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

As many of you know, the authors of AnchorPlate are musically inclined, and I’d like to include myself in that estimation. I don’t play guitar like Pete, or the harmonica like Mike, but I can rap along with most Young Money hits, as well as the entirety of Nelly’s catalogue. So of course I had to write a post regarding this fascinating suit filed by an ex-drug lord from the ‘80s, “Freeway” Ricky Ross, whose name was apparently the inspiration for William Leonard Roberts II (Rick Ross a.k.a. Ricky Rozay), a popular MC.

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Two weeks ago, the excited tittering about crowdfunding hit a level comparable to the shrieking begat by The Beatles’ concerts at Shea Stadium. Three season cult-TV darling, “Veronica Mars,” broke all sorts of Kickstarter records when it raised over $2 million in its first twelve hours on the site.

For those of you unfamiliar with Kickstarter, it is a popular crowdfunding platform where entrepreneurial folks –  from a few St. Louisans trying to open up a gourmand donut shop (thank you, Donut Gods!) to the  filmmakers behind this year’s Oscar-winning documentary short, “Inocente” – can post a fundraising goal they hope to achieve within 30 days, and then receive pledges from backers to meet that goal. The “Veronica Mars” Kickstarter, as with many others, offers certain incentives depending on the pledge level, such as a copy of the movie, and other like “Veronica Mars” swag (similar to the NPR pledge week, which thankfully has ended for this season, and won’t prevent me from listening to “Wait Wait Don’t Tell Me” this Saturday).

Whether or not the “Veronica Mars” equivalent of an unidentifiable plant potted in an “I Heart NPR” coffee mug was an incentive for fans to pledge, pledge they did.

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My last post described the wacky breach-of-contract lawsuit Donald Trump filed against comedian Bill Maher last week.

The basis of the lawsuit was Maher's alleged failure to live up to an "unconditional offer" made last month on NBC's Tonight Show to donate $5 million to charity if Trump provided a copy of his birth certificate proving that he’s not “spawn of his mother having sex with orangutan."  Trump provided a birth certificate, demanded the money, Maher shrugged, and Trump sued.

Donning what I believed was my impressive First Amendment suit of armor, I explained why Maher's lawyers might seek dismissal of the lawsuit on free speech grounds via an anti-SLAPP motion.

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For my fellow media lawyers, Donald Trump is our version of the Jelly of the Month Club in National Lampoon's Christmas Vacation. He is, to borrow the immortal words of Cousin Eddie (Randy Quaid), "the  gift that keeps on giving the whole year."

Our blog colleagues at The Hollywood Reporter have posted a fascinating analysis of this month's gift: a $5 million breach-of-contract lawsuit against comedian Bill Maher. Trump's claim is based on Maher's alleged failure to live up to an "unconditional offer" made last month on NBC's Tonight Show to donate $5 million to charity if Trump provided a copy of his birth certificate proving that he’s not “spawn of his mother having sex with orangutan.”

"I'm not saying it's true," Maher told Jay Leno. "I hope it's not true, but unless he comes up with proof ... I'm willing to offer $5 million to Donald Trump that he can donate to a charity of his choice -- Hair Club for Men; The Institute for Incorrigible Douche-bag-ery. Whatever charity." As Maher pointed out, to laughter from the audience, the color of Mr. Trump's hair "and the color of an orange orangutan [are]the only two things in nature of the same color.

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Why are so many legal thrillers written by lawyers? As one such lawyer who sues by day and writes by night, here is my answer, as published in the current issue of Mystery Readers Journal, a publication of Mystery Readers International.

The quote in the first paragraph of my essay is from the opening lines of my short story, "The Bread of Affliction." I guarantee that every trial lawyer can relate to those opening lines.

Enjoy!

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Does a joint right of publicity suit by two celebrities send a message that celebrities are getting more aggressive with enforcement? The Hollywood Reporter obtained a complaint filed on behalf of both George Clooney and Julia Roberts against Digital Projection, Inc. and Beyond Audio. The celebrities allege that their photographs were used in advertisements for both companies, and they are seeking damages in regards to infringement of their publicity rights, privacy rights, and trademark rights. Celebrities filing suit for the right of publicity is not uncommon, but this case is different in that Julia Roberts and George Clooney are simply friends. The suit could stand for more than just friends filing suit together, and it implies that celebrities are taking a stand against infringement.

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With its "fair use" decision earlier this week, the Seventh Circuit can lay claim to the role of the Copyright Act's proctologist. Its previous case "down under" was the farting doll dispute in JC Investments v. Novelty Inc. There the issue was whether the defendant's Fartman doll infringed the plaintiff's copyright in its farting Pull My Finger Fred doll. The Court's deft handling of the idea v. expression issue was, well, neither silent nor deadly.

Earlier this year, a solid creative output involving the same anatomical opening dropped onto the Court in the form of a South Park parody of a YouTube music video on the subject of anal intercourse. The resulting decision is both an affirmation of the First Amendment protection for parody and a nearly irresistible invitation to engage in scatological humor. I will try to resist.

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The bane of a copyright lawyer is to see an issue where normal people just see a good read. Case in point: Death Comes to Pemberley, the latest murder mystery by the great P.D. James, and the latest in a series of "sequels" or knockoffs of Jane Austen's Pride and Prejudice. The hands-down winner for the best knockoff title is, of course, Pride and Prejudice and Zombies, which begins with a twist on one of the most famous opening lines in literature: "It is a truth universally acknowledged that a zombie in possession of brains must be in need of more brains."

If copyright still protected Jane Austen's original novel, she would have decent copyright infringement claims against Ms. James and Zombie author Seth Grahame-Smith. The same might not be true for some of literature's greatest knockoffs.

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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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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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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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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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