To Orwell Today,
Just ran across your site. Have you written anything about the lawsuit in Chicago Federal Court filed by the Orwell Estate against CBS television for copyright and trademark infringement over the CBS 'reality program' entitled "Big Brother"? It was settled a few years ago. I was involved as the lawyer for the Estate.
You might want to check out my article in the Dartmouth Law Journal, Vol. VII, Number 1, Winter 2009, at page 106. It's about the lawsuit, and the infamous 1984 Apple Computer Super Bowl ad.
Here is some background for the lawsuit against CBS:
Big Brother (Nineteen Eighty-Four), Wikipedia (...The worldwide reality television show, Big Brother, is based on the concept of people always being watched and being under constant surveillance from this novel. In 2000, after the U.S. version of the CBS program "Big Brother" premiered, the Estate of George Orwell sued CBS and its production company named "Orwell Productions, Inc." in federal court in Chicago for copyright and trademark infringement. The case was Estate of Orwell v. CBS, 00-c-5034 (ND Ill). On the eve of trial, the case settled worldwide to the parties' "mutual satisfaction". The amount that CBS paid to the Orwell Estate was not disclosed. CBS had made no effort whatsoever to get permission from the Estate. Under current laws, the novel 1984 will remain under copyright protection in the United States until 2044 but only until 2020 in the European Union...
Big Brother served for an inspiration of an advertisement by Apple for their new computer, the Macintosh, played by David Graham. In this 1984 television commercial, IBM is portrayed as Big Brother, while the Mac is represented as the heroine, smashing the "Big Brother" with a hammer. Finally, it says "Why 1984 won't be like 1984". The Estate of George Orwell, through its licensee, sent a "cease-and-desist" letter to Apple's ad agency after the ad first appeared, stating that the ad violated copyright and trademark laws....
- William Coulson
I knew about Apple's "1984" Super-Bowl commercial and the "Big Brother" reality-TV show but wasn't aware that there'd been a lawsuit against them.
I've watched "Big Brother" a couple of times (forced myself for research purposes) and am of the opinion it's classic Orwellian "prolefeed". Most people watching it probably have no idea where the name BIG BROTHER originated and haven't even heard of George Orwell or "1984". They have no concept of the concept of privacy - just as Orwell foretold in "1984" - and they actually enjoy surveillance when it's promoted as unabashed voyeurism.
see Promo of new season of Big Brother on CBS, YouTube
I've seen the Super-Bowl tv commercial on YouTube and a speech about it by Steve Jobs, co-founder of Apple:
see 1984 Apple's Macintosh Commercial and Steve Jobs introduces 1984 Super-Bowl Commercial
I googled, found and read your article at the Dartmouth Law Journal website, passages of which are excerpted below:
'BIG BROTHER' IS WATCHING APPLE:
THE TRUTH ABOUT THE SUPER BOWL'S MOST FAMOUS AD
by William R. Coulson, Winter 2009
...In fact, the book 1984 was under copyright in the year 1984. Copyright protection denotes many things. For a novel, it means no one may capitalize commercially on any of the novel's protected elements in any medium. Chicago attorney and film producer Marvin Rosenblum paid a significant amount to buy the television and motion picture rights from Sonia Orwell, the author's widow. Utilizing these rights, he proceeded with plans to make a film version of the novel. Producer Rosenblum had scrupulously policed his exclusive rights by permitting approved uses and by writing cease-and-desist letters to would-be infringers who sought to exploit 1984 without his permission or license on television or in motion pictures. Later, Rosenblum would expend much effort to exploit his exclusive right to present 1984 on television.
Federal and state trademark law forbids anyone from "passing off" a work or a product as being affiliated with a protected entity – such as Orwell's 1984.... The iconic Apple commercial consequentially appeared to be a violation of federal copyright and trademark rights. Producer Rosenblum promptly wrote Apple's ad agency to "cease and desist" from further publications of the ad. Apple never again ran the commercial.
