Lowering the Bar

Oregon Says Its Laws Are Copyrighted, Can't Be Published

A battle has been going on for about three weeks now between the state of Oregon, which has laws, and some legal websites that have been publishing those laws.  Oregon is insisting that they not do so.  Justia.com, for example, which had been providing the Oregon statutes online for free, got a cease-and-desist letter from the state in April telling Justia to stop.

Another thing that should be stopped is the phrase "cease and desist."  Since both of those words mean "stop," you only need one.  As it is, the phrase describes something that is literally impossible to comply with: once you've ceased (or desisted), you can't do it again.  But since we are still stuck with "aiding and abetting," which means "helping and helping," I guess this one will probably be around for a while too.

Anyway, a federal law states that the government claims no copyright in federal statutes, but that doesn't apply to the states.  Oregon appears to be the first to try to keep its laws from being published, though.  Why would a state want to do this?  Hard to say.  It might have something to do with the many references on its own website to the opportunity to buy your very own set of the Oregon Revised Statutes, which sure would come in handy if you wanted to know what the law was!

The owners of Justia and of another site, Public.Resource.Org, have objected to the state's Request to Stop, saying that good public policy would be to make the text as widely available as possible.  (You can see all the correspondence here.)  The state then argued that its duty was fulfilled by putting the text of the laws on its website.  One problem with that, according to the objectors, is that there are some errors in the HTML code used to render the statutes -- according to Public Resource, a little over 500,000 errors -- that may make much of the text unreadable in some browsers.  Problem two: the state does not even guarantee that the text it has posted is accurate:

Although efforts have been made [the State said on its website] to match the database text to the official legal text they represent, substantive errors or differences may remain. It is the user’s responsibility to verify the legal accuracy of all legal text.

And where might a user verify the legal accuracy of said legal text?  Why, in the "only Official and Certified edition available," namely the volumes you can order from the Office of Legislative Counsel for $390.  Visa and Mastercard are accepted.

William Patry, author of the treatise "Patry on Copyright," who now has a blog, has weighed in on the side of the websites, suggesting that "Oregon should rein in its wayward Legislative Counsel."  (Another post there discusses an ongoing dispute between the band Ok Go, whose video for "Here It Goes Again" won a Grammy, and the makers of Berocca vitamins, who are running an ad using a similar concept, thus presenting "what may become the world's first legal dispute over treadmill dancing.")

It looks like things may be headed for a showdown.  In a letter dated May 2, the sites' copyright counsel has notified the state that his clients do not agree that the laws are copyrighted, and that they intend to put the Oregon Revised Statutes back online by June 2, 2008.

Link: Boing Boing (April 30)
Link: Ars Technica (April 16)
Link: Oregon Revised Statutes 2007 (online edition)

Client 9's Playmate Sues Over "Girls Gone Wild" Video

Ashley Alexandra Dupre, well into her 14th minute of fame due to her affiliation with Eliot Spitzer, has sued "Girls Gone Wild" founder Joe Francis for allegedly taking advantage of her youth and vulnerability by once filming her sans T-shirt.

Why does it seem like these two may be perfect for each other?

In the complaint, filed on April 28 in the Southern District of Florida, Dupre alleges that she encountered "agents and representatives" of Defendant and his production company in 2003, when she was 17 and just trying to stay out of trouble while on spring break:

10.  On said date, Plaintiff was socializing with friends at the Chesterfield Hotel when she was approached by [said agents and representatives].  They offered Plaintiff alcoholic drinks.  After Plaintiff became drunk, they induced her into [sic] exposing her breasts while being filmed.  While drunk, Plaintiff was told to sign a "release." . . .

11.  At the time of these events, Plaintiff did not understand the magnitude of her actions nor that her image and likeness would be displayed in videos and DVDs produced and distributed by Defendants.

12.  Likewise, at the time Plaintiff signed the "release," Plaintiff did not and could not foresee that she would later have sex with a famous person for money, thus herself becoming famous and therefore acquiring a valuable legal claim.

Okay, I made up Paragraph 12, but Dupre does allege that the defendants have profited by means of advertising designed to capitalize on Plaintiff's "fame and notoriety," which, if I'm not mistaken, is due to having had sex with a famous person for money.

According to the Miami Herald, Francis's version of the Paragraph 10 events is very different.  As he tells it, Ms. Dupre was completely sober while going wild, and he personally -- personally, mind you -- put her on a bus home after catching her with a beer.  As you know, drinking is strictly against "Girls Gone Wild" policy.

Dupre's complaint contains eight counts, including unjust enrichment, Lanham Act claims, state-law false advertising and unfair competition claims, unauthorized publication of Plaintiff's likeness, and, of all things, cybersquatting.  The complaint seeks damages of not less than $10,000,000.  That is likely to pose some proof problems, especially as to the Lanham Act allegation that defendants' acts "have cause[d] substantial and irreparable injury . . . to the Plaintiff's business, reputation and good will."   I doubt that the reputation of someone who [disturbing phrase deleted] with Eliot Spitzer while [matter redacted due to protective order] and also putting [sanitized for your protection], not once, but [illegible], while in Washington, D.C., has been harmed that much by an ad for "Girls Gone Wild."

Joe Francis, who has made millions from the GGW videos and who, according to this month's issue of Scientific American, is an utter sleazebag, paid someone to come up with a pretty good line.  "I think it's ironic," he told CNN, "that she charged Gov. Spitzer $2,000 for sex and she wants to charge me $10 million for taking some naked pictures of her."  Not bad, and a lot better than the line he tried out after being held in contempt in 2007, also in Florida; that, Francis announced, was a case of a "judge gone wild."  A little more effort, please.

Link: CNN.com
Link: Miami Herald
See also "'Girls Gone Wild' Founder Says Judge Has Gone Wild in Suit Filed by Girls Who Had Previously Gone Wild," Lowering the Bar (Apr. 6, 2007); and "'Girls Gone Wild' Creator, Residing in Hole, Continues to Dig," Lowering the Bar (Apr. 16, 2007).

