0:23] Hello everyone, I'm Jonathan. I'm Crystal and this is Haunt Weekly, a weekly podcast for you to attract your Haunt Entertainment community. Whether you're an actor, owner, or just plain aficionado, we aim to be a podcast for you. And we return to you this week, with some important news. May not seem important on the face, but trust me, we're going to get into why this matters and why the Haunt industry should really care about these issues. Not just, because I care. I know everyone cares about the things I care about very deeply and there's this shared passion for all things I love. Fun fact, no, that is not true. But I do actually think these issues are important and the Haunt industry needs to be aware of what is going on. However, if for some reason you're not super interested in copyright and trademark discussions, I understand, please definitely check out more of what we do. We're at hauntweekly.com, Haunt Weekly on Twitter, Haunt Weekly on Facebook, and youtube.com slash Haunt Weekly is a YouTube channel.
392 episodes are there. Yeah, that's like 300 plus hours. That's like a month's worth of content. You couldn't listen to one a day and get through it in a year.
No, no, you could not. So check us out at all those places. Please, please, please do so.
It makes us feel less lonely as we prepare to shuffle our mortal coil as a human beings we are.

[1:48] Uh-huh. Sorry been watching the cleaner. It got me thinking about death and stuff more.

[1:54] Yeah, well on that note one thing we do do every week is we ask a question of the week and last week's question of The week was what is your favorite customer interaction either as a customer or an actor?
Starting us off is Sam Farrell who said while waiting in line at the Haunted Farm, Trixie the Clown handed him basically a king cake baby and then walked away.
And I just want to say that is beautiful. Yes.
You couldn't do that in New Orleans. No, short and to the point.
In New Orleans, that would not work because we'd be like, what the fuck, you hand me a king cake, baby? Yeah.
But in like 98% of these United States, that is beautifully creepy and no one has ever seen one of those before.
Yeah. It's so wonderful. I love it, I love it, I love it.

Funny Stories and Rituals Before Haunting

[2:43] Okay, Max Schick said, was wearing long finger gloves and encountered a group of high school early college girls.
One wasn't scared and said, E.T. phone home. And yeah, basically busted out laughing and broke their... totally fair, man. Totally fair. I mean, E.T. phone home. He got got. He got got, man. And you know what? That happens and sometimes it's the best thing. And the last for this week, Amanda Hughes She just said something scary, doesn't remember what it was, and a guy she was talking to looked at her and said, I reckon that's sexier than socks on a rooster.
Yeah, that raises so many questions. So many unanswerable questions.
I mean, like how would a rooster wear socks, eh?
And if a rooster could wear socks, why would you find that sexy?
I don't know. Do you like to fuck roosters, but only if they're wearing socks?
I don't... I have no idea.

[3:46] This I've never heard this idiom before it doesn't make any sense. It does. I think what is it called when like two idioms collide?
And you do a shit. There's a name for it when you you get two expressions and you cross them It's a fuck it'll hit me in a minute. But basically there's a term for that I wonder if that's what happened like he was trying to think of like another, Idiom and like had a collision in his brain that could be it makes that that's the only thing thing that kind of sort of maybe a little bit in a way makes sense yeah but.

[4:19] Anyways this week's question the week is a fun one hunters what is your ritual before you start haunting everybody has them don't lie and pretend you don't let's be honest and I'll tell you mine whenever I get in full costume I'm in the mask I'm in the hat I'm in everything I spend a minutes and I go through the vocal exercises of being Bernie. I'm hearing this in the very room we're recording this in. Pace around and I'll just go through all that stuff and try to get the vocalizations down because transitioning from Jonathan's I'm speaking to you in a normal voice to Bernie that takes a little work and I don't know if it's physical work or mental work but I don't care because I stand in here I pace back and forth and And I spend just a minute or two, it's not long, but I go through the vocal exercises to try to get myself able to do that voice for the next three to four hours.
Yeah, you also twirl a cane and other things. Oh yeah, and I work on the mannerisms too.
But mostly for me the focus is on the voice because that's what I have to work hardest at.
Bye. Bye. Bye.

[5:35] I don't know that I have time to have a ritual. That is true.
You may not have a ritual because.
Like the last thing that I do before I start getting into character, before I start getting on the makeup and everything is do one more sweep out of the haunt.
That's like, okay, we're ready to open. I do one walkthrough.
I make sure I don't see anything that was missed on the ground, you know?
And that means okay the work The work work is done. Now. It's time for the fun part of honey, Yeah, I usually do that on the outside your inside. I'm outside I usually do that on the outside area before I do the vocal exercises. Yeah, I'll snake through the queue line I'll walk up and down the path a few times. Yeah, I do that too, but I do it before we start haunting Mm-hmm Partly because getting into my costume does take time. Yeah, it's not something I can just like do quickly I mean, it's gonna get harder this year with a new mask. I'm not fully sure how that's gonna work, One of the things that I do also this isn't on on opening night, but whenever I'm out there and I'm.

