Who Is Your Lawyer?

Commentary on Intangible Assets, Fair Use and Parody

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The Bratz Are Back In Town!

July 23rd, 2010 · Copyright, Popular, Trademark

With his usual aplomb, Judge Alex Kozinski of the 9th Circuit casually eviscerated the trial court’s decision in last year’s Barbie vs. Bratz battle, opining that Carter Bryant’s contract with Mattel did not cover “ideas” (only “inventions”) and that it simply wouldn’t be fair to hand Barbie the keys to her her little sister’s billion dollar doll factory.  In Kozinski’s words:

It is not equitable to transfer this billion dollar brand—the value of which is overwhelmingly the result of MGA’s legitimate efforts—because it may have started with two misappropriated names. The district court’s imposition of a constructive trust forcing MGA to hand over its sweat equity was an abuse of discretion and must be vacated.

The full opinion is quite entertaining. For those who want more details from the pundits, please see the Wall Street Journal article and the slightly different take by Bloomberg.

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Willy the Wizard Redux

July 16th, 2010 · Copyright, Popular

When I woke up this morning it occurred to me that I had given short shrift to Willy the Wizard’s claims in my post yesterday, and being a type-A personality the nagging feeling that I hadn’t done my homework sat uncomfortably in the back of my mind at breakfast and on the train into work. So when I had a free moment I pulled up the just-filed federal court complaint to get first-hand intelligence on what the allegations were. A few of them are disturbing  (e.g., the claims that Christopher Little was Adrian Jacobs’ literary agent and received 1,000 copies of Willy the Wizard before becoming J.K. Rowling’s agent) but most of the complaint is taken up with nebulous allegations about how the plot and “feel” of the two books (the other book being Harry Potter and the Goblet of Fire) are the same. And while the litany of complaints is detailed, the allegations themselves ring a bit hollow when looked at individually.

For example, the idea of a wizardry contest at a school of wizardry does not exactly break new ground in the realm of fantasy — one has only to turn to LeGuin’s classic A Wizard of Earthsea (1968) to follow the adventures of Ged at the school for wizards on the Isle of Roke. And one can easily step out of our world and into the Land by merely cracking open Donaldson’s Lord Foul’s Bane (1977), where Thomas Covenant awakes to find himself in a magical world-within-our-world and wields wild magic that makes the Council of Lords at Revelstone uneasy. (Revelstone, of course,  is a wizard’s college, among other things). And our inquiry needn’t end there, since there are innumerable books where the notion of formal training for magicians is a key element (see, e.g., Magician (1982)), and scores more where the idea of a wizard’s apprenticeship is mentioned in passing.

Willy’s claim that the concept of a young boy learning about magic and the secrets of the universe can be protected is patently ridiculous. You can’t copyright ideas, and the young-hero-coming-of-age story, with or without the magical extras thrown in, is no more copyrightable than the tired theme of the penny romance, where the poor heroine is swept off her feet by the dark, mysterious stranger who turns out to be a wealthy prince in disguise.  The coming-of-age plus magic combination is so old it hardly bears mention, ranging from Mallory’s retelling of the tale of the rise and fall of King Arthur in Le Morte d’Artur –first published in 1485 —  to so many iterations on the same or similar theme that they are beyond counting. Without even trying I can think of a handful of books with a similar theme — T.H. White’s The Sword and the Stone (1938); Susan Cooper’s The Dark Is Rising sequence (1965); Lloyd Alexander’s seminal work The Chronicles of Prydain (1964); and C.S. Lewis’ famous The Chronicles of Narnia (1950). In all of them the subject of children finding their way through a magical realm, or finding magic in what they thought was a quite ordinary realm, is central to the (uncopyrightable) theme.

In the final analysis, without parsing any more works of fantasy or dredging up further examples from my misspent youth, my view is that Willy the Wizard’s complaint is weak. If it ends up before a judge who happens to know his fantasy fiction and has a good grasp of mythology, I think poor Willy might be headed for the dungeon.

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Willy the Wizard vs. Harry Potter

July 15th, 2010 · Copyright, Popular

Nothing breeds lawsuits like success. Apart from The Bible and the complete works of William Shakespeare, nothing has captured the hearts and minds of a generation of readers like the Harry Potter saga. In our modern age, of course, the price of fame is being subject to calumny and accusations of plagiarism, copyright infringement, and outright character theft. Although murmurings were made as far back as 2004 that elements of Harry Potter were contained in Adrian Jacobs 1987 book Willy the Wizard, the allegations were dismissed out of hand and the subject of much pooh-poohing in the literary community. Indeed, some commentators even went so far as to denigrate poor Willy as a poorly-written bit of fluff, and Potter author J.K. Rowling claimed never to even have heard of the book — which, in truth, was little known before the trustee for Jacobs’ estate filed suit against publisher Bloomsbury and Rowling in the UK last year. This week, the trustee has initiated the first of what appears to be a multi-continent litigation strategy by suing US publisher Scholastic in district court in New York amid widespread rumours (vigorously denied) that J.K. Rowling’s literary agent was actually Jacob’s agent as well.