"The Secret": Your Path to Happiness, Love, Litigation

Some of you may be familiar with "The Secret," an enormous bestseller that encourages people to follow the "law of attraction," which I thought was something that made people hang out near playgrounds but which turns out to be "an ancient principle that holds that the universe will make your wishes come true if only you really, truly believe in them."

I agree there is an ancient principle at work here, but it's one I refer to as "bullshit."

The Secret was discovered, or rediscovered, or whatever, by Rhonda Byrne, who has made millions from the book and DVD versions.  Byrne's website, which is not secret, does not state exactly what the Secret is, although you can "Own the Secret" on DVD for just $19.95, or in book form for just $16.95.  (Here's another secret -- you can get it on Amazon.com for $14.37.  But don't.)

Now there is at least some evidence that the Law of Attraction does not always deliver on its promise of unlimited happiness and prosperity, namely a federal lawsuit.  On April 25, James Heriot, the director of the movie version of "The Secret," sued Byrne and her production company in the Northern District of Illinois, alleging that Byrne is not sharing the profits generated by the ancient principle as she had promised to do.  He is claiming up to half of the "Secret" profits, which he estimates at about $300 million.

Heriot wants to make clear, however, that just because the main purveyors of "The Secret" are now at each other's throats does not mean that "The Secret" isn't "The Secret" to unlimited happiness as they have been saying:

To all who have been inspired by "The Secret," [Heriot said in a statement issued through his law firm,] please know that I am not suing the universal principles of "The Secret." Rather, I am suing the corporate principals behind "The Secret," who promised at the outset that profits would be shared, and who have not kept faith with "The Secret"'s tenets of gratitude and integrity."

Got it -- universal principles not being sued, integrity of Secret unquestioned.

In fact, it seems hard to say whether this does call the validity of "The Secret" into question.  On one hand, it seems unlikely that Byrne's wishes included attracting a federal lawsuit.  On the other, isn't Heriot just following her advice by hoping that his wishes for $150 million will come true if only he really, truly believes in them and prevails in a copyright lawsuit?  Does "The Secret" describe how the ancient principle applies when two people wish for the same thing with all their hearts in federal court?  I hope the universe will provide the answers to these questions, or at least will deliver more comical "Secret"-generated lawsuit stories.

Byrne told the New York Times last year that "The Secret" was never about profit; she simply wanted to give her knowledge to the world, so that others could discover what they were intended to do with their lives as she had.  "One of the big things in discovering the secret," she said, "was discovering me."  And there is more discovery of her coming in the near future.  Byrne's deposition in a second case related to Secret profits is set for May 6, in Los Angeles.

Link: New York Times

Revenge of The Prop Guy

Battle will be joined tomorrow in a British case in which a rebel prop designer will challenge George Lucas, emperor of the Star Wars universe, as to who owns the rights to the stormtrooper costumes used in the films.  Andrew Ainsworth designed the helmets and armor for the original movie in 1977, but ran afoul of LucasFilm after he started to sell replica armor to fans a few years ago.

Apparently, Star Wars fans were paying upwards of $2,000 per suit, despite ample evidence that the armor offers little protection and the helmet limits the wearer's vision, making it impossible to hit a target.

LucasFilm successfully sued Ainsworth in California, and was awarded $20 million for infringement.  The British proceeding is to enforce that judgment against Ainsworth, who lives in England.  Ainsworth, meanwhile, is counter-claiming that LucasFilm is the one that's infringing, so that it has never had the rights to make or sell any toys or costumes that copy the original design.  As the article put it, somewhat conservatively, "The counterclaim is worth more than the $20m LucasFilm is seeking as it is claiming a cut of profits made from Star Wars since 1977."  My research team tells me that the amount of profits therefore at stake is, roughly, a lot.

The trial is expected to last about 10 days.

Link: The Lawyer.com (UK)
Link: TimesOnline

Egypt Says It Will Copyright Pyramids

The head of Egypt's Supreme Council of Antiquities told reporters on December 25 that the country's parliament would likely pass a law requiring anyone who reproduces one of its famous monuments to pay royalties.  Zahi Hawass said that the law was necessary to help pay for maintenance.  "If the law is passed," he said, "then it will be applied in all countries of the world so that we can protect our interests."

I'm not so sure about that last part.

The most problematic issue would probably be the treatment of the Pyramids themselves.  Under U.S. copyright law, at least, the design of a building can be copyrighted, but only if it was created on or after December 1, 1990.  Experts disagree on the exact completion date of the various pyramids, but it seems fair to say that this exception won't help.  Even if it did, there is still the problem that the design of a pyramid involves making it shaped like -- well, like a pyramid, and I don't think you can copyright a geometric shape, either.  (If you can, let me know, because I'm going to claim "circle.")

Possibly aware of these problems, the Egyptians have said that only "exact copies" of their monuments would be covered by the law.  That ruins my plan to build an "exact copy" of the Great Pyramid of Khufu in my backyard, which will really bum out the guys at Home Depot, but it does let the Luxor Hotel in Las Vegas off the hook.  Hawass was specifically asked about the Luxor on Tuesday and he said it would not be covered because it is "not an exact copy of pharonic monuments despite the fact it's in the shape of a pyramid."

In fact, the Luxor's website claims that the hotel is "the only pyramid shaped building in the world" (emphasis added), although that appears to be a false statement.  It would be true to say that it is "the only pyramid shaped building in the world in which Carrot Top performs six nights a week."  So that might be a solution to any possible consumer confusion between the Luxor and the Great Pyramid -- the Great Pyramid is the one without Carrot Top in it.

Link: AFP (December 25, 2007)

Guitar Has-Beens v. Guitar Hero

On November 20, attorneys for the band The Romantics filed a complaint in federal court against Activision, the publisher of the game "Guitar Hero," claiming that the game infringes on the group's rights to its own likeness.

In the interest of full disclosure, I should mention at the outset that (1) I have a copy of "Guitar Hero III" sitting right here, and it's awesome; and (2) I have long hated The Romantics.