[6:48] You know detailing scenes or something by myself. I will dance in my space and And and play around with the space and see what works and what doesn't and, What improvisations I can I could plan for yeah, that's a good one, too Actually, yeah, just the idea of trying to exist in the space and like play with it some and yeah Yeah, I get that different characters, you know, but yeah, I totally understand these sweeping through the haunt and making sure everything is done, I know that's one of the last things I do is I find someone I trust I give them a broom, And I know that sounds like I'm giving them demeaning work. Yeah, but that's the thing of trust for me Yeah, sweep out the haunt make sure there is no screw no bolt nothing left on the ground And if anyone hits that ground and they will yeah that they will not cut themselves or injure themselves That's a huge position of trust and I know that it might not seem that way, But so yeah, I do that, but I don't do what you were describing where you do the last walk That's actually a really good idea because that way it's one of us that has the responsibility for that final walkthrough.
But please on that note, let us know what your ritual is before you start haunting hauntlizla.com, hauntwinkly on Twitter, hauntwinkly on Facebook and youtube.com slash haunt weekly.
You can also catch us wherever you get your podcasts from. We are on all the services all the time. Please add us. It makes us feel less lonely, like I said.

[8:17] Yeah. On that note, one final, one housekeeping note that I completely forgot about.
Welcome to everyone who went to MHC.
Yeah, um, we have been getting the photos the videos the social media posts the logs the vlogs, Yeah, all that stuff from MHC. It seems like it was a great time, Honestly in previous years, we've not gotten a lot from MHC Mm-hmm, and I and I don't think that's because it hasn't been a big conference I just think a lot of people we know weren't there Yeah, you have that or they weren't posting very heavily from it, But this time around I think we've seen more from MHC than trans world. I'd agree with that, I don't think that's an exaggeration. No, and I don't know if it's because we were at trans world and we weren't paying attention. Yeah, But yeah, this this year we have seen a ton of stuff from MHC and honestly, it all looks really good We actually said to each other man. We didn't make it to MHC sometime. We did the trans world thing. Yeah, Now we got to do the MHC thing, right?

MHC Conference and Future Plans to Attend

[9:17] Because that one does sound like a lot of fun. So we're gonna make an attempt I don't know about next year, but sometime soon. We're gonna make an attempt to go to MHC. So please please please keep us in mind, All right. All right. So here's the deal. I.

[9:33] Know whenever I post this episode a lot of people's eyes are gonna like see the title and see the image and I was gonna Bounce right off of it into something with like big explosions or ghosts and goblins or whatever, you know, there's something more exciting, Because I get it IP law is not interesting to the average person.
Yeah, but I think that a lot of people are more interested than you think they are.
I would agree with that.
But the thing is this, I do definitely try to keep my day job as a copyright and plagiarism consultant slash IP law person working in that space, probably not a lawyer, but someone that works in that space a lot.
I try to keep that separate from Haunt Weekly because, and part of it is for my own sanity, Haunting is what I do for passion and for love and this is what I do for a living and if the two start Intersecting too much. I may go crazy.

[10:30] Yeah, and I know you know that feeling yeah Cuz then it becomes you know part of your part of your fun becomes part of your job like I was person, Oh, yeah, I got into IP in particular the plagiarism and copyright side of it out of passion Yes, because you know people were misusing my work at something that became interested started writing about it, But it's become my job and I've seen how having it be my job has eroded or changed the way I approach the topic Yeah, and I don't want that for haunting. Yeah. Well, it's also changed how much you write.

[11:03] That just for you. Yeah. Yeah, I almost never write for myself anymore Yeah, because I write so fucking much, Between the posts I do the emails I do do the reports I do everything I do I mean it's not uncommon for me to write 5,000 words in a day yeah and after that do you think I want to write a thousand words for pleasure on a novel or something yeah no I'm gonna play a stupid fucking video game instead I don't read either for the same reason anymore I used to read all the time but anyways so I I don't I try to keep them separate and usually.
That's very easy Because there's not much overlap between the two and now I will grant I did give I think I think actually I gave four different talks, conferences Haunted attraction conferences related to this, Because we did I think three haunt cons and one halloween and haunt fest Yeah, I think that sounds right. So i've done four which how many haunt fest is now texas haunted convention for those playing along at home, um

[12:05] But yeah, so i've given the talks at the conferences But that's just my excuse to go to a conference. That's like an hour of my life Believe me those presentations are not difficult for me to write. No, I'm difficult for me to do. I'm not working I'm just going through the motions on those, So yeah, it's just my excuse to be in that space.

