Friday, March 09, 2007

Where’s my Wiki Pedigree?

If information is the reflection of a society that produces it, shouldn’t we spend some time gazing at the original? Apparently Wikipedia thinks so…now. The twists and gasps keep coming from Wikipedia, the world’s most famous online encyclopedia, oracle, and cyber soap opera.

Much like “Chad” in your generic soap being exposed as a fraud, a high-level wiki contributor, “Essjay”, was revealed to be a 24-year-old college dropout, instead of a theology professor. Apparently disposed to giving “expert” opinions on the subject, his credentials were allegedly vouched for by Wiki personnel to the New Yorker in 2006, despite the fact such personnel admitted to not knowing his true identity. Ryan Jordan, as Essjay is known to his carbon unit buddies, even held the rank of “arbitrator” a trusted inner position in the wiki organization that oversees disputes over veracity and the like. In fact Ryan was hired by Wikia, Inc., Jimmy Wales’ for profit venture, but later fired. As a result, Wikipedia is now undertaking a policy that will require contributors who claim expertise in a matter to identify themselves.

Although I may appear to be harsh on Wikipedia, I am cognizant of the extreme tension between two seemingly polar schools of thought—anonymity and pedigree. Anonymity is to a great extent what fuels Wiki’s charm—as a result, the site is truly astounding in breadth and depth. However, pedigree, meaning the ability to measure the contributor along professional/academic lines, though so 20th century, is still a valid and necessary concept. While I agree that you should not judge a book by its resume, it is still necessary to at least identify the resume. Hence, Wiki’s identity rule is a positive first step in bridging the gap between the two schools.

In a separate vein, WikiLeaks.org aims to crack the mirror by showing what lies behind it, albeit through anonymous whistleblowers. Designed to be absolutely anonymous in nature, it promotes the dissemination of clandestine political documents (think the Pentagon papers). As the site states:

“Wikileaks is developing an uncensorable Wikipedia for untraceable mass document leaking and analysis. Our primary interests are oppressive regimes in Asia, the former Soviet bloc, Sub-Saharan Africa and the Middle East, but we also expect to be of assistance to those in the west who wish to reveal unethical behavior in their own governments and corporations. We aim for maximum political impact; this means our interface is identical to Wikipedia and usable by non-technical people. We have received over 1.2 million documents so far from dissident communities and anonymous sources.”

Hmmm, is this LonelyGirl for regime change? Indeed some argue this is a CIA front, designed to manipulate its readers into adopting its political slant. For those of us that are less conspiracy minded it is a potent example of how anonymity can be a double-edged sword—protection for the oppressed, or in Ryan’s case a false pulpit.

Friday, February 23, 2007

Right of Publicity in the US a Franken-Mess

The “right of publicity” in this country is a Frankenstein pastiche of state rules with unique and perverse interpretations abounding. The fact that other major intellectual property rights possess a federal scheme (trade secret as a contractual right notwithstanding), while rights to one’s own persona is a state’s issue is perplexing with a side of vexing. Two cases illustrate the problem that will only take on bigger proportions as “UGC” (hipster speak for the amateur vids on YouTube) becomes the norm and personalities are sampled, manipulated, and reduxed.

For fans of retro revisited disco post retro, you might remember an early nineties sensation turned fade away Deee-Lite. Their signature hit was “Groove is the Heart” if that jogs your memory. The lead singer of the band, Kierin Kirby, aka "Lady Miss Kier," now has become famous again for entirely unintended reasons.

Kirby took issue with a pair of games released by SEGA featuring a retro revisited disco post retro female protagonist named "Ulala." Kirby strongly believed that Ulala swindled Lady Miss Kier out of her persona. In particular, Kirby asserted that the character’s name, “Ulala” was a misappropriation of Lady Miss Kier’s signature "ooh la la," phrase.

In April 2003 Kirby filed suit against SEGA in LA, asserting several causes of action, the core cause being misappropriation of likeness under Cal. Civil Code section 3344. The trial court viewed the situation through a first amendment lens and granted summary judgment for SEGA, stating "[n]othwithstanding certain similarities, Ulala is more than a mere likeness or literal depiction of Kirby. Ulala contains sufficient expressive content to constitute a 'transformative work' under the test articulated by the Supreme Court in Winter v. DC Comics (2003) 30 Cal.4th 881 and Comedy III Productions, Inc. v. Gary Saderup, Inc. (2001) 25 Cal.4th 387.”