"Guitar Hero," a console game in which players use a guitar-shaped controller to simulate playing rock-and-roll songs, and which rocks, has been described as a "cultural phenomenon" by Newsweek magazine and is now up to its fourth installment.  This lawsuit concerns the third game (considered a sequel to the second), "Guitar Hero Encore: Rocks the 80s."  While the latest game (GH III) features the original versions of most or all songs, increasing its awesomeness quotient still further, earlier versions tended to use cover versions.

The Romantics allegedly were, and allegedly still are, a "rock band" from Detroit that was formed in 1977.  Their song "What I Like About You" somehow reached #48 on the Billboard chart in 1980 despite being hugely irritating. They had more success with the song "Talking In Your Sleep," which made it to #3.  According to this disturbingly detailed Wikipedia article on the band, which shows some signs of having been written by a Romantics representative, the band did not record from the late 1980s to the mid-90s for legal reasons (and not because, for example, the public had ceased to buy its recordings), but then started again.  Supposedly, a 2003 album failed commercially but "won the Romantics a newfound critical respect."  (You've probably heard all about that.)

That may also end up describing the band's lawsuit, at least if the pleadings are really well-written.  The band concedes that the game developers had the rights to use a cover version of the song in the game, but apparently they claim that the cover is too good.  Being "virtually indistinguishable from the authentic version," the complaint alleges, it would confuse "consumers into believing that the band actually recorded the music and endorsed the product."  This allegedly infringes on the group's rights to its own likeness.

More to come on this, certainly.  Those who would like to join me in a class-action suit seeking emotional-distress damages for having to listen to "What I Like About You" (written during the band's pre-critical-acclaim period) over and over and over again in bars and commercials and so forth, and an injunction against further public nuisances, please let me know.  If we succeed, Dexys Midnight Runners, also still threatening to record, will be next.

Link: CNN.com
Link: "Guitar Hero" article on Wikipedia

Taster's Case Will Be Heard by California Supreme Court

Yesterday, the California Supreme Court granted review in Christoff v. Nestle USA Inc., the case involving a guy who noticed his face on a jar of Taster's Choice 16 years after he had done a photo shoot for the company for a different product.  Christoff was awarded over $15 million by a jury in 2005, based on his expert's claim that the Taster's face was responsible for roughly 5 percent of the profits from that product during the time his image was used.  But that award was later reversed by the Court of Appeal.

Your reporter happened to be in the courtroom during that appellate argument, which he found to be a very amusing coincidence given his prior coverage of the story.  (Why he is suddenly talking about himself in the third person, he does not know.)

The high court will take up the issue of the "single-publication rule," which provides that companies with widely circulated products that should be visible to most people can be sued only once even though there have been many "publications," and requires most such lawsuits to be filed within two years of the first publication.  The Court of Appeal held that Christoff's case was barred by this rule.

Link: Cal Law's Legal Pad

Sam Adams Willing to Discuss Use of "Sam Adams" by Sam Adams

Representatives of the Boston Beer Company, brewers of "Samuel Adams" beer, sent a letter last week to two radio hosts in Portland objecting to their registration of two Web addresses that used the name "Sam Adams" (also a company trademark).  The letter demanded that they surrender the addresses to the company.

It turns out that the radio hosts registered the Web addresses in support of a mayoral candidate -- who happens to be named "Sam Adams" -- and promised to give them to Adams if he appeared on their show.  He did.  The campaign apparently has not been contacted directly yet, but Adams' staff said they were consulting attorneys.  "They say they've been using this trademark since 1984," Adams said today.  "I've been using it since 1963."

A spokesperson for Boston Beer said the company did not know there was a real "Sam Adams" running for mayor of Portland when it sent the letter.  Upon learning of the reality of Sam Adams, she suggested that the company would be willing to discuss the real Adams' use of his own name on his Web sites "for the length of the time the election is being held."

The station has responded by broadcasting what it said was the sound of a listener pouring a bottle of Samuel Adams into a toilet.

Link: AP via Yahoo! News
Link: Sam Adams for Portland Mayor
Link: SamuelAdams.com (must be 21 to view)

Please Do Not Read This Post

Sorry, I had hoped to spare you this, but you now may be subject to a lawsuit.

It is not at all uncommon for attorneys representing a trademark or copyright holder to send a "cease-and-desist" letter to someone believed to be infringing.  I think it is less common (or, as my copyright lawyer put it, "crazy") for attorneys to claim that the cease-and-desist letter itself is copyrighted material and that their rights will be infringed if you tell anybody about the letter.  It seems that recipients of these letters who think the claim is bogus frequently post the letter on the Internet for purposes of mocking it.  Apparently, the law firm that wrote this letter hopes that claiming the text of the letter is copyrighted will prevent this.

I don't know about that.

It didn't deter the public-interest group Public Citizen from posting the letter it got, saying that it was firmly convinced that doing so constituted "fair use."  Public Citizen's response letter (also posted on its website) concludes by saying that it invites the firm to sue Public Citizen in order to test its interpretation of the fair-use doctrine:  "By this letter, we are inviting you to test the validity of your theory that the writer of a cease and desist letter can avoid public scrutiny by threatening to file a copyright law suit if his letter is disclosed publicly on the internet."

We shall see.

Link:  Public Citizen's blog
Link:  Techdirt

Tool Sued

The New Orleans bureau has alerted me to a new lawsuit against the rock band Tool, filed in federal court in Louisiana.  Tool, whose music is described as "heavy metal," "alternative metal," "art rock," "art metal," "progressive rock," "progressive metal," "post-metal," and "genre-transgressing" in their extremely detailed Wikipedia article, was founded in 1990 and remains active today.  The band is also known for its creativity and elaborate stage shows and even packaging (Tool's album 10,000 Days won the 2006 Grammy for "Best Recording Package").

Turns out, all this time Tool has been exploiting Jason Crowley from Shreveport.

Crowley sued the band (named in the suit only as "Tool") on September 5, alleging that Tool had used him "to base their music on."  Crowley alleges that Tool uses his name in their music and has used his "likeness in video on screens on stage in live performances."  (Maybe this is the guy in the video for "Sober.")

