2012

Free-to-play games are all the rage these days.  Many people while away their days playing Angry Birds, or Words with Friends before going home to watch Monday Night Football.  Nerds — and, increasingly, “normal people” — do the exact same thing, except instead of watching football, we play games like Super Monday Night Combat.  This teemosummer, the remarkable viability of the free-to-play business model gained extra attention when Forbes reported that the most-played PC game in the world is now a free-to-play game called League of Legends.  For those of you struggling to understand the profitability part, just take a look at League of Legends character Teemo (pictured left).  I mean, seriously, who can resist purchasing all the adorable “skins” for him?!  (Clearly, not me.)

Nevertheless, the business world of free-to-play gaming is not without its dark, seedy underbelly, where even the cute and cuddly characters are forced to work in digital sweatshops and sell virtual drugs on simulated street corners just to make ends meet.  Well, ok, maybe it’s not thatextreme.  But as a recent (and bitter) dispute between game makers Zynga and Kixeye demonstrates, the gaming business can be just as ugly (and fascinating) as some of the game battles themselves.


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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.)


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There is a lot to be thankful for in Los Angeles this Thanksgiving.  As I’m sure we can all agree, near the top of the list is the Lakers’ recent acquisition of superstars Dwight Howard and Steve Nash, as well as team USA Coach Mike D’Antoni, all in time for the holidays.  Of course, I’m guessing that the Buss family’s decision not to hire Coach Phil Jackson (who is dating Lakers executive and daughter-of-the-owner Jeannie Buss) is going to make things awfully awkward at the Buss family Thanksgiving dinner table.

Of course, that’s only going to the second most awkward turkey-related incident of the last month for a member of the Lakers family.  The dubious first prize goes to Laker great Magic Johnson, whose passion for turkey and other tasty treats has found its way into a civil lawsuit against him.

Just before Halloween, a woman named Latina Thomas — who, until recently, was Magic’s personal flight attendant — filed a wrongful termination action against Magic and the aviation company that had co-employed her.  Ms. Thomas alleges that she was fired for being seven minutes late to work after waiting an extra-long time at a deli counter trying to purchase “two types of specific turkey” for Magic’s sandwich.  Ms. Thomas claims that the turkey incident was a pretext for her firing so that Magic could replace her with a younger woman.

So who’s the real turkey here?  Magic Johnson or the flight attendant?


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If you’ve ever had the opportunity to travel through the great southern states of America, you will learn two things.  First, southern hospitality is real — no, the nice man asking “how is your day, miss?” is not going to ask for money or steal your purse.  And second, people really do make moonshine in their backyards.  If you had any doubt about that, then you haven’t seen Discovery Channel’s Moonshiners, a can’t-make-this-stuff-up series in its second season that “tells the story of those who brew their shine — often in the woods near their homes using camouflaged equipment — and the local authorities who try to keep them honest.”  There’s a ton more to learn about the South, but as I learned as a first-year law student in Nashville, Tennessee, nothing is as romantic as the tradition of moonshining (except, perhaps, the barbecue — maybe another post).

While an old classmate and I were reconnecting recently — reminiscing about the potency of the good ol’ Tennessee and whisky and wondering exactly what “keeping a moonshiner honest” actually entails — it hit us:  why not sell legal moonshine from Tennessee over the internet?  Just imagine the market boom, as trendy Angelino hipster homebrewers would throw mixology parties showcasing the wonder brew.  But how easy would it be to legally sell moonshine to Yankees and Angelinos?  Well, as I soon discovered, aside from the fact that making unauthorized moonshine in your backyard is highly illegal and dangerous (and in no way endorsed by the author), there is a serious patchwork of state and federal laws that any moonshiner who wants to go straight must contend with.


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Many people consult with psychics.  Not an unusual thing to do (certainly not in California).  But not a lot of people spend the next 38 years adding rooms to their houses because the soothsayer said spirits would kill them if construction ever stopped.  At least one person is reported to have done so:  Sarah Winchester, the widow of the son of the famed gunmaker.  By the time the heiress died in 1922 at age 82, her seven-room farmhouse had become a seven-story, 160-room Victorian-style mansion, replete with winding dead-end passageways, interior windows, and doors to nowhere.

hauntedThese types of legends make good movies, which is why a production company approached the owner of the Winchester Mystery House in San Jose, California, to request permission to film there.  The owner turned it down, stating that another company had already acquired the rights to the Winchester story.  The filmmakers went ahead and made their movie anyway, calling it Haunting of Winchester House and putting a Victorian-style mansion on the DVD cover.  You can guess what happened next.

The case that followed, Winchester Mystery House, LLC v. Global Asylum, Inc., represents a classic battle seen frequently in the world of entertainment litigation:  the trademark owner who wishes to preserve his exclusive rights to a particular name vs. the artist who wishes to use that name as part of a creative work.  And the battleground?  The First Amendment, of course.  So what happens when the owners of one of America’s most famous haunted houses take on the filmmakers who have gone renegade to tell its (highly fictionalized) story?


