Copyright and Comparative Advertising

            In the United States, business owners are free to use their competitors’ trademarks in comparative advertising. Are they free to use their competitors’ copyrighted material in comparative advertising? I recently read a copyright infringement decision on this issue, Sony Computer Entertainment America v. Bleem (9^th Cir. 2000).

            Here are the facts: Bleem marketed a software emulator that allows people to play Sony PlayStation games on a personal computer (without buying a PlayStation console), obtaining higher resolution graphics than could be obtained using a PlayStation and television monitor. Bleem ran ads showing comparative "screen shots" of PlayStation games (showing what an actual game screen shot looks like when played with the PlayStation console on a television screen, versus what it looks like when played with Bleem’s emulator on a computer screen).

            The district court granted Sony a preliminary injunction against Bleem’s use of the screen shots. On appeal, the only issue was whether Bleem’s use of the screen shots in its ads infringed Sony’s copyright. Bleem contended that its use of the screen shots was fair use.

            The Ninth Circuit ran through a fair use analysis and concluded that Bleem’s use of the screen shots was fair use. It vacated the preliminary injunction. The court held that the first factor, nature of use, favored Bleem because "comparative advertising redounds greatly to the purchasing public’s benefit with very little corresponding loss to the integrity of Sony’s copyrighted material." It found that the second factor, nature of the copyrighted work, neither supported nor hurt Bleem, and that the third factor (amount taken) supported Bleem because a screen shot is such an insignificant portion of the copyrighted work as a whole. As to the fourth factor, effect on the market for the copyrighted work, the court found that Bleem’s use of a handful of screen shots would have "no noticeable effect on Sony’s ability to do with its screen shots what it chooses."

The decision is posted on the court’s website, http://www.ca9.uscourts.gov

(look under "Opinions" for 2000, then the date of the opinion, May 4).

COPYRIGHT

Copyright Term Extension

In 1998, Congress extended the term of copyright protection by 20 years, applying the extension to copyrights then in existence and future copyrights. For works created by individuals, the term of copyright protection is now life of the author plus 70 years. For works made for hire, the term of protection is now 95 years from the date of first "publication" (distribution to the general public) or 120 years from the date of creation, whichever expires first.

Professor Larry Lessig of Stanford Law School filed a lawsuit seeking a judicial determination that the copyright term extension law was unconstitutional. His clients in the case are several companies that use public domain works. The plaintiffs’ primary challenge to the term extension focuses on the "Copyright Clause" of the U.S. Constitution, which states that "The Congress shall have Power . . . to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."

The plaintiffs contended that the extension of the copyright term by 20 years violates the constitutional requirement that copyright protection be granted only for "limited times." The federal district court rejected the challenge, and the Court of Appeals for the D.C. Circuit agreed, holding that the quoted language is not a limit on congressional power and that the term extension is constitutional.

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• Leigh v Warner Bros. 10 F.Supp 2d 1371, 1998
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