Introduction to Recent Intellectual Property Issues

[12:26] But I've got to say though this has been a very very busy month for intellectual property issues and, And specifically if you live in these United States, there have been two separate Supreme Court decisions, that are potentially very very impactful.
Yeah, no kidding. I was surprised at these, honestly.
Yeah, and if Crystal says she's surprised, bearing in mind she lives with me.
Yeah. That tells you all you need to know and why you need to pay attention.
So yeah, there's two decisions. One was on copyright and one was on trademark.
We're going to do a little bit of a primer on both.
Don't want to go in too deep into the weeds. We actually have a whole episode on copyright and trademark for Haunters a ways back. You can look that up and go through that.
That'll give you the weeds of the law more broadly.

[13:17] But um, yeah, so yeah we need to discuss these cases and how it's changed copyright and trademark moving forward because this is very important.
Because yeah, the impacts are going to basically change, they could at least theoretically change the way haunting interacts with it because both trademark and copyright are very important to haunting.
We ignore them a lot, a whole lot, but that is why we need to pay attention to this because that may need to change sooner rather than later.
So I do want to emphasize though that lawsuits against haunted attractions on either topic, are super rare, but they can happen and they just became a lot more likely in my opinion.

[14:11] Yeah. And it may not go the way that you would expect before these rulings. Yeah. Indeed.
So, before we jump in, disclaimers and disclosures. Yes.
No one talking here is a lawyer and we're sure as fuck not your lawyer.
Right. So, please understand this is not legal advice. We are just two lay people that are very familiar with these issues and very good at it.
I'm actually considered an expert witness, but I'm not a lawyer.
No one here is a lawyer. No one here is giving legal advice.
If you have legal questions related to your specific situation, seek out a fucking lawyer.
Don't write me. Seek out an actual fucking attorney, please.
When you need an expert witness report on the case, that's when you call me, okay?
I'll come in and help for money.
Lots of money, usually. But seriously, don't ask us for legal advice and don't assume anything in this podcast legal advice.

The Andy Warhol Estate v Goldsmith et al.

[15:10] All right, the first one which was about a month ago now Um is the Andy Warhol foundation for the arts or as we're just going to call them the Andy Warhol estate, V goldsmith et al and goldsmith in this case is lynn goldsmith Um those who are into photography will almost certainly recognize that name, Lynn goldsmith is a very famous photographer and in 1981.

[15:34] She managed to get an up-and-coming young star named prince The sit-down for a photo shoot and honestly knowing what I know about Prince now, Getting him to sit for 30 minutes to do one thing. That's a kid on getting Jim Warfield to do that I knew you were gonna go there cuz it's pretty fucking impressive it is and then in 1984 she was contacted by Vanity Fair which licensed one of those photos as their cover, Yeah, and they go ahead. No, sorry good Yeah, and they paid Andy Warhol to make a painting based on the photo. Yes that she took that Goldsmith took So yes Goldsmith took the photo, Vanity Fair paid Goldsmith to allow them to have Andy Warhol who at this time was like the biggest artist in the fucking universe Yeah, and then yeah eyes roll in this room, But no, it's a fucking artist in the universe at that moment, went to have him do a painting based on one painting.
Emphasis on the one painting. That becomes very important in like one line, because Andy Warhol actually made over a dozen additional paintings based upon it.
Now, in Warhol's defense, he only intended one to ever be printed.

[16:50] Right. He never actually intended the other dozen or so to see the light of day.
Yeah, he picked the one that he liked the most and said, here, this is the one you should use.
So Vanity Fair cut him a hell of a check.
He's going to 12 paintings, picked the one he likes and said, and you know what, that was actually fine. No one had any issues with that.
But then in 2016, after Prince died, Vanity Fair got in touch with the Warhol Estate again, originally about relicensing the same image.
But they said, hey, we've got a dozen other images here. Would you like one of the other ones?
That nobody's ever seen.
And so Vanity Fair went, sure. That sounds great.
And so they actually used an image that was not licensed for the cover.
This prompted a war of words between Goldsmith and Vanity Fair and also Andy Warhol Estate too.
But the Warhol Estate ended up filing suit.

[17:48] And the case ping-ponged between the lower court and the appeals court and eventually made it to the Supreme Court.
And the Supreme Court, I think it's unequivocal, sided with Goldsmith, ruled that the paintings and the publication were not fair use.
Right.
Now, fair use has been complicated for a long time and the Supreme Court hasn't really ruled on it much.
No, no. We're going to get into the last big Supreme Court ruling in two seconds.
But a quick primer for anyone who's not familiar with copyright, God help you.
Copyright is a set of commercial rights that one has in a work that is protected by copyright.
Include works of visual arts, film, work of audio like songs and also spoken word, literary works, computer programs, etc. And if you have put it into a tangible medium of expression, that is the important bit. A tangible medium. Can't be thoughts, can't be ideas, can't be just you talking.
Something you wrote down, scribbled, typed into a computer, whatever.