At this point in the litigation the parties still are engaged in mudslinging, with Bloomsbury issuing statements claiming that Willy the Wizard was a “very insubstantial booklet running to 36 pages which had very limited distribution” and was of a “very poor quality,”  and partisans on Willy‘s side saying all the nasty things you would expect about J.K. Rowling. I confess to not having read Willy the Wizard, nor engaged in a line-by-line comparison of the sections which are claimed to have been purloined, so I cannot opine with any personal authority about the quality of the claims being made — although I do find it difficult to believe that J.K. Rowling’s expansive universe of characters had its specific genesis in this slight tome. (Perhaps that merely reflects my respect for J.K. Rowling’s achievement in helping my children learn to read, and the pleasure I have taken in reading along with them).  As I said, fame paints a target on your back for the hungry pack. To date, Harry Potter has beaten back all those who claimed to be his progenitors. You will, of course, recall that in 2002 at the height of the Harry Potter frenzy (when every 10-year-old in America seemed to be reading the new Potter book),  Rowling successfully defended herself against a plagiarism claim made by children’s author Nancy Stouffer. Perhaps Willy will end up getting sanctioned just as Stouffer did for making up a false claim. We’ll have to wait and see if the truth will out, or remain forever lost in the shadows of Hogwarts and the Forbidden Forest.

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When’s Salinger’s Sequel Coming to California?

June 17th, 2010 · Copyright, Popular

When, and whether, the sequel to The Catcher in the Rye ever hits the U.S. is a question rife with speculation after the 2nd Circuit’s recent ruling in Salinger v. Colting. For an interesting peek at what’s percolating in the law of sequels, and a link to the decision (and others of note), see the recent article in Collectanea. Whether the book ever hits our shores legally or not, curious readers can always order it from Amazon’s online store in the UK, and simply pay the increased shipping costs  (just as thousands of readers have done with the latest addition to Stieg Larson’s ongoing saga, The Girl Who Kicked the Hornet’s Nest, which was released in the UK several months prior to its US release, much to the dismay of his rabid following). For the literary minded, the review of the sequel — 60 Years Later: Coming Through the Rye —  appeared last year in Slate.

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Twilight Sues Over Stolen Clothing

June 16th, 2010 · Popular, Trademark

Apparently Summit, the studio behind the Twilight movies, is mortally offended that BB Dakota is seeking to sell a copy of the hoodie worn by Bella in one of the teen-vampire romances, and has filed a trademark infringement lawsuit to enjoin the sale of the garment marketed — as one might expect from cheesy marketeers lacking in imagination — as the “Jacket Seen In Twilight.” Good one, eh? What’s astonishing to me is that the trademark office rolled over and gave Summit trademarks for the names “Twilight” and “Bella,” which are frankly so common as to be ubiquitous. For further details, see the story at EW.com.

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China Hits Cafes With Copyright Fee

June 16th, 2010 · Copyright, Internet, Popular

In an attempt to rebut allegations that it allows copyright thieves to roam unmonitored throughout Beijing and the great steppes, China has announced that it will impose a copyright fee on internet cafes which allow customers to download and watch movies while enjoying their lattes. How China intends to monitor internet usage at the 140,000 registered cafes has not yet been revealed, but it should not be an insurmountable task for a country with over a billion people seeking work, and whose attitude toward individual privacy is more draconian than democratic. For further information, see the article on the PI Newswire.

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You Can’t Sing That on TV!

June 16th, 2010 · Copyright, Popular

We all unthinkingly listen to music when we turn on the television. Whether we watch MTV, are addicted to American Idol, sit through the opening soundtrack of any hit series, or just channel surf, we are inundated with lyrics and songs — so much so that we take the presence of music on TV for granted. Stepping back a second, we know that MTV music videos are — obviously — produced and shown with the consent of the performing artists. And we should know that any song chosen for the theme of a series also brings the recording artist some benefits, in that the television studio pays to license the song (and it usually takes off as a hit on the radio, with a corresponding surge in CD sales). But what about those songs that appear ephemerally in bar scenes, or at dance clubs, or the song a character belts out in the shower as he gets ready for work in the morning? Are those also paid for by the TV studios, or are snatches of songs sung on shows permissible use (e.g. fair use)?

The answer is simple, if not necessarily obvious. Generally, the artist is supposed to get a performance royalty, even if just a snippet is used — so that 32 seconds of a pop hit sung by the hero of the series on his commute home could land the artist a check for several thousand dollars. But, as Christina Mulligan has written in her excellent blog post about the hit series Glee, the tension between creation and copyright law may not always find a happy ending — among the many complications of a show that involves weekly mash-ups and alternative arrangements of lots of different music, apparently Bryan Adams still won’t let the Glee kids use his songs (though Coldplay finally relented). So if you were looking forward to a big Summer of ’69 episode, remember that patience is a virtue and pray that the aging rocker has a change of heart.

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Is That A Trade Secret In My Muffin?