More troubling is the allegation that Tool "managed to get into my apartment and place a ring, that you would wear on your hand, inside."  Crowley claims to have recently found a picture of said ring in a CD booklet insert.  He does not explain what Tool's motive might have been for breaking into his apartment and planting a ring (the hand kind) inside.  According to the complaint, Crowley has been trying to get the Shreveport Police Department interested in Tool (or at least the ring story) since 2003, but they accepted his report only in May of this year.

Crowley demands ten million dollars for "invasion of privacy, the use of my name, the images, and the trespassing."

Link:  Crowley v. Tool, Case No. 5:07cv1475 (W.D. La. filed Sept. 5, 2007) (PDF).
Link:  Justia Docket Search

Official on Trial for Corruption Reads Tearful, Plagiarized Apology

The former head of a state-owned power company in China, currently on trial for corruption charges, does not seem to have helped his case by reading a four-page apology letter in court this week.  While the apology seems to have been lengthy, and tearful, it also turned out to have been plagiarized from an apology somebody else had used less than two weeks before.

I should also note here for Western readers that typically, reading a lengthy "apology" during your trial is not a defense strategy we would recommend.  In China you may not have a choice.

Someone allegedly noticed that Zhang Shaocang's apology appeared quite similar to one that had been written by Zhu Fuzhong, a former village Communist party official, and that had been previously published in an official paper.  Plagiarism?  You be the judge:

• Zhu wrote: "Before working, I never gave much thought to money and regarded achievement as the starting point and end result of my work. . . . I gradually lost my bearings and the scope of my position."
• Zhang wrote: "Before working, I never gave much thought to money and regarded achievement as the starting point and end result of my work. . . . I gradually lost my bearings and the scope of my position."

Well, that does look suspicious.

On the other hand, presumably neither man wrote his apology in English.  And this report originated in the "Procuratorial Daily," which Reuters described as "the official paper of China's top prosecutions office," not a very neutral source.  Reuters says that the Procuratorial Daily "is distributed as reading material at many 'supervision venues,' [the term for] the often secret locations where Communist Party officials are held for questioning."  So I guess the allegation is that Mr. Zhang "stole" the apology from the reading material in the waiting room at his "supervision venue."

Forgive me for saying this seems a little like criticizing a Gitmo detainee for quoting somebody he heard on FOX News while waiting for his hearing.  (What do you think they have on in the waiting room -- NPR?)  He could very well be a criminal, but accusing him of plagiarism seems like piling on.

Because of the similarities, the court dismissed Zhang's apology as "show-boating."  So he'll be executed for that, too.

Link: Reuters

Seattle Attack Blamed on Karaoke, Coldplay

A 21-year-old woman was arrested and booked last Thursday after she assaulted a man during an karaoke performance.  Witnesses reported the man was attempting the Coldplay song "Yellow" when the woman lost control and attacked him.

Personally, I was surprised to find out that attacks on karaoke singers seem to be rare.  I had expected to find other adjectives describing them, such as "continual," "savage," or maybe "award-winning."

Telling the singer he "suck[ed]," the woman first pushed him and then started throwing punches to get him to stop singing.  "It took three or four of us to hold her down," said a bartender.  When she was escorted outside, he said, the woman "went crazy," throwing punches at everyone in the group, including an off-duty police officer.  The arrival of on-duty police only made things worse, as the woman head-butted an officer twice before she could be completely subdued.

For once in these kinds of stories, alcohol does not seem to have been a factor.  The article stated that, according to the bartender's notes -- one of the more accurate forms of reporting known to history -- the woman had had only one drink prior to the rampage.  (It was a shot of Jagermeister, but still.)  An expert on karaoke-related violence (namely, me) believes that alcohol alone is unlikely to explain such an attack even if the bartender understated the woman's drinking.  It is possible that the woman was actually infuriated simply by the singer's lack of skill, as witnesses suggested.  But it seems more likely that it was the fortunately rare combination of karaoke, an untalented performer, and Coldplay, that actually triggered violence.

I would bet he didn't get any further than this:

Look at the stars,
Look how they shine for you,
And everything you do,
Yeah, they were all yellow.

I came along,
I wrote a song for you,
And all the things you do,
And it was called "Yellow"

On second thought, he probably didn't get that far.

According to Wikipedia, which is at least as accurate as bartenders' notes, karaoke was created and  popularized by Japanese singer Daisuke Inoue in the early 1970s.  He also invented a karaoke machine of the kind that is now wildly popular, but failed to patent it.  He did receive an Ig Nobel Prize in 2004 for the accomplishment (it was the Peace Prize, for helping people "learn to tolerate each other").  He is shown here accepting the award, showing a remarkably intact sense of humor for somebody who invented but failed to profit from what is now a ten-billion-dollar industry.

According to Coldplay's official fansite, singer Chris Martin admitted that his inspiration for the song "Yellow" came from the Yellow Pages.

Link: CBS News

Court Reverses The Taster's $15-Million Award

On June 29, the California Court of Appeal reversed the judgment for Russell Christoff in his lawsuit against Nestle's.  As I've written about before, Christoff, a former model, happened to be in a store one day in 2002 and saw his own face gazing handsomely back at him from a jar of Taster's Choice.  This came as quite a surprise because, while he had "posed gazing at a cup of coffee, as if he enjoyed the aroma," for Nestle back in 1986, no one had ever told him that the picture had been used extensively as "The Taster" starting in 1997.  Nor had anyone ever paid him for it.

A jury awarded Christoff a total of $15 million, which to some seemed like a lot even if The Taster had been wronged.  The Court of Appeal heard oral argument last year (which by coincidence I happened to be present for), and on the 29th it reversed.  It held that Nestle had knowingly used Christoff's likeness without his consent, that it did not matter whether or not he was a "celebrity" for purposes of the applicable law, that Christoff had not shown that the bulk of the award was justified based on his expert's testimony, and also that Christoff's entire lawsuit may be barred by the statute of limitations.  The court remanded for further proceedings.