The Court relied on the "transformative" doctrine, determining that the Ulala character was sufficiently different from lady Kirby to avoid running afoul of CA's right of publicity law. Interestingly, the court essentially rejected a blanket application of a copyright principle, derivative authorship, in the personality rights arena. Hence, although one could loosely argue that Ulala was “derived” from Kier’s stage persona, SEGA did not cross that line and prevailed here.

As the case did not hinge on the use of a photo, a voice recording, or any other typical item at issue in a publicity rights case, the court had to test the boundaries of the right when applied in more abstract waters. And astoundingly, the appellate court seemed to digest the gist of the Deee-Lite magic in its hit video, stating "[t]he song's music video, which received extensive airplay on MTV, features band members clad in 'funky retro outfits, vivid graphics, groovy dance moves, a futuristic setting and an overall party feel.'" Kierin Kirby v. SEGA of America, Inc. (2nd Dist., Div. 8, Sep. 25, 2006) No. B183820 (unpublished). Unfortunately for Kirby, she lost on appeal as well.

Kirby essentially argued that Ulala was derived from her style, her look, and her vibe. And truly, Ulala is a digital “Franken-doll”, a mashing of polygons, texture maps, motion capture and sound effects to create an on screen marionette. In other words, the character was an interpretation of lady Kirby 's stage persona, not an outright copy or photo real reproduction. Query if the Ulala character was shown to be derived from the character sketches and production notes of a rival game company, the outcome would have been different.

Nonetheless, the court made clear that in its vision of our video game future, celebs should expect to see themselves cast in video games in some interpretational fashion. And why not? This has been done in the literary universe for years. Countless characters have been fashioned on or inspired by countless celebrities from every arena of fame, politicians, sports heros, pop divas.

This case in my mind clearly lays bare the flawed reasoning of the McFarlane-Tony Twist Case. For those who are not connoisseurs of alleged celebrity misappropriation, that case involved the popular Spawn Series and hockey player Tony Twist. McFarlane, a comic book author penciled a character bearing the hockey player's name, not a derivative of the name. However, other than the name, the character was entirely the product of McFarlane’s mind (a New York mobster actually.) No look, no vibe, no style was appropriated from Twist. However, the Missouri trial jury determined that McFarlane had violated the player's right of publicity by merely appropriating the name. Fortunately for McFarlane, the court invoked the little known seldom used “JNOV,” or judgment notwithstanding the verdict to rule in favor of the McFarlane.

On appeal in 2003, the Supreme Court of Missouri reversed and remanded, unanimously holding that Twist had a valid right of publicity claim in light of the finding that McFarlane used Twist's name primarily to sell comic books/merchandise. Now on its second appeal, the Missouri Court of Appeals has affirmed the jury’s verdict. Hence, the Missouri court took a far more narrow view than its California counterpart, honing in on the fact that a “hard” publicity item such as a name was present and ignoring the highly transformative nature of its use.

The interesting point to note is that under the California standard, McFarlane’s appropriation of Twist’s name, which was grafted on a wholly unrelated character, context and universe would likely be transformative. This is especially so given the fact SEGA ostensibly "patterned" its Ulala character on Lady Miss Kier. With video and video game technology increasingly accessible, the stakes for these suits becomes higher and the courts must be cognizant of the adverse impact multimillion dollar awards will have on innovation.

Nonetheless, I do believe that California Civil Code section 3344, which states that "The prevailing party in any action under this section shall be entitled to attorney's fees and costs," is unduly harsh. Indeed, Kirby as the losing party in her suit is now required to pay SEGA attorneys fees in the amount of $763,000. Certainly this will make anyone with a shaky right of publicity suit reconsider legal action.

Saturday, January 27, 2007

Warning: Get Yo' Self a New TV


As HDTV becomes a reality, the reality of being forgotten in time by DTV will become apparent to those couch potatoes who buy analog only TV’s. Always vigilant against consumer terror, US Representatives Joe Barton (R-Texas), Dennis Hastert (R-Illinois), and Fred Upton (R-Michigan) have proposed a Surgeon General style sticker. "This television is obsolete," will be featured prominently at the center of a new warning label. The goal? Prevent consumers from being duped by commission happy Circuit City employees and their ilk.

As pictured above, the label states, "This TV has only analog broadcast tuner and will require a converter box after Feb. 17, 2009, to receive over-the-air broadcasts." I like the bomb icon, it has an "Amber Alert" quality to it.

