An area of law that has surged into public awareness, largely because of the ease of copying items digitally, is intellectual property.
Snazzy promos from the movie and music industry say you wouldn't steal a car or break into a house and then show a teenager downloading a pirated movie and being handcuffed -- a little more frightening than the FBI warning at the start of the old VHS tapes. Intellectual property is a broad term encompassing patent, copyright and trademarks. The underlying concept of intellectual property law is to legally protect creative work and invention.
Intellectual property is a market that is a pure legal creation and is one of the most successful. The movie, music, publishing, software and television industries thrive on it. Patent holders get rich from creating and patenting inventions. None of this would be possible if intellectual property wasn't legally protected.
The law has to balance out the right of the intellectual property holder with the public good. Holding exclusive rights to a product can produce higher prices.
This may or may not be justified.
You've experienced this legal tension when you visit the pharmacy and are told the medicine you had been paying $65 for every two weeks is now only $10 because there is now a generic version. Until the original patent holders' rights expire, there is no generic version.
Another area of conflict with intellectual property is the idea of free speech. Restricting the use of another person's words is allowed by copyright and trademark law. As a result, various exceptions have been carved out of intellectual property rights to protect free speech. Weird Al Yankovic owes his entire career to the parody exception.
A Utah artist, Tom Forsythe, found himself in a legal blender with Mattel when he was sued for violating the Barbie trademark with his photo series, "Food Chain Barbie."
Eventually he triumphed when the 9th Circuit Court found that he was parodying the doll by commenting on consumerism and gender roles with his First Amendment free speech rights through his pictures of Barbie in a blender, Barbie heads being dipped into a fondue pot and Barbies poking out of baking enchiladas.
As protectors of trademark, Mattel is particularly litigious (they like to sue).
The Utah photographer was not the first to feel the Barbie wrath. A few years earlier, Mattel had sued MCA records for violating the Barbie trademark with Aqua's one-hit wonder, "Barbie Girl" -- life in plastic, it's fantastic.
(I apologize if the song is now stuck in your head.)
With two large corporations slugging it out, and with seemingly unlimited legal fees, things got a little out of hand.
In the final ruling in the 9th Circuit Court in California (where else?), the judge summed up the lawsuit: "If this were a sci-fi melodrama, it might be called Speech-Zilla meets Trademark Kong."
MCA's Speech-Zilla took out Mattel's Trademark Kong, the court found that the song was not a trademark violation because it was a parody.
During the lawsuit, Mattel compared MCA to a bank robber and a thief, similar to the music and movie industry's more recent anti-pirating campaigns. MCA took exception and countersued Mattel for defamation. The court threw out the defamation claim and wrote in some of the more memorable legal opinion writing:
"But all of these (bank robber, thief) are variants of the invective most often hurled at accused infringers, namely "piracy." No one hearing this accusation understands intellectual property owners to be saying that infringers are nautical cutthroats with eye patches and peg legs who board galleons to plunder cargo. ... The parties are advised to chill."
E. Kent Winward is an Ogden attorney. He can be reached at 801-392-8200 or email@example.com.