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.

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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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Why Skip Bayless Should Probably Focus on the Super Bowl and Shut Up About This Whole “Kaepernicking” Trademark Application

So last week, I was on my 173rd consecutive hour of consuming blog articles, news stories, tweets, posts, video interviews, transcripts of interviews, analyses of transcripts of interviews, and opinions on the analyses of transcripts of interviews about Manti Te’o and his imaginary dead girlfriend, when I noticed that something else critical happened in the world of sports.  OMG OMG OMG!  Did you hear that Colin Kaepernick, NFC champion quarterback of the San Francisco 49ers and flat-billed hat enthusiast, recently “trademarked” his signature, tattooed-biceps-kissing touchdown celebration now known as “Kaepernicking?”

Wait, WHAT?!  Does this mean that when I finish this blog, Colin is telling me I can’t celebrate by jumping up from my desk and kissing my beautiful biceps?  Have you seen my biceps?  It’s hard for me to look down at them and not kiss them!  It’s like I have Kate Beckinsale and Jessica Chastain staring up at me from each bicep, lips pursed, like some insane Popeye fever dream.

In my panic, I poured through the incomprehensibly large number of stories about this.  But then I had a thought.  No, not “What am I doing with my life?”  No, not even “What is everyone at ESPN doing with their lives?”  No, my thought was “Wait wait… I’m a lawyer, damn it!  I actually know what all of this means!  These guys don’t!

What’s in a Trademark?

You see, there are times when being a lawyer is like being a sci-fi nerd.  No, not just because girls flinch upon seeing us…  Where a sci fi nerd may get mad that you don’t know that those cool big four-legged walky things in The Empire Strikes Back can be called either an Imperial Walker OR an AT-AT (short for All-Terrain Armored Transports, not to be confused with those cool little two-legged walky things in Return of the Jedi, which are called AT-STs, or All-Terrain Scout Transports…idiot), I often find myself peeved at laymen’s misunderstanding of intellectual property law.  Someone will give someone a funny nickname at a party and follow it up with “you should totally copyright that!”  And I’ll shout “Excuse me!  According to U.S. copyright law, you can’t copyright a short phrase!  In fact, judging by the context, I’m pretty sure you mean that you should ‘trademark’ that, but what does that even mean?  You can’t actually ‘trademark’ something!  You can file an application for registration with United States Patent and Trademark Office and assuming you specify the proper goods and services and submit a proper specimen of use and pay the requisite fees and don’t receive an office action from the USPTO Examining Attorney or an opposition from a third party, you may be issued a registration.  But is that really what you want to go through for that stupid nickname?!  Hey, wait a minute, where’s everyone going?  Come back!”  (See, there’s a reason I don’t get invited anywhere by anyone.  Ever.)

Regardless (or “Irregardless” for you Raiders fans), listening to or reading a sports reporter’s take on trademark law is like Bill Walsh listening to me try to explain the complexities of the pistol formation.  Here’s the thing:  Colin Kaepernick is in no way going to be able to prevent you, me, Alex Smith, Ray Lewis, the Harbaugh Brothers, or any member of the Lingerie Football League’s Seattle Mist from kissing their biceps.  In fact, as applied for, Colin’s application, if it eventually becomes a registration, will only prevent you from the following VERY limited activity:  advertising and selling clothing making use of the word KAEPERNICKING as a brand.  That’s it.  Nothing more.

You see, Colin’s application only covered the word KAEPERNICKING, not the actual celebration.  In addition, in his application, he’s only claiming the exclusive right to use that word in connection with clothing — following the recent trend of athletes attempting to secure their nicknames for clothing (see TEBOWING and LINSANITY).  In fact, he actually applied for several other marks that didn’t get as much publicity:  KAEPERNICK7, KAEPERNICK CK7, KAP7, KAP, and, creatively, COLIN KAEPERNICK.

As much as can be forcibly read into this story by the easily-excitable Skip Bayless (who just so happens to not only be a frat bro of mine, but we also attended the same sports powerhouse), it’s really not a big deal.  Due to the fact that his “trademark” is just a version of his name, he likely wouldn’t need a registration to protect himself — he’s got right of publicity laws on his side.  He probably filed the applications simply because it’s common for unscrupulous types to file trademark applications for terms associated with famous people as soon as those terms get hot:  see BLUE IVY CARTER and LINSANITY.  Having an application on hand will make it easier to shoo those imposters aside.

