It's a bird! It's a plane! It's.... The Minx?

Ever heard of a comic book titled 'The Minx'? If you're anything like me, you probably have not. However, there are actually TWO comic books with that title.

The Minx originally started as an obscure DC comic book, telling the tale of a young Jewish woman who discovers that she has an alien heritage. The Minx is actually a voice that plagues the woman, attempting to take over her body.

Recently, a young woman attempted to publish a comic book under the same title. However, her comic book is about a super hero named, The Minx, who is based largely upon Native American ideas as well as the life of the author. In fact, the artistic depiction of The Minx looks almost identical to the author.

What started out as a good concept may turn into a lawsuit, since DC Comics served the new author with a cease and desist demand, which claimed that DC owns the trademark to the comic book title 'The Minx'.

Dictionary.com defines the word 'minx' as, "A girl or young woman who is considered pert, flirtatious, or impudent." Therefore, the word is simply a common noun, describing the respective comic book characters. Therefore, the issue is whether a common noun, which describes the literature in question, may constitute an enforceable trademark.

Since the term is descriptive, DC can only win if they can show that the term The Minx has taken on a secondary meaning, such that a consumer, upon seeing the term, will identify the comic book as a DC comic. I guess the evidence will have to speak for itself, but I think DC has a long shot case since they only produced 8 issues (as far as I know, anyway).

RIAA vs. XM Radio

XM Satellite Radio, Sirius Satellite Radio's major competitor, may be sued by the RIAA.

Apparently, both manufacturers produce a receiver that is capable of digitally storing content, which may be searched through later. Sirius' Replay Receiver is capable of only storing 44min. of content and only the stored content is searchable.

According to an article from The Post, XM has produced a receiver that is capable of searching the entire database of XM media and storing the content on the device. As the product is not advertised yet on the XM website, I am unaware as to how much content may be stored, or if the content may be copied to other devices.

Sirius pays a royalty in order to keep their device on the market. However, royalty negotiations have since broke down with XM and the RIAA may proceed with a lawsuit for copyright infringement.

I think this case is interesting, since it a very colorable argument can be made for either side. On the one hand, the recording is a completely private use. Further, the artists have already been paid a royalty for the first listen of the song. What's going on here is akin to popping in a cassette tape into your old 'boom box' (remember those?), turning on the radio, and pressing record. It has long been taken for granted that a listener was perfectly entitled to make such a recording, and the manufacturers were perfectly entitled to ship out their products with this capability.

On the other hand, digital copied are different, since they may be flawlessly reproduced an infinite number of times with endless possibilities for distribution over the internet. If it's decided that the customer recordings are not a 'fair use', XM may be held liable. In the Grokster case, the court opined that a manufacturer who produces a product that is designed for, and widely used as, a tool for infringement, the manufacturer will be held liable.

The question, therefore, is whether the device is a tool for infringement. I think that the issue turns on whether the device allows for easy upload to other devices and the internet. If not - and I don't believe it does - I think that the RIAA will have a hard time bringing suit. The most damaging is the fact that it is a completely private use, that has long been excepted in the analogue world, which quite likely has no impact on the market for content (these factors severely bolster a claim of 'fair use').

I suppose we will just have to see where this suit goes...

Welcome Posting

Thanks for visiting my blog. Today is the day that my blog comes to life: Hello World!

In the 21st cetury, technology is moving far faster than the law. In fact, the law probably will never catch up to technology.

I will be posting to this blog with my thoughts regarding observations in the world of high tech firms, telecommunications, digital media, etc. and how the law collides with such forms of business.

Enjoy!