Posts by Ken Basin




This Is Our Super Bowl Blog Post. Now Come and Get Us, NFL!

[In honor of Super Bowl XLVII — because everyone knows that Roman numerals make everything very distinguished and significant — we’re bringing back one of our most-read, and most personally-favored posts.  Enjoy your SUPER BOWL PARTY, everyone.]

Unless you live here, I’m assuming you’re aware of a little football game taking place this weekend between the San Francisco 49ers and the Baltimore Ravens.  (And maybe, just maybe, you might have heard something — but probably nothing original — about that whole Harbowl storyline.  Well here’s a little-known wrinkle about it.)

I’m as excited as anyone for the game, which is why, this Sunday, I might try to find a local bar hosting a Super Bowl party. But I’ll probably be out of luck, unless I’m willing to go to a “Big Game” party instead. And if I’m feeling spendthrift — the always-confusing word that sounds like “thrifty” but actually means “profligate” — I might try to pick up a new flat-screen TV at a Super Bowl sale. But unless I’m willing to settle for one of those ubiquitous “Big Game” sales, I’ll probably be forced to stick with what I’ve got.

biggame

Every year, while every sports yak in America is obsessing over Super Bowl scouting reports, every business in America is trying to capitalize on the game. But most of them aren’t using the words “Super Bowl” to do so, and the reason is fairly obvious: the phrase “Super Bowl” is trademarked by the NFL, which is famously protective of its intellectual property. Moreover, the privilege of using the phrase “Super Bowl” in advertising is one of the valuable rights bestowed by the NFL upon its advertisers and promotional partners — which gives the NFL extra incentive to keep freeloaders from poaching the phrase (thereby diminishing its value to potential paying promotional partners).

But what if the NFL is wrong? What if I really could check out the Super Bowl party at my favorite watering hole without them being subjected to the threat of legal doom?

Guess what, folks: I can.

Continue reading the full story . . . »

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A Law Law Land Correction (and a Litigant Speaks!)

An interesting footnote to last week’s post, revisiting our “5 Cases to Watch” for 2012.

Last week, I wrote that while talent manager Rick Siegel’s legal war with his former client — which had since morphed into a crusade against California’s Talent Agencies Act writ large — was over, the fight had been taken up by Siegel’s colleagues at the National Conference of Personal Managers, which, in November 2012, brought a direct constitutional challenge against the Talent Agencies Act in federal court.  As part of my preview of the case, I noted that the case “may still be a long shot — anytime someone tries to claim that a law violates the Thirteenth Amendment’s prohibition on slavery, you have to raise your eyebrows a little.”  But this week, I received a reader correction from Mr. Siegel himself, who writes:

Ken,

The 13th Amendment claim isn’t about slavery.

The 13th Amendment of the United States Constitution states in part:  “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.”

So to be constitutionally compliant, the benefit of one’s labor can only be voided should there exist: (1) a statute stating that such labor was criminal; and (2) a finding been forfeited must have been found duly convicted of that crime.  Every other California occupational licensing scheme where one loses the right to contract has statutory notice that the unlicensed engagement of activity is a criminal offense and makes that engagement either misdemeanor or felony, the TAA expressly states that per § 1700.44(b) that no TAA violation can be considered criminal.  As the action can’t be seen as criminal, the penalty violates the 13th Amendment.

The original post has been revised to refer to “involuntary servitude” instead of slavery.  Lawyers for the State of California, the Association of Talent Agencies, and celebrities who just like being able to not pay their estranged personal managers may, of course, disagree with Mr. Siegel’s interpretation of the Thirteenth Amendment, but let it never be said that Law Law Land doesn’t strive to be fair and precise in its snark.

As for me, I’m just psyched to have gotten (politely) called out by a celebrity of recent history in California law.  Can’t wait for Kim Kardashian to email the blog next!



