The Finz Advance Tapes Case Summaries

A bit of shameless -- but beneficial -- promotion here.
In addition to my musings here, I am the voice (among other things) of one of the largest and well-respected California Minimum Continuing Education products for attorneys: the Finz Advance Series Case Summaries.
When you listen to the current (and future) audio files of the Evidence, Civil Procedure & Discovery it's me. It's also very useful (and affordable). And for all of us law-dogs out there, it helps satisfy a good portion of our mandatory MCLE requirements.
Check it out at: http://finz.pincusproed.com/index.cfm/library/library

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.
http://www.dontsignthatpodcast.com/

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; www.lajazz.com 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 www.psychbigband.com/

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....

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!

Altertantive(s) to Litigation

Even though I like my clients very much, I never fail to get a humorous response from my fellow practitioners when I say that sometimes I wish I could insist that any party interested in initiating a lawsuit had to be compelled to carry a hot iron bar in their bare hands twenty paces to demonstrate sufficient belief in the merits of their own case before being allowed to file any form of complaint. I know that seems harsh (and indeed it was when a variant of this procedure was used in medieval England), but it was an early – and extreme – example of an ADR [Alternative Dispute Resolution] mechanism at work.
A Little History
Trial by combat is typically something that is mentioned in passing (if at all) in most civil procedure courses. If it is mentioned, reference is usually made to the fact that parties to dispute could basically fight it out, and the stronger party (supported by “truth”) would somehow prevail. Variations to fighting included the ordeal of water, where a priest would invoke a tub of water to not accept a liar, after which the accused would be lowered in. If the accused floated, guilt was pronounced, as the water would be “rejecting” a liar (yes, I know this sounds a little Monty Pythonesque, but there you have it (and on a side note to talk about myself a bit here – I went to the same high school as did Terry Gilliam of Monty Python fame…but, back to trial by combat…) Once the parties had set upon some form of trial by combat, they each had to retire to a local monastery (or similar institution) where they were secluded for anywhere from several days to almost a month, compelled to pray, fast and seek the counsel of a priest, who would query them again and again and again to discover if they might want to “settle” instead. Interestingly, the only point at which a party could withdraw from a trial by combat was only after the actual combat commenced; the case could be “settled” any time before that. Thus began a very early form of ADR.
           Fast forward a few centuries when the common law had developed to the point of more precise procedure and potential litigants had more of a choice as to where to take their claims: the Court of Common Pleas, the King’s Bench, the Chancellor of the Exchequer and so on. Taking advantage of any one of these forums would generally preclude physical violence as a procedural option. However, burdened by the highly technical forms of writ-based pleading, these courts still were not able to efficiently address or resolve many of the disputes of the day. Think about our modern concept of easily pleading the breach of a partially performed oral contract; the closest you might be able to in one of these courts was by pleading indebitatus assumpsit, wherein you would stretch the already rigid writ of assumpsit whenever you were stuck in the situation where you had already delivered the goods to the defendant and now wanted to be paid. And here’s what that writ/pleading looked like “back in the day”:

“The King to the sheriff, etc. in Trespass to show that, whereas the said defendant heretofore, to wit (date and place) was indebted to the said plaintiff in the sum of for divers[e] goods wares and merchandises by the said plaintiff before that time sold and delivered to the said defendant at his special instance and request, and being so indebted, he the said defendant in consideration thereof afterwards to wit (date and place aforesaid) undertook and faithfully promised the said plaintiff to pay him the said sum of money when he the said defendant should be thereto afterwards requested. Yet the said X, not regarding his said promise and undertaking but contriving and fraudulently intending craftily and [subtly] to deceive and defraud the said plaintiff in this behalf, hath not yet paid the said sum of money or any part thereof to the said plaintiff (although oftentimes afterwards requested). But the said defendant to pay the same or any part thereof hath hitherto wholly refused and still refuses, to the damage of the said plaintiff of ___ pounds as it is said. And have you there, etc.”