And if this does seem a bit “over the top,” consider that federal statutes mandate the cessation of standard analog band broadcasting (though no later than 4/2009). This means, for many, getting a new TV (or converter box), or subscribing to Reader’s Digest. Although, there are some controls in place. Currently, manufacturers are banned from producing analog only 25" or larger TV’s. And beginning in March, that requirement will extend to all sets larger than 13", as well as to VCRs.

I have to say I am amused by, if not a proponent of, the proposed label by tech outlet Ars Technica.

Monday, January 15, 2007

Freedom of Wiki--1st Amendment Skirmishes over Zyprexa Documents Leaks Online

On January 16, the Eastern District of New York will host the legal battle over the controversial prescription Drug Zyprexa and wiki users’ First Amendment right of free speech. The battle revolves around the “side effect” of an ongoing lawsuit against the pharmaceutical company Eli Lilly and how some documents, meant to be sealed by court order, found their way to various web servers and a wiki (www.zyprexa.pbwiki.com). The battle will feature the EFF’s lead attorney Fred von Lohmann (also argued on behalf of Grokster) who will defend the rights of a citizen-journalist to link from a public wiki to electronic copies of damaging Lilly documents relating to Zyprexa.

For a New York Times article discussing the case – go to http://www.nytimes.com/2007/01/15/technology/15link.html?_r=1&oref=slogin


For the full motion filed by the EFF – go to http://www.eff.org/legal/cases/zyprexa/zyprexa_motion.pdf

Tuesday, December 19, 2006

Kaiser Wahab to Speak on PPM's in Film on an Institute for International Film Financing (IIFF) Panel

Many apologies for the slow pace of entries. The end of the year has gripped all in the legal firmament of the city and I am struggling to free of myself of its many tendriled grasp. One bright spot, I will be giving a lecture on how Private Placement Memoranda work in the film industry. Info for the Institute for International Film Financing (IIFF) event is below. I promise to be blog more regularly soon.


Abstract:

Following a sold-out launch event at DCTV in October, the Institute for International Film Financing (IIFF) continues its successful series of Townhall Meetings in New York City.

This "grassroots" community event features a powerful roster of highly topical speakers from the worlds of film and finance. We are delighted to again welcome real-world financiers among our guests for the evening!

IIFF's one-of-a-kind mission is to sustainably expand the scope & appeal of film financing, and to do so for the benefit of the public at large. True to IIFF's proven motto, "democratizing film financing," our regular Townhall Meetings bring together a wide array of professionals from relevant backgrounds in film, finance and beyond for a vibrant evening of insightful presentations and speeches, inspiring discussion and focused networking. Past meetings (e.g.: December Townhall in San Francisco | October Townhall in New York City | September Townhall in Oakland, CA | July Townhall in Palo Alto, CA | June Townhall in San José, CA | May Townhall in San Francisco, CA | April Townhall at Stanford business school) have reliably delivered useful insights into the business of film, provided valuable networking opportunities, and managed to draw large and enthusiastic crowds.

Who should attend? Entrepreneurs, technologists, attorneys, bankers, investment managers, venture capitalists and other non-film professionals are cordially invited to learn more about independent film. Are you considering taking an active role in film or would you like to expand your current involvement? Don't miss this opportunity to connect with the like-minded... Established and aspiring filmmakers are, naturally, more than welcome to join us as well!

The evening's seven presentations & panel discussion will address key issues relevant to filmmakers, financiers, and anyone interested in the economics, business mechanics, and financial dynamics of film. They will be followed by Q&A time. Attendees will also have ample opportunity to interact & network with our distinguished presenters and panelists and amongst themselves.

An informal après-meeting celebration will take place at an area restaurant.

Featured Moderator:

The event will be moderated by Thomas Trenker who founded the nonprofit Institute for Int'l Film Financing and runs FilmAngels, the world's first professional angel investor organization for independent film. Besides that and organizing a variety of events and initiatives at the junction of filmmaking, entrepreneurship and venture capital, Thomas is always on the lookout for worthwhile and intruiging new indie film projects that are seeking investor financing. Don't hesitate to connect with Thomas via LinkedIn or in person at this or another upcoming IIFF meeting.

