Legal Fixation: May 2006

Gray Market Goods and the "Material Difference" Test

Good summary of the differences between US and EU positions on trademark related remedies for illegal importation of gray market goods.

FIFA IP

Protecting FIFA's World Cup intellectual property.

A Wrinkle in Time-Shifting

Time-shifting a television program is a fair use, that much we know. But does the legality of the activity depend upon where the program is stored? Yes, according to the TV and movie studios who are seeking an injunction against Cablevision for its proposed "network DVR" service. They argue that Cablevision's plan to store programs in a central facility, rather than on the customer's cable box, is not a fair use, but is rather an unauthorized recording, storage and retransmission of copyrighted programming. I'm having flashbacks to MP3.com's doomed "music locker" service.

Orphan Works Bill Up For Adoption

Formally introduced yesterday by Rep. Lamar Smith, H.R. 5439, the "Orphan Works Act of 2006," continues to get positive reaction -- and slight criticism --from the legal blogging community. We like it too, for the most part, though we do share many of the concerns held by visual artists about the impact passage of the bill might have on their livelihoods. Generally speaking, however, this legislation is long overdue.

.MOBI Goes Live

Just in time for the arrival of two shiny new Treo 650's to our office today, registration is open for the new .mobi top level domain. As to the question of whether companies risk confusing consumers should they market their .mobi URLs, I doubt it. I expect they'll restrict their marketing efforts to those avenues already directed toward mobile users, and stick with their standard .com URLs in all other respects. And while I'm not sure of the technical aspects of coding sites for mobile devices, if there's a way to construct them such that users who access a site designed specifically for mobiles via the .mobi URL see better performance than those who simply see a mobile version of the .com site, there's your marketing angle.

Hot Topics

Aaron and I attended the “Hot Topics in Arts, Entertainment & Sports” seminar at the Boston Bar Association last Friday. It wasn’t quite as well-attended as I expected (though some were viewing online), and that’s a shame as it was very interesting indeed. Of particular note was the discussion led by Lucinda Treat of the Red Sox and John Mula of the New England Patriots. Other than showing off their championship rings (which are as impressive in person as you’d expect), they discussed merchandising deals, the art of managing the salary cap (NFL) or luxury tax (MLB), and players’ rights of publicity.

Mr. Mula’s dissection of the changes ushered in by the latest CBA extension (.pdf) with respect to payroll was a head-spinning tale of very large numbers and competing interests. One point I came away with is that the new minimum salary requirements, combined with a smaller amount of cap space to be devoted to signing draft picks, means we may see fewer 6^th or 7^th rounders get contract offers. He also touched on an interesting aspect of incentive-laden contracts as a method of managing cap space. Whether the incentive counts against the cap depends upon whether that incentive is likely or unlikely to be met. As may be obvious, for a first-year player none of the incentives are likely to be met, as he hasn’t played a down.

On the subject of players’ rights of publicity, Mr. Mula explained that if the marketing effort involves the use of four or more players, the NFL Players Association must sign off on it (see, for example, those recent American Express ads featuring Tom Brady and his offensive line). Ms. Treat noted that in the baseball world, the use of three or more players gets the MLB Players Association involved. Fewer than that, and it's a matter between the team and the league. And where only one player is involved and the marketing effort isn't directed at the team (e.g., Vinatieri for Pizza Hut), the player simply needs approval from the team. Then there's the case of a certain former local player who appeared in an ad for a certain chicken restaurant a year or so ago without permission from a certain team. They let that one slide, but you will note I said "former" player.

Unfortunately, discussion of the MLB's lawsuit against a private fantasy league was cut short due to time constraints. Both Ms. Treat and Mr. Mula did take pains to state (unconvincingly) that the MLB and NFL had no opinion about the relationship between fantasy leagues and gambling.

In both the Red Sox and Patriots we see ownership that is very savvy at squeezing every last dollar out of their very successful products. So it was no surprise to hear both Mr. Mula and Ms. Treat point out that while their teams used to be open to unsolicited licensing opportunities, they now have the leverage to be far more selective. While it sometimes appears that the Red Sox quest for dollars is accelerating beyond what we’ve seen in the past, upon reflection I must admit much of what is visible to the fans is fairly inoffensive, and in most cases beneficial. Those Red Sox Nation membership cards are a bit much, though.

The Future of CFAA Damages?

Thought provoking post regarding the future of damages under the Computer Fraud and Abuse Act.

Crane-maker buys stake in adversary

Litigation as leverage in a corporate acquisition? Either way, it sure is one way to settle.

When Not to Send a Cease and Desist

Interesting article about when not to send a cease and desist for trademark infringement. (via Eric Goldman)

Law Firm Milberg Weiss Indicted

Ouch! Law firm Milberg Weiss indicted on, among other things, obstructing justice, perjury, bribery and fraud.

Company Wants to Trademark the Scent of Pizza

Lithuanian company trying to register the smell of pizza, for, guess what, pizza. There are so many things, both legal and practical, that are wrong with this, I'm not sure where to start. First, employees of the company need to get the difference between copyright and trademark law straighened out. (via The Trademark Blog, via IPKat)

Reproduction of posters in book held to be fair use

The Court of Appeals for the Second Circuit recently issued an interesting fair use opinion. The reproduction of copyrighted posters from the Bill Graham archive in a book about the history of the Grateful Dead was held to be fair use. Direct link to a pdf of the decision. William Patry represented the Plaintiff-Appellant, Bill Graham Archives.

