Rachel Wilkes Barchie

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This blogger is proud to say that I have never watched any show featuring a member of the Kardashian family (okay, okay, unless you count their step-brother Brody Jenner…you know I could never resist The Hills).  I normally try to pretend to steer clear of anything Kardashian, as I fall into the camp of people who wonder, “why the heck is she famous, anyway?”  (Yes, that’s a rhetorical question — I know it’s because of her video debut.)  But I can’t resist writing an update about the Old Navy commercial we posted about back in March 2011.  (Extra shout-out to fellow blogger Megan Rivetti for anticipating Kim K.’s lawsuit, which wasn’t actually filed until July.)

Kim’s lawsuit claims that Old Navy and its parent company The Gap Inc. violated her right of publicity and misled and confused consumers, and seeks $15­–20 million in damages.  (For more on the right of publicity, see here; for more on consumer confusion, see here; for more on how the actress who starred in the Old Navy commercial is totally re-living Kim Kardashian’s life in other ways, see here.)  But now The Gap’s lawyers are moving in on Kim’s “private life” (and the use of air quotes has never seemed more appropriate).  Among other things, they have sought financial records that show how much stores Bebe and Sears earned by making deals with Kim and why Bebe dropped Kim, and information about “Kim Kardashian’s reputation as a singer and dancer.”   As Eriq Gardner of THR, Esq. points out, one reason The Gap may be seeking information about Kim’s business dealings is to make out an argument — often used in defamation cases — that the plaintiff is “libel-proof” because her reputation is so ruined that no additional damage could be caused.

So let’s take a look at the contours of the so-called “libel-proof” defense. Continue reading the full story . . . »

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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 . . . »

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Rachel Wilkes Barchie

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If our dear readers look at my past blog posts, you might think I’m vying for a Bloggie Award* for “Most Posts Related to Social Media.”  As someone who personally spends a fair amount of time keeping up with my friends/news outlets/favorite restaurants through social media, many of the legal disputes that catch my eye examine the intersection of free speech and social media — after all, it’s good to know where the line between lawful and actionable is drawn, even though I don’t think I’m likely to step over it.  (Plus, I think I’m now allowed to bill my workplace Facebook/Twitter time as “researching blog post.”)

Usually, when something goes legally haywire with social media, it’s because Courtney Love defamed someone on Twitter again.  Last month, though, a Maryland federal court has shined a (27-page) light on the criminal law of cyberstalking.  Under a semi-obscure provision of the Violence Against Women Act — codified at 18 U.S.C. § 2261A for you legal eagles out there — federal law makes it a crime when an individual “uses the mail, any interactive computer service, or any facility of interstate or foreign commerce to engage in a course of conduct that causes substantial emotional distress” to someone “with the intent to kill, injure, harass, or place under surveillance with intent to kill, injure, harass, or intimidate, or cause substantial emotional distress to a person in another State.”

This law may have come as some surprise to defendant William Lawrence Cassidy, who was charged with cyberstalking based on his more than 8,000 posts on blogs and Twitter about Alyce Zeoli, a Buddhist leader (and quite the avid Tweeter herself).  The court’s recitation of facts describes Alyce Zeoli, or “A.Z.” as a “reincarnate llama,” but I’m pretty sure the court really meant lama (as in Tibetan teacher of the Dharma) rather than llama (as in South American camelid).  In any event (actually, probably especially if she is, indeed, an alpaca), Ms. Zeoli — the so-called “Buddha from Brooklyn” — is already quite the controversial figure.

Cassidy’s posts and Tweets ranged from threatening comments (“ya like haiku?  Here’s one for ya: ‘Long, Limb, Sharp Saw, Hard Drop’ ROFLMAO”**) to criticism of Zeoli as a religious figure (“[A.Z.] is a demonic force who tries to destroy Buddhism”) to just vague creepiness (“owl and raven feathers separate….tick tock tick tock tick tock tick tock tick tock”).  Cassidy moved to dismiss the charges against him, and on December 15, the court granted his motion, holding that Cassidy’s speech was protected by the First Amendment and that the restriction didn’t pass scrutiny and dismissed the charges against him.

So what lessons can you take from Cassidy’s case the next time you’re ready to dive into the Twitterverse? Continue reading the full story . . . »

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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 . . . »

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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 . . . »

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I don’t know where this “Terrible Twos” thing comes from, because here at Law Law Land, we’ve had a fantastic second year — thanks, as always, to you, our dear readers.  We’ve laughed together.  We’ve cried together.  We’ve made vaguely inappropriate pornography-related puns together.  We’ve said goodbye to some old bloggers, and hello to some new ones.  We’ve launched our new site, and made impossible promises for the next.  We’ve seen our unorthodox campaign strategy for repeating as the Blawg 100 champions — which is, the strategy of actively trying not to repeat as champions — succeed beyond our wildest dreams.  Yep, all in all, it’s been a fine year.  I think this deserves yet another round of applause, don’t you?  (As always, Corey Haim knows what to do.)

So we’re rewarding ourselves by taking the rest of the holiday season off, and seeing you in 2012.  But before we go, we wanted to bring back a post we enjoyed from last year (and let’s face it, it’s really about what we like, amiright?) — like our site, of course, updated for the times.  And so, we present to you the Top 11 of Twenty 11:  the eleven most popular Law Law Land posts of 2011, as chosen by you, the readers, with your browser clicks. This year’s list is the model of equanimity:  our 11 entries come from 10 authors and cover virtually the entire universe of Law Law Land content.  We are nothing if not eclectic here at Law Law Land, and apparently, that goes for our readers too.  In reverse order: Continue reading the full story . . . »

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