[19:01] So anyways, basically one of those rights is the right to make and create derivative works, which is super important here because basically Goldsmith was arguing that the creation of a painting based upon her photograph was the creation of a derivative work.
No different than taking a novel and making it into a movie or taking, you know, or a song and make it get into a play or something like that. It was no different than any of those things. So the Warhol estate attempted to argue fair use and, it seemed at the time they had a very good argument and that's because the last major case on fair use before the Supreme Court no less was Campbell v.

The Transformativeness Test and Fair Use after Campbell v. Acrofroze

[19:45] Acrofroze which stems all the way back to 1994 so goddamn near 30 years ago.
Yeah, fucking close to 30 years ago. Basically...
This dealt with the band two live crew and if you're old enough to remember two live crew I'm, very sorry about how much your back hurts.

[20:05] Please take care of your back and your knees take your vitamins Take your minerals and take all the prescriptions your doctor has prescribed. I guarantee you you have some, But anyways, yes, uh, basically two live crew did a parody of the 1964 roy orbison song. Oh pretty woman, They did a filthy, dirty, because it was a two-life crew, I mean, need I say more?
They did a version of Oh Pretty Woman called Pretty Woman, and the case ended up once again ping-ponging around the courts and went to the Supreme Court, and the Supreme Court ruled that it was a fair use, ruling broadly that parody, which this was seen as, was a fair use, but also said that the important thing was that the song was transformative.
Created what's known as the Transformativeness Test. And the Transformativeness Test basically says that if the new work that is based upon or uses the original work is designed to fulfill, some kind of different purpose, it's not meant to supplant or replace the original, but to, you know, do something new or say something new or have some different expression or meaning, that it's likely a fair use. And so, this was the case that made the issue of whether a use was transformative paramount to the fair use conversation. And I'll say this, the court decisions we've had in the 30 years since, some of them have reached batshit insane.

[21:34] Basically ruling that, oh, that's transformative, that's a fair use. And completely ignoring the the fact that, hey, no it's fucking not, you twit. Yeah. But also just kind of reaching some very strange conclusions about the artistic intention of the new work and getting into the vibe of it. Yeah there's there's not been a...
Very many straightforward answers from the courts about what constitutes fair use.
And nor should there be, honestly, because fair use is meant to be this amorphous and difficult to determine thing. There's not supposed to be a bright line rule.
Right.
But this transformativeness test was the closest thing to it.

[22:17] So, yeah. And here's the thing. At various points, I think it could have been argued successfully, that haunting was a transformative use.
Yeah. That, excuse me, that taking, like, we'll just go with the one that's like the easiest for me to focus on right now.
Go Pennywise.
You're taking Pennywise from the It films and you're using him in your haunt.
There have been cases in district court where you could have argued that was a Transformer to use and probably won.
Yeah. As crazy as that sounds, it's true. You're providing a live experience with a similar character.
Just using the character to create a different experience vibe and all yeah, yeah And I mean and if you're sitting there scratching your head good because you're a sane human being But it's also very much how a lot of the cases when just look at some of the cases like the Richard Prince case from a while back in which he barely made alterations to photographs and, It was ruled a fair you see he some crazy shit went down is what I'm saying. Yeah, so yeah This was probably the best argument in favor of haunts using outside characters and it not being an infringement, But with this ruling which came down on the side of Goldsmith that test has been very thoroughly minimized, Yeah. So, So.

Movie Production Companies Creating Haunted Houses

[23:37] Yeah, well, and the other thing is is that now movie Production companies are, Creating their own haunted houses like HHN. Yep based on their copyright characters, So they're they're saying we transformed it into this so you can't have it Oh, yeah, that's one of the issues is because one of the reasons transformative was so strange was it dealt with like they're using it in a market space in which the work was never intended to be in yeah well when when you said like like these movie studios license at the HHN or as we recently saw once again we're back to Pennywise we just talked last episode right about the licensed escape room in a in Vegas that was not run by people from the movie studio These were people who paid money to license it, So they obviously do have a market here that they are, Clearly exploiting so that that hurts it anyways.

[24:40] But more to the point is like that was the type of argument that could be made, Not anymore and once again to reiterate not legal advice, No, but seriously stop using copyright infringing characters in your fucking haunt you twits. Yeah, I'm sorry There's just no kind way to say it because basically using someone else's Because copyright protected work just got so much more difficult to defend in court.

