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Thursday
Dec132007

The Chief Justice and a Movie

ast week I attended Judge Kozinski's screening of the court-room drama The Music Box. Alex Kozinski is the Chief Justice of the Ninth Circuit Court. I was the only game designer in the room.

I liked the film, though it's strangely named and I find the role of the music box itself pretty questionable. Still, it's an interesting film that follows the personal journey of a daughter who defends her father against heinous charges.

What's surprising to me is that 57 year old Kozinski knows a thing or two about games. I mean, how many people from his generation know how to be beat King Hippo in Mike Tyson's Punchout? Many years ago, he wrote some game reviews for the Wall Street Journal herehere, and here. I'm considering writing some law review articles for The Journal so we'll be even.

Kozinski is known for his writing, which is both clear and harsh. I think he delights in the controversy he creates, and he sticks in verbal jabs to those he thinks deserve it. Sound familiar? I think it's very weird that he's a judge who is a game designer in another life while I'm a game designer who is a judge in another life.

I didn't get a chance to tell Judge Kozinski that his law review article on patentsis way off when it says the system favors the infringer. It surely favors the deep-pocket companies who snatch patents that should never be granted, then hold them over the heads of everyone else. I'll cut him some slack since he wrote that before I was born, though.

More importantly, I wish I had thanked him for protecting my first amendment rights (and yours) against Mattel in the case over Aqua's song "Barbie Girl." Mattel claimed that the song infringed on their Barbie name and sought damages. Kozinski ruled that the song actually did dilute the value of Barbie. That means that it did create a negative associate with Barbie, and furthermore it added a second thing that comes to mind when you hear "Barbie" whereas before there was only the doll. Regardless of anything negative in the song, a second entity with the same name does dilute some brand value, such as if a string of dry cleaners called "Harry Potter Dry Cleaning" were to become successful. Even if it had nothing to do with the books, the brand value of Harry Potter is still diluted.

BUT, even having said that, there are first amendment concerns here. Although the use of Barbie is commercial here (the song was sold for profit) it is also has a non-commercial use. That is, the song isn't *just* labeled Barbie for the sake of confusion. It makes a comment about the values the songwriters believe the Barbie dolls to embody. This social commentary falls under the non-commercial exception (even though the song is a commercial product) and Kozinski said the potential damages to free speech outweigh damages to the Barbie name here. If this type of thing were allowed to succeed in court, then companies would start to own the language and it would become impossible to even refer to, parody, or critique popular culture.

His famous closing words in his written opinion on this case were, "The parties are advised to chill." I like his style.
Thank you Judge Kozinski, and I hope your kids are enjoying Guitar Hero 3.

--Sirlin

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