LegalMatch: Intellectual Property

Touchdown Redskins! Supreme Court Denies Cert in Mascot Case

The Supreme Court recently decided that it would not be deciding the famous Washington Redskins case.  The Washington Redskins’ football name and mascot is safe...for now. 

 

The case involves a challenge brought by a group of Native Americans that feel the Washington Redskins’ name is so offensive that it does not deserve trademark protection.  This case is a longtime coming: 17 years to be exact, and could have implications for other sports teams that reference Native Americans in their team names and mascots. 

 

But as is often the case, the Supreme Court did not deny the case on its merits.  Rather, they felt that the lawsuit should have been brought a long time ago and denied it under a doctrine known as laches. 

           

Trademark law prohibits the registration of a name that “may disparage...persons, living or dead...or bring them into contempt or disrepute.”  As I mentioned, the Supreme Court’s ruling has nothing to do with determining whether the name is offensive, so this is still an issue up for dispute and I don’t think we have seen the end of this case.  The team’s attorney Bob Raskopf says millions have been spent on the "Redskins" brand and the team would have suffered great economic loss if they lost the trademark registrations.”

 

This is not the only team in professional sports to adopt a Native American nickname and mascot. Over the years, this pattern has given us the Kansas City Chiefs, Chicago Blackhawks, Cleveland Indians, Florida State Seminoles, and the Atlanta Braves.  To date, the Florida State Seminoles are the only NCAA sports team to have official permission from the Indian Groups whose name they use. All other colleges are banned from using Native American mascots.

I believe that the use of Native American mascots and names is not meant to offend or demean the tribes in any way.  Rather, it invokes a romantic nostalgia that many of us have of Native Americans as powerful and heroic warriors.  Interestingly enough, in a 2002 poll conducted by Sports Illustrated 83% of Native American respondents said teams should not stop using Indian nicknames, mascots, characters and symbols. As long as a team uses the mascots and name in a respectful manner and celebrates rather than degrades the culture and heritage associates with the various tribes, I think this is a tradition that should continue.

A Look at DeFAMEation

Well...we are at the peak of baseball season, which recently got me thinking about the tremendous role some of these players, players girlfriends, managers, and teams play in the public.  Baseball is the American pastime, and people love to follow every second of every play-off game. 

Fans also love to follow the off-the-field gossip surrounding the sports figures they know and love (or love to hate).  We are a society consumed by the gossip surrounding public figures and the rise of social media has only fueled this interest. But when does gossip turn to defamation?

Former New York Mets manager Steve Phillips was recently involved in a sex scandal with an ESPN employee that helps to shed light on this distinction.  The real drama of the case has less to do with the actual scandal and more to do with what happened in the blogosphere after this liaison came to light.  Popular blog site Deadspin began a blogging campaign claiming that there was a lot more sex scandals at the ESPN office and also began naming names of top ESPN executives.  Now there is a pending suit between EPSN and Deadspin for defamation.   

          The simple definition of defamation is when false statements are made in writing or through spoken word.  When defamation involves public figures there is a heightened standard that requires a showing that the statements were made with malice or reckless disregard.  The increasing popularity of social media sites, blogs, and twitter further confuses the issue of what is private and what is public.  In a sense, anyone with any type of online presence is a public figure.  

One of the main criticisms of blogs is that they lack accountability.  Although anyone who writes something that is publicly published remains accountable to the law in general, there is still that lack of restraint that newspaper, magazine, and other mainstream media writers feel before any of their work is published. 

              As one blogger noted, “What this controversy between ESPN and Deadspin brings to the forefront is the challenge of blogging, and being blogged about, in the current era of jurisprudence.” This will be a very exciting case to follow and see how law adapts to the ever-changing media.  Even if you aren’t as excited about the legal implications of this as I am (nerd alert!) this is something that will continue to affect anyone using blogs, facebook, myspace, or other online mediums.

Duh Report: Playing Annoying Cell Phone Ringtones Aren’t Concerts or Copyright Infringement

 Call me old-fashioned, but I’m just old enough to remember a time when the only people who had cell phones were doctors.  And anyone who wasn’t a doctor never questioned why they weren’t entitled to have one.  “Cell phone??  Is someone going to die if I’m not available 24/7?  No?  Then I don’t need one,” is what they would say…  Now it seems like every Tom, Dick, and Nancy has a cell phone.  We all get to hear everyone’s inanities whether we’re walking down the street, trying to watch a movie, or riding on an elevator.  

 

And the best part is somewhere in all of this, people decided that the regular phone ringtone wasn’t good enough.  Now we all get the additional pleasure of being serenaded by poorly digitalized versions of Baby Got Back.  And as much as I like big butts, I’d be lying (HA) if I didn’t tell you how incredibly annoying all of this has become, and I’m sure I’m not the only one with this sentiment. 