In August of 2000, attorney William R. Coulson filed a trademark and copyright suit against CBS Television on behalf of producer Marvin Rosenblum and the Estate of George Orwell. CBS had begun airing a "reality" series titled "Big Brother" in the United States.... The suit alleged that CBS's infringement was willful and sought all of CBS's profits from the series as damages. After a year of litigation, which included depositions of CBS executives in Los Angeles, the case was settled to the satisfaction of both parties.... The financial terms of the settlement were confidential. During the credits at the end of the "Big Brother" program, there now briefly appears a disclaimer to the effect that the program is not affiliated with the Orwell Estate....
George Orwell wrote his novel 1984 during the year 1948. Mr. Orwell's publisher, Harcourt Brace & Co., registered the copyright for his novel in the United States in 1949. George Orwell died in 1950, and his will conveyed his copyright to his widow Sonia. She authorized a black-and-white film version of the novel in 1955. Unfortunately, Sonia Orwell hated the film, ceased all distribution of it, and did not renew its license. In 1976, Sonia renewed the novels copyright. Under U.S. law, the book remains under copyright protection until the year 2044.
Marvin Rosenblum admired Orwell's novel and thought that a film should be made of it to debut in the actual year of 1984. In late 1980 he contacted Sonia Orwell, who at first was adamantly against the idea of another movie version of her late husband's work. But Rosenblum persisted. On December 1, 1980, Sonia Orwell and Rosenblum signed an agreement. In return for a cash payment and future royalties to be paid to the Orwell Estate, Rosenblum purchased the television and the motion picture rights to the novel. This meant that Rosenblum had the exclusive worldwide rights to make and market television and movie products based on Orwell's book. Within two weeks of this agreement, Sonia Orwell died.
The Estate of George Orwell became her Literary Executor and now held all the rights to the novel not bought by Rosenblum. While immersed in the production work for the motion picture, Rosenblum and the Orwell Estate were also monitoring and policing third party uses of 1984. Rosenblum focused on proposed and actual commercial uses of Orwell material in the United States. Most artists were well aware of the copyright implications of using material from 1984 and wrote letters seeking permission to utilize it. Rosenblum's file from this period includes over fifty instances of permissions being granted or denied. In deciding whether to grant a license to any particular requester, Rosenblum sought both to protect the artistic integrity of Orwell's work and also to maximize the revenue realized from such licenses.
When he became aware of unauthorized commercial utilizations of 1984 material, Rosenblum sent "cease-and-desist" notices to the offender. His file for this period in the early 1980s includes such letters to a New York television station that televised the 1956 Edmund O’Brien film, to a company selling stickers containing slogans from 1984, and to a company selling Orwell-themed calendars for the year 1984.
On January 22, 1984, Marvin Rosenblum took a break from the "1984" film production work to watch on television Super Bowl XVIII. Early in the third quarter, Apple ran its ad. Rosenblum was livid. Without any contact with him or the Estate, a major scene from the novel was being utilized by a big corporation to try to sell its products to football fans. Rosenblum immediately got on the telephone and verified that the Orwell Estate in London had not authorized the use of the Orwell material in the commercial.
After contacting the Apple legal Department, Rosenblum went to London to work on his motion picture. However, whilefilming he received numerous calls from the media asking him if the Apple scene was from his film. That was precisely the kind of confusion concerning affiliation that the Lanham Trademark Act condemns. By letter to Lee Clow of Chiat-Day, dated April 26, 1984, Rosenblum memorialized his objections to the Apple ad. The letter stated: "Your much acclaimed Apple '1984' commercial which is based on Orwell's 1984 is a blatant infringement of motion picture and other media rights I own in and to George Orwell's 1984." The letter noted that the scene in the ad "is directly lifted from the novel," that the "tag line to the commercial has the number 1984 in quotations," and that "it therefore cannot be argued that the commercial was merely meant as a vague allusion to an Orwellian society." Rosenblum noted that his clipping service had located more than 100 stories in the general press about the commercial and "in virtually every instance the lead refers to Orwell and the novel 1984." Rosenblum's letter concluded: "I request that you cease and desist immediately from further use of the commercial." He asked Chiat-Day to contact him and warned that he might have to file suit in federal court to remedy continuing infringements. Marvin Rosenblum never heard back from Chiat-day, or from Apple. He did not file a lawsuit. And Apple never televised the commercial again....
