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

I was in college when the rock band Dr. Hook and the Medicine Show released a hit song about a fantasy many of us shared--a fantasy neatly captured in the song's title: "On the Cover of the Rolling Stone." For the band, it actually came true later that year. For me, alas, not yet.

However, if some band should ever write a song with the catchy title,"On the Cover of the St. Louis University Law Journal," I'd qualify. Sort of. My name is there on the cover of Volume 55, along with 8 others who wrote articles for that issue, all of us on some aspect of the topic of "the headline trial." Mine focused on the headline trial in great literature, from Shakespeare's Shylock to Melville's Billy Budd.

Thanks to St. Louis University School of Law for allowing me to share the article with those of you who might be interested. Here it is.

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 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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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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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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As is readily apparent around here, I am at best a sporadic legal blogger.  I have periods of time when I'm fairly active with my posts, and other (sometimes long) stretches of time when I seem to disappear.  I'm more consistent with my social media outreach, particularly on Twitter, but even there I could be much more prolific.  I'm happy to say, however, that it looks like 2011 will be much busier on both fronts.

It kicks off for me in two weeks, when I get to appear on a panel with one of my legal blogging heroes, Dennis Kennedy.  The program is entitled "Communities for Your Nonprofit: Legal Aspects of Social Media" and it will be presented at the Schlafly branch of the St. Louis Public Library on Thursday, January 20 at 3:00 p.m.  (Scroll down to Jan. 20)  Also on the panel will be a new colleague, Elizabeth Cox, a fellow intellectual property and entertainment lawyer in St. Louis.  Check out her blog, Design/Sing/Act/Write/Law, and come out and see us if you're in St. Louis.

There's more good news on the way, too -- including growth at The BrickHouse Law Group (in the form of an old friend and fellow legal blogger) and a move to a new office (in an old brick building, of course!).  Stay tuned -- I'll be back.

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Since leaving BigLaw to start the BrickHouse Law Group, we have spent a lot of time trying to describe our ideal clients.  Who are they?  What do they have in common with each other?

We have years of experience representing large companies in intellectual property and complex commercial litigation, but we also have worked with entrepreneurs and smaller businesses in all aspects of IP counseling.  As a small firm building its brand identity, we cannot be--and do not want to be--all things to all people.  

Ultimately, we believe our clients are best described as "Content Creators and Users" -- meaning anyone who creates, distibutes, or otherwise uses "content" in their business.  This certainly includes media, entertainment, advertising, marketing and interactive companies who create and/or use "content" protected by copyright or trademark--these clients bring their own special brand of creativity to the work they do, and they often employ or contract with creative people in the process.  Of course this can also include any business that operates a website (Hello? Everyone?), because the "content" on those websites comes from people or businesses utilizing their creative skills.

But what is "Content"? I thought I knew what I meant by that term until I read a very thought-provoking post this morning, entitled "I Hate the Word 'Content'", by Jonathan Salem Baskin on his Dim Bulb blog.  Speaking primarily to marketers and branding agencies (but also touching a much wider group of net denizens), Baskin makes a strong argument that in calling everything that goes inside the frame "content," we are collectively genericizing--and thereby reducing or even eliminating--the unique, qualitative nature and value of what is created and who is creating it.  Read the entire post, because I don't want to over-simplify it, but I think his opening paragraph states the problem well:

Calling the output of writers, musicians, moviemakers and even the artisans of branding's dark arts "content" is like referencing the substance of every meal "food," or labeling the specific events of human experience "life."

Baskin's lament about how this genericization of "content" is adversely affecting the marketing and branding industry is equally applicable in the intellectual property context. 

While it's true that short descriptive terms often aid us in understanding broader concepts--for example, it can be helpful to differentiate "content" (the product of creativity in some form) from "data" (a collection of factual information)--simply referring to all things creative as "content" can be very dangerous from an intellectual property rights perspective. 

No matter how you look at it, not all "content" is the same.  It is critically important to understand the qualitative differences in what content is being created, how it can be used, and how it can be protected. "Content" on a website, for example, may be made up of code, text and images protected by Copyright, logos or brand identities protected by Trademark, personal identities protected by Rights of Publicity or Rights of Privacy, or any combination of these.  Various and interconnected components of the same "content," therefore, might have different owners, different usage rights and different legal risks. The same is true for almost any type of "content" in almost any medium.  Geoff's Right of Publicity post on the Olivia Munn comic book fracas points out some of these nuances that are easily missed.  One simply cannot make good business decisions about the creation and use of "content" without appreciating the different creators and rights involved.

I still think it is appropriate to describe our ideal clients as "Content Creators and Users."  In the limited context in which we use the word, I think it fits.  However, Baskin's post serves as a good reminder that "Content" is just a surface word -- the value is in what lies underneath. 

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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.

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Can you tell the difference between a face and a butt? Sounds like a fairly simple question, right? I suspect most people would say that, yes, as a matter of fact, they can tell the difference between a face and a butt. That's certainly what Jimmy Winkleman and his small St. Louis company The South Butt hope. The folks at The North Face, on the other hand, are praying that you're confused.

The North Face filed a trademark infringement suit against The South Butt in mid-December in the Eastern District of Missouri. The defendant is a local kid who started his line of South Butt clothing to pay for college, selling it out of his parents' pharmacy. Claiming to be a parody of the famous North Face line, South Butt has taken a very aggressive media stance, clearly trying to win the case (read: drive a good settlement) via public opinion. In fact, the disclaimer on the media page on the South Butt website says that if you can't tell the difference between a face and a butt, buy North Face!  

The Eighth Circuit rules here, however, and that so-called parody defense (which doesn't really exist under trademark law) isn't going to mean a whole lot if survey evidence shows a likelihood of confusion. For this reason, it will be interesting to see what kinds of survey's are ultimately admitted -- North Face has a much stronger case if it can show the two marks as they are used on virtually identical lines of clothing, whereas South Butt surely wants the marks to simply be viewed side-by-side. 

One thing is for sure -- sales of South Butt clothing have gone through the roof since news of the lawsuit hit.  It remains to be seen who will get to keep the profits from those sales.

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