Monday, January 23, 2012

An Intersection of Arts & Politics

My previous article discussed the seeming linkage of the current scope of political discourse with times past. I now would like to take a moment to pen a few thoughts on the first President of the Czech Republic, Vaclav Havel, who passed away last month.
         How amazing the change from not so very long ago. A former, so-called dissident playwright becomes a de facto leader of the opposition by forming Charter 77 several years after the apparent crushing of the Prague Spring. The currents then created by this played no small part in the Velvet Revolution in 1989, resulting in Havel’s becoming the first President of Czechoslovakia and returning the key architect of the Prague Spring, Alexander Dubcek – who rose through the ranks under a reformist banner to become the First Secretary of the Communist Party of Czechoslovakia and then was subject to internal exile for many years – to power as the Chairman of the Federal Assembly.
         A bit of background. In no small part through the efforts of Dubcek in the political sphere and Havel (and others) in the literary and cultural sphere, on April 5, 1968 the Communist Party of Czechoslovakia adopts the Action Program, attempting to create “socialism with a human face”. Specifically, this document announced that, “[o]nly down-to-earth discussion and an exchange of views can lead to responsible decision-making by collective bodies…confrontation of views is an essential manifestation of a responsible multilateral attempt to find the best solution, to advance the new against the obsolete.” On May Day, 1968 a real celebration occurred and, among other things, Dubcek’s words that day spoke volumes about future possibilities. I was there, admittedly young, but I do remember that day like it was yesterday. I also remember the invasion by Warsaw Pact forces in the late summer of that same year, crushing the Prague Spring.
Or so it seemed. Despite the repeated attempts at full state control of all political discourse, Havel, along with others, forms Charter 77. Their aim? The signatories sought to be, “[a] loose, informal, and open association of people…united by the will to strive individually and collectively for respect for human and civil rights in our country and throughout the world.” Important words and Havel stayed committed to them, even when under state surveillance, even during a five-year stay in prison, even in the events leading up to the massive changes in Europe in 1989, even as President of Czechoslovakia and, later, the Czech Republic.
Words matter, discourse can make a difference and the Arts can be on the forefront of both.

Friday, December 16, 2011


The sounds resonating this holiday season – ranging from spoken words to music – seem to conjure up a multitude of thoughts, feelings and emotions running the gamut from elegant seasonal songs to the loud stirrings of the verbal stew that is soon to increase in volume as our political landscape progresses to next year’s presidential race.
         Let me state it plainly: this piece is not a paean to any particular political party or philosophy, neither is it either an endorsement or dig at any current or future candidate for office. Rather, it is a broad expression of frustration with the seeming futility of the way in which public discourse has everywhere devolved so rapidly of late.
         I know that this type of complaint is far from new. Previous empires have had citizens expressing much the same millennia ago. “Wisdom is driven out from our midst, brute force rules the state, the honest orator is scorned, the rude soldier is worshipped; instead of learned arguments, resort is made to abuse….” A translation from the Latin of Quintus Ennius’ Annales, vol. VIII. Today, turn on any media delivery device – be it the radio, the television, the Internet, a podcast, what have you – and this ancient description readily dovetails into today’s political discourse, into which the same has, at best, been confused with comedy and, at worst, confounded with drama.
         Or spectacle from times past. As a practicing attorney mindful of how very important words can be, I try to discern some relevant theme, some beneficial theory when I hear the news in connection with the race for public office. I try. However, the full spectrum of history makes all of it seem but not an echo of Dr. Martin Luther King, Jr.’s I Have a Dream speech, not of the Kennedy-Nixon debate, not of the opening words of The Charter of the United Nations, not of Churchill’s address after Dunkirk, not of the logic of Pope Leo XIII’s Rerum Novarum, not of Lincoln’s Gettysburg Address, not the words of the Founding Fathers, not of the best principles resident in Magna Carta, not of the beliefs found in Rabbi Moses ben Maimon’s Guide for the Perplexed, but, sadly, the sounds of manufactured factions, false opposites, the Blues and the Greens, the voice from the crowd rising and resonating out of the Hippodrome in Constantinople…chanting, screaming, “Nika! Nika! Nika! (Win! Win! Win!)”
So very long ago and yet yesterday….

Tuesday, October 11, 2011

The Finz Advance Tapes Case Summaries

A bit of shameless -- but beneficial -- promotion here.
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Monday, September 5, 2011

Don't Sign That!

Check out Don't Sign That! an Entertainment Law podcast for the starving -- and not so starving -- artist, featuring yours truly and James Harrell.

A Little Less of All That Jazz

Well, it looks like one of the coolest and cherished jazz clubs is now closed: Charlie O's in Valley Glenn. How sad. This great venue was host to some of the top jazz musicians, with a roster of performers ranging from Freddie Hubbard to Arturo Sandoval to Jack Sheldon to Bill Henderson to so many others, all giants of the genre. The reason given for the closure is the current state of the economy and, sadly, that is eminently understandable, but no less saddening for all of us who love this cool, dynamic, eclectic, relevant art form that is jazz. Obviously, the music will play on in many other venues (some even still in the San Fernando Valley) and I encourage my fellow cool-cats to check out as many performances as possible: L.A. Jazz Scene is a monthly newspaper available at many stores and clubs; is a great guide to jazz events throughout the Southland; and, in a shameless effort to promote a very cool [client] jazz band, do check out

Thursday, July 21, 2011

Discovering the "Gaps" - Kardashian v. Gap, Inc.

