from the metamorphisis dept
THResq points us to a fun, but thorough, law journal article by law student Benjamin Arrow, looking at whether or not Duff Beer, from the Simpsons, is protectable as a trademark in the real world (or you can go directly to the paper) (pdf). The analysis is actually more complex than you would think, noting that as you shift from the fictional world of the Simpsons to the real world of beer production, the issue switches from being a trademark issue to a copyright issue, where the beer is a form of a derivative work on the copyrighted expression known as the cartoon of Duff Beer.
Fox and The Simpsons’ creator, Matt Groening, developed the
idea for the fictional brand, Duff. Therefore, when a real-world
manufacturer puts out a product by the same name, one might
think that it has stolen Fox’s idea and that, as a matter of equity,
intellectual property law ought to furnish a remedy. But
intellectual property law does not protect ideas in the abstract.
While a real-world Duff manufacturer may have taken more than
just an idea, it is difficult to articulate how much more. Part of the
reason it is so difficult to conceptualize the injury Fox suffers
when another producer introduces a Duff Beer to the marketplace
stems from the fact that Duff Beer is a fictional product sold in a
fictional universe under a fictional brand name. Fox’s injury looks
very different when we suspend our disbelief and plunge into the
fictional world of Springfield, accepting the fictional reality as our
own and when we pull back, remind ourselves that The Simpsons is
nothing more than a cartoon and view Duff Beer as one element of
a vividly imagined work of animated fiction. As a consequence of
this puzzle of perspective, Fox suffers a different intellectual
property injury depending on our vantage point.
An analogy to Internet law helps explicate the puzzle. Writing
on the problem of perspective in this area of the law, Professor
Orin Kerr posits that “whenever we apply law to the Internet, we
must first decide whether to apply the law to the facts as seen from
the viewpoint of physical reality or virtual reality.” Kerr terms
the perspective from inside virtual reality the “‘internal
perspective’ of the Internet” and the point of view of an “outsider
concerned with the functioning of the network in the physical
world rather than the perceptions of a user” the “external
perspective.” In attempting to apply law to the Internet, our
perception of who is doing what to whom is not a mere cognitive
tool for conceptualizing difficult problems, Kerr contends.
Instead, our selection of perspective is itself outcome
determinative, because “[b]y choosing the perspective, we choose
the reality; by choosing the reality, we choose the facts; and by
choosing the facts, we choose the law.” While Kerr suggests
that courts may dismiss this problem of perspective as “a minor
skirmish in the ‘battle of analogies,'” he notes that courts “already
choose perspectives when they apply law to the Internet” without
While this may just seem like a fun, little intellectual query, the second paragraph above highlights why it’s actually pretty important. For nearly a decade, we’ve been pointing out the problems that occur when you take laws from the real world and pretend you can just apply them naturally into a virtual world. The same thing applies here to some extent. In this case, it’s resolved via copyright law, since the creation of Duff Beer may be protectable under copyright in the real world, and any such beer would be derivative. Trademark, on the other hand, which would apply in the fictional world, does not apply in the real world, since there’s no real “use in commerce” of a product known as Duff Beer.
Either way, the paper is a fun read, and actually raises a series of issues that are important and worth thinking about when discussing how the real world law applies on the internet in general and in wider “virtual” worlds.
Filed Under: copyright, duff beer, fiction, real, trademark, virtual