Christoff's expert, Peter Sealy, an adjunct professor of marketing at Berkeley and a visiting professor at Stanford, testified to the value of Christoff's face.  As the court summarized his testimony, Sealy, performing without a net, managed to opine that the face had accounted for no less than ten percent of Nestle's entire profits from the Taster's Choice brand, due to the importance of The Taster as an "icon":

The 'taster' [according to Sealy] 'is a key visual . . . that is a point of continuity for probably multiple variations of Taster’s Choice, decaffeinated, different flavors, et cetera.' The icon constitutes “a unique visual approximation of the promise of the brand. Great taste.' . . . 'It’s a visualization of a taster making a choice' and a 'validation that a taster would choose this particular instant coffee.'

You probably had no idea how much you respected the opinion of The Taster, but his validation of the sweet, sweet brew appears to have been determinative for at least ten percent of you.  In fact, Sealy continued, vaulting into the air and going for an increased difficulty score, The Taster's iconic value is hard-wired into our brains by the power of Evolution:

The picture of Christoff is a handsome male who 'is distinctive.' The use of a human face is important based on our history as 'hunter-gatherers, when we were looking for food in the plains of Africa. Our eye is attracted most immediately to two things - the human face or the shape of an animal.'

Seems to me that means Nestle should be using a leopard with a human face to sell coffee, not Mr. Christoff, but then I'm not a marketing expert.  (The reference to Christoff as "handsome" appears here to be the court's summary of Sealy's testimony, although as I pointed out last time Justice Cooper appeared to be quite taken with the plaintiff.)

My favorite part of the story continues to be Nestle's use of Christoff's face in the Mexican market.  That is, rather than use a different "icon," Nestle altered Christoff's image "to add sideburns and darken his complexion."  I guess Juan Valdez was not available.

Link (to PDF of opinion): Christoff v. Nestle USA, Inc., No. B182880 (Cal. Ct. App. June 29, 2007)

Dueling Lawsuits Filed Over Copyright Claim by Mental Spoonbender

Only the wealth of material last week prevented me from reporting on the suit and counter-suit recently filed by Uri Geller and Brian Sapient.

You may remember Geller as the purported psychic who claims the remarkable ability to bend spoons with his mind -- or maybe his remarkable ability is the ability to earn money by claiming to bend spoons with his mind.  Sapient is a Pennsylvania man who is a co-founder of the "Rational Response Squad," an anti-theist group that apparently also has a sideline in pseudo-psychic debunkery.  "Brian Sapient" is a pseudonym -- according to his complaint, his "controversial religious beliefs" have generated a "substantial amount of abusive correspondence, including threats of physical harm against him."  That's why he seeks to proceed as "John Doe a/k/a Brian Sapient" (although if you are already using a pseudonym I wouldn't think you would need "John Doe" anymore).

Geller sued after Sapient posted (on YouTube) a clip from "Secrets of the Psychics," a 1993 NOVA program that examined Geller's claims.  That program incorporated footage from (among other things) a 1973 "Tonight Show" appearance in which Geller failed to bend spoons that had been preselected by Johnny Carson, and a professional magician of the non-psychic variety (James Randi) who showed how easy it was to do what Geller did.   (Tip: it involves either "pre-bending" the spoon or bending it surreptitiously with what psychics call "hands.")  It also included a three-second clip of Geller at another public event, a clip to which Geller claims a copyright interest.  Geller's lawsuit, filed in Pennsylvania, was based on those three seconds.

Sapient's countersuit, filed in San Francisco federal court by attorneys with the Electronic Frontier Foundation, alleges that Geller used his abilities to cause YouTube to remove the video Sapient had posted.  (His litigation-threatening abilities, anyway, not the psychic ones.)  Sapient alleges that this was misrepresentation under the Digital Millennium Copyright Act because the threat is baseless.

Reached for comment, the psychic's lawyer called the other lawsuit "frivolous."

According to the often-accurate Wikipedia, Geller owns a 1976 Cadillac "adorned with thousands of pieces of bent tableware given to him by celebrities or otherwise having historical or other significance," including spoons used by John Lennon, the Spice Girls, Winston Churchill and John F. Kennedy.  Wikipedia also claims, without citation, that Geller designed the logo for the band *NSYNC, but the band's website does not mention any involvement by Geller, so that seems doubtful.  This was greatly disappointing to me, but then I learned from the BBC that (and in retrospect this is not at all surprising) the best man at Geller's 2001 wedding was Michael Jackson.  That cheered me up quite a bit.

Link: cbs5.com (KPIX)
Link: Sapient v. Geller (at EFF's website)
Link: See video of Geller allegedly cheating (at www.randi.org)

Andy Griffith's Suit Against Andy Griffith Dismissed

Last fall I reported on a campaign by Andy Griffith to become the new sheriff of Grant County, Wisconsin.  Griffith had formerly been William Harold Fenrick, but changed his name to Andrew (Jackson) Griffith so that he could run for sheriff as "Andy Griffith."  Griffith came in a distant third, but still got sued by Andrew (Samuel) Griffith, the actor, who alleged that Griffith had harmed Griffith by taking the similar name and by making comparisons between Griffith and the character Griffith had played on "The Andy Griffith Show."

Griffith the Elder claimed that the Candidate Formerly Known As Fenrick had violated trademark and copyright laws, and infringed on Griffith's privacy.  Fenrick/Griffith apparently did not make explicit comparisons between himself and the TV sheriff -- just ran for sheriff as "Andy Griffith" -- but he did slip up once when responding to a reporter's question about speed traps in Mayberry R.F.D., saying "They never did unethical stuff like that in Mayberry."  Fenrick/Griffith told me that this was the only time he explicitly referenced the show or the character, so that my earlier suggestion that his candidacy "was entirely based on the claim that he is every bit as honest and ethical as a fictional television character was portrayed as being, on the grounds that he now has the same name as the actor who played that ethical character because he took a fake name in order to make that comparison while running for office" was not accurate.  I'm glad, because that logic had given me a serious headache.

New Griffith also says he was running a protest campaign of sorts and did not really expect to win, and personally I would have voted for him for that reason and because of the name, but New Griffith had no such luck with U.S. District Judge John Shabaz.  Last week, Shabaz dismissed Old Griffith's case (or at least his federal Lanham Act claim), saying that New Griffith had not used the name in a commercial transaction but rather to seek elective office, so that his use of the similar name was political speech entitled to full First Amendment protection.  Shabaz also did not find any danger that the public actually thought Old Griffith himself was running or sponsoring the candidacy, or that he had suffered any damage to his reputation or income because of the campaign.