Meeting Venue:

School of Visual Arts
Main Building — Film, Video and Animation Department
209 East 23rd Street (btw 2nd & 3rd Avenue)
Amphitheater, 3rd floor New York, NY 10010
(212) 592-2000

Schedule:

6:00-6:30 pm ... Registration and introductions
6:30-7:30 pm ... Three featured presentations with Q&A (3x 20 min)
7:30-8:00 pm ... Networking break I (30 min)
8:00-9:00 pm ... Four featured presentations with Q&A (4x 15 min)
9:00-9:15 pm ... Networking break II (15 min)
9:15-10:00 pm ... Moderated panel discussion with Q&A (45 min)
10:00+ pm ... Community time at area restaurant

Program Details:

1) When Wall Street Meets Hollywood: Lessons from a Hedge Fund Manager Turned Film Producer

— by PETER STERLING, Hedge fund manager turned film financier/producer; Executive Producer of "Shooting Livien"; Partner at Velveteen Films

2) Film Funds & the New Rules of Film Financing: Guidelines for Film Entrepreneurs, Fund Managers & Private Equity Investors

— by TOM SELZ, Founding Partner at Frankfurt Kurnit Klein & Selz; General Counsel at Independent Feature Project (IFP)

3) The Revolution Will Be Digitized: How the Internet Is Transforming Film & TV (And What It Means for Producers & Investors)

— by DAVID ROSEN, Author of "Off-Hollywood: The Making & Marketing of Independent Films"; Convener & Executive Producer at Digital Independence; Vice President of Corporate Development at ComCam

4) The Filmmaker as Entrepreneur: A New Paradigm for Success in Independent Film?

— by REEVES LEHMANN, Chairman of Film, Video & Animation at School of Visual Arts (SVA)

5) Screenwriting for Profitability: What Writers & Script Doctors Can & Can't Do for a Film's Financial Success

— by Prof. CAMPBELL DALGLISH, Professor of Screenwriting at City College/CUNY (MFA Film & Video program) and NYU; Founder & Writer-Director-Producer at D'Arc Productions

6) PPMs Demystified: Use, Usefulness & Value of an Often Misunderstood Yet Essential Tool for Filmmakers & Financiers

— by KAISER WAHAB, Partner at law firm Wahab & Medenica

7) Hollywood Profits: Quantitative Drivers of Motion Picture Profitability

— by THOMAS A. TRENKER, Founder & Chairman at Institute for International Film Financing (IIFF); Managing Director at FilmAngels Capital

Friday, November 24, 2006

Customs--Your Intellectual Property Angel at Our Nation's Border

Most businesses know the value of intellectual property, trademarks, service marks, trade names, patents, copyrights and trade secrets (“IP”). However few understand the interplay between those rights and the United States Customs Service and Border Protection Department’s ("Customs") role in enforcing those rights.

As we become increasingly a nation of importers, more goods are entering the US through our ports. And each time such goods are subject to inspection by Customs. With the world’s attention (even China’s) on the growing threat of counterfeit goods, Customs’ role in protecting IP rights cannot be overlooked.

In addition to the traditional registration route for copyrights and trademarks, IP owners can additionally "record" them with Customs. Recording IP with Customs, provides a variety of critical protection measures. For example, Customs is empowered to detain, seize and forfeit counterfeit, pirated and/or infringing merchandise. Secondly, Customs may slap the offending importers with civil fines. In addition, Customs is fairly aggressive in detaining potentially infringing goods. Indeed, Customs relies on a mere “reasonable suspicion” test in the case of trademarked goods. In other words, Customs can and will detain goods that it has a reasonable suspicion infringe a given trademark.


FEES AND APPLICATION PROCEDURE
The cost of Customs registration is compelling given its benefits. Prerequisites to recording with Customs typically involve registration of the right in question with the appropriate government IP office. Hence copyrights should either be registered with the United States Copyright Office or a recognized foreign copyright under the Berne Convention. Similarly, trademarks must be registered on the Principal Register of the United States Patent and Trademark Office ("USPTO"). As a side note, Supplemental Register marks cannot be recorded with Customs.

To record a federally registered trademark, service mark, or copyright with Customs, the owner obtains a certified copy of the registration, and submits them in duplicate upon request of Customs in conjunction with Customs’ online application. The application sets forth, among other things, the authorized users of the mark/copyright. The fee is reasonable (as of 12/1/2006 $190) and is charged per copyright and for each class of trademarked goods to be recorded. Hence for example, if a trademark is registered in four classes, the Customs recording fee will be $760. The protection afforded by recordation is effective on the date the application is approved. Registered trademarks that are recorded with Customs will remain in effect concurrently with the USPTO registration and must be renewed when the USTPO registration is renewed. Following such time a renewal can be filed with the appropriate fee. In contrast, registered copyrights recorded with Customs remain in effect for 20 years.