June 14th, 2010 · Popular, Trade Secret

Occasionally I find myself laughing with delight at the foibles of trade secret law, where quite often it is actually the case that a serious, dour, pale attorney stalks raging down the halls in Brooks Brothers’ finest  screaming imprecations about someone who has had the gall — the actual gall! — to attempt to misappropriate his client’s most treasured secret, be it the formula for Coca Cola (guarded under lock and key since 1894), KFC’s 11- herbs-and-spices recipe (handwritten by Col. Sanders some 70 years ago), or the seemingly mundane client list for a real estate brokerage. The latest case to hit the headlines reads like a bad mystery — Thomas’ English Muffins Claims Rival Baker Stole Secret To “Nooks-and-Crannies” Formula!!!

A trade secret, of course, is loosely defined as any formula, pattern, device or compilation of information used by a company that is unknown to others and gives the company a competitive advantage. Examples come in many shapes and sizes, and include such things as unpatented inventions; future product designs and research; non-public company documents such as blueprints, laboratory notebooks and training manuals; marketing, purchasing, planning and customer information; and financial, accounting, recruiting and legal information. Basically, any information that a company finds exceptionally useful and deems “Top Secret” may qualify for trade secret status — with certain caveats.  If someone outside the coterie of top level employees with access already knows your secret, of course, it’s not really a secret at all, and (as you might expect) you cannot retroactively go back and make it one. Once the cat’s out of the bag, the horse is out of the barn, the bird has flown the coop, etcetera . . .  it’s bye-bye trade secret. Similarly, if you fail to take adequate measures to protect the secret, or are so boastful and clumsy as to actually tell someone else the secret, then you lose all trade secret protection. Given that some secrets are worth billions, one can see the attraction of those espionage thrillers where the secret agent seduces a corporate employee and pumps her for information or spontaneously befriends the loner lab geek and then gets him so intoxicated he blurts out every secret he ever knew. While real life may not mimic fiction quite at the level suggested by Clive Owens’ secret agent romp in Duplicity, rest assured that there are plenty of industrial spies lurking in corporate hallways, going through the rubbish at 5:00 a.m. hoping to find a scrap worth millions.

Although I mention the Thomas’ English Muffin case partially in jest, as it seems somewhat ludicrous that the internal consistency of a muffin could, in fact, constitute a trade secret, it does raise the question of just what you can take with you as a departing employee. Say you’ve been there for ten years and know the operation inside and out, know how to mix a muffin in your sleep, know what temperature the muffins need to be baked at, and for how long, and how long they need to cool before being bagged. You know it so well you don’t even have to think about it anymore. But now you’ve been offered a great job down the street at an independent bakery that wants to bring muffins to the masses — what do you do? Do you pretend you don’t know how to make a muffin? Just what information is an ex-employee allowed to use? The answer, as eloquently expressed by Judge Shadur in Fleming Sales Co. v. Bailey, 611 F. Supp. 507, 514-15 (N.D. Ill. 1985) is this:

Such information [as] comprises general skills and knowledge acquired in the course of employment. Those are things an employee is free to take and to use in later pursuits, especially if they do not take the form of written records, compilations or analyses. Any other rule would force a departing employee to perform a prefrontal lobotomy on himself or herself. It would disserve the free market goal of maximizing available resources to foster competition…. [I]t would not strike a proper balance between the purposes of trade secret laws and the strong policy in favor of fair and vigorous business competition.

So, no frontal lobotomy required. I hope that puts your minds at ease as much as it did mine. You can still bake a muffin, though if you land at a competitor you should know that — even if you refrain from using the magic mixing machine and never even think about the almost-mystical nook-and-cranny formula — you are still likely to be sued.  No matter how innocent your muffins might be, in the end, it’s all about the dough.

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Factoids About the Google Books Settlement

June 4th, 2010 · Copyright, Internet, Popular

For those of you who are confused about what Google actually hopes to accomplish by digitizing more than 12 million books, and what the implications are for copyright holders, the Open Book Alliance has published a very interesting analysis of the proposed Google Books Settlement, which attempts to parse rhetoric from reality. The article can be found here.

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The RIAA Will Sue Your Grandma

May 28th, 2010 · Copyright, Technology

The RIAA has now sued or threatened to sue more than 28,000 people in the United States, in most cases extracting settlements of several thousand dollars from college students, housewives, and families with precocious preteens who downloaded music from Grokster, Kazaa, LimeWire, or BearShare. In many cases the infractions alleged are minimal (e.g., 5 songs) but the damages sought are not. The litigation strategy is intended to create the public perception that even the smallest infraction will be prosecuted and even the most naive teenager will be punished. The lawsuits are clearly not brought to win damages  – suing unemployed college students has never been a winner on the Mensa list of ways to make a buck. Obviously, the real intent behind the lawsuits is to strike fear into the hearts of everyone contemplating file-sharing, to instill the thought in the back of your mind that you could be next. What the RIAA wants is for you to pause before downloading, remember the litigation horror stories, and delete LimeWire from your desktop. If you remember that RIAA lawyers are so aggressive they will not hesitate to sue your deceased grandmother, perhaps that will deter you from your illicit quest to download “I Wanna Know What Love Is” for free.

