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

Billable Hour Surprises: How Lawyers are like Auto Mechanics

Posted on March 1, 2010 by Pete Salsich

Why should any lawyer be surprised that clients don't like the uncertainty of hourly billing? Have you ever taken a car into the shop and been surprised by how much a repair cost?

Let me start by making it clear that I like my auto mechanic. I've taken my cars to the same neighborhood shop for a number of years and have always been pleased and satisfied with the quality of the work and the level of customer service. And even though my car has been in the shop for more than a week now, I'm still satisfied that I've taken it to the right place.

Until this past week, however, I never realized how much auto mechanics are like billable hour lawyers. My ordeal started with steam billowing out from under my hood as I pulled up in front of my house. Like many legal clients, I didn't know exactly what was wrong, but I knew I had a problem.

With a few prayers (and some less than complete stops at stop signs), I made it to the auto repair shop. Here's a synopsis of my subsequent conversation with the mechanic:

Mechanic: "Well, Pete, you've got a broken thingamawhatsit hose, but we have to take the engine block apart to get to it."

Me: "Can you fix it?

Mechanic: "Sure, but we won't know if we need to fix anything else until we get the engine block apart and order the part. Call back on Thursday."

Me: "Thursday? Wow, that seems like a long time--about how much will this cost?"

Mechanic: "Well, that depends. This is a labor-intensive job--probably about 5 hours of labor, plus parts, but there's a lot we don't know yet."

Starting to sound familiar? It's now been 8 days since I took the car in, and the "investigation" alone has taken more than 5 hours, not to mention the total amount of time it will eventually take to fix the problem. And there's not a thing I can do about it because they have my car in the shop, with it's hood open and engine parts disassembled. I just have to see it through to the end and hope the bill isn't too large.

That's the experience most legal clients have when they pay by the hour. Like I said, I like my mechanic, but I'm becoming more and more convinced that there is a better way to bill my clients.

UPDATE (3/2/10): I Picked up my car last night. It runs great, but the $1500 bill was about twice what I expected from my initial conversation with the mechanic. To be fair, he kept me apprised of everything they had to do, so I knew the bill was creeping up, but it was still a shock. The lesson: even the best customer service in a pure billable hour situation can be very frustrating.

Tags: Alternative Fee Arrangements, Law Practice Management

"Attractive Nuisance" or "Acoustic Nuisance": Trademark Challenges and Rock Band Names

Posted on February 22, 2010 by Pete Salsich

I learned early on in my "musical career" (I love saying that!) that if I was willing to just play rhythm guitar, I always had a place in the band. That's me in the blue hat, playing with my law school band at the late, lamented King Louie's in St. Louis, before it was the elegant restaurant it later became.

Like many budding rockstars, we thought we sounded way better than we actually did, and we had to have a cool band name. Being dorky law students, we couldn't resist taking a name from Torts class: "Attractive Nuisance." That's right--as a band, we were a swimming pool without a fence.

Those fond memories of coolness came flooding back to me the other day when I saw this article in the ABA Journal about trademark challenges surrounding rock band names. Apparently all the cool band names have been taken by other bands, or else they are trademarks for some other class of goods or services, like Captain America. What's the next great band to do?

Tags: Entertainment, Music Business, Trademark

Character of the Week: Olympic Mascots

Posted on February 16, 2010 by Geoff Gerber

A day late and probably many dollars short, I'm late with the Character of the Week because I've been trying to instill a love of the modern Olympics in my nine-year-old son. Does anybody else notice a difference in interest based on age? That is why my Character of the week is (are) the Olympic Mascots.

And yes, I mean all of the "official" mascots. The 2008 Beijing Summer Olympics has all of the prior mascots collected here, and it has an explanation of its own successful mascots here. From the summer of '72 when "Waldi" the multi-colored dachshund was the mascot chosen to represent the resistance, tenacity, and agility of the athletes and express the gaiety and joy of the Olympic festival in Munich through today, each host-city Olympic organizing committee has used a character or group of characters to represent the brand for their particular games. An extremely difficult task, more often criticized than praised, each mascot must be created, designed, introduced and retired in something less than six years. The mascots are the subject of an immense marketing drive and, if the committees who own them have their way, a proportionately large return on the investment.

A mascot is often developed as a fictional spokes-model to represent a brand. As characters representing brand identity, mascots operate as trademarks. Like other marks, mascots must be protected with a vigilant, enforcement effort or the investment mascot can be easily wiped away. The intense exposure for Olympic mascots means they need to be tough. As the 2010 Vancouver Olympic games progress, they present a case study in mascot creation, enforcement, and protection as the value of the Vancouver mascots is threatened by an Internet meme.

Tags: Canada, Character of the Week, Trademark, brand, enforcement, mascot, protection

Listening: The Non-Delagable Component of Project Management

Posted on February 9, 2010 by Pete Salsich

Have you ever driven by a construction site and wondered "Who actually knows what's going on here?" Somebody must. Even the Empire State Building was completed ahead of schedule. But what does this have to do with a law practice?

