Let’s play a bizarre twist on a familiar trivia game I like to call “Six Degrees of Sun Tzu.” If I challenged you to connect the author of Art of War (a 2,500 year old Chinese treatise on military strategy) to the author of a listserv posting (the distinctly 21st century phenomenon of social media), how many degrees do you think it would take you to do it? Here’s betting you won’t beat Judge Dolly M. Gee of the United States District Court for the Central District of California, who accomplished the feat in just one move.

Judge Gee recently (and hilariously) smacked attorney Kenneth Stern upside the head for filing a lawsuit claiming that the forwarding of a single, 23-word sentence he had posted to a listserv email list constituted copyright infringement. The Court’s legal analysis opens by quoting a phrase — in Chinese characters — from Sun Tzu’s Art of War(the Court translates it in a footnote): “He will win who knows when to fight and when not to fight.” What, you ask, could possibly prompt the Court to cite with approval the theories of an ancient Chinese military general in a copyright infringement case? Here are the facts:

Worried that a forensic accounting firm he had retained was overcharging his client, Stern posted a question to the Consumer Attorneys Association of Los Angeles listserv, asking if anyone else had experienced overbilling problems with the CPAs. Another listserv member emailed the posting to his sister (a non-member), who was a client of the accounting firm. She, in turn, forwarded it to the CPAs. Then it got interesting.
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Q: I want to make an independent film about a video game character by mixing the original storyline and characters with my own ideas. I didn’t know if I needed to obtain permission or rights to make it even though its going to be non-profit. I just want to be able to put it on YouTube and stuff. Thanks!

A: Your gracious author is wondering if you somehow stumbled upon his Xbox Live Gamertag and discovered that when he’s not faithfully answering legal questions or playing the role of human punching bag for his two young children, he’s sneaking off to his man hovel (i.e., his living room after everyone’s gone to bed) to play Halo 3 online with his similarly maturity-stunted friends. This mild addiction to a videogame has lead to an introduction to the world of guerilla videogame cinema known as “Machinima.”
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While buying a present for my son recently at a local surf-and-skate shop, I decided to check out the current crop of skateboard decks. For those not into skating (or who don’t have kids into skating), the underside of boards — you know, the part that no one will ever see if you are actually riding the board successfully — have striking graphics that are a big part of why you choose, and how much you pay for, a particular board. (Well that makes perfect sense — you’re welcome, fellow confused parents.)

One deck immediately stood out: a drawing of E.T. and Michael Jackson in an embrace, below the caption “Alien vs. Predator.”

The board is pretty hilarious, but also risky. Because I am a lawyer, and because lawyers must check their unfettered-by-legal-obsession senses of humor at the law school gate, I couldn’t help thinking about numerous potential legal claims that several plaintiffs might be able to bring.
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You may not know it to look at me, but I have a very macabre sense of humor. I adore the books of Edward Gorey and, in particular, The Gashlycrumb Tinies, a spot-on and (for those who are into tragic juvenile demise) hilarious parody of children’s ABC books in which each of the rhyming couplets recounts various unusual ways in which children have met ghastly fates: “A is for Amy who fell down the stairs. B is for Basil assaulted by bears. C is for Clara who wasted away. D is for Desmond thrown out of a sleigh…” (Not that I’m ever bored at work, but I’ve had a photocopy of “N” posted on my computer for years: “M is for Maud who was swept out to sea. N is for Neville who died of ennui.”)

I’m also a huge fan of Shockheaded Peter, a nightmarish and (again, for those who love young children meeting ironic fates…should my own daughter be concerned by this?) hilarious spectacle/stage production based on a 19th Century German book of children’s cautionary tales by Heinrich Hoffman, in which rude and naughty children all meet gruesome, yet well-deserved ends. Take, for example, “Fidgety Phil,” the tale of a boy who refuses to sit still at the dinner table and is impaled by cutlery when he pulls off the tablecloth at dinnertime. Or “Snip Snip,” in which an incessantly thumb-sucking boy bleeds to death after an evil tailor cuts off his thumbs (his mother reacts simply by saying toldya so!). The last line of virtually every song concludes with the matter-of fact sentiment: “And he was DEAD.” “And she DIED.” The end. You can imagine what happens in “The Dreadful Story of Harriet and the Matches”…

Well, remember the Troubling Tale of the Two-Steppin’ Toddler? No, it isn’t in the Second Act of Shockheaded Peter, but it certainly qualifies as a Litigation Cautionary Tale in my book.

This Dreadful Story — or, as it is more commonly known in legal circles, the Lenz v .Universal case — began with a dancing baby. We’ve covered this ground before, but let’s review the highlights:
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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 Green Bay Packers and the Pittsburgh Steelers.

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.
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“I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin, but by the content of their character.”

