The Anchor Plate : Intellectual Property Lawyers & Attorneys : BrickHouse Law Group : Open-Price Lawyering, Hourly Billing : St. Louis, Missouri

 To your left is Exhibit A in Cariou v. Prince, one of the most significant and troubling copyright "fair use" cases in recent years. The plaintiff, Patrick Cariou, is a professional photographer who published a book of his Jamaican works entitled YES, RASTA. The book includes striking portraits of Rastafarians he met during his years in Jamaica. The main defendant is Richard Prince, a well-known "appropriation artist."

Exhibit A is entitled "Inquisition." It is one of 29 works in Prince's Canal Zone series, 28 of which include photographs from Cariou's book that Prince copied, arranged in collages, and added tints or paints. Cariou sued for copyright infringement, and Prince defended on "fair use" grounds. Earlier this year U.S. District Judge Deborah Batts entered judgment in Cariou's favor, rejecting Prince's defense in a carefully reasoned opinion. To put it mildly, the world of art law sat up and took notice.

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In January of 2011, Facebook launched its "Sponsored Stories" ad program. As Ad Age magazine explained back then: if Starbucks, for example, buys a Sponsored Story ad, then the next time you check in or "like" a Starbucks, your updated status will run twice for all your Facebook friends: once in your news feed and again as a paid ad for Starbucks. That second time will be on the right side of each of your friends' news feeds, complete with your name and photo, and marked with the words 'Sponsored Story.' (The image on the right is the example from the Ad Age story.)

In other words, you will have become an unpaid spokesperson in a Starbucks ad. And you will have also become a potential plaintiff in Fraley, et al. v. Facebook, Inc. one of the most fascinating right-of-publicity class actions in America.

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The House of Representatives is scheduled to debate SOPA (the "Stop Online Piracy Act") later this month. There has been a great deal of debate already about the potential impact of SOPA and its counterpart, the PROTECT IP Act ("Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act"), in the Senate. Stephen Colbert moderated a superficial, but entertaining debate on one of his episodes. The Hollywood Reporter is following the debate and analyzed some of the copyright secondary liability cases that might be used to argue for SOPA-like remedies even if SOPA does not pass.

SOPA, its myths and reality, are discussed on Law of the Geek Episode 4: "Shiver Me Timbers! A SOPA Discussion." 

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By the time the St. Louis Cardinals reached the World Series, the little gray squirrel that had dashed across home plate during Skip Schumaker's at-bat early in the playoffs had been transformed into The Rally Squirrel, complete with Rally Squirrel towels, Rally Squirrel t-shirts and Rally Squirrel stuffed animals.

And by the time Alan Craig caught the final out in the 9th inning of Game 7, the first application to register RALLY SQUIRREL was on file with the U.S. Trademark Office, to be followed ten days later with an application to register RALLY SQUIRRELS. Both were filed by businesses unaffiliated with Major League Baseball. And both raise the same question: should a company be able to claim trademark rights in a name that originated in the public domain?

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I've started podcasting.

I've thought about doing this ever since a commenter on the blog found us after listening to a podcast on which I was a guest. The hospitable crew over at The Podgecast had let me guest ramble about IP law related to comics, movies, role-playing games, and pretty much any thing else. We even talked bout this blog and alternative ways to approach IP litigation.

I thought it would be a good idea to dig up some good resources for IP law podcasts and post them here.

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Okay, copyright fans, time to unpack our lamest finger cliches. Earlier this month down in San Antonio federal court, #1 Fan Company and Spirit Industries commenced the ultimate case of finger-pointing in their copyright infringement complaint in #1 Fan Company et al. v Pangea Direct. The creation at the center of the lawsuit is that over-sized foam hand with upraised forefinger familiar to sports fans everywhere.

The issue, at least as framed in the complaint, is whether Pangea's version of the foam hand (shown to the right) infringes the plaintiff's prior version (shown to the left).Ah, but keep your fingers crossed.The more intriguing issue is lurking just behind those fingers, and it will likely turn into a copyright dispute that is, well, finger-lickin' good.