[25:07] You know, the only reason I think Haunts, and I genuinely believe this, and I've said this in other episodes and I'm repeating it here, the only reason that lawsuits against Haunts have been so rare at this point, we've heard of legal threats, like Leonard Pickle talks about how he got a nasty gram over his Freddy-themed haunted house, which he fucking should have, hearing what he was doing.
I'm sorry, Leonard, but it's true.
I don't think that's the reason Leonard Pickle's going to be mad at me.
But no, seriously though, we've seen nasty grams, we've seen that stuff, we've not seen many lawsuits. The only reason is because we're not worth it right now.
I've talked before about how we are an incredibly small industry.
You take all the revenue earned by all the haunted attractions in all the country and, it's less than one decent blockbuster film.
That's insane, but it's 100% accurate.
Yeah, can you imagine what would happen if instead of a haunted house doing Pennywise it and having that character in if it were another?
Film doing it in a non parody non comedy way. Yeah, you know especially doing that It's like oh, I like that character from I'm gonna plug and use them in this scene here No, they would fucking get sued off the face of the god damn dirt that film would become less common, Than the goddamn MST3K episode of The Final Sacrifice.
Look it up, kids.

[26:35] Yeah. Good luck finding it. Good luck finding it. Look up the story, not the film.
You're not going to find the fuckin' film.
Well, you might, actually. It does appear from time to time.
But, anyways, look up the story!

[26:45] But yeah, as we get bigger and more important and larger, this is going to become a thorny and thorny issue.
And now, thanks to this Goldsmith ruling, we're kind of sort of extra fucked.
Because the best argument of fair use, I won't say it got yeeted in the trash, because that's not true.
The Supreme Court was very clear that transformative still matters.
But it's now just one aspect of one of the factors of fair use.
Once again go back to the episode we did on copyright and trademark and IP that you said you couldn't find yeah it does exist I guarantee you but go back to that episode or go back and actually you can go back to plagiarism today I've got the actual talk there that I did I've got the actual video recording of it go back to that now copyright trademark is the top one that's the plagiarism today Oh, so it is.
That's the other you. I have multiple me's, but anyways, definitely go back and check out of the plagiarism today article which has the video or check out the actual episode we did on it because either will explain the four factors of fair use and talk about more detail.
Just know that it went from being like the test that cases hinge totally on to being, just part of the first factor of fair use.

[28:04] So that's a, I believe in the video game world, that's referred to as nerfing.
It was severely nerfed.
And honestly, I think it should have been. Because like I said, we got some batshit insane rulings.
Yeah, we did. And I'm very, very glad that now the other factors and the rest of the first factor are, being considered or being weighed.
And I think that's a good thing.

The Jack Daniels Trademark Case

[28:33] All right, real fast. So moving on while Crystal continues to look it up, we'll blurt it out, whenever we actually do find it. I'm sure she'll find it. But the second case is a trademark case and it's Jack Daniels Properties Incorporated. That's the organization that controls the, intellectual property of Jack Daniels, aka the whiskey people basically. And it's whiskey with an EY. The VIP Products LLC. Now, the background on the case is fairly straightforward. VIP Products, is a manufacturer... 123. 123! I'm still impressed it took us until 123 to do that episode. I know.
123 is the episode we did on copyright and auditing. Okay, so anyways, back to the trademark case. VIP Products made a dog toy entitled Bad Spaniels making and it was, basically a parody of the Jack Daniels bottle. Now even if you don't drink you're I'm sure you're at least familiar on sight with the Jack Daniels bottle, correct? Yeah. Square bottle, weird floopty-floop floral type neck, black label, weird like flowery shit on it. Yeah it's oddly shaped for... You will People recognize it.
And then by the way, just for just for those playing along at home, the trademark is jack daniels, Daniel apostrophe s I learned that one the hard way.

[30:02] I I did not realize there was an apostrophe in jack daniels until this and you would think I of all people would know, But anyways, I did not so anyways, they made a dog toy based upon the jack daniels bottle was a parody of it, They had a similar shape bottle, but it was called bad spaniels and instead of being like, like sex proof, it was 49% poop, it was basically a lot of dog poop jokes.
Yeah. Yeah.
I didn't say it was good. No, but it was obviously supposed to be a funny dog toy.

[30:36] But Jack Daniels threatened to sue, saying that, hey, this is a trademark infringement.
VIP Products actually filed the case themselves.
They filed suit first, seeking a declaratory judgment of non-infringement, which the lower court did not grant.
But the appeals court did. They went before the 9th Circuit, no, the 2nd Circuit, and they actually sided with VIP.
So that in turn kicked it up to the Supreme Court, and the Supreme Court sided very thoroughly, in fact unanimously. The first case, by the way, I forgot to mention this, the copyright case was 7-2.
So if you're sitting there thinking, oh, this was the conservative Supreme Court or whatever, it was 7-2.
It was not along any kind of, in fact, it was kind of weird that the two who sided against that case who actually made the dissent, they were Sotomayor, one of the most liberal justices, and John Roberts, one of the most conservatives.
That is an odd couple pairing if I've ever heard one.