Copyright law gives the writer exclusive rights to reproduce and to market his work. It also includes the exclusive right to make derivative works based on the work. Derivative works can include a movie, television program, video game, any sequel, advertising based on the novel, "or any other form in which a work may be recast, transformed, or adapted." These rights can be licensed to others for particular uses for limited times, or they can be sold outright to others. The holder of a copyright or one of these exclusive derivative rights must "police" his rights by: granting or refusing permission to others to make a particular use of his work, sending out "cease-and-desist" letters to unauthorized users, and telling unauthorized users to stop using the protected work. The rights holder can also sue unauthorized users for copyright infringement and can be awarded damages and an injunction. The Apple ad was a classic television "derivative work" based on the novel 1984, and thus a creation only the rights holder - Marvin Rosenblum- could permit....
Could Apple claim that its commercial helped publicize 1984 and thus proved beneficial for Orwell, eliminating any damages? Such a symbiosis assertion is not a defense to either copyright or trademark infringement. An infringer cannot make the argument that the rights-holder has benefitted by his wrongdoing, as that judgment is reserved for the rights-holder. So the Apple ad was indeed, as Marvin Rosenblum told Chiat-Day back in 1984, a violation of intellectual property laws. Should the case have gone to court, the bottom line is that Apple would not have been successful. A Court would have enjoined further televising of the ad and Mr. Rosenblum could have sought the profits Apple generated from it. Interestingly, either no one at Apple and Chiat/Day thought about the copyright/trademark issues or they thought about them and did not care....
Apple should have asked Mr. Rosenblum for permission to use Orwell's materials in the commercial. We will never know whether, or for how much money, he might have granted such use. The commercial was very well done, and it obviously was true to the novel. At that time, Rosenblum was assembling the parts for his motion picture; he might have weighed the positive publicity the commercial would have generated for his upcoming film. But that was Rosenblum's, and not Apple's, decision to make....
[end quoting from Dartmouth Law Journal article by William Coulson]
I learned, from your article, that the person who got the TV and movie copyrights from Orwell's wife Sonia was a lawyer and film producer from Chicago, and he produced the movie adaptation of "1984" that came out in 1984. It would be an interesting story in itself to hear how he ended up with Orwell's copyright - especially since Sonia had only gotten it back into her own name one week previously.
Six years ago - in 2004 - The Sunday Times reported that Sonia Orwell had fought a legal battle - which she won just before her death - to get back control of Orwell's copyright which had been stolen by a corrupt accountant.
ORWELL A WRITER WRONGED (...As the legal wrangling went on, her lawyers sought an opinion from John Mummery (later Lord Justice Mummery). "I have no doubt that it is in the best intersts of the company to settle Sonia's claims. . .to avoid what would undoubtedly be a complicated and expensive action which. . .Sonia has a much better chance of winning," he wrote. But Sonia was spending more and more time at the Royal Marsden hospital. Her legal team, doubting that she could withstand the rigours of cross-examination, advised her to settle. What followed was one of the greatest injustices of the affair: Sonia paid Harrison to retrieve the rights that almost everybody acknowledged had been hers all along. Sonia found the 200,000-plus-pounds needed for legal fees and to pay Harrison, possibly from the proceeds of selling her London house. The lawsuit was settled on Tuesday, November 24, 1980. "It was amazing the way he deprived her of what she had to get back what she should have had," says Hilary Spurling. But Sonia had achieved what she set out to achieve, and George Orwell's literary rights were now back in her hands. Sadly, not for long: she died on December 11, 1980, aged 62. Harrison, by contrast, continued to live in happiness and prosperity....)
