Tuesday, September 22, 2015

The Burn Trials - Burning Man Threatens Law Suit Over Quizno's Parody Ad

On Monday, September 8th, Quizno’s released its latest parody ad, The Burn Trials; this time parodying the Burning Man Festival.  While it was well-received by just about everyone, including members of the Burning Man community, the organization that owns and operates Burning Man has threatened to sue Quizno’s for misappropriation of its intellectual property.

Burning Man is an art and music festival held each year in the Black Rock Desert of Northern Nevada. The festival is surrounded by a strong international community of “burners” who have either attended the main festival or one of its many off-shoot regional festivals. Burning Man also promotes a core set of 10 principles in all of its projects and asks attendees to carry those principles with them out into the rest of the world.  One of those principles is Decommodification; a rejection of commercial, for-profit transactions and advertising.  Quizno’s using the Burning Man name and image to sell sandwiches directly conflicts with the principle of Decommodification.

The parody ad was put out by Toasty.tv which is a marketing project owned by Denver-based Quizno’s that creates high-quality parody videos, usually mixing two well-known properties together. In The Burn Trials Quizno’s combined the plot and characters from The Maze Runner movie franchise with the setting of the Burning Man festival. The video itself is a sharp critique of many cultural controversies surrounding Burning Man in recent years, including the growing prevalence of ultra-rich “plug and play” camps where individuals can pay thousands of dollars to have everything provided for them at the festival, including a plane ride in and servants, thus violating several of the ten principles

When the Burning Man organization threatened to sue Quizno’s, many “burners” and non-burners alike took it as Burning Man trying to shut down what may be an unflattering view of its festival.  However, most of these people have little understanding of the law and why it is important of Burning Man to protect its intellectual property.

Does Burning Man even have a case? Many naysayers have pointed out that parody is commonly protected under the “fair use” exception to copyright or trademark infringement. However, there are four factors courts use to determine if a parody falls under the “fair use” exception; (1) the nature and character of the use; (2) the nature of the original work; (3) the amount and substantiality of the portion used in relation to the original work as a whole; and (4) the effect of the use on the value or potential market of the original work.

Where Burning Man likely has a case is under the first factor. The nature and character of use considers whether the parody’s purpose is of a commercial nature. Parodies used primarily for commercial purposes are automatically suspect.  Here, the  parody’s primary purpose is to sell Quizno’s sandwiches.  This, combined with the other three factors also likely weighing at least slightly in Burning Man’s favor, gives Burning Man strong legal standing to challenge Quizno’s in court for infringing its intellectual property.

Even if Burning Man does not win this battle, enforcing is intellectual property rights is crucially important. If Burning Man let this one slide, it could jeopardize its intellectual property rights altogether, thus opening the door for companies from all over to use its name and image to sell products.  Even though The Burn Trials is hilarious and well-done, if Burning Man failed to fight Quizno’s on its misappropriation, we could eventually see something far worse (think car insurance ad in Black Rock City).

Thursday, September 10, 2015

A Good Bet for New Jersey?

On August 25, 2015, a three-judge panel for the U.S. Court of Appeals denied New Jersey’s proposed repeal of its sports betting prohibition even though, as New Jersey proposed, a lift of the ban would be limited to casinos and racetracks. The Court asserted that New Jersey’s proposal was a clear violation of the Professional and Amateur Sports Protection Act of 1992 (PASPA), legislation passed to prevent corruption of athletes and coaches. PASPA prohibits states from authorizing sports gambling, precisely what the New Jersey law permits. New Jersey’s primary interest in lifting the prohibition is, of course, money. Sports betting, New Jersey hoped, would revitalize struggling Atlantic City casinos.

A win for New Jersey not only would have brought in tremendous money, but also would have opened the floodgates for other states to follow suit. But since the Court ruled against the state, it is reasonable to expect that no other state has a chance to make its own case. However, strangely, the Court essentially outlined exactly how other states should proceed in challenging PASPA in its decision. “‘We agree that, had [New Jersey’s] 2014 Law repealed all prohibition on sports gambling,”—i.e. repealed not just the bans on casinos and racetracks—“‘we would be hard-pressed…to find an ‘authorizing by law’ in violation of PASPA.’” Thus, any state that wishes to repeal its own ban on sports betting can do so in the manner the Court has recommended. It is unclear why the Court would include a blatant loophole, especially when such a comment was unnecessary to explain their rejection of New Jersey’s proposition. 

The sports world is, in large part (if not virtually completely), controlled by money. Sports betting is inextricably linked with tremendous money. As such, we may see the day when the guarantee of the money that comes with sports betting outweighs the possibility of corrupt athletes and coaches. Particularly if other major sports leagues commissioners join NBA’s Adam Silver in his support for nationwide legal sports betting, a complete overhaul of sports betting, and the nature of sports in general, may be closer than imagined despite this recent ruling.  

- Samantha Albanese

Friday, September 4, 2015

Patrick Kane: The Blackhawks' Black Sheep

Following rumors regarding an incident involving Chicago Blackhawks forward Patrick Kane, Hamburg Policy Chief Gregory Wickett issued a statement on August 7th to confirm that the Hamburg Police Department is currently investigating a reported sexual assault at the off-season residence of Kane.  

Although nearly a month has passed since the alleged assault, very little information has been released from either the Hamburg Police or the Erie County District Attorney’s office regarding specifics of the investigation. But this doesn’t necessarily mean Kane is in the clear.

Kane’s accuser alleges that he “invited her and a female friend to his home for a private party” after they met him at bar in downtown Hamburg. Shortly after arriving, the victim alleges that Kane followed her into a room where “he overpowered her and raped her.” The victim then left Kane’s home seeking treatment at a local hospital where sources close to Kane’s accuser have revealed that the victim had bite marks on her shoulders as well as a scratch on her leg.

To date, the Hamburg Police Department has noted that the 26 year old remains under investigation while forensic evidence is being tested, including a rape kit. While no charges have been filed, a witness to the alleged assault has been subpoenaed by a grand jury to testify.

Considering that the Blackhawks are one of the more image-conscious teams in the NHL (if not the most), it will be interesting to see how the team moves forward with these allegations against Kane  especially since this is not his first brush with the law.  

Erica Vincent
Editor in Chief