Where do you draw the line for a free ride?

Free riding, generally speaking and with respect to intellectual property (IP), is the use of a protected work of authorship, name, or brand without the authorization of the owner. It occurs every time there is a new movie that comes out that has a merchandising push. After the movie Despicable Me be released, I started seeing a flow of items in smaller stores like knit hats or pictures of the Minions. Many stores use quotes from famous movies like, “The force is with you”. Superman’s symbol can be seen in a multitude of places that have nothing to do with the hero, or with DC Comics. Any time someone’s intellectual property is used without the owner giving the okay, whatever the degree of the use, free riding has occurred.

Again, that’s any use, no matter how small, of someone else’s stuff without their permission. Given this broad definition, free riding is not always wrong. I would like to talk a bit about free riding in the commercial context only.

Clearly there is a difference between selling pieces of wood with Star Wars quotes painted on them and having a restaurant that has the name of a world famous fictional super hero. A spectrum of free riding therefore can be created, with the most minor free rides on one side, like the Star Wars wood pieces, and the major free riding, like the restaurant on the other.

On the minor end of the spectrum are the uses of other’s IP that don’t compete with the IP owner. Thinks like knit Minion hats, or pastries decorated like famous movie characters, don’t exist in a market that is or might be occupied by the IP owner. The makers of Despicable Me, to my knowledge, have yet to start selling knit winter hats. The creators of Pokemon don’t sell pastries. Both of these IP owners also don’t seem interested in the markets of knitting or pastries. No IP owners seem to have any interest whatsoever in making pieces of wood with words on them.

On the major end of the spectrum the uses that compete with IP owners exist. This end of the spectrum includes three types of use that I have distilled: uses that compete by are not checked by the IP owner, uses that compete and are checked, and uses that compete but are allowed. When I say that a use is or is not “checked” by the owner, what I mean is that the owner has not sued the user.

A film maker with an idea who is slow to make his film may have a copycat film maker that makes almost the same movie earlier than the one that came up with the idea. Remember when Deep Impact and Armageddon came out at the same time? Was that coincidence, or was someone looking over someone else’s shoulder? Same thing goes for music, like the song ‘Home‘ by Edward Sharpe and the Magnetic Zero’s as compared to ‘Little Thoughts‘ by Of Monsters and Men. Other than some online rants, like this Reddit thread, neither band has been held accountable for the striking similarities. These uses are unchecked by the owner. Despite terribly painful similarities in sights and sounds, no one deals with civil liability.

Sometimes the second user is not as lucky. George Harrison was famously sued when he released ‘My Sweet Lord’ in 1970 because The Chiffons had released ‘He’s So Fine’ in 1963. Mr. Harrison was found to be liable for copyright infringement. The Chiffons song had been misappropriated by him, or so said the court.

Finally are the uses that take from the IP owner, but are allowed for some reason. Usually that reason is the First Amendment. There is a local company (to me) called “Life is Good”. It is a store in Portsmouth, NH that sells clothes and little knickknacks that say ‘Life is Good’. More recently, a company called “Life is Crap” has cropped up as a parody of ‘Life is Good’. Parodies are allowed because the First Amendment trumps. Parody can be thanks for the dog toy ‘Chewy Vuitton’, for ‘The South Butt’, and for some Weird Al and Too Live Crew songs.

Less clear is where you draw the line that, when crossed, free riding becomes unacceptable in society. I think that clearly the free riding where users compete with IP owners is unacceptable, and I think a lot of readers would agree. I think that parody is acceptable as well as free riding where the user does not compete against the IP owner, but I do not own content – at least nothing worth anything. Many people feel differently even when it comes to the First Amendment if there is enough money on the line.

What do you think?


From LikelyConfusion

David Greene, Esq.
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