[31:42] But this one was fucking unanimous. No dissent at all. Once again, can't blame this on the conservative Supreme Court or whatever. This isn't one of those cases. So basically they ruled it was a trademark infringement and they said it was a trademark infringement, because the trademark, i.e. the Jack Daniels bottle, was used as a trademark, i.e. to sell the bottle. Therefore, the extended First Amendment protections and examinations did not apply. Now, to understand what the fuck I just meant by that, we have to step back.

[32:18] And understand some basics of trademark. Basically, trademark law protects business names, slogans, and other identifiers used to mark a business, a good, or a service.
Right. And that bottle for Jack Daniels, the shape of it is not used anywhere else except by Jack Daniels.

[32:38] So in this case, we're looking at the bottle shape itself because it is a unique bottle shape, and they have protected it. The name, Jack Daniel's name, the specific logo slash typography and all that, and the design of the bottle and the label, and the coloring too also plays a role.
So you've got all these different elements in that bottle that play a role in the trademark protection. And you can notice it on site and say that's a Jack Daniels bottle and it's used for marketing the product. Yes. And basically, see where copyright is protecting against copy unauthorized copy. Right. If you copy a book, like Infinite Jest or whatever, you make an illegal copy of it, the copy itself is a copyright infringement. That is not true a trademark. I can sit here and say Jack Daniels all day long. I can put Jack Daniels in the fucking show notes. In fact, I'm pretty sure I will. I can use the name. I can use all that somewhere. But here's the thing. It doesn't cause confusion in the marketplace. Because I'm giving no indication that this podcast was sponsored by Jack Daniels because I can guarantee you the fuck they didn't. But also, we're not claiming any relationship with Jack rectangles that doesn't exist full stop. And no one out there is going to confuse the two.

[34:01] Unless they're really thick. Can't protect against everything, and trademark law recognizes that, but basically speaking, we're not causing confusion in the marketplace. So you're allowed to put those, you know, trademarks out there. You're allowed to copy them and use them as long as you're not causing confusion in the marketplace.
Now, this got really interesting in the year of our Lord, 1989, in the case of Rogers B.
Grimaldi, and I think that may be my favorite case name ever, Rogers B. Grimaldi.
But it actually deals with the Hollywood legend, Ginger Rogers.

[34:41] Basically, she tried to stop the American release of an Italian film called Ginger and Fred.

Italian film about Ginger Rogers and Fred Astaire tribute act

[34:49] And basically, the Italian film was a documentary-ish thing.
I mean, I haven't actually seen the film, so I'm kind of making this part up.
But my understanding is that it's a documentary-style film about two Italian performers who did, like, this mocking act or parody act or whatever of Ginger Rogers and Fred Astaire.
Yeah.
They were like a tribute act tributes the word I'm after it were a tribute act to those two so they did an act based upon the dances that ginger Rogers did with Fred Astaire and, They made a film about it.

[35:21] When they tried to make that film release that film here in the States Ginger Rogers claimed trademark infringement and this one did not actually make it all the way to the Supreme Court which is one of the things that's kind of interesting about it.
But the Second Circuit ruled against Rogers saying that the artist involved, in this case Grimaldi the director, had the right to use the trademarks in their work as long as it didn't cause confusion.
This granted a huge First Amendment exemption for trademark. Yeah.
Very broad and the Rogers test has remained a thing for damn near 35 years. Yeah, I mean 33 years now 34 years what we're talking about now this one hung around for a long long time, Basically saying that it's okay to use trademarks in a creative work As long as it doesn't cause confusion as long as you're not doing it in a way that will cause confusion, And say that this was you know by or supported by or authorized by the original trademark holder, um

[36:26] So that brings us back to the dog poop Jack Daniels bottle.
Yeah, yeah because I'm because I'm sure others are wondering, Why is a dog toy causing confusion in the marketplace with an alcohol product?

[36:44] And that is a valid question, honestly. But the thing about it is this, in this case basically the Supreme Court ruled that the Rogers test, which they still upheld the Rogers test existence to be clear, but they said it doesn't apply if the trademark is being used as a trademark, meaning it's being used to sell or Promote a product or service or good or company, Right. So going back to the dog poop bottle, which is what now I'm calling it. I guess I'm just, dog poop bottle That'll be a quote of my grave We're all in a dog poop bottle, But yes, no Basically since the dog poop bottle was basically just that was a fake Jack Daniels bottle, It was being sold using the Jack Daniels trademark as a trademark, right? Because they were, Marketing it like a Jack Daniels bottle exactly and since they were doing that the Rogers test Does not apply, Mm-hmm. Now, here's the thing and the reason I want to talk about in context of the haunted attraction industry is, Characters and character names and film names are also trademarks, Mm-hmm. So going back to Pennywise, Pennywise is copyright protected, but also.