The other day we had a very productive meeting with a client for whom we had just completed a fixed-fee engagement. That engagement had been short in duration, limited by a date-certain event, and we were able to meet the client's needs at a price all agreed was reasonable and appropriate.

We were very happy, then, when the client engaged us again. At first, however, this new project appeared to be more open-ended, with less clearly defined parameters, and we grappled a bit with how to price it. Nevertheless, by the end of our meeting, we all felt fairly comfortable that we had defined what was in the engagement and what was not.

When we got back to the office, we started to identify the specific tasks needed to achieve the client's goals, how much time they would take, who would do what, and--most importantly--how we would keep ourselves on task to make sure we could deliver the quality the client expected in an efficient manner. In short--how were we going to manage this project?

Tags: Alternative Fee Arrangements, Intellectual Property, Law Practice Management, Litigation, fixed fees, listening, project management

Character of the Week: Kermit the Frog

Posted on February 8, 2010 by Geoff Gerber

Sunday, I was a guest on The Podge Cast. I'll let you know when that session is up on their site. We talked about a number of things, including how individuals may use right of publicity and trademark to protect their fame. I blurted out that I would start a related, recurring feature on this blog about how fictional characters protect their fame.

That's right. Some fictional characters start to take on a life of their own and there are a number of legal rights that protect intellectual property interests in characters. It is something I have spent a lot of time doing and I enjoy it enough that it makes sense to write about at least once a week. So here goes. My first character of the week: Kermit the Frog.

As with many of the iconic characters in popular culture, Kermit evolved over time. Originally a faintly defined reptile or amphibian sock puppet with ping-pong-ball eyes, Kermit acquired additional traits and greater definition over time. Eventually, he came to be known as an anthropomorphic frog who grew up in a swamp and traveled across the country to make it big in show business, His fame grew from a local D.C. area TV station, to nationwide appearances on public television on Sesame Street for the Children's Television Workshop, to fronting the prime-time broadcast of The Muppet Show on a major broadcast network, to Hollywood stardom in a bio-pic on the silver screen.

We watched his career grow from TV-news correspondent, to variety-show host, to actor, director and producer. At the same time, we learned about his fears, friendships, and loves. He is the shy celebrity, uncomfortable with fame. But, he became so famous that the world has a hard time telling where fiction ends and reality begins. Last fall, he escorted Lady Gaga to the MTV Video Awards and with a kiss, created a scandal that earned him an interview with People magazine.

Just as with any real-life celebrity, the fame associated with Kermit is a valuable, intangible property. Intellectual-property law protects that value in a number of ways.

Tags: commercial speech, Disney, Kermit the Frog, Mattel v. MCA Records, Muppet Studios, Sad Kermit, Trademark, character copyright, dilution, parody

Right Of Publicity Is Not Copyright: Free Speech Pitfalls For Comic Book Artists, Publishers & Sellers

Posted on February 4, 2010 by Geoff Gerber

Online comic book store Heavy Ink gave a strong response to Olivia Munn's attorneys: "shove it." Olivia Munn is co-host of G4's Attack of the Show, an actress, and most recently the cover model for January's Maxim. Her attorneys are opposed to Heavy Ink's sale of the Celebrity Showdown Olivia Munn One Shot #1 comic from creator Brian Denham and Antarctic Press.

In their cease and desist (jpg), Ms. Mann's attorneys demanded that Heavy Ink, the seller, take down a webpage link for the comic book and demanded that they destroy all copies of the comic. Don't know if her attorneys have gone after the publisher. They addressed their demands to Heavy Ink's DMCA Agent, which may have confused the folks at Heavy Ink into thinking that this was a copyright issue. It is not. Ms. Mann asserts her exclusive rights to "use or exploit her image and/or name in any manner whatsoever." This invokes the right of publicity, not copyright.

Tags: Copyright, First Amendment, Heavy Ink, Olivia Munn, actual malice, celebrity, comic books, parody, predominant purpose, relatedness, right of publicity, transformative use

"Musical Prozac" -- The Angel Band Project

Posted on February 1, 2010 by Pete Salsich

Sometimes you get lucky and get to work on something that you just feel good about.

That's the case right now. We're helping some good friends with an amazing project that's all about turning horrible grief into something lasting and uplifting. Please check out The Angel Band Project -- a very special project and a cool blog, too.

This is a great example of talented, compassionate people coming together to create something bigger than themselves, and bigger than the tragedy that first devastated -- then motivated -- them. It is a powerfully moving tribute to a brave lost friend, to be sure, but it has also grown into much more than that. In part that's because of the fantastic mix of music being created, but also because of the charitable cause it will support.

Geoff and I are proud to be doing a small part, but many others are donating their time and talent as well -- just check out this latest post about last weekend's recording session in Chicago and all of the really cool people involved.

Want more information? You can read the Angel Band Project's blog, follow them on Twitter, or become a fan of their Facebook page. It's their story, not ours. Suffice to say that if you or someone you know has been a victim of sexual violence, this project will be especially meaningful.

