The Washington Post reports that Oprah Winfrey's lawyers are threatening to sue retired school teacher Patrick Crowe for copyright and trademark infringements because he uses her picture in his website running her for president (link here).

At one level, this is silly. But it does raise a serious question. Does she own the copyright on her image? I don't believe I own mine or you, yours. She is a public figure. Paparazzi take and sell photos of celebrities all the time. The lawyers may rather believe they can scare Crowe into taking down the picture, using the threat of big legal costs.

Joe Nocera wrote a fascinating story about a nasty patent suit between a patent-trolling company, whose board is chaired by none other than Paul Allen, and audible.com. The story begins:

Nocera, Joe. 2006. "Tired of Trolls, a Feisty Chief Fights Back." New York Times (16 September). "Patent disputes have become part of the dark underbelly of American business. So-called patent trolls acquire patents, often from bankrupt companies -- and often overly broad patents that should never have been issued by the United States Patent and Trademark Office in the first place. Instead of using them to build a commercial product, they extract licensing fees from companies that are making and selling real products. As The New Jersey Law Journal put it not long ago, "They exist solely to exact a tax"." "The deck is stacked against target companies, even when their product is not infringing. Patent litigation is expensive, and the judicial system tends to be sympathetic to the patent holder. So companies usually come to the obvious conclusion: it makes more sense to pay than to fight. For its part, the patent troll often prices the licensing fee below the cost of litigation, to encourage such behavior." Abuible refuses to settle, spends a million dollars rather than pay the demanded $300,000, only to find out the troll company does not even have legitimate ownership of the patent. "After a year of legal wrangling, Digeo dropped its price. A clearly frustrated Mr. Blaisdell wrote an astonishing e-mail message in May 2006 to Audible's internal lawyers, saying he was "perplexed as to why Audible has not taken Digeo up on its offer to settle for $300K." After all, he pointed out, that was far less than the "high legal fees" Audible was paying. He added, "Surely you understand that the prospect of convincing a Jury that Audible doesn't infringe or that the Patent is invalid is an expensive one." Digeo may or may not be a patent troll, but rarely has the economics of patent trolling been so baldly stated." "As it turns out, Digeo did not have the complete ownership of the patent that it thought it had. Documents that had been turned over to Digeo when it bought the patent showed that Edward Chang, one of the four co-inventors, had died, and that another -- his brother -- had assigned the rights to the patent to the company that later sold the `823 to Digeo." "Edward Chang, however, was very much alive, and his brother had never assigned the rights to anyone. The documents had been forged -- though it's not yet known by whom. The forgery was discovered by Mr. Kelber, the Audible lawyer. Audible then went to Mr. Chang and got him to sell it a license for $70,000. Last month, when this new evidence was presented, a judge ruled that Digeo was entitled to no monetary damages from Audible."

An interesting set of facts from Mother Jones (hattip: Larry Lessig). They don't seem to understand the distinction between intellectual property which is about controlling ideas, and trademark which is about controlling your identity. While there are excesses in trademark law as enforced by the courts, the basic idea is sound, and any court system is bound to have imperfections.