Yesterday, counsel for Kim Kardashian filed suit in Federal Court in Los Angeles against The Gap and Old Navy for Unfair Competition, violation of California's Common Law Right of Publicity and violation of California's Statutory Right of Publicity.
           The apparent genesis of this lawsuit is an ad first run in February of this year by Old Navy that features an actress/singer named Melissa Moldinado who does look something like Kim and presents a persona within this ad as something of an "it girl" that may -- or may not -- be Kim. The author of this Blog viewed the ad once (which was enough, thank you) and could see the resemblance to Kim. That being said, Melissa's ad character could just as easily been a general reference to almost any other "it girl" with long, dark hair. Or just a trendy ingenue (the groupies, the dancing, the toys dogs and so on).
           Without going into too much chapter-and-verse on the three Causes of Action in the instant Complaint, suffice it to say that while one is Federal, and the other two State, they all surround a common theme; namely, that Gap, et al. structured their ad (and the correlative campaign) to take advantage of Kim's persona (which she has worked very hard to develop and leverage for her own commercial advantage) and profit themselves, not Kim.
           It seems to be no mistake that this case is going forward in the domain of the Ninth Circuit, which tends to favor plaintiffs whose right(s) of publicity have been violated. Methinks (and as a practitioner myself respects) that Kim's attorneys may be relying upon a key triumvirate of cases: White v. Samsung, where Vanna White sued Samsung and ultimately prevailed; Abdul-Jabbar v. General Motors Corp., where Kareem Abdul-Jabbar was able to maintain a right of publicity suit sounding in both Federal and California law; and, Wendt v. Host International, where the Ninth Circuit allowed the factual issues in connection with whether cut-out figures were similar or dissimilar to various Cheers characters to go to a jury for determination.
           These cases, though finally favorable to the plaintiffs, contained some pretty powerful dissenting language authored by Judge Kozinski which continues to resonate in secondary sources and learned analyses. And in Wendt he opined that, "...we [have] held that the right of publicity extends not just to the name, likeness, voice and signature of a famous person, but to anything at all that evokes that person's identity...we again let the right of publicity snuff out creativity." Wendt v. Host International, Inc. (1997, C.A.9) 125 F.3d 806, reh'g denied (1999, C.A.9) 197 F.3d 1284, cert. denied, (2000) 531 U.S. 811. And while a dissent is not the decision in a case, well-taken dissents have a habit of pointing out one or more forks in the legal road that future cases may take.
           Currently, this prompts three issues for Kim's case. One, is it Kim's persona or just a generic "it girl" that is actually evoked by the Old Navy ad that features Melissa? Two, did Gap intend the evocation of Kim by the ad? (I can already feel the discovery issues on the horizon: Kim's camp asking for all correspondence -- including e-mails -- between Gap corporate and the ad agency wherein the folks at Gap and/or Old Navy specifically communicated about a Kim look-alike such as Melissa and maybe even the Gap team requesting a Kim Kardashian celebrity look-alike). Three, is the consuming public likely to be sufficiently confused by Melissa's singing and dancing in the Old Navy ad, thinking that they are seeing Kim and thus believing that Kim has endorsed Old Navy apparel?
           So much for the legal analysis of this case (for now)...more importantly, it appears that Kim's former boyfriend is now dating the purported look-alike in the Old Navy ads, Melissa Moldinado.
           Stay tuned....

Tuesday, July 5, 2011

Hall & Oates...and the Hollywood Bowl

Last night, for the 4th of July, I had a chance to take the family and some friends to the Hollywood Bowl to see Hall & Oates and, given that this Blog is dedicated in part to the Arts, wanted to give a review of what a great performance it was. Actually, performances...three to be specific: the Hollywood Bowl Orchestra; Hall & Oates; and, the pyrotechnicians who [always] put on one of the best fireworks shows.
            The Hollywood Bowl Orchestra was -- figuratively and literally -- pitch-perfect. And so too was Hall & Oates, performing many of their hits from the 1970s and 1980s. What was especially enjoyable was both how good these guys sound live, but also the sense of fun they conveyed for an audience of fans that numbered well over 18,000.
            I am of the mind that "pop" groups like Hall & Oates are part of that wonderful rarity that can write/play AOR-type tunes whose melodies are deceptively elegant. Much of their music originally came out over a quarter of a century ago, yet sounds...well...somewhat timeless now. And that, as many music critics like to say, is the hallmark of what Classical music is really all about -- music that still resonates many years after the period of debut.
            Thus making a pop group and a philharmonic work so well together last night, especially with fireworks!