If you just love good music made well, then I bet you'll dig it, too.

Tags: Angel Band Project, Copyright, Entertainment, Intellectual Property, Media, Music Business, Trademark, Voices and Faces, charitable, music

Intellectual Property Litigation and Alternative Fee Arrangements: The Uncertainty Principle

Posted on January 28, 2010 by Pete Salsich

"Our competitor is infringing our trademark and killing our business! You've got to make them stop, whatever it takes! (pause . . . wait for it . . . ) But we can't afford an expensive lawsuit, especially when we have no idea what it will cost. Which way do we go?"

So say many of today's clients.

It's 2010 and the client revolution is in full swing -- lawyers are finding that they may just have to justify their bills based on the value received by their clients, not just the amount of time the lawyers devoted to a matter. If you think about it, this shouldn't come as much of a surprise, but somehow it seems like virgin territory for many lawyers.

Of course, certain types of transactional practices have been offering so-called "alternative fee arrangements" for years -- billing by the document or deal, for example -- but it's much less common in a litigation practice. Most lawyers will tell you this is because litigation is, by definition, an exercise in managing uncertainty. With apologies to Heisenberg's Quantum Mechanics, many litigators seem to have their own "Uncertainty Principle," which goes something like: "If you don't know what the other side will do, or what the court will do, how can you predict what the case will cost?"

Jay Shepherd disagrees.

Tags: Alternative Fee Arrangements, Intellectual Property, Law Practice Management, Litigation, Patent, Trademark

The End of Lawyers? Or the Beginning of a Better Practice?

Posted on January 22, 2010 by Pete Salsich

How cool is the internet? Seriously.

Thanks to Twitter, I started following Jordan Furlong (@jordan_law21),an Ottowa-based attorney who blogs about the evolution of our profession at Law 21.ca. He recently tweeted about a blog post by Neil Denny (@NeilDenny), from Bath, England, who describes himself as a "collaborative lawyer". From there, I discovered Neil's great blog, Lawyer1point9. If you haven't been there, take the trip -- it's worth it.

While at Neil's blog, I discovered a lengthy post he wrote last year entitled "The End of Lawyers and the Power of Po." Wow. A commentary on Richard Susskind's book "The End of Lawyers" -- which many have seen as a doom-inducing diatribe on the woes of an archaic legal profession -- Neil suggests instead that Susskind's book should be a starting point for discussing the potentialities of a new way of practicing law.

I can't do it justice in this post, so please go read the entire piece, but suffice to say that I find myself in full agreement with Neil's basic point:

"We can choose to keep on doing what we have always done, and justify our self-deception with passionate, strident arguments as to why possible changes will not affect us. Or we can choose to engage in the debate, to read, or hear Susskind out, and consider how the arguments might impact us, our law firms, and yes, even our very jobs and livelihoods."

There is no denying the situation we find ourselves in as a profession — law firms are laying off partners and associates while they continue to raise rates, law schools continue to churn out new lawyers with staggering amounts of debt but without much promise of a good-paying job, and clients are increasingly skeptical of the uncertainty that clouds much of the cost of obtaining legal services.

I heartily agree that the response to this situation cannot be to ignore or downplay it. Rather, we need to use it as a starting point for the next conversation — the one that starts with “What now?”

We can believe in the importance of the law and the value of good legal advice without being wedded to an outdated model for delivering our services. We can't go back to the way things were, and frankly, we shouldn't want to. How we go forward, however, is open to lots of debate. Let's get started.

And thanks, Jordan and Neil, for helping to point the way.

Tags: Alternative Fee Arrangements, Law Practice Management, Litigation, Social Media

Trademark Cases Start to Flood St. Louis

Posted on January 15, 2010 by Pete Salsich

My home town of St. Louis, Missouri is known for many things: the Arch, the Cardinals, Toasted Ravioli and floods, just to name a few. Recently it's also become known for some high-profile trademark infringement lawsuits. In just the last month, two big name cases were filed and a third threatened -- all involving well-known trademarks and well-financed parties (on one side of each case). Call it a season of giving for local trademark lawyers! (Disclosure -- we're not involved in any of the cases, but we know attorneys in all three).

First it was The North Face v. The South Butt, asking the age-old question: Can you tell the difference between a face and a butt?

Only days later, we saw Bing! Information Design v. Microsoft, filed on December 16. The Plaintiff is a small local advertising and web marketing agency which has been using the Bing! trademark since 2000. This is a fairly straight-forward infringement case. The marks are identical and the local agency is clearly the senior user -- the only issue is whether the marketplace for the respective goods and services (design services vs. a search engine) overlap enough to cause confusion. Microsoft claims not to be concerned (they rarely are), but we'll have to see.

Finally, just last week, news broke of a cease and desist letter sent by attorneys for Peabody Energy to an individual operating a website parodying (and mocking) the Consortium for Clean Coal Utilization, of which Peabody is a member. As I write, the offending website appears to be gone, so perhaps the letter worked.