           Again, ADR – in the form recourse to the newer mercantile courts – provided a solution. Parties here would agree to be bound by some variation of what later became nominated as the Law Merchant, which had business-savvy judges applying more real-world commercial norms to resolve disputes. Thus began the Uniform Commercial Code.
ADR Now, Litigation Later...If At All....
As an attorney, I am a very strong believer in the necessity for aggrieved parties to have recourse to a court of law. The procedural rules, though highly technical and sometimes seemingly obtuse, really have as their noble goal the placement of the parties in equipoise: properly represented, the small side should be on an equal footing with the larger side so that the law can be applied fairly.
           That being said, I know that at the end of the day parties to a civil action usually come away feeling like the whole matter could have been handled better. Studies continuously bear out that the vast majority of parties to non-personal injury actions have stated that if given the chance with their opposing side, they probably could have worked out a more satisfactory result outside of court. Moreover, most of those polled agreed that the missing factor in a civil action was time, and time is the coin of the realm for a host of practice areas. As a practitioner, you need to be aware that the cycle time for concluding a civil action often does not serve the life cycle of the litigated subject matter, even if you end up representing the prevailing party. Accordingly, consider the merits of some form of ADR as a precursor to filing suit. Technology and entertainment provide are two areas where ADR makes sense.
Technology
In high technology practice, “Moore’s Law” dictates that the speed of an average CPU (i.e., the computer’s brain) doubles approximately every 18 months. This means that the shelf life for most software programs is about one year, and is in fact often less. While you might be able to obtain some timely injunctive relief, today’s fast-track rules don’t really capture technology’s life cycle to make civil litigation the preferred forum for resolving disputes where the underlying subject matter surrounds things like software or the Internet. Let me give an example.
           In the not-too-distant past, I was asked to resolve a dispute between a technology house and one of its former employees. The technology house (I’ll call them “TechCo”) was in the posture of the plaintiff and the former employee (whom I’ll call “Programmer”) was in the posture of the defendant, who had threatened to file a counter-claim. This dispute arose out of Programmer’s alleged theft of TechCo’s trade secrets while developing a particular piece of software code. Programmer claimed that there was no theft as Programmer was never an employee, only an independent contractor. It gets worse: not only did TechCo retain Programmer under an oral contract, TechCo appears to have never properly protected its proprietary information in the first place such that it could credibly argue that such information should be subject to trade secret protection. But wait, there’s more: Programmer was prepared to allege that Programmer was retained by TechCo to develop the specific piece of code in question to allow Programmer’s own trade secret information to work with TechCo’s contemplated software program.
           I have to complement the counsel for both sides here as they realized that all parties stood to lose if this matter were not resolved in less than one month. Here’s what we all were able to come up with in non-binding mediation. Each side would release the other; TechCo agreed to a one time fee (approximating 1 year of what it would have paid Programmer as an employee) for an exclusive, one-year license to Programmer’s proprietary information; Programmer, in turn, agreed to a very robust set of cooperation obligations for this one-year period to work with TechCo finalizing, debugging and implementing this software for any of TechCo’s clients who purchased this software. At the conclusion of this one-year period, each side agreed to engage in substantive negotiations for the retention of Programmer as either an employee or consultant, and reduce an agreement covering such to written form, including how any of Programmer’s subsequent “inventions” would be treated (e.g., TechCo as having right-of-first refusal, work-for-hire, etc.). Importantly, it took only 1 day for us to hear, analyze and craft an agreement for this. I doubt that any court could have compelled such a win-win solution in even 1 year.
Entertainment
In entertainment practice, cycle time is important, but so is the availability of really robust arbital forums. Luckily, a good portion of the entertainment industry is covered by collective bargaining agreements that provide for ADR – especially arbitration – with neutrals that really understand the “biz”.
           For example, let’s say you represent a screenwriter who has gotten the run-around from a quasi-professional producer who has a “housekeeping deal” with a studio (whereby the studio basically agrees to seriously consider any and all movie ideas presented by the producer during the term of the “housekeeping deal”). Your client was asked to perform what otherwise might be characterized as some non-substantial edits and this producer is now wanting a co-writing credit should your client’s script get optioned for development by a major studio. Obviously, you might be able to file suit alleging breach of a confidential relationship (and plead a Desny claim) in the hopes of getting this producer to cry uncle, but win, draw or lose, this course of action has the strong likelihood of destroying your client’s current (albeit imperfect) deal and also marking your client as a “suer”, foreclosing a lot of meetings with other producers in the future. A better tack would be to take advantage of the Writers Guild of America arbitration powers. Not only would your client arbitrate before a panel of three very well qualified writers, but a decision would be reached pretty quickly...and in this set of circumstances, the decision would likely be in favor of the screenwriter. This would allow you to continue work with your client moving this script in development and, hopefully, on to pilot format (I do like to be optimistic).
Conclusion & Resources
No matter what your practice area, though, keep in mind the costs that can be saved by you and your client when you elect ADR over civil litigation. Whenever I have a client who really wants to litigate I do a litigation budget that captures not only what it will cost to get to – and through – trial, but also how long it will take (I find Microsoft Excel displays this sort of data very clearly, especially for my high-tech clients).
           And I can tell you that once most of my clients go over this, they are soon asking me if there are other alternatives....