Though the RIAA’s litigation strategy apparently has a certain surface appeal to music industry egos, in real life the RIAA’s rigid litigation model has not yielded meaningful results. Apart from alienating the general public and creating an enormous amount of superfluous litigation for the courts’ already overcrowded dockets, the results have been abysmal. The RIAA has failed to discourage file-sharing, and created an underground file-sharing community that — like Ninja assassins — quietly creep up out of nowhere and download billions of songs on ever-changing platforms. Every time a file-sharing company gets big enough to be noticed and sued by the RIAA, it is replaced by yet another start-up providing exactly the same service at a new location, with better cloaking technology. While the industry can sue LimeWire, Pirate Bay, Napster, and all and sundry for all they’re worth, eventually a compromise is going to have to be made. The “we’ll sue you into the ground” business model is not working, is not good business, and is quite possibly not good law — just yesterday the 16 year old cheerleader who got sued for downloading 37 songs and was ordered to pay $27,750 filed a Petition for Certiorari with the Supreme Court asking the court to overturn the decision against her on the (frankly quite believable) grounds that she didn’t realize that file-sharing was against the law.

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Now You Can’t Even Make Fun of Hitler

May 24th, 2010 · Copyright, Popular

Several weeks ago YouTube announced that it was taking down all the parody videos of Hitler’s explosive speech to his general staff — in which Bruno Ganz channels the ghost of Hitler and does a compelling embodiment of instantaneous psychotic rage — based on claims by the creators of the film Downfall that the viral spoofs infringed their copyright in the film. Although this was, and is, rather controversial (see criticism here), the elimination of the video clips was not undertaken with anything like German efficiency, and many of the clips remain up and running, including perhaps the best clip of them all — the one where Hitler bitterly complains about all his videos being rudely yanked from the airwaves and lambasts Constantin Film AG for conspiring against him with the likes of Rommel and the rest of the ungrateful staff officers.

Frankly, faux Hitler may have a point. Since the spate of video spoofs first appeared on the web, rentals of Downfall have dramatically increased, moving the film out of the “it was nominated for an award but now you can’t find it” category into a late-night Blockbuster favorite.  Given the intrinsically dour nature of the film (which is about Hitler’s last days), one could reasonably conclude that the YouTube publicity resuscitated a film that had only been seen by a handful of people since its release in 2005.

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And Not-So-Free Books

May 11th, 2010 · Copyright

Yesterday I emoted a bit on the prospect of an all-information-all-the-time database which the public could access for free, and as exemplars of this paradigm shift away from market-driven pay-as-you-go access to information I cited Project Gutenberg and Google Books. While Project Gutenberg’s 30,000+ tomes are indeed free — really free — to anyone with access to a computer or virtually any e-reader with a USB port, my reference to Google Books was more optimistic than exemplary. While Google has already scanned and plans to offer over 12 million books to the public pursuant to the the Google Books Settlement (the revised version of which is still pending court approval based on Justice Department concerns), the reality is that these books won’t be free. You can look at 20% of any book for free (by default), but Google Books will charge you a fee to access the entire book.  While digitizing all books is obviously the only way to ensure their continued availability and survival, the myriad of problems surrounding ownership rights and the ever-present-issue of “Who gets paid?” still have a few kinks to be worked out. Although they may not be insurmountable, at the moment these kinks loom Everest-like over the prospect of a happy ending.  Under the current regime, that book you can check out at the library and read for free? You can’t read it online without paying a fee.  For a detailed discussion of the copyright issues surrounding the Google Books Settlement, see the article by Annalee Newitz of io9.com here.

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Free Books!

May 10th, 2010 · Copyright, Technology

If you have ever read any space opera or even been a casual observer of sci-fi on television (e.g., Star Trek), you will be familiar with the idea that one of the advances civilization finally manages to accomplish with the advent of advanced computing capabilities is the information net, where all human knowledge and data is collected, stored, and backed up in multiple locations — so many locations, in fact,  that it is almost alive in the ever-growing cloud of data that is accessible to all with a mere click of the mouse, com unit, or other fanciful device dreamed up by the minds of the legends of science fiction. Those of a certain age may recall the late, great Isaac Asimov’s  Foundation Series, as well as other seminal entries in the field by the other two giants of science fiction, Robert A. Heinlein (Stranger In A Strange Land) and Arthur C. Clarke (Childhood’s End), whose dreams of what the future held for humanity have in many respects come true, as space travel, personal computers, hand-held communication devices, tasers, AI, solar power, electric cars, and even energy bar have in many respects become commonplaces that we take for granted. Recently, part of the information legacy predicted by these authors and others has started to come true, as the advent of the e-reader has made it a winning proposition for books to be published electronically, so that a true e-library is possible. The current iterations are in flux, but the respective plans of  Project Gutenberg and Google Books to digitize the entire catalog of all available novels, plays, stories, biographies, poems, tomes, treatises, and arcana are a huge step in the direction of allowing the public to freely access humanity’s cultural legacy.

If you’ve never taken a look at what you can read for free, check out Project Gutenberg. Over 30,000 titles are available at the click of a mouse, including works by F. Scott Fitzgerald, Saki, Alexandre Dumas, Franz Kafka, Jane Austen, Mark Twain, James Joyce, and many other acclaimed writers. And soon Google will be adding 4 million more titles for your reading pleasure. Time to upgrade your RAM (so you can read faster).

