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.

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.

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.

]]> http://www.whoisyourlawyer.com/twilight-lawsuit/feed 0 http://www.whoisyourlawyer.com/china-charges-cafes http://www.whoisyourlawyer.com/china-charges-cafes#comments Wed, 16 Jun 2010 20:44:34 +0000 Robert Scott Lawrence http://www.whoisyourlawyer.com/?p=1427 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.

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.

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 —

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.

]]> http://www.whoisyourlawyer.com/trade-secret-muffin/feed 0 http://www.whoisyourlawyer.com/google-books-settlement http://www.whoisyourlawyer.com/google-books-settlement#comments Fri, 04 Jun 2010 20:12:52 +0000 Robert Scott Lawrence http://www.whoisyourlawyer.com/?p=1273 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.

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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