[38:10] Trademark protected. Yeah. As a character, the IT franchise is trademark protected. All that is a thing.
So basically in this case, since the original trademark, the Jack Daniels bottle, was used as a trademark, that Rogers test did not apply and, and basically that broad freedom for artists to use trademark in their work.
Kind of went poof in situations where they are promoting their work using the aforementioned trademark. Yeah, and one of the things that I find interesting in both of these cases is that parity has had more protection than some of the other markers for trademark and IP.

[38:51] And that seems to not be the case anymore. Yeah, yeah, I mean, yeah, I don't have, Don't have anything to add. I know but I mean cuz you could have you know said oh, yeah, it's a parody We're making fun of it. Yeah, we're our haunt is like a comedy haunt. It's it's you know, we're silly We're goofy or whatever. We're just making fun of this. We're not using it. Yeah, Fuck you. That's not a guarantee. That's not a get out of jail free card anymore. Nope, So yeah, basically the advice moving forward and with trademark we're looking more at your promotion We're looking more at your haunt name. We're looking at the stuff you use to market your haunt rather than what's inside the haunt itself, But yeah, be careful with what the fuck is in your advertising. You always should have been. Yeah, but now you really should be, Because infringing characters and fringing images characters things like that can land you in a world of hurt, Yeah, because like as a trademark primarily deals with business names slogans promotion thing like that, And so if you use Like I and the reason I say this is because New Orleans nightmare another 13th floor haunts a few years back.

[40:04] Literally Put we have penny wise at home on their flyers Which penny wise was on their marketing material? No, I don't know how else to describe it It was clearly fucking penny wise, but they did like a color change or something. Yeah No, that's not gonna work if it's confusingly similar to the trademark, This whole Rogers test all that stuff just went right out the fucking window as far as what if you you know, Like even like something that's a little more vague Like putting a picture of a sewer grate with the text in the same font as the it Well, once again, it's a matter of confusion in the marketplace, and if you're using, like But typography is also protectable.

[40:51] So if you're using the it font And yeah, you can run into trouble. Yeah, exactly. I.

[40:58] Really do worry about how this ruling in particular like for the first one I worry about how a haunts will be impacted by it, But I also don't think that movie studios care enough about haunted attractions yet to really do anything, right?
But if they see you advertising this on TV and magazines and flyers they might just be fucking motivated. This is more likely to motivate a movie studio to take action. And which is easier for them to prove? Like do you do you have any idea? We won't know for years on that one because one of the problems we have with both of these rulings is the Supreme Court's hand of their decision. The Supreme Court decision in both cases is like 90 pages long.
Right. It's like really fucking long. I know you got it printed out. I got one of them printed. I got a copyright one printed out right behind us actually.
What's going to happen is district courts are going to get that, and they're going to remember like two sentences of it.

[41:52] And so how they interpret it, that's what we have to wait and see.
The district courts in particular, because you've got to remember district courts deal with copyright and trademark like a once in a blue moon.
Once every never.
Exactly. So they're not experts on this. So they're going to look at these Supreme Court rulings.
They're going to find one paragraph or a couple of sentences or whatever to take away, and, I don't know which paragraphs it is right now.
I have no way of knowing. It's going to be interesting.
I've got some guesses, but I don't know which it's going to be.
So that is a very good question, but as far as which is easier to prove, my suspicion, is still that it's going to be trademark side.
That's because...

[42:34] They can show confusion in the marketplace at all that anyone thought that and believe me there's enough dipshits out there Someone thought it That this was confusing you could be in trouble, Because yeah, I honestly think trademark one is slightly easier, but that's just my hunch, we'll have to see how the lower courts interpret these because.

[42:55] That's what we're all waiting on now Got these rulings we've all had comments and commentary on them And now it's like we're all looking at the district court judges going what you're gonna do, Where are we going with this?
Now we don't know So yeah, basically You know also the other thing to talk about though real fast with this is using the same name as another haunt, We talked previously about trademark in the field of dreams case where two haunts had the same name But we're like 90 miles apart or something. Field of Screams. Field of Screams. Yes. Thank you, Did I say Field of Dreams? Yes.
God damn it. And I knew I was going to do it. Yeah, you told yourself not to and so you did.
I mean, explain it works.
Exactly. Field of Screams case where the two haunts were about 90 miles apart and they had this big trademark kerfuffle that nobody won.
Now there might have been a more clear winner.

