Ken Basin

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Unless you live here, I’m assuming you’re aware of a little football game taking place this weekend between the New York Giants and the New England Patriots.  (Hey, wait a minute, that sounds awfully familiar…)

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.

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, kiddies: I can. Continue reading the full story . . . »

Jesse Saivar

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If you read the paper, watch TV, listen to the radio or use the Internet, it’s been tough to avoid SOPA recently.  (If you don’t, well, you’re probably hand-writing angry missives in a cabin and not reading this.)  What we’ve seen thus far are two widely-popular, well-funded industries passionately going toe-to-toe with one another, with one widely-unpopular but well funded group of politicians playing referee.  After some low blows, eye gouging and hair pulling, the anti-SOPA team has prevailed, at least temporarily.

Unfortunately, after listening to both sides of the debate, I’m convinced the vast majority of the debaters and their audience lacked a strong understanding of exactly what SOPA says and what its true implications would be.  Because we’re dealing with powerful industries with enormous soap boxes, the majority of the “discussions” presented to the public have been severely slanted by the presenter’s personal stake in the contest.  As with most heated political topics, this is great for sound-bites and overbroad, black-and-white ways of looking at things, but not so great if you actually want to understand the proposed legislation.  So as any good humanitarian should do, I’m going to attempt to sum it up from a relatively-neutral legal perspective.  Even if SOPA itself is no longer on the table (for now), the fight it started can give us insight into the sides’ respective concerns and the future skirmishes we’re likely to see. Continue reading the full story . . . »

Jesse Saivar

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Q:  I’ve been negotiating an option on a book for a few weeks and we’re about to the point where we’re going to sign the paperwork.  The book is a pretty standard detective novel.  The other day the author happened to mention that he had already sold one of his books to a studio.  It turns out that the book he already sold shares the main character (the detective) with the book I’m interested in.  If the plots are completely different between the two books, does this even matter?

A:  Unfortunately, it likely does matter.  Generally, when a studio or producer acquires “movie” rights to a book, it acquires “character” rights.  In other words, in your case, the author likely granted to the studio, among other things, the exclusive right to make movies containing the characters in that book.  Therefore, you may infringe upon the studio’s rights if you make a movie based on the book you’re optioning, because it will contain the character the studio already exclusively “owns.” Continue reading the full story . . . »

Dan Nabel

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The famous Czech writer Milan Kundera once wrote that “business has only two functions — marketing and innovation.”  But some industries — like the alcohol industry — have pretty much hit the limit on innovation (unless you consider things like a tequila bottle top which doubles as a shot glass “innovative”).  This means that the entire business is marketing.  Which is probably why I enjoy drinking the same beer as the most interesting man in the world and think Guinness is good for me.  Just kidding.  But seriously, I do prefer those beers.

As we all know, marketing plans can go awry.  For example, in 2008, a Tustin-based alcohol importer called Sans Wine & Spirits Co. decided to rebrand its tequila “to position it as a luxury brand.”  The “brand enhancement” plan required the Mexican distiller to “use an industrial hand-blown bottle for the tequila,” “a wooden bottle stopper with cork veneer to match other luxury brands of tequila,” and to have a bottle-maker mold an image of an agave agricultural worker into the back of the bottle.  Lastly, Sans Wine & Spirits hired a Mexican design firm to upgrade the label design that the distiller had been using since 2004.  Unfortunately for Sans Wine & Spirits, it turned out that the original label design and the new label design both copied a José-Pablo Fernández photograph sin permiso.  Mr. Fernández was muy molesto (bothered) when he found out and sent Sans Wine & Spirits a cease-and-desist letter.

Now, Sans Wine & Spirits is suing Fernández, preemptively, for a declaratory judgment that the label design is not infringing, and more importantly, if it is infringing, then for a declaration that Sans Wine & Spirits was an “innocent infringer.”

Let’s break down the “innocent infringer” defense. Continue reading the full story . . . »

Matt Galsor

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Q:  I am a young filmmaker in Australia.  I have been chasing the film rights to a book written by an American author.  I have gone through the various publishers and have finally been given the name of the agent who represents the author in the States.  I am interested in knowing if the film rights to the authors book are available, and if they are, I want to know the correct pathway to go down to purchase them.

A:  To find out if the film rights are available, all you need to do is ask the agent (but you also need to do a lot of other things described at the end of this blog).  Assuming the rights are available and owned by the author, the next step is to negotiate the deal with the agent on behalf of the author to option the film rights.  (If the agent is a tough negotiator, you can try to cut him out of the equation and deal directly with the author; that’s a risky strategy that can backfire.  But don’t worry, there are other books available.)  And if you make the deal, the final step is to document the deal in an option agreement.  You could actually purchase the rights, as you suggest in your question, but it’s unusual to do so — the typical way to go about this is to option the rights.

Continue reading the full story . . . »

Dan Nabel

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On a Saturday night in September, I took my wife to the first ever “Call of Duty” convention, hosted by Activision Blizzard inside a hangar on the old airfield where Howard Hughes built the Spruce Goose. Did I tell her ahead of time that I was taking her to a nerd convention where the only food available would be burgers and fries from a recreated fictional in-game restaurant called “Burger Town?” No way! I told her I was taking her to a Kanye West concert! Which was kind of true. Kanye was the “big performance” at the end of the geekfest (which explains why increasingly better looking people started showing up as time went by). Unfortunately, even Kanye’s harem of near-naked dancers could not distract from the utter awfulness of Kanye’s performance. Worst. Concert. Ever. (And yes, he did have an I-am-a-Greek-god theme going on in the background.)

Since that disaster of a concert, Kanye (or “Ye” as he is [unfortunately] sometimes referred to by fans) has been fighting two lawsuits (unrelated to said disaster of a concert, but no promises I don’t start a class action lawsuit out of that one) — one that alleges that he stole ideas for his hit song “Stronger,” and one that alleges he used a sample from Syl Johnson’s song “Different Strokes,” without permission, for Kanye and Jay-Z’s album, “Watch the Throne.” These cases are interesting to look at side-by-side because, while both cases deal with copyright issues, one case involves (allegedly) copied lyrics while the other case involves (allegedly) copied sound. And in the sometimes confounding world of copyright law, that could actually make a huge difference. Continue reading the full story . . . »