Also, in your article, it says that copyright-holder Rosenblum wouldn't allow the airing on TV of the movie version of "1984" that came out in 1955. I've actually seen that one, having tracked it down a few years ago. See 1956 MOVIE OF 1984
It wasn't as good as I'd somehow imagined, but at least it was better than the one that came out in "1984". Sorry (Rosenblum being your client and all) but I have to admit that personally I hated that adaptation of Orwell's book. See 1984 A BAD MOVIE
Apparently BBC did a made-for-TV adaptation in 1954 which I haven't yet seen, but would like to. See BBC 1954 1984 TV VERSION
A reader wrote in a year ago saying that a new "1984" movie is being made and is due out in 2010. See 1984 VICTORY GIN FILMS
I've also seen two movie versions of ANIMAL FARM. See ANIMAL FARM BAD MOVIE and ANIMAL FARM 1954 MOVIE and & ANIMAL FARM ORIGINAL MOVIE
Actually, discussion about different versions of movie adaptations of Orwell's books have been going on for awhile on the website. See COMMUNIST CAPITALIST ORWELL MOVIES
Anyhow, thanks for the interesting info on the Orwell copyright cases. And congrats on your role in reaching a settlement.
All the best,
ORWELL BIT APPLE 1984 TV AD
Apple introduces iPhone 4 (has front-facing video camera) & Hands off my latest Apple gizmo (one man/one company/one device). MacWOrld/FinPost, Jun 7, 2010
ORWELL VS BIG BROTHER TV SHOW
Amazon's Orwellian Dilemma, Daemons Books, May 2010
2.Big Brother (...On each landing, opposite the lift-shaft, the poster gazed from the wall. It depicted simply an enormous face, more than a meter wide: the face of a man of about forty-five, with a heavy black moustache and ruggedly handsome features. It was one of those pictures which are so contrived that the eyes follow you about when you move. BIG BROTHER IS WATCHING YOU, the caption beneath it ran.... Nobody has ever seen BIG BROTHER. He is a face on the hoardings, a voice on the telescreen. We may be reasonably sure he will never die, and there is already considerable uncertainty as to when he was born. BIG BROTHER is infallible and all-powerful. Every success, every achievement, every victory, every scientific discovery, all knowledge, all wisdom, all happiness, all virtue, are held to issue directly from his leadership and inspiration....)
25.Prolefeed (...The Ministry of Truth had not only to supply the multifarious needs of the Party, but also to repeat the whole operation at a lower level for the benefit of the Proletariat. There was a whole chain of separate departments dealing with proletarian literature, music, drama, and entertainment generally. Here were produced rubbishy newspapers, containing almost nothing except sport, crime, and astrology, sensational five-cent novelettes and films oozing with sex. The rubbishy entertainment and spurious news which the Party handed out to the masses was referred to as 'prolefeed'....)
18.Newspeak (... This was done partly by the invention of new words, but chiefly by eliminating undesirable words and by stripping such words as remained of unorthodox meanings. To give a single example. The word free still existed in Newspeak, but it could only be used in such statements as "This dog is free from lice" or "this field is free from weeds." It could not be used in its old sense of "politically free" or "intellectually free", since political and intellectual freedom no longer existed even as concepts and were therefore of necessity nameless....)
3.Surveillance (...Any sound Winston made, above the level of a whisper, would be picked up by the telescreen; moreover, so long as he remained within the field of vision which the metal plaque commanded, he could be seen as well as heard. Every citizen, or at least every citizen important enough to be worth watching, could be kept twenty-four hours a day under the eyes of the police and in the sound of official propaganda, with all other channels of communication closed. The possibility of enforcing not only complete obedience to the will of the State, but complete uniformity of opinion of all subjects now existed...)
19.Goldstein Two-Minutes Hate (...In its second minute the Hate rose to a frenzy. People were leaping up and down in their places and shouting at the tops of their voices in an effort to drown the maddening bleating voice that came from the screen. The little sandy-haired woman had turned bright pink, and her mouth was opening and shutting like that of a landed fish. Even O'Brien's heavy face was flushed. He was sitting very straight in his chair, his powerful chest swelling and quivering as though he were standing up to the assault of a wave. The dark-haired girl behind Winston had begun crying out 'Swine! Swine! Swine!' and suddenly she picked up a heavy Newspeak dictionary and flung it at the screen. It struck Goldstein's nose and bounced off; the voice continued inexorably....)
~ an independent researcher monitoring local, national and international events ~