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Wanna Get Lucky?

April 29th, 2010 · Popular, Trademark

Widely hailed as the best jeans in the kingdom of denim by fashionistas everywhere, Lucky Brand jeans fell victim to its own overripe image this week in its trademark infringement case against Miami-based Marcel Fashion Group, which sells the GET LUCKY line of apparel.

Following a five day jury trial in the Southern District of New York, the jurors handed down a verdict finding that aggrieved plaintiff Lucky Brand had in fact stolen its luck, and infringed on Marcel’s GET LUCKY trademark. Branding Lucky with a permanent bad actor stamp, the jury found that Lucky had acted wantonly and awarded punitive damages of $280,000 against it. Given that there was clear evidence that Marcel had registered and used the trademark GET LUCKY years before Lucky Brand was even formed, one has to wonder what Lucky’s lawyers were thinking in bringing the action. Putting aside the hubris induced by long-term exposure to the rarefied air of haute couture, one has to give serious consideration to the possibility that their jeans — fashionably cut a size too small — simply cut off circulation to their heads. This seems eminently reasonable, particularly since the verdict follows hot on the heels of last year’s sanction award against Lucky for repeated discovery violations.

While it’s still a toss up whether Lucky is going to try its luck with the court of appeals, rest assured that Lucky Brand jeans will still be available at your local outlet. If you hurry, you might get lucky and find a size that fits.

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Who’s Watching You While You’re Watching Godzilla?

April 19th, 2010 · Copyright, Popular

In a nation where what we read, view, and do in the privacy of our own home has traditionally been sacrosanct (though admittedly not without legal battles), the people who entertain us now want to usher us into an era where we pay taxes to have the government police what we watch, what we listen to, what we read, and what we download, on the strength of the hypothetical argument that the entertainment industry might be damaged if no one watches the watchers.

As we know, Hollywood does not want its movies copied, the recording industry does not want its records copied, television doesn’t want BitTorrent to let you watch all the episodes of the Honeymooners for free, and no one wants you to be able to watch your local baseball team play home games anywhere unless you pay for a premium cable package. Hollywood wants you to believe that copying a movie is as bad as stealing a purse. Hollywood tells you that you may be prosecuted by the FBI – in English, French and Chinese — every time you play a DVD. Hollywood wants you to think telling its stories to other people is bad, unless you pay the studios every time you tell the story (or sing the song, or show the clip, or replay the highlights). Hollywood, the purveyor of entertainment, demands that you honor the tradition of the market, and insists in a strident voice that “There is no free lunch. No handouts. Everything is pay to play.” From the leer of the carnie barker to the empty smile of the Disneyland cashier, the cold hard truth is that they all just want to be paid. Fun costs money. No change returned.

And we get it.  It’s not the 50s anymore, or even the 70s, and those nifty ideas about cheap cable and kids fly free are as archaic as the misguided notion of free love, as tired as apocryphal stories about quarter movies, nickel Hershey bars, and penny arcades. Everybody is entitled to make a living, even the entertainment industry. But . . .  remember when you were a kid? How there was still fun to be had at reasonable prices, even – dare I say it – for free? Remember sneaking in to the drive-in? Remember double features? Or Kid’s Night at Jack Murphy Stadium? Or matinee prices that acknowledged that 9-year-olds should get more than a one-dollar discount? Or how about when the library was open on Sundays too? Those days are gone, as cleanly erased as if they had never existed. America’s demand to be entertained every second of every day (when not working, of course) has created a monster that now preys on everyone. The industry that brought us Godzilla and Mighty Mouse, Babe Ruth, and The Three Stooges has become a behemoth that demands a never-ending stream of cash, in exchange for which it churns out entertainment on-demand. There is no educational or cultural event that cannot be dressed up as entertainment in order to separate the consumer – you, me, everyone – from as much money as the market will bear. Want to see the ballet on TV? Pay $35. Want to see a spelling-bee contest? $12.  NASCAR? Basketball? Soccer in Argentina? The weather in Swedish, live? It’s available somewhere, try channel 2864. You can see anything you want, hear anything you want, but you have to pay for all of it.

The idea of being able to have everything at your fingertips is alluring, of course, but creates its own category of problems. The reaction in the entertainment world has been, primarily, one of fear. It’s all out there, on the web, in the cloud, in the bit stream, and the corporate executives wake up afraid that you are going to access it, for free. Although the entertainment industry is making more money than it ever has, they are afraid of the 19-year old downloading a new single for his girlfriend, or of you lending your Kindle to someone else as if it were a book (of all things). We are told that these are gateway crimes that must be harshly punished, lest they lead to the more serious violation of . . . what, exactly? Wholesale worldwide piracy? The nationwide promulgation of a hot new single on You Tube before the studios figure out how to monetize it? Do they even really know what it is they fear?

