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October 2021
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Disney Defeats Lawsuit Brought By Company Owning Evel Knievel's Rights Over 'Toy Story 4' Character

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Roughly a year ago, we discussed a lawsuit brought by K&K Promotions, the company that holds the trademark and publicity rights for the now-deceased stuntman Evel Knievel, against Disney. At issue was a character in Toy Story 4 named Duke Caboom, a toy version of a motorcycle stuntman that certainly had elements of homage to Knievel. But not just Knievel, which is important. Instead, a la several lawsuits Rockstar Games has faced over characters appearing in the Grand Theft Auto series, Caboom was an amalgam of retro-era stuntmen, not a faithful depiction of any one of them, including Knievel. And, while some who worked on the film even mentioned that Knievel was one of the inspiration points for the character, they also noted that Knievel's routine, garb, and mannerisms were hardly unique for stuntmen in that era. Despite that, K&K insisted that Caboom was a clear ripoff and appropriation of Knievel.Well, Disney moved to dismiss the case, claiming essentially the above: Duke Caboom is based on a compilation of retro-era stuntmen. And the court has now ruled, siding with Disney and dismissing the case.

The ruling from U.S. District Judge James Mahan concluded that the Disney character — a 1970s stuntman action figure — “contains significant transformative elements” that make the character “’reminiscent’ of Evel Knievel, but not a literal depiction.”Mahan noted the discrepancies between the real-life celebrity stuntman and the animated supporting character from the film.“The action figure has a different name, different clothing, Canadian rather than American insignia, the addition of a moustache and a different hair color and style,” Mahan wrote.
The reasons for siding with Disney don't stop there. The court put this issue through the Rogers test. The court concluded that Duke Caboom was an integral character in the film (this author can confirm that, having seen the film), that there were no attempts at convincing film-goers that Knievel was in any way involved in the film's production, nor that the character was a 1-to-1 likeness of Knievel. This is the GTA stuff all over again, in other words. The character is a combination of several retro-pop-culture references to stuntmen from decades past, incorporating elements from several individuals to create a new character. Given the film's free speech and artistic protections, the court really had no other way to rule on this.Perhaps the most surprising aspect of the case is that no settlement was reached prior to this ruling. It has become depressingly typical for these cases to not reach a conclusion and result, instead, in some confidential ruling where nobody knows if or how much money changed hands in either direction. That would lead me to believe that K&K either was unwilling to play settlement ball or, perhaps more likely in this instance, Disney knew it was on such solid ground, it didn't need to engage in settlement talks.Either way, it's nice to see a ruling get this right on artistic and speech grounds.

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posted at: 12:00am on 05-Oct-2021
path: /Policy | permalink | edit (requires password)

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Tesla 'Self-Driving' NDA Hopes To Hide The Reality Of An Unfinished Product

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There isn't a day that goes by where Tesla hasn't found itself in the news for all the wrong reasons. Like last week, when Texas police sued Tesla because one of the company's vehicles going 70 miles per hour in self-driving mode failed to function properly, injuring five officers.

If you hadn't been paying attention, Teslas in self-driving mode crashing into emergency vehicles is kind of a thing that happens more than it should. In this latest episode of "let's test unfinished products on public streets," the Tesla vehicle in "self-driving" mode's systems failed completely to detect not only the five officers, but their dog, according to the lawsuit filed against Tesla:
The Tesla was completely unable to detect the existence of at least four vehicles, six people and a German Shepherd fully stopped in the lane of traffic, reads the suit. The Tahoes were declared a total loss. The police officers and the civilian were taken to the hospital, and Canine Officer Kodiak had to visit the vet."
Of course for Musk fans, a persecution complex is required for club membership, resulting in the belief that this is all one elaborate plot to ruin their good time. That belief structure extends to Musk himself, who can't fathom that public criticism and media scrutiny in the wake of repeated self-driving scandals is his own fault. It's also extended to the NDAs the company apparently forces Tesla owners to sign if they want to be included in the Early Access Program (EAP), a community of Tesla fans the company selects to beta test the company's unfinished self-driving (technically "Level 2" driver-assistance system) on public city streets.The NDA frames the press and transparency as enemies, and urges participants not to share any content online that could make the company look bad, even if it's, you know, true:
"This NDA, the language of which Motherboard confirmed with multiple beta testers, specifically prohibits EAP members from speaking to the media or giving test rides to the media. It also says: "Do remember that there are a lot of people that want Tesla to fail; Don't let them mischaracterize your feedback and media posts." It also encourages EAP members to "share on social media responsibly and selectively...consider sharing fewer videos, and only the ones that you think are interesting or worthy of being shared."
Here's the thing: you don't need to worry about this kind of stuff if you're fielding a quality, finished product. And contrary to what Musk fans think, people concerned about letting fanboys test 5,000 pound automated robots that clearly don't work very well are coming from a valid place of concern. Clips like this one, for example, which show the Tesla self-driving system failing to perform basic navigational functions while in self-driving mode, aren't part of some elaborate conspiracy to make Tesla self-driving look bad and dangerous. There's plenty of evidence now clearly showing that Tesla self-driving, at least in its current incarnation, often is bad and dangerous:
Ever since the 2018 Uber fatality in Arizona (which revealed the company had few if any meaningful safety protocols in place) it's been clear that current "self-driving" technology is extremely undercooked. It's also become increasingly clear that widely testing it on public streets (where other human beings have not consented to being used as Guinea pigs) is not a great idea. Especially if you're going to replace trained testers with criticism-averse fanboys you've carefully selected in the hopes they'll showcase only the most positive aspects of your products.We've been so bedazzled by purported innovation we've buried common sense deep in the back yard. Wanting products to work, and executives to behave ethically, is not some grand conspiracy. It's a reasonable reaction to the reckless public testing of an unfinished, over-marketed product on public streets.

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posted at: 12:00am on 05-Oct-2021
path: /Policy | permalink | edit (requires password)

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