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We here at Law Law Land are big fans of Halloween, the drunkest, sluttiest, most creative and fun-loving holiday of the year.  Law Law Land HQ itself is awash in cat ears and warlock coats today, and your editor is looking forward to a heaven-vs.-hell, angel-vs.-devil ping pong grudge match of epic proportions tonight.  But if you’re looking for a real fright on Halloween night, just consider some of the following truly scary cases and claims.

If the Past Is Never Dead, Does That Mean the Past Is Undead?

William Faulkner famously wrote, “The past is never dead.  It’s not even past.”  Woody Allen-mouthpiece Owen Wilson less-famously said, in 2011’s Midnight in Paris, “The past is not dead!  Actually, it’s not even past.  You know who said that?  Faulkner.  And he was right.  And I met him, too.  I ran into him at a dinner party.”  And Faulkner’s estate is now infamously saying that, if you use Faulkner’s line (ish) in a movie, with attribution, you have broken the law.

Faulkner’s estate is suing Sony Pictures Classics for copyright infringement and trademark infringement, claiming that Midnight in Paris’s misquote of Faulkner’s famous aphorism from 1950’sRequiem for a Nun not only infringes their copyright, but also violates the federal trademark statute by deceiving viewers into believing that the movie was affiliated, endorsed, or authorized by the Faulkner estate.  So are Sony’s lawyers running scared into the night?  Not likely.  But the distant howls you might be hearing are actually the pained wails of frustrated intellectual property law professors everywhere.

(Special kudos to the usually-dry-as-a-skeleton Courthouse News Service for observing, “at risk of offending the shade, or estate, of Charles Dickens:  This is a far, far weirder thing than Sony has ever done.”)


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My daughter has always been squeamish about eyeballs.

Ask her to name the scariest movie of all time?  Who Framed Roger Rabbit, of course.  She saw it once (and only once) at the age of four, and the scene near the end, in which the flattened Judge Doom re-inflates himself and reveals the malevolent Toon lurking beneath his popped-out prosthetic eyeballs, scarred her for life.  And so, our family will always fast-forward past the melting of Nazi agent Toht in Raiders of the Lost Ark, decline to mourn the loss of Mad-Eye Moody inHarry Potter and The Deathly Hallows, Part I, and just steer clear of the absolute abomination that is Large Marge in Pee Wee’s Big Adventure.

I mention all this so that you will understand the sense of abject horror and dread I experienced when, several weeks ago, I drove to work down Motor Avenue and found myself face to face with a giant, eerie nun, her face as white as alabaster, crying (or bleeding?) black liquid from alien-like eyes.  It was a (thoroughly disturbing) billboard for American Horror Story: Asylum looming over the entrance to Fox Studios.  Adjacent to our beloved dog park.  Big as the Times Square Jumbotron.  I knew my daughter would freak out, and freak she did.

She insisted that I call the studio and demand that the billboard be removed immediately, which gave us the perfect opportunity to discuss that little thing called the First Amendment.  Once I got going, she quickly went from billboard-ed to bored, and ultimately resolved to cover her eyes with a sweatshirt if I would simply shut up.  But the issue stuck with me.  As an attorney, I’m comfortable with the fact that First Amendment expression should not be unduly chilled by a ten-year-old with a (perhaps unreasonable) eye phobia.  But the mom in me took umbrage at this offensive (or at least unsettling) billboard content.  Should Fox have the right to upset my kid on a daily basis in its attempt to bring more “eyeballs” to its advertisers?


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Q:  For some 10 years now, I’ve been trying to penetrate the 10 foot thick wall called “unsolicited.”  How do I get through it? I have no agent.

A:  We can answer your question, but frankly, you may not like what we’re going to say.  Unfortunately, that 10 foot thick wall is probably as old as the Great Wall of China and is equally as impenetrable.  For those of you who haven’t had the pleasure of submitting a script to an individual, production company, studio or, god forbid, law firm only to have it returned to you with a letter classifying it as an “unsolicited submission,” we can give you a little background.


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Q:  I’m a writer/director.  I wrote a script that’s getting some traction.  I obviously want to sell it but on one condition:  I have to direct the movie.  I don’t think anyone else can do it justice…  A producer just presented me with an option agreement.  In our conversations, he agreed that I could be the director.  In the option agreement, it says that in the event the project receives financing and if a few other conditions are met, I’ll be engaged to direct the film on a “pay or play” basis.  I know that “pay or play” is a good thing so does this mean the producer is essentially agreeing that I’m the director?

A:  When I first started practicing entertainment law, I believed the term “Pay or Play” referred to the next hot NBC primetime game show, which I assumed would be hosted by Gallagher.  Fortunately for all of us, it’s not.  However, I’ve found that while it is a very commonly used contract term, and everyone wants it in their agreements, there is (as evidenced by your question) some confusion about the full extent of its implications.


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