The proposed solution, of course, does not solve the problem. Given that there are several billion people on the planet with internet access, the entertainment industry’s solution to simply monitor everyone is not only bizarre and unworkable, but turns entertainment for the masses into a way to spy upon the masses.  This is what one might expect from an industry that came up with a character named Bizarro, the anti-Superman, but it is not a solution. Instead it is merely anti-entertainment, good for no one — not even good for a laugh.

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Everybody Loves Barbie

April 16th, 2010 · Copyright, Trademark

Barbie is, of course, an American icon known to virtually every man, woman and child in the United States. Even if you are a man (and played with G.I. Joe as a boy), your sisters played with Barbies, or your cousins did, or the girls down the street had tea parties with Barbie in the back yard. Even if you have not seen an actual Barbie doll since you were a child, simply by virtue of living in our culture you have been exposed to the concept of Barbie. Think about it. If you have seen a movie in the last six months you will have seen the trailer for Toy Story 3, which dramatically stars Barbie and Ken as heroine and hero, respectively — although  Ken may be a villain. It’s difficult to tell given his penchant for ascots, which are mainly associated with wealthy layabouts and decadent aristos.

Putting Ken aside, Barbie is a cultural icon, and she looms large in the American imagination. If you have daughters under the age of ten, you will invariably have been subjected to Barbie-mania at your local Toys ‘R’ Us, where your options include not just Handicapped Barbie or Bilingual Spanish Teacher Barbie, but Hard Rock Café Barbie, Star Trek Barbie, Harley Davidson Barbie (Ken has  a ponytail and wears leathers), and Top Model Barbie, to name a few. Having not entered a Toys ‘R’ Us since approximately 1976 myself, I was astounded to find some 50 different Barbies on display, including ceremonial Barbies  eerily reminiscent of the porcelain dolls collected by childless spinsters.

Recently, of course, Barbie made headlines with her huge trademark infringement victory over the Bratz dolls franchise, which shut down the Bratz and garnered a cool extra $100 million for Barbie after the jury decided the Bratz were bastard offspring created by Carter Bryant when he worked for Mattel. Though this is a far cry from the $1.8 billion sought by Barbie, you  have to conclude that big sister won this round.

Litigation hasn’t always gone Barbie’s way, however. As is the case with many a top model, controversy is a staple of Barbie’s diet, and sometimes the results are hard to swallow. You may recall the humorous prank in 1993 when a group calling itself the “Barbie Liberation Organization” modified Barbie dolls by giving them the voice box of a talking G.I. Joe doll, and secretly returned the dolls to the shelves of toy stores. Parents and children were surprised when they purchased Barbie dolls that uttered phrases such as “Eat lead, Cobra!” and “Vengeance is mine!” That vexed Barbie, and preyed on her mind for years, so when the Danish-Norwegian pop-dance group Aqua released a song called “Barbie Girl” in 1997 which contained lyrics such as “You can brush my hair / Undress me everywhere” and made other obvious references to Barbie, Barbie threw a hissy fit and sued MCA Records for trademark infringement and – if you can believe it – defamation. The case wended its way through federal court until finally, in 2002, Judge Alex Kozinski ruled that the song was protected as a parody under the First Amendment, and famously advised the parties to “chill.” This was a rough period in Barbie’s life, where the world seemed to turn its fickle back on her as it does so often with celebrity favorites – see, e.g., Britney, Lindsay – and every time Barbie took steps to protect her image it seemed as if she got slapped down by the legal system and ridiculed by the media.  While “Barbie Girl” was being blasted through the airwaves on what seemed like the radio of every car in America, a Utah artist named Forsythe had the audacity to publish unflattering photos of Barbie.

Barbie’s lawyers got aggressive with Forsythe – who claimed that Barbie was the symbol of everything that was wrong with our consumer society – but the embattled star again lost in federal court and was ordered to pay Forsythe $1.8 million.

The late 90s and early years of the new century saw Barbie’s market share erode, her influence on pre-teens fade, and she appeared on her way to a  senescence heralded by her long-overdue breakup with Ken. With the Bratz victory breathing life back into Barbie’s career, however, she has little need to concern herself with either the competition or the sound and fury of the artistic community. Barbie is once again firmly ensconced in her role as Queen of the Dolls, and can magnanimously ignore backhanded compliments such as the 2011 Altered Barbie competition, where artists vie to show Barbie in all her multifaceted glory.

These days, such things are simply beneath her notice.

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Technological Marvels

April 13th, 2010 · Arcana, Technology

Of the many technological innovations that have leapt onto the stage of world commerce and actually changed the way people interact with the world around them every day, there are a few that are so startlingly transformative they actually shock the public into a new frame of perception. I have a few personal favorites that I believe should be included in any list of life-changing  inventions.  Below is a brief sampling of what I find significant:

1.  The lowly Post-It, now so ubiquitous we do not question its presence in our lives, the byproduct of an accidental invention by a 3M scientist of a reusable, pressure sensitive adhesive. Dr. Silver’s invention of a glue that didn’t work very well lay dormant until another 3M scientist became so frustrated by the way his bookmark kept falling out of the hymnal during choir practice that he had a sudden insight — a flash out of nowhere — which engendered the creation of the Post-It. This strange concatenation of circumstances is responsible for all the stickies in your legal reference guides and in the books your 3rd grader takes home, on which she writes minute plot descriptions in childish braille. In 2000, the 20th anniversary of Post-It notes was celebrated by having artists create their artwork on Post-It notes. One note that was made by artist R.B. Kitaj sold for £640 in an auction, making it the most valuable Post-It note on record.