Fenrick/Griffith reportedly plans to run again for sheriff in 2008, and he says is writing a book about his experience that should be out sometime before that campaign.

Link: AP via Newsvine.com

Japanese Candidate Says He Will Win By Outliving Opponents

Having just lost in his fourth attempt to become Governor of Tokyo, famous inventor Dr. Yoshiro Nakamatsu was undaunted and said he would run up to 16 more times if necessary.  He also said he did not believe age would be a factor in any of these future campaigns, although he is already 78 and the elections take place only every four years.  "I'm going to live to 144," he said, "so I'm still only middle-aged.  I can run for Tokyo governor 16 more times."

According to reports, Dr. Nakamatsu is a prolific and eccentric inventor who claims to have over 3,000 patents (that loser Edison had fewer than 1,100), including early versions of the floppy disk, the digital watch, aircraft landing gear, and something called the "Love Jet" that I frankly didn't look into too closely.  He believes that his lifestyle, which involves only 4 hours of sleep and 700 calories per day, will allow him and anyone who adopts it to live to the age of 144, which explains his claim above.

At a press conference in March, Nakamatsu said that if elected, he would (1) cut taxes and (2) "protect Tokyo from attack by [means of] an invention that will make missiles turn around."  He did not give any details as to how his missile repeller works, but coming from the inventor of the PyonPyon spring-loaded shoe and the Cerebrex brain-stimulating recliner, this is a claim that must be taken seriously.

Japanese voters ignored it, however, choosing instead to re-elect the incumbent, Shintaro Ishihara.  Ishihara got 2.8 million votes, while Nakamatsu got just 85,946.  Still, he was not discouraged and said that he would one day become governor, even if he had to run in every election during his expected 144-year lifespan.  Victory was inevitable, he said, because at some point in the next 66 years, "all the others will die off, so I will be elected."  It does not seem to have crossed his mind that younger candidates may get involved at some point.

After doing some research, I developed some doubts that Dr. Nakamatsu really exists.   There are a few articles on him from fairly reputable sources, but few details, and some of the details I did find made this seem more like a hoax.  For example, an article in Japan Inc. claimed that he was descended from an "ancient samurai family," that he spends hours underwater every day in his swimming pool "using a special breathing technique and jotting brainstorms down on a waterproof Plexiglas writing pad," and that he has written nearly 100 books, including one called "How to Become a Superman Lying Down."  I certainly hoped this person existed, and that I, too, could become a superman without getting up off the couch, but found it a little hard to believe.

But a search of the U.S. Patent Office did reveal a number of patents that have actually been awarded to a "Yoshiro Nakamatsu," including:

• No. 4,987,896 (Apparatus for increasing the activity of the human brain);
• No. 4,407,226 (Device for manufacturing a magnetic recording medium);
• No. 4,259,550 (Acoustic device with floating vibrating means); and
• No. 4,215,860 (Golf club).

"Golf club" especially is one that you'd expect to have heard about, since this is not just any golf club, but one that allows "any unskilled golfer [to] play golf without taking unnatural attitudes," will prevent your ribs from fracturing due to the force of your swing, and "will minimize unfavorable effects to the internal organs of human body, or more particularly prevention of heart attack."  How many more golfers have to die before Dr. Nakamatsu's genius is taken seriously?  Still, the six patents I found fall somewhat short of the 3,000 that he claims, although he could well have 2,994 patents in Japan that I just don't know how to find.

I, for one, look forward to the day when all other candidates for governor have finally died, clearing the deck for Dr. Nakamatsu to become governor.  And I should still be around to see it, since if I start his program today I will be around until 2109.

Link: Yahoo! News
Link: CNN
Link: Japan Today
Link: Japan Inc

PTO Refuses to Register "Obama Bin Laden" Trademark

Earlier this week, the U.S. Patent and Trademark Office informed Alexandre Batlle that it would not register the proposed trademark "OBAMA BIN LADEN," which of course conflates the names of presidential candidate "Barack Obama" and non-presidential-candidate "Osama bin Laden."  Batlle had hoped to use the trademark to market a variety of stuff.

The PTO also told Batlle that it was considering taking away his right to use his own last name if he doesn't take steps to fix the seriously jacked-up spelling he is currently using for it.

Three reasons were given for the refusal to register "OBAMA BIN LADEN."

First, the mark would be "scandalous" under 15 U.S.C. sec. 1052(a).  For this purpose, a mark is "scandalous" if it is, for example, "disgraceful," "offensive," "disreputable," or "calling out for condemnation," determined according to a "substantial composite of the general public . . . in the context of contemporary attitudes."  I'm sure we could come up with a lot of other things that should apply to, but for the purposes of trademarkery it was enough to point out that bin Laden is a terrorist and so his name is now "scandalous and is not registrable."

Second, the mark was found to "falsely associate" the proposed service with Barack Obama and Osama bin Laden.  Note that this was not a finding that they were falsely associated with each other.  The PTO was saying it was concerned that one or both of them might be falsely associated with the proposed service (e.g. selling T-shirts) because both are "so famous that consumers would presume a connection."  Not sure who would presume that bin Laden is in the T-shirt business, but I guess you never know.

Third, "the record does not include the written consent of Barack Obama and Osama bin Laden" to the use of their names.  "To overcome this refusal," the examiner wrote, "the applicant must therefore submit written consent from the two individuals."

Hey, Mr. bin Laden?  Hi, nice cave.  Look, sorry to bother you -- I was wondering if it would be okay for me to use your last name for this refrigerator magnet?  A refrigerator.  It keeps -- never mind.  It would be on shirts too.  See, your name is sort of like this other guy's, who is running for President, and -- yeah, I think it's hilarious too.  If you could just sign this form, then I could get a trademark.  Of course I'd be splitting the profits with you.  Okay, 60-40 for you.  I understand.   Okay, if you put it that way, 95-5.  Hey, thanks a lot.  If I could just get your address for the royalty checks --

Batlle says his cousin's wife is a trademark lawyer and that she may appeal the decision for her.  "I'm thinking about it.  I think I should get some credit for all of this," he said, "this" apparently referring to his outstanding cultural contribution to humanity.