The Ultimate Copy Protection Scheme

A specter is haunting Hollywood  –  the specter of ongoing digitization. From nervous comments made at the most recent Academy Awards ceremony to the current activities of the entertainment trade associations, no segment of the intellectual property-based economy yet seems truly ready to take advantage of what digital technology has to offer – increased market share and correlative revenue potential.
           For those of us who practice entertainment law, royalty payments are the coin of the realm and profligate copying now poses a serious threat to the rightful creators and owners of the intellectual properties embodied in entertainment, be they in the form of movies, television, music, streaming media, games and so on. Looking back into the not-too-distant past, while domestic box office for 2005 stood at about 10 billion dollars, media such as DVD technology and the Internet have eaten into what many experts believe should have been 20 billion dollars because it is now possible to create a near infinite number of perfect copies for very little money. Mindful that ease of copying is no defense to a Copyright infringement action but to quote John Adams, “[f]acts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passions, they cannot alter the state of facts and evidence.” Today, the evidence is that digitally based media forms the primary – and not the ancillary – revenue stream for most of the motion picture studios. Or, as the head of one industry association put it, movies are now the loss leaders for DVD sales. This current reality is of specific importance to the legal community in the San Fernando Valley for the simple fact that ever since “Hollywood” came to Hollywood, the Valley is where much entertainment is conceived, produced, filmed, edited and distributed.
           As an attorney I am no believer that either national and international Copyright protection regimes should now just roll over and play dead simply because it is easier than ever to copy and trade in pirated product. However, as a semi-reformed computer geek and former employee of a major aerospace company (and without revealing anything too specific), I also know of no data encryption methodology yet devised that can’t be figured out and gotten around. Accordingly, what is to be done?
The answer lies in the implementation of the ultimate copy protection scheme: widely available product, reasonably priced. In other words, to stay on the cutting edge of new media, studios and other distributors of entertainment are going to have to continue to embrace digital technology and progressively drop “the price of admission”. It does take a certain amount of unmitigated bravado to think that this will work, however it is actually just this sort of scheme that made not only the movie industry in Southern California what it is today, but has allowed for each successive form of entertainment distribution to supplement – and not supplant – what is Los Angeles’ (and, by extension, the Valley’s) continuing economic miracle, even in these troubled economic time.
           Let’s start with motion pictures. Between 1900 and 1920, most of what would later become the major studios had sprung up in and around Los Angeles, providing very popular entertainment for very little money. Technological advances in sound recording soon made possible motion pictures with sound (i.e., “talkies”) and Hollywood smartly and swiftly adapted to this new technology. The result: throughout the Great Depression Hollywood continued to grow and become more profitable as theaters multiplied and ticket prices did not.
           Let’s now talk about radio. These very advances in sound recording soon led to advance in the transmission of sound-based media and during the Depression radio entered the arena as an alternative form of entertainment that for a brief time had Hollywood worried. Luckily, most of the early sponsors of radio (i.e., the major corporations) underwrote most of the programming and this, combined with the fact that a simple radio set was pretty affordable, actually increased peoples’ appetites for all forms of entertainment. The result: movies and radio began a parallel track of revenue generation that continues to this day.