Will It Even Work?

Of course, as you may have noticed from my room-clearing screed above, just because Kaepernick applies for trademark protection doesn’t mean he’s going to get it.  In fact, given the nature of the marks for which he’s claiming protection, Kaepernick and his lawyers are going to have a lot of e- paperwork in front of them.

  • All of Colin’s applications for marks which include his last name (i.e. KAEPERNICKING, KAEPERNICK7, and KAEPERNICK CK7) are likely to be initially refused by the USPTO because the marks consist of a word that is “primarily merely a surname.”  The USPTO will only allow a registration of a last name as a trademark if the applicant can prove “acquired distinctiveness,” indicating that the public now associates that surname with this particular applicant’s goods/services.  Colin may be able to prove that due to his recent rocket flight to stardom.
  • Colin’s application for COLIN KAEPERNICK is going to be initially refused by the USPTO because in order to acquire a registration for mark that identifies a particular living individual, the written consent of that individual must be on record.  The USPTO doesn’t want someone’s name to be co-opted by some random third party.  Colin will be able to easily overcome this refusal by submitting a short written statement showing his consent.
  • Colin’s application for KAP will almost assuredly be rejected.  While we may recognize that in this instance, KAP is a flawed attempt at shortening KAEPERNICK (shouldn’t it be KAEP?), the problem is that he’s trying to protect it in connection with clothing, which includes hats.  “Cap” is a word used to generically describe hats and, under the law, no one can claim exclusive rights in a generic word.  The fact that it’s misspelled doesn’t help things.  For the purposes of analyzing the generic or descriptive nature of a word, a misspelling is treated the same as the proper spelling.  I think Colin’s going to have much better luck against the Raven’s defense than he is on getting past this refusal.

But Let’s Focus on What’s Really Important

Brain-addling trademark law minutia aside, the point of this overly-angry and uninteresting missive is to convey the fact that trademark rights, at least in the U.S., are limited in scope.  The main purpose is to allow someone to protect a word, logo or slogan (or, in more complex cases, a sound, shape, color or even smell) as it is used on particular goods or services offered by that person or company.  The protection extends only to that particular word as used on those particular goods (except in limited circumstances).  A trademark registration does not allow the trademark registrant to prevent anyone from ever using that word in a sentence ever again.  It certainly doesn’t allow for the prevention of a certain unoriginal touchdown celebration (I miss the good ol’ days).

But you know, when it comes down to it, I really don’t care.  I’m bitter.  Not just because I’m a lawyerbut because I’m a long suffering San Diego Chargers fan.  I LOVE the guy, but I don’t thinkRIVERSING is going to take off any time soon.  At least I can now go back to what’s really important:  the Manti Te’o story.  I’m eagerly awaiting the day (coming soon) when we see a trademark application for the next big sports fad:  TE’OING.

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The Lakers Beat the Who?

Seattle sports fans recently rejoiced when the Maloof family announced that they have (finally) agreed to sell their stake in the Sacramento Kings to a Seattle-based investment group that (spoiler alert) intends to move the team back to the Emerald City.  Considering how well the former Seattle SuperSonics are doing as the new OKC Thunder, coupled with the fact that the Seahawks recently blew what could have been the most amazing comeback in recent memory, who could possibly deny Seattle’s sports fans this fantastic opportunity?

For starters, there are the Sacramento Kings’ fans, who fully appreciate the irony of Seattle trying to poach an existing team while still bemoaning the fact that their Sonics team got poached by Oklahoma City.  Rest assured that Kings fans will stop at nothing to keep the team in “Cowbell Kingdom,” if for no other reason than to continue persisting in their ridiculous fantasy that a “rivalry” exists between the Kings and the Lakers.  (Of course, what’s really going on is an all-too-obvious ploy to support the struggling cowbell industry, which the rest of America — except for maybe The Bruce Dickinson — will just never understand).  Leading the Cowbell Kingdom movement is former Phoenix Suns superstar and now-mayor of Sacramento, Kevin Johnson, who not only has a political science degree from U.C. Berkley, but also blew my 12-year-old mind back in 1994 when he posterized Hakeem Olajuwon.

Just one day after this week’s announcement of the sale, mayor KJ warned Seattle fans:  “Don’t celebrate too early.”  Because if KJ gets his way, the Kings will be staying in Sacramento (and the cowbell industry will be saved).  Such a result would not only devastate the hopes and dreams of Seattle NBA fans, but would also totally obviate all of the hypothetical legal stuff I may or may not eventually get around to discussing later in this article.