Link: The Smoking Gun
Link: Miami Herald

NFL QB Demands Mom Stop Using Him in Campaign Commercials

On October 20th, Saints quarterback Drew Brees (or his agents, anyway) sent his mom a letter demanding that she cease and desist using his name and likeness in a TV commercial. Mina Brees is running for a spot on the Texas Court of Appeals.

In the commercial, Mina Brees notes that she is the mother of Drew Brees, the sister of former Texas quarterback Marty Akins, and the daughter of longtime high school football coach Ray Akins. She says that the commercial is intended to identify her with her sports-oriented family, which she says taught her the value of preparation and hard work.

They apparently didn't talk much about intellectual-property law around the dinner table, though, or at least that's what CCA Sports and its attorneys implied with their letter. "The unauthorized misappropriation of an individual's indicia (picture, name, etc.) for this current purpose is an infringement of his personal rights, property rights and common law trademark rights," the letter states. Probably a standard form letter that they have to send out to everyone who mentions Drew, but maybe one of our IP readers can clarify whether a trademark can really be diluted just because your mom uses your "indicia."

Mina Brees agreed to stop using the spot. Her media consultants were to have new spots ready on October 30. They will feature a different son, Reid, who is presumably not trademarked.

The incumbent judge, David Puryear, declined to comment, saying that the focus "should be on the qualifications of the candidates." Refreshing, but not really part of the game plan this time of year, as the chairman of the Travis County GOP made clear in a written statement. He called for Brees to withdraw from the race because of her shocking conduct. "Her failure to act appropriately and inform media outlets of her wrongful use of Drew Brees' indicia subjects her to litigation and demonstrates her morally rudderless political opportunism," the statement said.

Well, that's okay, but not great. Let's see if we can punch it up a little bit.  How about something like this:

Until this moment, Ms. Brees, I think I never really gauged your cruelty, or your recklessness. Little did I dream you could be so reckless and so cruel as to do an injury to your own son's indicia. It is, I regret to say, equally true that I fear he shall always bear a scar needlessly inflicted by you. If it were in my power to forgive you for your morally rudderless political opportunism, I would do so. I like to think I'm a gentle man, but your forgiveness will have to come from someone other than me. Let us not assassinate this lad's indicia further, Ms. Brees. You've done enough. Have you no sense of decency, ma'am, at long last? Have you left no sense of decency?

Yeah, that's more like it.

Link: Law.com (reprinted from Texas Lawyer)
Link: "No sense of decency"

Court of Appeal Hears Case of The Taster's Choice Guy's Face

Yesterday I argued an appeal in California's Court of Appeal for the Second District, which covers Los Angeles, and I was just getting ready to leave after the argument when they called the next case, Christoff v. Nestle USA. That stopped me in my tracks because I recognized that case from one of my previous reports.  Here's what I wrote about it in February 2005:

-----------------------------------------------------

How to Turn a $250 Job Into $15.6 Million

Sue in L.A. County, that's how. In the latest (relatively) monstrous verdict from that jurisdiction, an L.A. jury awarded Russell Christoff $15.6 million dollars for the unauthorized use of his face on Taster's Choice jars for seven years. Christoff had been paid $250 for a photo shoot in 1986 but did not know Nestle had actually used his likeness until he saw himself on a jar in a drug store in 2002. "I looked at it and said, 'expletive, that's me!'" he recalled.

I hope he really does go around saying, "expletive!" but I bet he doesn't.

Lawyers for Nestle claimed that a Canadian employee of the company had unknowingly pulled the photo, thinking they had consent to use it, and that Nestle USA had brought it back to the States in 1997. The amount of damages was likely the only issue in the case. Christoff was paid $250 and was promised $2000 if the image were used in Canada, as it eventually was. The company offered him $100,000 to settle, to which he countered with $8.5 million. The jury's $15.6 million verdict apparently represents 5 percent of Nestle's entire profits from Taster's Choice while Christoff's face was on the jars, which certainly seems like a reasonable valuation to me.

Oddly, Nestle's lawyers said the company plans to appeal.

AP via SFGate.com

-----------------------------------------------------

Nestle did appeal, and I would like to thank the Court for scheduling the oral argument to coincide with my case. "Expletive, that's the case I wrote about!" I said to myself. I stayed to take careful notes (on my own time, of course). Mr. Christoff and his whole family were there in the courtroom, so it promised to be entertaining.

I was wrong that the amount of damages was the only issue in the case. It was an issue, certainly, but the main issue on appeal was whether the statute of limitations barred Christoff's claim even though there was no evidence he had any idea that his face was being used. (He had moved to Canada by the time he unknowingly became the Taster's Choice Guy for millions of Americans.) I think the argument was that the "single-publication rule" that applies in defamation cases would have barred Christoff's claim, but to be honest I was paying closer attention to trying to figure out which guy in the audience was Christoff, and more importantly which of the female heirs to the $15.6 million Taster's-Choice-Guy fortune might be single.

The Christoff extended family group was easy to pick out. Most of them were female, and of the men one was too old, one was too young, and the two in the back were way too ugly. That left just one guy, who did turn out to be Christoff as I later confirmed by digging up the picture below.

As you can see, Christoff now looks something like the guy who played J. Peterman on "Seinfeld," but back when he was looking for coffee-jar modeling jobs he looked something like a cross between Mandy Patinkin and Ricardo Montalban. The perfect man to become the new "Taster," as the company apparently refers to whoever is on their label. It seems that Nestle argued in part that Christoff was not entitled to damages (or only to a smaller amount) because it had really not used his own personal image, but rather had incorporated his face into what it called the "icon" of the Taster's Choice Taster.  ("Taster" doesn't seem accurate if only because the guy on the label is not in fact tasting, just gazing sensually at the coffee in the cup that he has been denied for so long, but is hoping, even longing, to taste sometime very, very soon. But I guess they have to call him something.) Justice Cooper wanted to know why Christoff should be entitled to all of the profits earned during the time his face was used, as opposed to whatever profits might have been attributable to the use of his own face. Presumably, that would be a much smaller amount, although Justice Cooper pointed out (several times) that she did of course think The Taster was a very attractive man.