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One of my favorite clients has just won a courtroom battle with ramifications far beyond the trading cards at issue in the lawsuit. Indeed, its victory is literally historical, since the case addresses the issue of who owns great moments in history: the participants or the public?

Here, that great moment in history took place on July 21, 1969.  That's when astronauts Neil Armstrong and Edwin "Buzz" Aldrin, Jr. climbed down from their Apollo 11 lunar module and  became the first humans to walk on the Moon.

Armstrong captured that moment with his camera, pointing it toward Aldrin and snapping what has since become the most famous space-related photograph of all time, the iconic Visor Shot. This year, however, that same image was the focus of Aldrin v. The Topps Company, Inc.., Case No, CV 10-09939 (C.D. Cal. 9/27/2011)., where the issue was whether Buzz Aldrin's right of publicity trumped Topps' right to portray his historical moment on a trading card. 

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Indiana officially became the Zombieland of the Right of Publicity in 1994. That was the year it enacted Chapter 36 of Section 32 of the Indiana Code, which, among other things, provides that a personality's right of publicity lasts for 100 years after that person's death. Moreover, it didn't matter if the dead celebrity's "home" State--such as New York--had rejected a post-mortem right of publicity. That's because Indiana's statute "applies to an act or event that occurs within Indiana, regardless of a personality's domicile, residence, or citizenship." (Ind. Code 32-36-1-1(a) (emphasis added).) Since commerce tends to be national, a product bearing a dead celebrity's name would find its way into Indiana.

Welcome to Hoosier Zombieland, where Thomas Edison, Henry Ford and millions of others could rise from the dead to sue you for violating their right of publicity. Indeed, potential plaintiffs include Frankenstein (Boris Karloff, died 1969), Dracula (Bela Lugosi, died 1956), and the Phantom of the Opera (Lon Chaney, Sr., died 1930).

Ironically, though, it took a courtroom battle between the Godfather and Indiana's own John Dillinger to slap some restraints onto the Indiana statute.

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Geoff and I had a great opportunity to be speakers last week at the Missouri Bar Solo and Small Firm Conference.  For those who don't know, this is one of the biggest conferences of its kind in the country--over 1000 lawyers from all walks of the practice.  We learned a lot and made some new friends and contacts, too.

There are so many legal issues--both risks and opportunities--presented by the ever-growing world of Social Media. We didn't have all day to speak (and would have bored the audience to tears if we had), so we focused on Discovery and Evidentiary Issues with Social Media in Litigation.

I won't repeat the whole presentation here, but I will some it up: Social Media presents many new SOURCES of evidence, but it is still just evidence--all of the old evidence rules apply.

As promised, here is a .PDF copy of our Power Point presentation.

Looking forward to next year!

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"In the end, it's the beginning that counts."

Isn't that so true?  It applies in so many settings.  For example, it's a wonderful trademark tag line for the elementary school my kids attend.  It just resonates with parents making that all-important choice of a first school for their children.

It applies in the business world, too.  My friend Julie Taylor had a great blog post the other day about enjoying the "start" of your start-up.  She's a terrific business writer who regularly works with start-up companies, and she's absolutely right. 

And it really, really applies when you're dealing with Intellectual Property.  If you don't concentrate on the beginning, you're not going to like the end.

For example, when two or three people begin talking about their next great idea, if they don't start with a good Nondisclosure Agreement and an agreement assigning ownership of any intellectual property they create, their greatest potential is for very expensive litigation down the road.

It's very important in the entertainment industry, too.  Check out any CD -- you'll notice a copyright claim by the record company.  But before the record company can claim that copyright, it has to get everyone else's rights along the way up.  And if those rights aren't correctly captured when the songs are first recorded, the musician just might have a good lawsuit and the record company may find itself doling out profits it never thought it would have to share.

So if  you're thinking about starting a company, producing a CD, or releasing a movie, make sure you've done your due dilligence at the start--or you may not like the ending.

