Seventh Circuit Opinion Cites Infringing YouTube Video–Stoller v. Brett

By Eric Goldman

Central Manufacturing, Inc. v. Brett, 2007 WL 1965673 (7th Cir. July 9, 2007)

Leo Stoller, the notorious trademark gadfly, lost another case, this time at the Seventh Circuit. Among other denigrations, the Seventh Circuit said that “were there a Hall of Fame for hyperactive trademark litigators, Stoller would be in it.”

Judge Evans weaves lots of baseball lore into the opinion because the defendants include baseball great George Brett. In fact, the mere presence of George Brett appears to make Judge Evans swoon, because he spends almost half the opinion gratuitously reliving the story of George Brett’s famous “pine tar” incident. As part of this, the opinion says:

The whole colorful episode is preserved, in all its glory, on YouTube, at (last visited June 6, 2007)

Well, not exactly. The video WAS there earlier today, but the page now has the dreaded red legend “This video is no longer available due to a copyright claim by MLB Advanced Media.” In fact, anyone who watched the video had no doubt that it was 7 1/2 minutes of MLB’s copyrighted work…but the Seventh Circuit opinion nevertheless encouraged readers to view it. Whoops! Let’s hope for the Seventh Circuit’s sake that such encouragement isn’t contributory copyright infringement

Too bad the MLB couldn’t find it in its heart to leave the video alone to preserve the cite from a Seventh Circuit opinion (the MLB official site linked above does have the radio broadcast, but not the video). Then again, realistically, the MLB isn’t known for being magnanimous about IP law. Meanwhile, I suspect the Seventh Circuit will have an internal dialogue about the perils of promoting infringing YouTube videos in their opinions.

FWIW, the rest of the opinion is also entertaining. John Welch of TTABlog is on the case.