KJ’s Plan

KJ’s “Playing to Win” plan has four steps, none of which apparently require the use of complete sentences:  (1) identify local ownership group; (2) identify major equity partner; (3) demonstrate City’s commitment to partner on new downtown arena; (4) demonstrate viability and strength of the Sacramento market.  KJ has also located a prominent Sacramento law firm that is willing to get paid entirely in cowbells work on a pro bono basis to help keep the team in town.

In order to keep the Kings in Sacramento, KJ must ultimately convince the NBA board of governors to reject the proposed sale and relocation plan.  According to the Sacramento Bee (a far more trusted news source than the Cowbell Herald), the Maloofs have a binding agreement with the Seattle-based investors, which would mean that the Maloofs would not be able to change their minds about who to sell to unless the NBA rejects the sale (or the Maloofs want to breach their contract).  According to Fox Sports, however, the “Maloofs are still allowed to receive other offers until the league approves the sale….”  Meanwhile, other observers are speculating that the Kings’ minority owners may have a right to match the Seattle group’s offer — and that, even if the current minority owners are unwilling or unable to do so, new cowbell-loving partners (including business magnate/part-owner of the Pittsburgh Penguins Ron Burkle) could step in and exercise that right by taking over a 7% stake in the franchise that is currently available via bankruptcy auction.

In any event, the NBA board of governors will reportedly meet in New York in mid-April.  At that time, the board of governors will probably hear a relocation pitch from the Maloofs and the Seattle-based investors, as well as a counter-offer from KJ.  KJ’s counteroffer will likely include a summary of his four-point plan (no reports on the anticipated use of complete sentences), and hopefully some additional footage of him posterizing Hakeem Olajuwon.  Hopefully, KJ will have the good sense notto show the board of governors the Bubble Gum Bandits’ corny music video, which supports keeping the Kings in Sac-town.

Legal Challenges

Even if the Kings-to-Seattle move is approved by the NBA, and isn’t scuttled from within the Kings ownership group, two lawsuits threaten the construction of a new 700,000 square feet arena in Seattle.  According to the Seattle Times, the first lawsuit deals with a Washington State Initiative that requires the city to make a profit on any investment in a sports facility.  The second lawsuit seeks to void the contract because the investors failed to complete an environmental impact report and because nonindustrial traffic and development in the “Sodo” area would impair cargo movement.

Although we California lawyers can normally predict the outcome of lawsuits with absolute certainty* these lawsuits are different because they involve topics like the impairment of cargo movement — which, when rigorously analyzed, immediately force us to either take a nap or think of something more interesting before we can complete our analysis.

Even if these lawsuits are defeated, the new arena wouldn’t be ready for at least a few years — which would mean that the team would be back in the aging KeyArena.  Unfortunately, KeyArena is already booked with numerous exciting events such as Seattle University men’s basketball games, WNBA Storm games, Pac-12 Women’s college basketball tournament games, various musical concerts, and last but not least, “Rat City Rollergirls” games.  This means that instead of watching DeMarcus Cousins, Tyreke Evans and Jimmer Fredette, Seattle fans might just get to keep watching the “Throttle Rockets” versus “Sockit Wenches.”

Since I only go to Seattle to visit family and Pike Place Market, you might assume I have no dog in this fight.  But given that (1) as a Laker fan, I must constantly endure Kings fans bringing up the “rivalry” we all know never existed, and (2) I feel dated whenever I listen to Ice Cube’s “It Was a Good Day,” I would actually like to see this move happen.

But, as a German train-ticket collector once told a professor of mine when told by the professor that he was going to a certain city in Germany:  “We shall see.”

* Disclaimer:  This statement is not actually true.


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You Can’t Sue Your Favorite Team for Stinking, But Can You Sue Them for Intentionally Stinking?

My wife is very excited about tonight’s Laker game.  Not because she is a Laker fan.  Indeed, any actual Laker fan (like me) knows that now is a decidedly bad time to be a Laker fan.  True, during the last off-season we acquired Superman a/k/a D12 a/k/a Dwight Howard, and two-time MVP Steve Nash season.  True, we still have the Black Mamba.  And yes, we still have (at least for the moment) Pau Gasol.  We even replaced former-coach-of-the-year Mike Brown with different former-coach-of-the-year Mike D’Antoni as our new head coach (although it meant passing on other former-coach-of-the-year Phil Jackson).  So why are the Clippers the L.A. basketball team going on franchise winning streaks, while the Lakers are a sub .500 team?  Why does the classic and hilarious Onion video about a Staples’ Center collapse scenario which mercifully brings about an early end to a Clippers game now seem like it should only apply to the Lakers?