TYPICAL TRADEMARK RECORDATION INFORMATION REQUIRED:

(a) the name, complete business address, and citizenship of the trademark owner or owners (if a partnership, the citizenship of each partner; if an association or corporation the State, country, or other political jurisdiction within which it was organized, incorporated, or created);

(b) the places of manufacture of goods bearing the recorded trademark;

(c) the name and principal business address of each foreign person or business entity authorized or licensed to use the trademark and a statement as to the use authorized; and

(d) The identity of any parent or subsidiary company or other foreign company under common ownership or control which uses the trademark abroad." 19 CFR § 133.2

TYPICAL COPYRIGHT RECORDATION INFORMATION REQUIRED:

(a) the name and complete address of the copyright owner or owners;

(b) if the applicant is a person claiming actual or potential injury by reason of actual or contemplated importations of copies or phonorecords of the eligible work, a statement setting forth the circumstances of such actual or potential injury;

(c) the country of manufacture of genuine copies or phonorecords of the protected work;

(d) the name and principal address of any foreign person or business entity authorized or licensed to use the protected work, and a statement as to the exclusive rights authorized;

(e) the foreign title of the work, if different from the U.S. title; and

(f) in the case of an application to record a copyright in a sound recording, a statement setting forth the name(s) of the performing artist(s), and any other identifying names appearing on the surface of reproduction of the sound recording, or its label or container. 19 CFR §133.32

TRADE NAMES
For those without them, registration is not a fundamental requirement to record trade names with Customs. Unregistered Trade names can be recorded with Customs under limited circumstances. The process is similar to recording a registered trademark or copyright, but is beyond the cope of this article.

CONCLUSION
Recording IP with Customs should be handled with care. Applications must be sufficiently detailed to avoid missteps and confusion that could result in Customs seizing the owner’s own goods, or allowing counterfeit goods to pass. Worse still, goods that are earmarked for an owner’s licensees and distributors may get caught in the fray resulting in damaged goodwill and contractual breaches.

Wednesday, November 15, 2006

Representing the Fashion Client CLE

W&M Partner Olivera Medenica to be part of a CLE panel tonight on IP and business issues in fashion.

Representing the Fashion Client

Wednesday, November 15, 2006, 6:00 - 9:00PM

Member Price: $125
Non-Member Price: $165


Intended Audience:
Attorneys in all practice areas seeking to develop the skills necessary to represent their clients more effectively.

Location: 14 Vesey Street- 2nd Floor Auditorium

Course ID: C111506

Number of Sessions: 1

Credits: 3 MCLE Credits
3 MCLE Credits: 3 Professional Practice; Transitional

Course Description:
The rapidly growing area of fashion law covers issues of intellectual property, business law, licensing and the import/export side of customs. The panel will discuss how attorneys can best represent their fashion industry clients -- whether designers, manufacturers or retailers.

The topics covered by the panel will include: • how attorneys can best protect and exploit their fashion industry clients rights, including intellectual property rights such as trademark and copyright, as well as trade arrangements and contracts.• the unique issues related to drafting and negotiating commercial agreements for clients entering different types of business relationships within the fashion industry. • how attorneys can assist their fashion clients in minimizing customs duties and avoiding compliance problems with the U.S. Customs Service.• the various types of litigation in which a fashion client may be involved. • current issues, such as the protection of new fashion designs through the proposed Design Piracy Prohibition Act now pending in Congress, which, if passed into law, would extend copyright protection to fashion designs.

Faculty:
Elliott J. Brown, Senior Vice President and General Counsel, Marc Ecko Enterprises

Alain Coblence, Coblence & Associates

Francis Hadfield, Associate, Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt LLP

Olivera Medenica, Partner, Wahab & Medenica LLC

Susan Scafidi, Visiting Professor of Law, Fordam Law School

Program Co-Sponsor:
eMIPS Section of NYCLA

Moderator:
Roberta Kraus, Asst. Counsel, Lumenis, Inc.



Early Registration (on or before 11/13)
Member: $125 Non-Member: $165

Registration Fee (11/14-11/15)
Member: $150 Non-Member: $190


Light dinner and refreshments will be served.