Be True To Your School, Part 2

Thanks go out to Attorney Wood for his generous donation to Pierce Law. If I could afford your client's vodka, I'd knock back a shot in your honor.

RIM/PTO ex parte communications

James Hawes reports on possible ex parte communications between RIM and the PTO during the NTP v. RIM litigation.

Fantasy leagues and rights of publicity

NYT article about the ownership of rights of publicity for baseball players and how litigation in St. Louis could determine the fate of many fantasy leagues. The headline is misleading as the article is not about the ownership of statistics themselves.

The Art Of The Logo

Interesting interview with Todd Radom, the man who is responsible for a good number of sports logos, including those of baseball's Angels and Nationals. Nice to see that not all branding is done by committee these days.

Leo Stoller cares about trees and ethics

Leo Stoller: Trademark owner (sic) and legal ethics expert.

Sculptor accused of copying Eisenstaedt photo

And it's not Jeff Koons. Interesting that the sculptor says he based the sculpture on a photo very similar to Eisenstaedt's. By using the other photo, Johnson said he got a kick out of getting around people who "keep art to themselves."

Federal Circuit posting oral arguments as mp3s

The Court of Appeals for the Federal Circuit is now
posting oral arguments on its site as mp3s.

Be True To Your School

Harvard Law has decided it wants its graduates to be able to actually practice law. This will not be a problem for the two Pierce Law students involved in this recent decision. Taking four classes, studying for finals, and preparing their client's defense all at once? No problem.

National Gallery settles with Vuillard scholars

The National Gallery of Art settles with Vuillard scholars over unauthorized use of research materials in an exhibition catalog.

Copyright in Litigation Documents

Can litigation documents authored by lawyers be copied without permission? (via The Trademark Blog) What about court reporter transcripts?

Trademark licensing and products liability

Wolfgang Puck Worldwide, Inc. and the self-heating latte fiasco.

The Customer Is (Almost) Always Right

Ad Age weighs in with details on the story of the Maine Tourism Board ad agency suing the blogger critical of their efforts (initial reports indicated the Maine Tourism Board was bringing suit). Businesses should take note of the advice given at the end of the article regarding what to do when you encounter a blogger who's criticizing your work. It's mostly good advice, but I take strong exception to the suggestion that the business "blog back." I can think of nothing good that could come of that scenario.

Voluntary payment for downloads

Jane Sibbery's voluntary payment system for downloads. Including some current stats regarding how people have been using the system.

Eyes Front

The debate about laptops in class seems to crop up every year. And right on schedule, here it is again. Interesting that the problem, if indeed there is one, doesn't seem to be related to wireless internet access per se. Rather, if the professor quoted in the story is to be believed, the problem is that even when students are taking notes, pecking away furiously on their laptops, they aren't truly participating in the discussion or retaining the information presented. Agree? Disagree?

Prada police

Local bureau of industry and commerce opens a permanent office in Beijing's Silk Alley.

The Ripples Keep Spreading

Yet more allegations of plagiarism against Viswanathan. And from a few days back, a very interesting article about how the book deal came about, and the "packaging" process that may be partly to blame for the disaster this has turned out to be for Little Brown.

Elmo Loves His Goldfish

Campaign for a Commercial-Free Childhood has filed a complaint with the FTC against the makers of the Baby Einstein and Brain Baby videos, alleging their claims that the videos have educational benefits amount to false and deceptive advertising. Boston Globe has the story, and the CCFC website has the claim and supplemental materials.

As the father of a 16-month old girl, I can honestly say we've yet to purchase her any videos, educational or otherwise. However, we are bucking the American Academy of Pediactrics' suggestion that kids under two view no television at all. I mean really, childhood isn't childhood without a little Sesame Street, right?

I Repeat

Never, ever. Ever.

Legal Fixation

Tuesday, May 30, 2006

Gray Market Goods and the "Material Difference" Test

FIFA IP

Friday, May 26, 2006

A Wrinkle in Time-Shifting

Wednesday, May 24, 2006

Orphan Works Bill Up For Adoption

.MOBI Goes Live

UK Marketing Agencies Urged to Keep IP

Tuesday, May 23, 2006

MMORPG Player Sues to Recover Assets

Costume or Couture?

Monday, May 22, 2006

Hot Topics

Saturday, May 20, 2006

The Future of CFAA Damages?

Crane-maker buys stake in adversary

When Not to Send a Cease and Desist

Friday, May 19, 2006

Law Firm Milberg Weiss Indicted

Thursday, May 18, 2006

Company Wants to Trademark the Scent of Pizza

Reproduction of posters in book held to be fair use

Wednesday, May 17, 2006

Be True To Your School, Part 2

Tuesday, May 16, 2006

RIM/PTO ex parte communications

Monday, May 15, 2006

Fantasy leagues and rights of publicity

The Art Of The Logo

Saturday, May 13, 2006

Leo Stoller cares about trees and ethics

Tuesday, May 09, 2006

Sculptor accused of copying Eisenstaedt photo

Monday, May 08, 2006

Federal Circuit posting oral arguments as mp3s

Be True To Your School

National Gallery settles with Vuillard scholars

Friday, May 05, 2006

Copyright in Litigation Documents

Trademark licensing and products liability

The Customer Is (Almost) Always Right

Thursday, May 04, 2006

Voluntary payment for downloads

Wednesday, May 03, 2006

Eyes Front

Tuesday, May 02, 2006

Prada police

The Ripples Keep Spreading

Elmo Loves His Goldfish

Monday, May 01, 2006

I Repeat

Subscribe

Law Blogs

Previous Posts

Archives