“Where Are They Now”: Law Law Land Edition

This time last year, Law Law Land joined the hackneyed proud tradition of legal blogs offering year-end lists of cases to watch in the coming year (though in our defense, we did try to mix it up by reviewing totally absurd cases as well as totally important cases).  But “year in review” and “year to come” are cultural clichés that never held much appeal to me.  “Where are they now?” on the other hand?  That’s more my speed.  (Maybe that’s why I always adored the last five minutes of every episode of VH1’s Behind the Music, where the program would show the artist in their current, everyday life and tease the inevitable “impending comeback.”)  So what has become of those five big cases we told you to watch this year?  And did we pick good ones or not?  (Preview:  Yes, we did.  Oh shush, I don’t care if we’re biased.)

Viacom v. YouTube:  It’s the case that just won’t die.  When we last left Viacom — which led a cadre of content owners in a billion-dollar holy war against YouTube for its “Wild West” early years of unfiltered, infringement-heavy content — the company was appealing a federal court’s dismissal of its copyright infringement claims against YouTube.  And sure enough, in April 2012, the Second Circuit revived the case, holding that while the Digital Millennium Copyright Act (or DMCA) generally shielded YouTube from liability for its users’ acts of infringement, Viacom could continue to pursue the site based on allegations that YouTube willfully turned a blind eye to, or exerted “substantial influence” on, its users’ infringing activities.

Surprisingly, internet rights groups were largely pleased with the decision, which declined to create an affirmative duty for companies like YouTube to actively monitor their users’ submissions for infringing content.  Meanwhile, the decision has become the centerpiece for other, lower-profile litigations surrounding related issues.  For instance, a group of major record labels who have been locked in litigation against video service Vimeo for three years just moved to eliminate Vimeo’s DMCA defense based on the principles set out in the Viacom/YouTube decision.

Marathon v. Fox & SpillaneTalent manager Rick Siegel’s years-long crusade against California’s Talent Agencies Act — which notoriously allows clients to void contracts with, and even reclaim previously-paid commissions from, managers who “procure employment” for them without a state-issued agency license — seems to have gone nowhere in the year since we last wrote about it.  As of the end of 2011, Siegel’s long battle with his former client, actress Rosa Blasi, had morphed into a lawsuit by Siegel against his former attorneys, by which Siegel hoped (with the support of the talent management community) to use a procedural end-around to directly assault California’s law.

But while Siegel’s efforts may have failed, the talent managers of California have not gone gentle into that good night.  In November 2012, the National Conference of Personal Managers (of which Siegel is a member, though his direct involvement with its recent efforts is unclear) brought a direct constitutional challenge against the Talent Agencies Act in federal court — one where they get to challenge the law in the abstract, without worrying about a sympathetic celebrity litigant clouding the minds of judge and jury.  It may still be a long shot — anytime someone tries to claim that a law violates the Thirteenth Amendment’s prohibition on involuntary servitude, you have to raise your eyebrows a little — but it’s a clear sign that the ongoing conflict among agents, managers, and state labor regulators will continue to rage for months and years to come.

Scorpio Music v. Willis:  My god, can it be?  Yes, I think it is — that rare and beautiful lawsuit that actually results in somebody winning and somebody losing (rather than everyone settling and walking away)!

This case involved the efforts of Victor Willis, the original “Police Officer”/lead singer of the Village People, to reclaim his share of the copyright in the iconic “YMCA” (among several other Village people hits) from music publishers Scorpio Music and Can’t Stop Productions.  And you know what?  He did.  Willis’s lawsuit was the first major test case for the “copyright termination” provisions of the 1976 Copyright Act that are applicable to post-January 1, 1978 works, and widely considered the first major copyright termination case involving a songwriter.  The decision addressed many issues which will be vital to such songwriter termination lawsuits, including the right of a songwriter to terminate only his shareof a copyright grant without the cooperation of other co-authors (such as co-writers, bandmembers/performers, and, potentially even producers and sound engineers) — and sets the stage for possible future showdowns involving Bob Dylan, Tom Waits, Tom Petty, and other high-profile musicians who have sent copyright termination notices of their own.