2.  Liquid Paper, now fallen by the wayside and made practically obsolete by time, but fondly remembered by those who grew up learning the qwerty system in the era of carbon paper, before the advent of the IBM Selectric and its magical self-correcting ribbon.  It was invented by the mother of Monkees band member Michael Nesmith, who whipped up batches of the stuff in her kitchen for 17 years before finally succumbing to corporate pressure and selling her invention for $47.5 million in 1979.

3.  The flushing toilet. While Thomas Crapper is commonly given credit for inventing the first flushing toilet in the late 1800s, the first modern version can actually be traced back to 1596, and was the brainchild of Sir John Harrington — the godson of Queen Elizabeth I — who engineered and invented a valve that could release water from the water closet (WC) when pulled. Though Harrington’s version differs in many respects from the modern toilet found in today’s homes, history owes him an apology for the ridicule he endured for attempting to bring a bit of civilization back from the dead. Back from the dead, I say, since any reasonably well-educated Greek scholar will recall that King Minos of Crete had a flushing toilet installed some 2800 years ago.

4.  Toilet paper. Invented by the Chinese, the first historical record of its use is in the year 589.  In 1391 the Bureau of Imperial Supplies began producing 720,000 sheets of toilet paper a year, each sheet measuring two feet by three feet.  Recently rediscovered by the French.

5.  The book. Predicated, of course, on the invention of paper (also a Chinese invention) as well as the invention of the printing press by Johannes Gutenberg in 1440.  A single Renaissance printing press could produce 3,600 pages per day, compared to forty pages by hand-printing and a few by hand-copying. Books of bestselling authors like Luther or Erasmus sold hundreds of thousands  of copies in their life-time — which equates to Michael Crichton-like sales on the bestseller lists of today. The original book (not the iBook), of course, whose distribution was enabled by the printing press was everyone’s favorite — The Bible — which remains the most widely-disseminated book in the history of the world even today.

This list, obviously, is not all-inclusive, nor is it intended to be. I intentionally left out other, arguably equally-interesting-and-world-changing inventions such as the light bulb, the telephone, money, alcohol, cigarettes, and the personal computer (to name a few) out of a desire to be concise. If you care to suggest your own favorite world-changing invention, please feel free to leave a comment below.

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Tattoo Nation

April 6th, 2010 · Internet, Popular

For the last year I’ve come across tattoos in odd places. One day I’m walking to my favorite San Francisco coffee shop — Cafe Amici — and I bump into a group of teenagers. I look up and one of the boys is shaking a little tin cup and has a tattoo of a pink hippopotamus on his forehead. Not a sticker, not a temporary tattoo, but indelible ink on his forehead. A hippo.

Fast forward several months, I’m in line for an espresso at the same shop, and right in front of me is a guy with tiger stripes tattooed on his neck and face, and presumably on the rest of his body. He looks cool, but I hope for his sake he’s famous. Or at least rich.

Then, yesterday, a friend sends me a joke email entitled Why Can’t I Get a Job? that shows a host of 20-somethings with prominent facial piercings and tattoos, as well as — in a few cases — a cosmetic alteration designed to make the bearer look as though he starred in Hellboy and has little demon horns bursting from his skull. Funny, weird, a statement I’m not particularly sure I’m capable of understanding.

Finally, today I pass a kiosk that has a picture of movie star Megan Fox in lingerie, advertising something or other, and prominently displayed on her right forearm is her famous tattoo of Marilyn Monroe. Believe it or not, one of my first thoughts was “I wonder if Marilyn’s estate has publicity rights in the tattoo on her arm?” And then my mind spun down the twisted legal path of wondering if an argument could be made that Megan Fox is unfairly trading off of Monroe’s goodwill by permanently associating herself with Monroe — i.e., by virtue of having tattooed the iconic symbol onto her flesh. If someone did that with another trademark — say, the McDonald’s arches — would McDonald’s have a viable trademark infringement case against them? What if the individual prominently flaunted the tattoo in photo spreads across the world in a way that was clearly commercial (e.g., in advertisements) or in a way that perhaps disparaged the sainted patriarch of fast food? One can imagine a porn star with a Ronald McDonald’s tattoo named Ranni Macdonald that might cause offense in the same way that Mariah Carey was offended by porn-star-turned-politician Mary Carey’s attempt to trademark her stage name (which Mariah ill-advisedly opposed on the grounds that it would confuse the public). Intrigued by the Monroe question, I discovered a pair of federal court cases discussing the posthumous rights of Marilyn Monroe — Milton H. Greene Archives, Inc. v. CMG Worldwide, Inc. and Shaw Family Archives Ltd. v. CMG Worldwide, Inc. — which held that because (a) Monroe died before California’s Celebrity Rights Act was passed in 1985, and (b) the state of New York does not recognize a right of publicity after the artist’s death, Monroe’s name, image, and voice are now in the public domain in the states of California and New York. By implication, they would also be in the public domain in any state that, at the time of Monroe’s death in 1962, did not recognize a right of publicity that survived the artist’s death.

