Subversive web comic used to push smoothie chain? Must be an IP controversy!

A recent advertising campaign by juice shop chain Jamba Juice has prompted a lively debate across social media sites regarding its possible co-opting of a popular cartoonist's technique.

In a recent advertising spot on the company's website, Jamba Juice used images taken from clip art to depict two characters talking about taking a vacation in their cubicles by drinking Jamba Juice.

Clip art characters are in the public domain, so there wouldn't have been a problem but for one thing: the creators of the Jamba cartoon used the same two images (out of thousands of available clip art characters) that have been used most frequently by popular web cartoonist David Rees for his strips Get Your War On and My New Filing Technique is Unstoppable.

The general consensus seems to be that, since the clip art is in the public domain, there's no copyright infringement here. George Washington School of Law student Andy makes a convincing case on his blog for this being a trademark or trade dress issue. Many commentors don't see any illegal activity on Jamba's part, but a fair amount of sleaziness in their copying Rees' style, particularly because Rees' cartoons are decidedly anti-corporate. (If this blog were to have an editorial opinion, it might fall into the last category, but we are, of course, objective at the Patent and Trademark Center.)

Anyhow, I'll defer to the wired masses to keep the discussion going at these sites. Please feel free to comment here, as well.

Another live chat with USPTO!

Attention inventors:

If you didn't make the cut last time, tune in to uspto.gov at 10 AM EST (that's 7 AM for you industrious SF locals) on Thursday, July 23rd for another live chat with USPTO officials.

More details here.

Plagiarism op-ed in PW

Siva Vaidhyanathan wrote an interesting editorial in the June 29th Publisher's Weekly about accusations of plagiarism surrounding Wired magazine editor Chris Anderson.

While preparing a review of Anderson's latest book last month, Virginia Quarterly Review book blogger Waldo Jaquith discovered several passages in the book that appeared to have been lifted directly from Wikipedia without a citation of the source. Anderson acknowledged the error and attributed it to rushing through the last edit to remove citations at the request of his publisher.

Vaidhyanathan's focus in the piece is less on the plagiarism (which usually isn't really a copyright issue, but rather an issue of intellectual honesty) and more on the troubling trend of publishers urging authors to not include citations in nonfiction works. Sort of off topic for this blog, but interesting nonetheless.

Oh, and I'd better cite the heck out of it:

Vaidhyanathan, S (2009).Anderson's Wiki-versy. Publisher's Weekly, 256(26), 132.

For all you students out there, check out this website called Son of Citation Machine, which I used to cite the article. You just fill in information about your source and out comes a paper-ready MLA or APA-formatted citation. Laziness is no longer a valid excuse for omitting source citations.

Internet radio, music industry settle on royalties

The LA Times reports that record labels and internet radio stations have struck a deal that should ease the cost of paying royalties on songs played. Proponents of online radio, such as Pandora co-founder Tim Westergren, feared that the fee structure set in 2007 would cause the fledgling industry to fail.

Under the old agreement, online radio stations were to pay a per-song, per-play royalty beginning at around .08 cent and rising to .19 cent by 2010. Under the new agreement, online radio sites pay a slightly lower per-song royalty (.08 cent to .14 cent) or 25 percent of their revenue, whichever is greater. For a company like Pandora, which has 30 million registered users, this could be enough of a push to enable them to make a profit and continue to operate.

Somewhat related, and interesting to me, I heard Wired magazine editor Chris Anderson interviewed on Fresh Air (regular radio, not online). He was talking about a business model known as "freemium," wherein the vast majority of users of a service get content for free, but a very small number of people pay to get access to some premium content. His example was the Wall Street Journal, which allows free access to much of its content but charges for access to some content, presumably the type of information that would be important enough to business people to pay for but that the average news-reader wouldn't consider essential.

Anyhow, it looks like Pandora is giving this model a try. You can currently pay $36 for a year of a slight upgrade from the free service -- no ads, a desktop application to play the songs, and a couple other perks. There's no fundamental improvement over the free service (it won't play different songs, won't allow you to choose the song it plays or download songs), but I suppose that if you listened to Pandora for many hours every week, it may make a difference in your experience. It looks like they're going to also begin charging to listen to Pandora radio for more than 40 hours per month, which, by requiring payment (instead of just offering the premium service), is sort of pushing the "freemium" envelope, as it were.

IP are you okay?

I'm way late with this one, but, as Michael Jackson's funeral commences today, I'd be remiss as a patent blogger to not mention that the King of Pop was a patent-holding inventor.

I heard on Morning Edition this morning that Michael Jackson held a patent for the mechanism that allowed "a shoe wearer to lean forwardly beyond his center of gravity by virtue of wearing a specially designed pair of shoes" during the dance that accompanied his 1987 hit "Smooth Criminal."

There's no better way to remember MJ than by his work:

So will an attorney show up if you garnish with a cherry?

In a piece representing the rare and wonderful collision of intellectual property, cocktails, and popular culture, Jonathan Miles filed this piece for the New York Times last week about a rum producer who aggressively defends its trademarked name for a classic cocktail, the Dark 'n' Stormy.

According to the piece, a Dark 'n' Stormy must contain:

• 2 ounces Gosling's Black Seal rum
• 4 ounces (or so) ginger beer
• a lime wedge garnish

...and nothing else. The Gosling's guy (E. Malcolm Gosling, Jr., no less) says that the company will pursue any company advertising a drink using that name with a recipe that contains any other type of rum.

This is interesting stuff! I've never seen this approach to intellectual property protection before. I can see the logic -- this is a cocktail that's been around for about 100 years, so there is tradition surrounding its execution. The Gosling company is associated with the drink and, if Gosling's is a unique rum (I've never tasted it, so I can't say) then they certainly have an interest in having the drink be consistent.

This seems to get to the heart of the value of a trademark, versus patent and copyright: the company associated with this product simply wants to have some control over the product as it makes its way to consumer. Consumers, for their part, benefit from this because they can expect that if they order a Dark 'n' Stormy, it will be made to the intended specifications. Bars are welcome to make and advertise this drink, so long as they use the Gosling recipe.