 

And apparently the American Society of Composers, Authors and Publishers (ASCAP) thinks so, too, though for entirely different reasons. 

 

Despite its members already getting royalties from sales on ringtone versions of copyrighted music, ASCAP filed a lawsuit earlier this year against AT&T and Verizon seeking to recoup ADDITIONAL royalty fees for people using the PURCHASED ringtones.  Essentially ASCAP was arguing that every time someone’s cell phone went off, that person was giving a free concert to anyone around them.  Insane, right?

 

Fortunately, the federal judge overseeing the case thought so, too (view the full court opinion here).  She dismissed the case stating that a ringing cell phone is not tantamount to a public performance (duh).  If she didn’t, I’d be packing my bags and getting ready to board a plane to China.  At least over there it seems like it’ll be a few more years until bootleggers and those who benefit from their work will feel the cold sting of the law. 

 

Now just in case any of you are siding with ASCAP on this one, I’m not advocating piracy or theft of copyrighted intellectual property.  In fact, I’m very much of the belief that if you create a creative work, you should be entitled to any profits that come from it.  LegalMatch receives many intellectual property disputes every year, and with good reason.  If you make something, you’ve put your time and efforts into it, and so you should get all the benefits that your work produces.

 

All I’m saying is that once you’ve secured those royalties, you should concentrate your efforts more on trying to create new money-generating work rather than trying to milk everything you can from things you’ve done in the past.  Unless you’re actually entitled to it, of course.

Nintendo Co. Faces Ban on WaveBird, Wii Classic Controllers.

Videogame giant Nintendo Co. faces a ban on some of its controllers following a losing battle against patent infringement.

With a $21 million patent infringement case filed against it, Nintendo may lose its right to produce WaveBird, Wii Classic, and Nintendo GameCube controllers—a major hit against two of its most successful console gaming systems. Challenger Anascape, a controller manufacturer from Tyler,Texas, claims that Nintendo infringed on its protected patents of a controller that handles six types of movement inputs at once. Nintendo continues to deny the claim, and resists a judicial command to pay a bond that would allow continued production.

If Nintendo refuses to pay the bond set by the court, Anascape may win a permanent injunction—a stop on all of Nintendo’s production of these controllers. The judge is scheduled to issue his ban order tomorrow, July 23rd.

How Blogging Can Lead to Legal Trouble.

When you start a blog online, what do you really sign on for?

You click through your client’s terms of service, install whatever proprietary software they want on your desktop, you pay your dues for ad-free space, and then you finally start to write. And because you’re writing (and publishing) in the United States, you’re granted the same First Amendment rights that have protected newspapers, magazines, and print publications for centuries. You get free speech!

But even free speech has its limits, and it’s important to know what you can (and can’t!) say in your corner of the web—and what you’re liable for as a blogger.

 

The Wrong Side of Blogging Laws

A few examples go a long way, so here are a few bloggers who found themselves facing lawsuits, subpoenas, and (in one case) prison.

1. Perez Hilton: The infamous gossip blogger was served with a defamation lawsuit after alleging that DJ Samantha Ronson was the owner of cocaine found in Lindsay Lohan’s car.
2. Kareem Amer: While not a U.S. blogger, the story of Kareem Amer demonstrates some of the serious risks of unprotected speech. He is currently serving a four-year prison sentence in Alexandria for speaking out against the President and Al Azhar, a religious university.
3. PZ Meyers: Sued in 2007 for writing a negative review of LifeCode: The Theory of Biological Self Organization. The book’s author, Stuart Pivar, charged Meyers with libel after the blogger called him a “classic crackpot.”
4. Lucas Lechuga: This real estate blogger was sued for $25M and lost his job after the developer of Opera Tower filed a defamation claim. Lechuga had made the negative post about the Opera Tower condo development prior to his employment with EMW, the company who fired him.
5. Rick Frenkel: Still heating the presses is the story of Rick Frenkel, the Cisco lawyer who anonymously maintained the “Patent Troll Tracker” blog. He is now being sued by two East Texas patent attorneys who will bring forth charges of defamation.

 

Defamation, Slander, and Libel—Oh My!

While “Defamation!” seems to be the first cry of those wronged by bloggers, there are other speed bumps to watch for when building your blog. Blogging law violations can manifest in many ways, including: 

• Copyright infringement,
• Trademark infringement,
• Trade secrets violation,
• Defamation (libel),
• Right of Privacy, and
• Publication of private information.

Internet blogs and the law are inseparable. This means that your words must be your own, that you should cite borrowed information (especially if you make a profit off your blog or its ads), and that making false, personal attacks on people is going to get you into hot water faster than you can hit “Submit.” It’s probably also a really bad idea to publish the phone number of that girl who stood you up last Friday and encourage your readers to harass her.

Even if she did break your heart.