Law, Constitutional Law – Other Larry Podder or Harry Potter? Disclaimer: This is a fictional story. It did not happen.. You are a newly promoted supervisor for Playing with God, a company that makes computer games for a Christian bookstore. One of the directors on the corporate board is Jon Bakker, a long lost nephew of TV evangelists Jim and Tammy Faye. Jon’s son, Larry Bakker, is a member of your department. He writes the story lines that go into the different games. He has very little computer expertise, but he does have a creative writing degree and writes really great Bible-based game stories.
One of his games has won an award in the Christian Video Game arena. This morning you are served with a lawsuit from Nintendo. It alleges that your last game, Praying with Larry Podder, violates their exclusive right to market games under the Harry Potter label. You are incensed. Larry Podder was the invention of Larry Bakker and was actually a story he made up about himself, drawing on his own childhood experiences. At least, that is what he told you. You personally know that the aunt in the game looks just like Tammy Faye.
To make matters worse, you receive a phone call from your boss that Warner Brothers is preparing a lawsuit, unless you agree right now to pull Praying with Larry Podder from shelves and send them all the profits from the game, to date. Praying was your number one seller this year and could move your company into the first place rankings for christian video games. Your boss, a company vice president, demands to know if the story line is even remotely like Harry Potter. You are horrified to admit you have no idea, having neither played the game nor having read Harry Potter.
As if this wasn’t bad enough, your boss states, “And why do you suppose Warner Brothers mentioned the Napster case in the call? We’re not hosting file sharing in that game are we? ” You are suddenly stricken as you remember that one of the really cool things about the game is that players can go online and share prayers, sheet music for hymns, and Christian music CDs in MP3 format. That was one of the best parts of the game. The vice president states, “The Warner Bros. exec said that his daughter just bought the game and called it the Christian Napster. Furthermore, I have a message from J.
K. Rowling’s attorney I have to return next. You better have an answer for this! ” He hangs up. You’re not a lawyer, but you did hear about Napster. It’s time to do some research. You need to call in Larry and find out about this video game. 1. What things do you need to find out from him? 2. If you are allowing file sharing on this game, does this open you up to liability for violation of the Digital Millennium Copyright Act? 3. If it is true that the game is about Larry Bakker’s life and not Harry Potter’s, what will you need to prove to defend against this lawsuit? 4.
Will being a Christian organization protect you from this lawsuit under the First Amendment? Is it analogous to parody? Solutions 1. What things do you need to find out from him? The first thing that I need to find out from Larry Bakker was about the contents of the story of Larry Podder. If the story had any similarity to Harry Potter stories or if any portion of the Larry Podder story was similar to the Harry Potter stores.. further you need to find out if the game Prayer with Larry Podder allows users to go online and share prayers, sheet music for hymn, and Christian music CDs in violation of the Copyright Law. . If you are allowing file sharing on this game, does this open you up to liability for violation of the Digital Millennium Copyright Act? The act of file sharing violates the Digital Millennium Copyright Act. The Digital Millennium Copyright Act criminalizes production and dissemination of technology, devices, or services intended to circumvent digital rights management. The game Praying with Larry Podder actually allows sharing of prayers, sheet music for hymns and Christian music CDs. This is a clear violation of Digital Millennium Copyright Act.
Copyrighted prayers, sheet music, and Christian music CDs shared violate the Copyright law. This is the reason why the game has been described as the Christian Napster. 3. If it is true that the game is about Larry Bakker’s life and not Harry Potter’s, what will you need to prove to defend against this lawsuit? If the is game is about Larry Bakker and not Harry Potter then it needs to be established that the game and Harry Potter are unrelated. In the court you need to establish that the US consuming public is not likely to be confused as to the source of the game.
The danger in this suit is that a very well-known mark like Harry Potter will have a wider scope of protection and has a greater chance that the US consumer may be confused as to the source of the game Larry Podder. Another thing that you need to establish in the court of law is that Larry Podder fairly describes the game because the game is based on the life of Larry Podder. In other words, the firm is making a fair use of the trademark. 4. Will being a Christian organization protect you from this lawsuit under the First Amendment? Is it analogous to parody? That being a Christian organization will not protect you.
The First Amendment does not allow the government to restrict religious activities, However, this is a case of Trademark/Copyright violation and so is not covered by the First Amendment. In addition, file sharing through a game is not a religious activity and so does not get the protection of the First Amendment. The use of name Larry Podder cannot be called a parody because in Campbell v. Acuff-Rose Music, Inc. the US Supreme Court held that parody is the use of some elements of a prior author’s composition to create a new one that, at least in part, comments on that author’s work.
Parody is fair use but will not be allowed because Larry Podder is not related to Harry Potter. References: www. publaw. com/parody. html www. uslaw. com/library/… /TNPCrimeandCourts082800. html www. law. cornell. edu/topics/first_amendment. html www. usconstitution. net/xconst_Am1. html www. saskschools. ca/curr… /cs20/… napster/anpster_summary. doc https://wikispaces. psu. edu/display/IST432TEAM8/Trademark+Act www. registeringatrademark. com ? Trademark Articles www. ccli. co. uk/copyright/copyright-law. cfm