show in Chelsea coming up. His father buys most of his art and sells it on the Internet here. A dealer who worked hard to make Mr. Johnston popular, sometimes comes by on Sundays, when the father is in church, in order to buy Mr. Johnston’s drawings.

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This is the proposed fair use passage of H.R. 683, the Trademark Dilution Revision Act:
`(3) EXCLUSIONS- The following shall not be actionable as dilution by blurring or dilution by tarnishment under this subsection:
`(A) Fair use of a famous mark by another person in comparative commercial advertising or promotion to identify the competing goods or services of the owner of the famous mark.
`(B) Fair use of a famous mark by another person, other than as a designation of source for the person’s goods or services, including for purposes of identifying and parodying, criticizing, or commenting upon the famous mark owner or the goods or services of the famous mark owner.
`(C) All forms of news reporting and news commentary.
A group of organizations including the American Library Association, Electronic Frontier Foundation, National Video Resources, Professional Photographers of America, Public Citizen, Public Knowledge, and Society of Children’s Book Writers and Illustrators, have written a letter to the Senate Judiciary Committee, arguing in part that the amendment ‘would:
– eliminate the protection in current law for non-commercial use of a mark (section
43(c)(4)(B) of the Lanham Act); and
– change the application in current law of all the defenses in section 43(c)(4) so
that none of them apply to claims of “unfair competition” under section 43(a). ‘
The letter concludes that this amendment would, for example:
“Walter Mondale’s put-down of Gary Hart during the 1984 primaries, using the Wendy’s
slogan “Where’s the Beef,” could be actionable as dilution under the bill as passed by the House. ”
OK. Accepting for this hypo that ‘Where’s the Beef’ was a famous mark at the time, Walter Mondale was not using the mark as a designation of source. However, the letter points out, he is not commenting on beef. Or does this fact pattern get knocked out under the Falwell and Mosely cases in that this is simply not trademark use?
Not mentioned in the letter, but a seemingly more likely prospect, would be the reversal of the BARBIE GIRL case. Could it be argued that the band Aqua used BARBIE GIRL as a designation of source?
So what say you:
Would Mondale’s use of ‘Where’s The Beef’ be actionable?
Would Aqua’s use of ‘Barbie Girl’?

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We’ve spoken previously of YouTube, the ‘community’ video site. It now reports that it has been asked by NBC to remove the ‘Lazy Sunday: Chronicles of Narnia’ parody video first shown on NBC’s Saturday Night Live.
The video first appeared on SNL on December 17. The media reported high numbers of downloads of the video on YouTube that week. I would speculate that many people learned of YouTube as a result. NBC may have benefitted as well. For example, I showed my kids the YouTube version that week, and they became SNL fans as a result.
Now NBC/SNL is charging for downloads via iTunes.
It is not reported when NBC sent its demand to YouTube.
At first glance, both YouTube and NBC seem to have benefitted by the free sampling.
UPDATE: NY Times reports on Monday that YouTube had approached NBC for a deal and that NBC had sent the demand letter this month. Additionally, the clip is available free now on the NBC site (which doesn’t seem Mac-compatible).
ANOTHER UPDATE: Atrois writes:
‘As with file sharing the right business question isn’t “is someone getting music for free” the right business question is “does this really cause us to, in the net, lose revenue if we adapt our business model to the new reality.” Free songs, free videos, they’re all marketing techniques. Of course, giving out free songs and videos isn’t exactly a new idea, it’s what radio and MTV (when it still played videos) have been doing for quite some time . . .”
THIRD UPDATE: Jason Calcanis: ‘YouTube Is Not A Real Business‘: discussing how video content must make the strike the balance between free stuff and not being available.