[43:50] So basically, and I want to wrap this up and I want to talk about IP in general and how, this impacts Haunts and where this all is going. I actually did a lengthy post about this on Plagiarism Today once again and I hate crossing the two things but this is one of those times I kind of sort of have to. But basically in both cases the Supreme Court greatly narrowed exemptions to intellectual, property law because both trademark and copyright are basically say okay you, have these rights over your intellectual property but these are the exemptions to that right. These are what uptimes in which other people or other businesses, can do what would technically be an infringement of those rights but they're allowed to do it. Yeah. Those exemptions just got narrowed in both cases. Yeah it seems like it's gonna be a lot harder to work with other people's material.
Yeah, I agree with that completely. So yeah, so IP protections are basically getting stronger Yeah.

Importance of protecting and enforcing your IP

[44:54] And those exemptions are going to get more difficult to claim. So this is something to be aware of, both as an IP creator, you want to make sure that your stuff is original, that you have done the needed things to protect it, register your trademarks, register your copyrights, get serious about enforcing about protecting your IP, seek out those who are infringing upon it, and take action against them. But also as a user, if you use IP from other sources, and the thing that always drives me kind of crazy is some major haunts use IP from other people without permission. You, You know, we've seen this damn near everywhere we've gone.
I mean, 13th Gate leaps to mind because they're the ones that had like 22 Pennywises.
Yeah, but I'm pretty sure that they got- Oh, they got rid of it, that's long gone.
But I just remember- Well, I thought that they got the licensing too for that year.
I didn't think they did. I don't know. I don't know either actually. Duane, let us know.
But no, but either way, 22 was way too many. Yeah.

Infringement in Haunted Attraction Industry

[46:02] I was thinking more of the little Mississippi haunt that had the infringing characters printed on all their t-shirts.
Oh, Jesus Christ. That, yeah, I know who you're talking about.
Which is even worse. I will not say their name. No.
Jesus. Yeah, and it's bad, not, cause that's both trademark and copyright.
Right. Because they were marketing it on their flyers, on their t-shirts and everywhere else.
And they were in the haunt. Yes. They are, yeah.
Good for them for being so fucking small that no one gave a shit.
Yeah. That's really the truth though. I know.
The only reason the film studios didn't come cracking down with the fires of hell is because it wasn't worth it.
They didn't know about them.
They didn't know about them or if they did, It wasn't worth it.

[46:46] So anyways, just basically be smarter about IP. No.
These decisions are going to make it way more difficult to claim exemptions.
Everyone in the world is understandably and predictably focused on the impacts these decisions will have on AI and artificial intelligence.
And that honestly makes sense.
But for this podcast, the haunted attraction industry needs to be smart about it too. No. Seriously.
And honestly, I'm going to be curious if this has any impact on the CFX case.
Yeah, I was just going to ask about that because it seems like it might. It could.
I mean, even though the CFX case seems to deal with different issues because you're not really talking about transform...
Well, I mean, it does deal somewhat with transformativeness, but you're trying to...
Once again, you are looking at whether AEW and Luchasaurus created a derivative work, which I mean, I think it's pretty clear they did.
I mean, I'm an AEW fan, but Jesus Christ. I can't ignore what's in front of me. Yeah, I'm not a fan boy I'm just a fan well, and yeah, that's.

[47:53] I'll be interested to see what comes of that and I'll be interested to see How many of the mask makers and costume creators and things like that are going to be?
Listing about these cases and changing their licenses for it in use in haunts.
Yeah, I agree. And honestly, the CFX case in particular is super interesting because, like I said, we were at Transworld was like two weeks after that case dropped.
Yeah.
So we got to speak with the CFX people. I'm sorry you were not able to.
Yeah. Wish you'd be able to. I was able to speak with them and basically every other mask maker of the the same caliber, same tier, actually all the mask makers in general.
They said the same thing, which is they are perfectly happy to see their masks used in most conditions, and are willing to work with haunts that want to put on t-shirts and things or we'll do something work it out, right?
But they also totally understand why CFX filed the lawsuit and think that we're happy that CFX did. Yeah.
Nope. There was nobody not backing CFX in that case. No.

[49:01] So it'll be interesting. And when there is more, we will report on it.
And when we report on it, you will learn about it at hauntweekly.com or hauntweekly on Twitter, hauntweekly on Facebook, and youtube.com slash hauntweekly as well as wherever you get your podcast from we are there so please give us a follow give us a like give us subscribe download watch do things with the episodes give us feedback we do read all your comments please please please, we greatly appreciate it once again we're lonely people we greatly appreciate it and that's not that lonely but we are lonely for you if it helps you think of us as lonely please do well i think, I think that's it for this week, since I've already done the outros.
I think that's basically it.
On that note, everyone, thank you all for seeing us. Until next time, I'm Jonathan.
I'm Crystal. And we will see you all next week with, I guarantee you, something not copyright or trademark related.
Unless a major ruling is handed down in the CFX case, at which point all bets are off.
But otherwise, something different. See y'all then.