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

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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