Frankly, the debate over the single-publication rule in this context, while probably very important especially in Los Angeles, was less interesting to me than the various examples of celebrity-likeness cases or hypothetical cases that everybody kept mentioning.  I kept a list of celebrities mentioned:

• Bela Lugosi
• Arnold Schwarzenneger
• Lance Armstrong
• Ronald Reagan
• Walt Disney
• Aunt Jemima
• "a KISS band member" (unidentified)

The most comical thing I learned from the argument was that not only did Nestle use Christoff's face without express permission on millions of coffee jars in the U.S., they also apparently used it in other countries, and actually tinkered with his appearance to make it more palatable.  According to Justice Cooper, when they used his image in Mexico "they made it darker and gave him sideburns."

Link: AP via SFGate.com (coverage of the verdict in 2005)

Clown Suit Threatened

Happy the Clown and other Bay Area clowns received threatening letters last week from Cowan, DeBaets, Abrahams and Sheppard LLP, a New York firm, telling the clowns to cease and desist from wearing costumes that look too much like characters to which Cowan's clients have the rights.  Purple dinosaurs, red dogs, train conductors and others are within the scope of the scary letter, which states that "Plaintiffs will not tolerate costume infringement," and threatens the entertainers with a lawsuit unless they surrender the infringing costumes, pay $100,000 each and agree never to use said characters again.

If I had known there were clowns out there with $100,000 in their pockets, I would be robbing a lot more clowns, I can tell you that.

"I was crying," said the ironically named Happy the Clown, who runs some kind of clown business in Boulder Creek, California.  "One clown threatened suicide, but we talked him out of it."  That was Depresso the Suicidal Clown, though, so you can't really blame that on the litigation.  Other area clowns were also distraught, some claiming that they make just enough money to survive anyway and others saying that they had to adapt to what children wanted to see.  "Parents don't always want to hire a clown or pirate," said one.  She said the problem began when characters such as Barney, Clifford the Dog and Bob the Builder led children to demand non-clown characters at parties, and so parents had no option but to comply because "[t]hey want to please their children."

This clown was employing a common litigation strategy called "Blame the Children."  Works every time.

The San Jose Mercury News asked law professor J. Holmes Armstead (his real name, not a clown name) for comment on the letters.  Armstead opined that they would "have a chilling effect on children's birthday parties in the area," as well as on the clown companies themselves.  "These little kiddie shows typically make a hundred bucks a show," said Armstead, who should know, since he is a professor of national security decisionmaking and international law at the US Naval War College in Monterey.  "These are not folks who are capable of going into San Francisco and hiring a 100-person law firm to represent them."  Actually, these are folks who are probably capable of going into San Francisco and winning an election to seize control of its city government in order to pass clown-protection legislation, so let's not worry too much about them.  In the meantime, any takers on pro bono clown representation?

If so, you may want to contact Twinkie Dee Star, clown and director of five western states for the World Clown Association.  Star stated that she felt the lawyers and their clients were overreacting.  If anyone dresses as a popular character, she said, "it's not because they're trying to shortchange anybody.  Most clowns do this pretty much out of the goodness of their hearts."  Goodness, and the desire for 100 bucks.

Opinions in the Mercury News website's forum on the topic seemed to be split fairly evenly along pro- and anti-clown lines:

• What this article nelected [sic] to mention is that what these clowns (no pun intended) are doing is illegal whether we would like to admit it or not. Infingement [sic] is infringement. Copyright is copyright. End of story.  [Posted by "Nancy Drew"]
• I'm no legal expert, but I'd think that the clowns should join forces (even with other clowns, Elvis impersonators, etc. across the country who haven't been threatened -- you know it's only a matter of time ...), hire some lawyers and fight it.
• How on earth could anyone go after a birthday party clown for copyright infringement? The people in question are not rich...they do this to make children smile. I guess that a happy kid is worth less than a copyright on a giant red dog. Oh, and "Nancy Drew"...you are about to be served for impersonating a childhood literary and TV character. You'll be hearing from ABC's lawyers soon. Ugh.
• Once the lawyers see that the clowns they want to sue have no assets..... that'll be the end of that gouge and screw show. thats [sic] but one reason top [sic] protect yourself from any personal liability!
  What'r [sic] the lawyers gonna do reposses [sic] your nose?

Perhaps J. Holmes Armstead can use his national security decisionmaking and clown law expertise to weld the nation's clowns and Elvis impersonators into an unstoppable force that will free our beloved characters from the icy grip of Cowan, DeBaets, Abrahams and Sheppard LLP.  That'll be the end of that gouge and screw show.

Link: MercuryNews.com
Link: Cowan, DeBaets, Abrahams and Sheppard LLP
Link: SF Gate.com: "Let the War Crimes Trials Begin: Redressing Saddam's Persecution of Iraqi Clowns," April 9, 2003
Link: Lecture Announcement: Dr. J. Holmes Armstead, "Iraq and Afghanistan: How Clowns Got Us Into the Troubled Middle East"

Battle Is Joined Over "Milk Duds" Name

The Hershey Co., which makes the well-known and much-beloved "Milk Duds" candy, has filed a complaint with the U.S. Patent and Trademark Office against a California company that Hershey alleges makes a product with a confusingly similar name.

The product, "Milkdudz," is a line of clothing designed to make breast-feeding easier.

Hershey's complaint alleges that the Milkdudz company, founded by two women in Temecula, California, in 2004, is "trying to capitalize on the name recognition of Milk Duds to avoid having to build up its own brand." But the company's founders said they intended to fight, and noted that the two products were not exactly competing in the same market, so that confusion seemed unlikely. "It's not like we'd be right next to them in the candy aisle," said Milkdudz officer Kiersten Wall. "We're in boutiques."

Wall expressed confidence that Milkdudz could win the trademark dispute on its merits, but also was concerned that the company might not be able to afford extensive legal proceedings if Hershey decided to pursue an appeal.

AP via MyWay.com