Of course, no one is happier about this than Willis himself, who sounds like he was raring for a fight — and now relishes his victory.

Viacom v. Time Warner Cable:  When we wrote, in December 2011, about Viacom and Time Warner’s clash over Time Warner Cable’s launch of an iPad app that allowed subscribers to view Viacom channels on their mobile devices, the dispute was already see-sawing between “almost resolved” and“fighting to the death.”  But sure enough, by May 2012, the case had settled — with media outlets reporting (despite the confidential nature of the settlement) that Time Warner would not pay Viacom anything extra for iPad streaming of Viacom channels.

But that one settlement hardly resolved the future of the television industry, which continues to struggle to find a new business model in an on-demand, anti-advertising, rapidly technologically evolving age.  Less than two weeks after Viacom and Time Warner Cable settled their iPad dispute,ABC, CBS, NBC, and Fox all went to war with Dish Network over its new AutoHop feature, which allows subscribers to automatically remove commercials from their DVR recordings of broadcast TV shows.  In November, a federal judge in California denied Fox’s attempt to block Dish Network from offering the AutoHop service, but the victory for Dish Network was incomplete, as the judge indicated that she was inclined to accept some of Fox’s copyright infringement theories.  Dish Network and the networks have essentially picked up exactly where Viacom and Time Warner Cable left off, effectively seeking to define the future of television industry and technology in the courtroom instead of the R&D lab.  Great.

Zuffa v. New York:  In November 2011, the owner of Ultimate Fighting Championship brought a constitutional challenge to New York State’s then-14-year-old ban on the public exhibition of mixed martial arts, claiming that the statute violated UFC’s First Amendment, Fourteenth Amendment, and other constitutional rights.  While the case rages on, UFC has a few less weapons remaining in its legal arsenal.

In August 2012, federal judge Kimba Wood in New York dismissed two out of seven of UFC’s claims — based on the Equal Protection and Due Process clauses of the Fourteenth Amendment — after applying a highly deferential “rational basis” standard for assessing the New York state legislature’s legislative action (i.e., asking whether the legislature had some “rational basis” for the law).  A helpful note to plaintiffs in constitutional law cases:  if you’re challenging a law and your claim is subject to a “rational basis” review, you lose.

UFC’s First Amendment claims, and its challenges to the New York ban as being vague and overbroad, live on.



The Secret World of Copyright

What do Avril Lavigne cover songs, Dish Network’s AutoHop feature, celebrity sex tapes, apartment hunting websites, and ad-serving browser skinning programs have in common?

Each of them is a window into how copyright, an 18th century concept, drafted into a 20th century law, impacts the products we use and the way we experience life in a 21st century world.

The Simplest, Most Complicated Law You Know

Non-lawyers usually think of copyright as a pretty simple and intuitive area of the law, and in many ways, it’s one of the easiest areas to break down into easy, digestible (if somewhat oversimplified) terms.  What’s a copyright?  The exclusive right to control and exploit creative works.  How do you infringe a copyright?  Copy or perform a work without permission/payment, or steal it to create your own new, too-similar work.  Putting aside people’s chronic tendency to confuse copyrights and trademarks — helpful hint:  copyrights are for creative works, trademarks are for brand name, logos, and slogans — copyright is an area of law that, at least initially, the general public can intuitively “get.”

Of course, when the breakneck speed of technological development meets the languorous pace of national lawmaking, things can get a bit more complicated. For example, when the copyright infringement case against file-sharing service Grokster finally came before the Supreme Court in 2005, the Court’s nine justices required three separate opinions and the invention of an entire new theory of copyright liability to explain why Grokster was illegal, but other, less offensive services might not be illegal.  (Headline:  “Supreme Court Rules ‘Unanimously’ Against Grokster 3-3-3.”)