Whatever the reason, my wife couldn’t care less.  Like I said, she’s not a Laker fan — she’s a Steve Nash fan.  It’s so bad, in fact, that she won’t even watch the game when Steve Nash is not on the floor.  She’ll just pick up her iPhone and look at cute animal pictures or surf Pinterest.com for whatever it is that people do on Pinterest.com.  Maybe looking for pictures of Steve Nash?  In short, she completely loses interest.  So I can understand her paranoia about whether Steve Nash will suit up tonight (especially given his recent trouble with injuries).

But would my wife and I ever sue the Lakers for a refund if they decided to bench Steve Nash?  Of course not.  It’s not like we live in Miami!

Because these days, people apparently do that kind of thing in Miami…

Miami Lawyer Sues San Antonio Spurs for Benching Players

Finding a “fun” news story about the San Antonia Spurs is kind of like finding a copy of the L.A. Times Entertainment section with no mention of Lindsay Lohan getting arrested.  It just doesn’t happen very often.  Even though the Spurs have a fantastic head coach in Gregg Popovich and the best power forward the game of basketball has ever seen, they’ve just never been that exciting of a team.  They’re just a really, fundamentally sound team.  Frankly, the most fun article I have ever read about the Spurs (also from the Onion) was titled:  “Injured Manu Ginobili Only Flopping at 85%.”

But today, something wonderfully exciting happened in the world of Spurs sports news.  A Miami lawyer named Larry McGuinness filed a lawsuit against the Spurs on the grounds that Gregg Popovich “intentionally and surreptitiously” sent the team’s best players home to rest without the knowledge of the NBA and the fans attending the game.  Although the league already fined the team a controversial and unprecedented $250,000 for its decision to rest its top stars, Mr. McGuinness is claiming his own “economic damages” as a result of paying a premium price for a ticket that shouldn’t have cost so much.  McGuinness, who bought his ticket on the resale market, alleges:

“It was like going to Morton’s Steakhouse and paying $63 for porterhouse and they bring out cube steak.”

The irony, of course, is that the Spurs’ bench players almost beat the Miami Heat (one of the league’s best teams) that night.  In other words, it was more “like going to Morton’s Steakhouse and paying $63 for porterhouse and they bring out the most delicious cube steak you’ve ever had in your life.”  Still, McGuinness was understandably ticked off (even Pop had to admit the gripe was legitimate).

Spurned by the Spurs, and Soon to be Spurned by the Law

I am no expert on death penalty Texas state law (which McGuinness bases his claims on), but this kind of thing almost certainly would never fly in a California court room.  Mr. McGuinness may argue that the Spurs harmed him by breaking the league’s rules and benching their players.  But everyone knows that sometimes players don’t play for a variety of reasons:  e.g., injuries resulting from punching glass cases for fire extinguishers, flu-like symptoms, suspension for throwing unnecessary elbows at other players, suspension for brawling with fans, (yes, that’s two Artest references in a row), being benched for “conduct detrimental to the team,” getting suspended for drawing guns at a Christmas eve argument, etc, etc.  The NBA:  where totally crazy player conduct happens.

Given all of these examples, McGuinness seems to be positioning this as an “intentional” decision by the team rather than an irrational and unpredictable choice made by a player.  In support of his argument, he can point to David Stern’s punitive fine of $250,000 for breaking league policy.  Nevertheless, his argument is still a loser.  He paid to see the Spurs basketball team play basketball against the Miami Heat basketball team.  And that’s what he got.  He didn’t buy a ticket to see a game played by a five-man roster consisting of Manu Ginobili, Tim Duncan, Tony Parker, and whoever else he wanted to see — he paid to see the team.

Now, if only my wife was interested in seeing the Lakers team, instead of just Steve Nash, I might not have to explain all of this to her in the oh-man-I-hope-not-event that Steve Nash doesn’t play tonight.  Something tells me a lawsuit wouldn’t even begin to satisfy her outrage.


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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!


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“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.


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