           Let’s return to the movies. During the 1940’s and 1950’s the motion picture industry continued to grow. Hollywood was able to dominate as more theaters were opened and new technologies, such as Technicolor, were swiftly embraced. Theater attendance increased and all the while ticket prices remained low. Sometime in the 1950’s, an even newer technology again had Hollywood worried: television. What looked like a combination of radio and movies appeared poised to replace films. Whether by design or default, though, the motion picture studios neither decreased the number of theaters they built nor drastically increased ticket prices. The result: television soon joined radio and movies as a very profitable industry, and continued to grow as an important – and profitable – segment of the “business”, especially for the Valley (psst...the real Brady Bunch house is located in Studio City).
Let’s turn to beta...oops, sorry...VHS technology. In the late 1970’s and early 1980’s it looked as if the twin assault on the “business” in the forms of cable television and VHS would quickly bring down the major studios. However, the very technology that many entertainment executives and trade associations were decrying one year became – literally – one of Hollywood’s most profitable ancillary markets the next: movie rentals, in the form of studio syndication to cable television companies and videotapes. And whether you were going to see a film at your local theater, watching a movie on Channel Z or renting something from your local video store, the price always worked out to a few bucks a flick. The result: let’s just say that if I had authored this article for Variety magazine sometime in the mid-80’s, it might have been entitled “Studio Big Wigs Now Dig Vid”.
           How I wish this pithy title evinced the industry’s collective attitude to today’s twin digital technology of the Internet and DVDs. Ironically, just as DVDs and streaming movies are becoming a viable supplement to theatrical revenues, the studios are not really aggressively embracing current technology. The result: producers and distributors of entertainment continue to tear at their own Achilles heel by decreasing the number of theater seats while drastically increasing ticket prices and limiting the availability of digital media. Today, there are fewer local rental outlets and very little available over the Internet (e.g., Netflix) compared to the actual “global” library of available films, even as optical cable can handle the transmission of movies to one’s home theater system. Luckily, current distribution models already exist that should be replicated.
           A few years ago I took a break from my usual evening reading (i.e., Witkin, Weil & Brown, Nimmer, etc.) and sat down on the couch, turned on the living room television, switched to cable, came across yet another AOL commercial for high speed Internet service (psst...the guy who comes onto the track field and says, “...don’t want to pull a hammy....” is my brother) and then watched Lawrence of Arabia. I realized that my viewing (or “renting” to be technical about it) Lawrence of Arabia already operated under a regime where my family paid about $2.00 to watch a movie (courtesy of Adelphia at that time)... again: widely available product, reasonably priced.
           Not too long ago the Motorola box was replaced by a Wii-type box that stays connected to a Netflix-type server that streams movies to our home. The potential revenue pool to be generated by this type of technology is going to be one of the key subjects to be [re]negotiated in many of Hollywood’s collective bargaining agreements over the next few years and I’m already putting together some specialized contract clauses for my clients that contemplate some sort of reasonable royalty payment for just this sort of thing.
           Keep an eye on the iPod, music downloads for $0.99 and Apple’s iCloud for a preview of more things to come.