To be fair, though, things started getting wacky long before the Internet was invented.  For instance, most people know that any musician can cover any other musician’s song, without permission (for a small, statutorily-defined fee).  Why?  Because in 1909, Congress created a special “compulsory license” scheme to allow player piano roll makers to sell song rolls without having to separately seek permission from the original songwriters.  Somewhere along the way, some clever lawyer figured out the law was drafted broadly enough to allow for unauthorized cover songs, and now we all have to deal with Avril Lavigne defiling John Lennon’s “Imagine” in the name of Darfur relief.  (Miley Cyrus’s evisceration of Nirvana’s “Smells Like Teen Spirit” and Celine Dion’s desecration of AC/DC’s “You Shook Me All Night Long” were, to my knowledge, only ever performed live, and so we have adifferent quirk of copyright law — the proliferation of blanket “public performance” licenses  managed by performing rights organizations ASCAP and BMI — to blame for those abominations.)

Continue reading the full story . . . »



This Week’s Other Sports/Game Rules and Officiating Scandal 2012/09

Sure, most of America might be abuzz about how poor NFL refereeing definitelymay or may not have swung the outcome of this week’s showdown between the Green Bay Packers and the Seattle Seahawks on Monday Night Football.  But this week, the NFL doesn’t have a monopoly on sports-and-games fairness scandals (even if its scandals might have the most effect on Vegas betting linesand home fantasy football leagues everywhere).  That’s because of a new case that will surely rock the (narrow, quirky, cloistered) world of game show and trivia nerds everywhere.

So here’s a trivia question for you:  what happens when producers of a game show tell two contestants there will be no trick questions on the show, and then throw something that might be considered a “trick question,” causing those contestants to blow $580,000 in potential winnings?  Do the contestants:

(A)  Quietly retreat to their homes and try never to look at the chain of excoriating comments on the YouTube video of their defeat.

(B)  Launch an inspiring grassroots campaign on the Internet to get a second run on the show.

(C)  Reevaluate their personal choices and embrace new lives of monastic asceticism, untempted by the siren’s call of game show winnings.

(D)  Sue.

If you guessed D, congratulations!  You win…the rest of this article.  So can two contestants who lost it all on TV win it back in the courtroom?

Before we answer that question, you must understand:  I’m a particularly qualified expert to opine on this subject.  Sure, the law degree is nice, but lots of people have those.  I, on the other hand, have particular insight on the question of what happens when you, oh, I don’t know, lose a half-million dollars in winnings (give or take) in the span of about 4 minutes in front of a national network primetime audience.  So I think these plaintiffs can take it from me when I say, Run from this lawsuit.  Run like the wind.

Continue reading the full story . . . »



Register Pac20.com Before It’s Too Late!

Last week, Pac-10 Commissioner Larry Scott learned the hard way that conference expansion is a little trickier than subbing a “12” in for the“10” in your logo.

As many news outlets reported over the weekend, the soon-to-be-Pac-12 conference has discovered that the domain pac12.com has already been claimed by a fan of the late (unless he isn’t) Tupac Shakur, who has been using the site to offer an Amazon widget selling 2Pac albums. The Pac-10 has responded by filing a claim with the World Intellectual Property Organization, seeking control of the Pac12.com site.

Most people seem to assume this is nothing but a momentary hiccup in the conference’s plans. After all, the Pac-10 is a well-established — and well-funded — preeminent national sporting organization, and a one-page CD ad with the heading “Tupac Lives!” doesn’t exactly strike fear into the hearts of conference partisans everywhere. But, if it can’t (or won’t) cough up a check with enough zeroes on it in order to buy the Pac12.com domain peacefully, the conference may have a real problem wresting away control of the domain by legal force.

Why is that, you ask? The answer requires us to first play a quick game of alphabet soup. Continue reading the full story . . . »