These words will be heard many times today as we celebrate the birthday of Rev. Dr. Martin Luther King, Jr. They are, of course, from King’s famous 1963 “I Have a Dream” speech. But as you celebrate his life and listen to his words, ask yourself this question: have you ever heard the whole speech? Not just the key excerpts that will be repeatedly broadcast today on the news, but the entire, seventeen-minute address as it was given to a crowd of 200,000 in front of the Lincoln Memorial?

Ever wonder why it’s not shown on TV more often?

The answer, my friends, is copyright. Because while Dr. King may have dreamed of a world without racism, even he wouldn’t dare to dream of a world without lawsuits.

Yes, in addition to being a noted clergyman and civil rights leader, Dr. King was a copyright litigant.
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Law Law Land’s loyal readers know much better than to commit unabashed copyright violations like the magazine Cooks Source. But because this story has become the Internet meme du jour, we couldn’t resist the opportunity to weigh in and use this as a “teaching moment.”

First, a recap. Cooks Source is a magazine targeted at “food lovers in Western New England” which was, until November 4, wholly unknown to this blogger (and, I’m betting, 99.99% of the Internet world). Cooks Source was thrust ignominiously into the spotlight when blogger Monica Gaudio posted a story about her discovery that Cooks Sourcehad taken her piece on apple pie (revealing that “As American as Apple Pie — Isn’t!”) and copied it into the magazine — with Gaudio’s byline, but without paying her a dime. When Gaudio e-mailed the magazine asking for a public Facebook apology and a $130 donation to the Columbia School of Journalism, she received the following response from editor Judith Griggs:

“…Honestly Monica, the web is considered ‘public domain’ and you should be happy we just didn’t ‘lift’ your whole article and put someone else’s name on it! It happens a lot, clearly more than you are aware of, especially on college campuses, and the workplace. If you took offence and are unhappy, I’m sorry, but you as a professional should know that the article we used written by you was in very bad need of editing, and is much better now than it was originally. Now it will work well for your portfolio. For that reason, I have a bit of a difficult time with your requests, albeit for such a fine (and very wealthy!) institution. We put some time into rewrites, you should compensate me! I never charge young writers for advice or rewriting poorly written pieces, and have many who write for me…ALWAYS for free!”

Wow. Go figure — all this time, I never knew that if a client receives a demand letter for allegedly infringing on someone’s intellectual property rights, the correct response is, “I did you a favor, so really you should pay me!” Genius.

But seriously, this email is perfect fodder for a little game I like to call, “How many gross misstatements of the law can you find in one paragraph?” (This may wind up being very problematic for Cooks Source, since turns out that this isn’t the first time Cooks Source has taken liberties with other peoples’ material…and far from it. Apparently, Griggs has been skating by on her incorrect legal opinions for some time without notice, with victims including Martha Stewart, NPR and Sunset magazine.)
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There’s been a new development in the Troubling Tale of the Two-Steppin’ Toddler — or, as it is more commonly known in legal circles, the Lenz v .Universal case. Our regular readers are familiar with the facts: back in 2007, loving mom Stephanie Lenz posted a 29-second YouTube clip of her adorable tot dancing, with Prince’s “Let’s Go Crazy” blaring in the background (I actually think he’s just running around the kitchen pushing a Fisher Price walker, but I’m no Carrie Ann Inaba). A few months later, Universal Music had the video removed, claiming copyright infringement. Lenz fought back (Hell hath no fury like a mother scorned), claiming fair use of the copyright, and filed suit in the U.S. District Court for the Northern District of California for misrepresentation of a DMCA claim. Since then, Mega-Mom has scored several victories, surviving a motion to dismiss in 2008 and knocking out certain of Universal’s affirmative defenses earlier this year.
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They say the first step to recovery from addiction is to admit that you have a problem. Well…my name is Rachel Valadez, and…I’m a Gleek.

The hideousness of that term aside, the show has been a favorite of mine since it debuted in May 2009, enjoying a hallowed status as the one show a week for which I regularly give my DVR a rest and (gasp!) watch live (simultaneously reintroducing me to the exhilaration of trying to get a glass of wine and a snack during a single commercial break). But this post isn’t about trying to convince you that Glee is so much more than re-imagined karaoke music videos (it is), or that a show where the characters spontaneously burst into song is capable of actual character development and witty, self-aware humor (check and check). Instead, I thought I’d use my first of twelve steps to see what practical, entertainment law related lessons I could Glee-n (sorry, I get one) from this pop-culture juggernaut. [Ed. note: groan.]
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Q: I shot a spec pilot in order to showcase my writing/directing talents. In it I use popular and current hip-hop, rock, and pop music. I am not showing this pilot for money — I’m distributing DVDs to production companies and studios, and screening it to generate buzz about my TV series and get a deal (so this project is not to generate revenue directly). Can I use this music without getting clearance or paying ASCAP fees?

A: No. These songs are protected by copyright. Copying them without a license is copyright infringement. Just about any original work is protected by copyright, and in most cases you can’t use it without a license.
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