Marveling at copyright law
Copyright and the X-Men
The X-Men might be superhuman but they aren't above the law. Judge Gregory Wood in the Southern District of New York allowed a copyright infringement claim to go forward against Marvel Entertainment, LLC (and a ton of other related entities) ruling against an early motion to dismiss.
The heart of the issue in front of the court is whether the X-Men theme song copies a popular Cold War era theme song from a Hungarian TV cop thriller/comedy show. If you grew up in the 90s, or you're a die hard X-Men fan, you almost certainly remember the opening theme to the X-Men animated show.
On the other side of the Iron Curtain in the 1980s another pop culture phenomenon had taken root and its viewership spread even outside the Eastern Bloc as far as Japan and China. The show was called Linda. I've never seen it, but the plot sounds a lot like a 1980s Hungarian communist version of Veronica Mars.
Judge Wood wasted no time diving into the X-Men references when deciding whether these songs were strikingly similar. He kicked off the analysis with:
Professor Xavier's School for Gifted Youngsters was built to defend the different. Mutants travel (or teleport) from all over the world to shelter within the institute's walls, and learn to cultivate their abilities to protect what makes them unique. For those of us who sadly lack the X-gene, copyright law provides something similar: it safeguards the rights of the unique and gifted by protecting their original creations.
The references keep going and they get better in every paragraph. Here's a couple of my favorites:
...Defendants primarily focus their attention on the substance of the Hungarian Opinion, challenging its accuracy with wolverine ferocity.
A complaint need not be as solid as adamantium to survive a motion to dismiss.
Ultimately, Marvel's motion to dismiss didn't cut quite the same way Deadpool's swords do. Judge Wood says Linda will get to move through discovery and that the pieces are strikingly similar. We'll see if Marvel's ability to regenerate from a loss matches Wolverine's as the case progresses. Judge Wood signs off with:
So, was X-Men theme song an original creation, or was it an unlawful copy of the theme song to a TV show that aired in Hungary in the 1980s? Until next time, fair reader.
Judge Wood does a lot to make this case pretty amusing. And kudos to him for the exciting writing. But intellectual property and the Cold War aren't always so fun. There's a rich history of communist countries messing with the capitalist bull and getting the horns.
Intellectual Property and the Cold War
Cuba, before Soviet-style communism, used to be a place Americans would cut loose. An older relative of mine used to head to Cuba to party. A fraternity friend had a pilot's license and access to a small plane so they'd take off from Florida and land in Cuba. Except for the last time they took off on a whim and went to land but found no one in the tower. They wouldn't be deterred by some incredibly strange aberration in behavior for the tower: they had drinking and good times ahead. So they landed anyway and disembarked. When they made it to town every street was vacant and the hotel operator looked at them and the color drained from his face. They had landed in the middle of the Cuban revolution and Castro was coming to town. Thankfully, the hotel operator took them in and then gave them specific instructions for how to make it back to their plane without getting shot. They took off from the small airfield and landed back in Flordia unharmed. They nearly died for the Cuban rum and cigars they enjoyed so much.
The United States didn't roll over when Cuba and the USSR allied and tried to use Cuba as a base of operation to point nuclear weapons at the United States during the Cuban missile crisis. And while nuclear war didn't ignite, the United States did go nuclear in a different way. The United States embargoed all Cuban exports including their world-famous rum and cigars. Havanah Club and Cohiba are two of those brands that are still experiencing the fallout of the U.S. going off like a bomb on Cuban goods and intellectual property.
In the 1980s, the General Cigar Company based in the United States began selling cigars using the Cohiba branding but with a red dot in the middle of the O. They filed for trademark protection and the USPTO granted it. The state-run company that manufactures Cuban Cohibas has made several attempts in the U.S. courts to reestablish exclusive rights to the Cohiba brand in the United States but fell short in 2006 when the U.S. Supreme Court denied cert. to hear their case. In 2014 though, Cuban Cohiba made some in-roads with their trademark issues and Cuban Cohiba could move forward in the Trademark Trial and Appeal Board. (TTAB) The proceedings there are, to say the least, complex and were still going strong in 2019.
Havana Club is another brand from Cuba that faces weird intellectual property issues in the fallout of a trade war. The family that owned the brand claims that when the Cuban revolution came it came for their rum first and took their business from them. At gunpoint.
Rum trade in the Caribbean is a big deal and Fidel Castro recognized the value of the Havana Club rum and brand as an export. The family that previously owned Havana Club fled Cuba and even though they owned a registered trademark in the United States, the mark lapsed because their attorney was jailed by Castro as a political dissident and they missed a deadline. Cuba then swooped in and registered the Havana Club mark in the United States in 1976. They started distribution of the popular rum to the European Union and other countries after the USSR collapsed in the 90s using a French distributor.
Bacardi also began working with the family that had Havana Club stolen from them to produce their own rum and their own distribution network. And you can see where this is going: straight to a gigantic fight over who owns the mark for Havana Club. In one corner we have a French company working with a company stolen through Cuban nationalization. In the other corner, we have American capitalists and Cuban exiles doing their best to rebuild what they lost. And boy do those Cuban exiles have some fight in them.
Bacardi successfully lobbied for an Act of Congress to protect their brand. They had enough clout and enough resources to get both political parties and a U.S. President to tell Cuba and a French business they can pound sand. That is a hell of a thing for Bacardi to have in their legal arsenal. And it's only fair that the people who had their property stolen by the Cuban government be allowed to re-establish their brands here in the United States.
But the World Trade Organization said this Act violated WTO rules because it singled out one country, Cuba. The WTO ruling added a layer of complexity but then—in 2016 when US relations with Cuba thawed—the USPTO granted a mark to the Cuban government for Havana Club. I'd like to say this re-ignited the dispute but much like the Cold War it never stopped being an issue and will likely continue as an issue for years to come.
So what does it all mean? It means that the Cold War between the United States and the USSR was a messy affair and putting the world back together after is complicated. But it's nice that these issues are resolved in courts rather than at the end of a nuclear missile. Unlike the Marvel Universe, we don't have superhumans to save each other.
Today is Friday though, and if you happen to be out purchasing libations, keep an eye out for Bacardi's Havana Club if you're in the U.S. or Cuba's Havana Club if it's available in your part of the world. Pour a glass or make a cocktail, and toast to complex trademark arguments rather than violent global extinction events.