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"Two guys walk into a law office . . . "

One of the most frequent scenarios these days at BrickHouse Law involves some version of the following: Somebody comes in with a great idea for a new business, filled with excitement about how they are going to replace Facebook, or eliminate the need for shoes, etc.  You get the picture.

Some of the ideas sound great -- others, well, lets just say they need a little more time on the proverbial drawing board. No matter how varied the ideas, though -- one thing is true about all of them: they cannot be protected (not in their "idea only" form).

This is one of the most important lessons all entrepreneurs need to learn (and learning it can sometimes be very expensive).

You cannot copyright an idea -- only the original expression of that idea.

You cannot patent an idea -- only the invention that embodies that idea.

You cannot trademark an idea -- only the names of the businesses and products and services embodying the idea.

So what do you do when you have the NEXT GREAT IDEA but you haven't developed it yet?  You need investors, perhaps manufacturers, distributors, etc., all of whom are going to need to know what your idea is.  That's where confidentiality and nondisclosure agreements ("NDA's") come in. Most entrepreneurs have heard of NDA's -- but many do not use them as early in the process as they should. 

When should you use an NDA?  At the moment you start talking seriously with your future business partners. That's right -- many times the most important contract you will sign is the first one with your business partner.  In addition to confidentiality, that first contract should identify any ideas, concepts, treatments, designs, etc. that have already been created by you and your business partner and include language assigning ownership of this IP to your new company. 

This is really only the beginning of the entreprenurial process, of course, and is not meant to cover everything that should be in your first agreement. In fact, my friend Diana Kander has a very helpful post entitled "10 Things You Must Answer Before Signing a Non-Disclosure Agreement." Check it out.  My point is simply this -- the best time for you and your business partner to agree on the important stuff is before anyone has made any money!

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When you think porn, I bet the first thing that pops up isn't the Federal Antidilution Act. It does, however, over here at the Anchor Plate. And that intersection of porn, parody, and the First Amendment has inspired a contest to see who can coin the best porn parody title for any movie nominated for an Oscar at this year's Academy Awards.  But first, some background:

We intellectual property lawyers have our own set of favorite quirky cases, the sexy ones you'd hesitate to bring home to Mom, the goofy ones that tap into that special brand of humor most commonly associated with junior high school boys. (Yes, as many women will readily attest, there is a 7th-grade boy lurking within every adult male, including ones who can't resist use of the phrase "pops up" in the first sentence of this post.)

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Worried about protecting your brands and creations on the Internet? Worried that your own website might draw a blood-curdling demand letter from a pitbull lawyer for a Fortune 500 company? You aren't alone.

A pair of intellectual property decisions by the influential U.S. Court of Appeals for the Second Circuit—one recently handed down, the other soon on its way—will reverberate throughout the business community, especially as companies struggle to protect their intellectual property in the ever expanding flea market known as the Internet.

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Only a few months ago we were bragging around here about our good fortune to welcome David Groce as a principal of our entrepreneurial law firm.  David's addition greatly enhanced our ability to provide a full range of business services counseling to our clients.

Now we get to brag again -- this time about our newest partner, Michael A. Kahn.  Some of you may know Mike from our past blogging efforts together on the old Fair Use Blog, and more recently Mike has been a contributor to Bryan Cave's Art Law Blog.  Others may know Mike as the successful author of many novels, including Trophy Widow.  Still others may know him from his long career as a nationally-known First Amendment, media and intellectual property trial lawyer. 

We know him all of those ways, too, but mostly as a good friend, great guy and exceptional attorney.  Truth be told, we've been stalking Mike for a while.  We've always thought he was a perfect fit for our entrepreneurial, client-centered approach to practicing -- he doesn't like the billable hour any more than we do!

Mike is joining the BrickHouse Law Group after more than 25 years of large law firm practice, and he'll be joining the AnchorPlate blog as an author.  I hope you enjoy hearing from him as much as we're going to enjoy practicing law with him.

Welcome to the BrickHouse, Mike!

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