In response to those rulings, California passed legislation that created descendible rights of publicity that last 70 years after death — retroactively — for any person who died after January 1, 1938.  Armed with the newly-passed SB 771, in 2007 the heirs of Monroe’s estate moved for reconsideration in the Milton H. Greene case. While the court agreed that due to the passage of the bill, Monroe’s heirs had standing to assert Monroe’s posthumous right of publicity under California law, in a peculiar twist — because of inconsistent positions previously taken by Monroe’s estate before the California taxing authorities (which had the effect of drastically reducing her estate tax) — the court ruled that the heirs were barred from claiming that Monroe lived in California at the time of her death. Which meant “Game over, heirs.”  Do Not Pass Go. Do Not Collect $200.

And this laid my query to rest.  The public now owns Marilyn, so Megan Fox is at liberty to flaunt her Marilyn tattoo to all and sundry, without fear of prosecution from the grave. And should you, yourself, desire to adorn your body with an image of America’s great Hollywood diva, you may do so as well.  Just don’t expect it to do for you what it did for Megan Fox.

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Technorati Claim Token

March 30th, 2010 · Popular, Technology

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This is not an actual post. This is only to verify our claim token with Technorati so you can find us there too!

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Who Owns Your Second Life?

March 27th, 2010 · Copyright, Internet, Popular, Trademark

A few years ago Julian Dibbell wrote a book called Play Money — Or, How I Quit My Day Job And Made Millions Trading Virtual Loot, which detailed the year he spent trying to win a bet with himself. The bet:  that he could make more money by killing trolls and demons (or making armor) in Ultima Online than he ever had as a writer. Quirky concept, I agree, but the more you look into it the more interesting the idea gets, especially when you realize that the gold pieces used as currency by Ultima Online and other massively multiplayer online games (e.g., World of Warcraft, Eve Online or Lord of the Rings Online) are actually traded online in the same way that say, Brazil’s currency (the real) is. And many of the currencies from virtual worlds are more stable than those circulated by certain South American regimes.

There are a number of legal issues from virtual worlds that have superficial interest or — perhaps better stated — create the equivalent of cocktail party chatter for the intellectual property crowd. For example, in many online worlds you may chose to be an honorable member of the Thieves Guild, in which case it is perfectly acceptable for you to wander the world breaking into houses and stealing jewels and gold and artifacts — you’re a thief, after all, so it’s basically your job to act in this fashion — whereupon you can trade these items for something else in virtual reality (e.g., food, weapons, a horse, a house, etc.), or if you managed to get your hands on something truly exceptional you can simply list it on eBay and sell it for real dollars. So you’re stealing from people in virtual reality, fencing the goods on eBay, and pocketing the cash in your PayPal account, all tax free, since the IRS has no idea how to value what you’re doing.  And did I mention it’s all perfectly legal?

Apart from the idea of a currency exchange (which makes sense when you realize that more than 10,000,000 people play World of Warcraft regularly, and many other MMOGs have over a million subscribers), these online worlds are rapidly changing the way intellectual property law works. Intellectual property, of course, deals with intangible assets, and thus dovetails perfectly with the concept of intangible worlds. Recently, though, the questions asked have been real brain twisters. For example, who owns the rights to your avatar — the “you” you created –  in the online world? What if you upload a real photograph of yourself to the game server and the character you are playing actually bears your face — which you can actually do in Tiger Woods PGA Tour 10? What if the user agreement you signed (by clicking “I agree” when you logged on for the first time) says that all intellectual property in the game, including anything you create while using the game, remains the property of the corporation that owns the game? Who owns your avatar now? Most people never even read the user agreement, of course, but does the fact that it’s mandatory that you agree in order to play the game mean that it’s a contract of adhesion and can be voided, or does it mean you foolishly gave up your intellectual property rights in exchange for the privilege of being a half-elf ranger wandering the forests of Elfheim during the 22 hours a week you play the game?

If this sounds too theoretical, note that last year Taser International sued Second Life for trademark infringement because characters were using, and selling, virtual replicas of tasers in the game. Sounds silly, doesn’t it, until you find out that people pay $100 million to Linden Labs every year to buy Linden dollars so that they can clothe and feed their avatars in Second Life, and that the virtual reality gray market generates about $6 billion in revenue annually. And then someone tells you that Ben Folds Five actually did a live concert in Second Life (and you couldn’t hear it unless your avatar bought a ticket and attended), and Judge Richard Posner of the Seventh Circuit Court of Appeals has given lectures in Second Life, and Coke, Pepsi, Gap, Versace, Porsche, McDonald’s and all the other corporate sponsors are sniffing around figuring out how to protect and capitalize on their trademarks in these realms. Somehow, the more you look at it, the less silly it seems. Where real money stands to be made by playing with Monopoly money, the law perks up its ears and starts paying attention.

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