Publishing and Law: Marketing

No that has nothing to do with publishing law. But it was the sign in the bathroom at HBO, where I had my class, and I thought it was kind of funny. And I do love a good sign.

Anyway, this week we had a guest speaker: Rick Kurnit. He is an attorney at Frankfurt Kurnit Klein & Selz PC, and he is incredibly knowledgeable. But rather than recite my ten pages or so of notes, I’ll just pick out some of his more entertaining and useful quotes.

“If the (ad) agency is competent, which is about half of them, they would limit their liability.”

“The world is filled with preliminary materials. These are dangerous.”

“That which you can do as a judgment proof college student is very different from what you can do as a corporation.”

“What you do as a college student is fair use essentially because there’s no money to be made by suing you.”

“Typically you change [ads] to generic or you go to parody/fair use which other people call stealing.”

“It doesn’t matter if [the ad] is for social commentary or good, you MUST comment on the underlying work” (if you don’t want to lose in court).

“It’s perfectly legal to appropriate concepts and ideas so long as the execution is entirely different.”

“What you do with people’s beloved trademarks may have limits.”

“What’s art? We’ve got judges now deciding what’s art.”

“So he’s still there making decisions about popular culture about which he knows nothing, but that’s what judges do.”

“I advise everyone not to do business in California” (you can get sued most easily there, apparently).

“When you get a claim, it’s a good idea to consult a competent lawyer. By my count that’s about 20% of lawyers.”

“The problem with lying when you’re making claims is, when do you stop?”

We also discussed at length Fair Use and Parody, which is a defense against copyright, so long as the underlying idea of the original work is what you are using to make your point. You can also get in trouble if the Court deems you’ve used an excessive amount to make your point. Very tricky. Anyway, two funny, and successful parody, cases involve “Good Night Bush” and “Naked Gun 33 1/3.”

“Good Night Bush”

This book is considered to be a parody, and the argument was that “Good Night Moon” was one of the few books former President George W Bush read, and that if he hadn’t read that book, he never would have made to decision to go to war in Iraq.

“Naked Gun 33 1/3”

A movie starring Leslie Nielsen, “Naked Gun 33 1/3” created a poster of Leslie in the same pose as the famous 1991 Vanity Fair cover of naked, pregnant Demi Moore. The argument for this was that Demi Moore’s photo was about how at the cusp of the new millennium, society is more accepting of women and their naked bodies, and Leslie Nielson’s photo was for a movie about how men are still Neanderthals and can’t accept the beauty of pregnant, naked women. The 2nd District Court bought it and claimed it was fair use.


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