LegalMatch: Intellectual Property

The Clash of the Naked Cowboys

There’s something about a sue-happy naked cowboy that makes the law fun!  A famous New York street performer, Robert Burck is less famous for the country songs he sings for change and better known for wearing very little in the way of country western attire.  Typically dressed in cowboy boots, a hat, and a pair of skimpy briefs, he has been attracting the attention of New Yorkers for the past ten years.  He has also been featured in magazines, newspapers, and even a superbowl commercial for his unique approach to street entertainment.

In 2008 Burck sued Mars Candy for $6 million for dressing an M&M in a similarly scandalous cowboy outfit (hmmmm… not sure if that is possible to be a scandalous M&M, but that’s a whole other issue) and ultimately settled out of court. 

If this suit was not a message to any potential imposters to be weary, he is back in court filing suit against perhaps his biggest threat yet—a naked cowgirl.  Yes, there is a female naked cowgirl that he alleges is not only profiting off the image he worked hard to get but is also tarnishing it.  In his court documents, Burck alleged that, ““She has been observed using visual profanity (flipping the bird at the camera) when photographing with people in Times Square.  This is inconsistent with the manner in which the Naked Cowboy conducts business.”  Burck claims that the naked cowboy idea is something that he trademarked in 2002 and has worked hard to present a wholesome and fun image.  He has repeatedly asked her to pay a franchise fee and claims that taking her to court is his last resort.

The naked cowboy cases are quite entertaining and it is fun to hear him try to give a compelling legal argument about the importance of his “wholesome image” as a naked cowboy street performer.  That being said, what he is alleging has some merit and I would not be surprised if he won his case against the naked cowgirl (yes, she has a real name but it is so much fun to refer to her as naked cowgirl).  He is essentially claiming that he has suffered damages based on the use of his image without his permission and in doing so she has engaged in activities that have tarnished his image. 

What can he gain from winning this case?  As with more run-of-the-mill trademark infringement cases, the naked cowboy can recover monetary damages, lost profits resulting from the infringement, accounting for the infringer’s profits, an injunction, and attorney’s fees. 

It is a shame that two people with a passion for performing on New York street corners in minimal cowboy attire cannot come together and create an even bigger act.  Sigh.  In any event, this is an interesting case to follow not just because it involves naked cowboys, but because it livens up what might be otherwise boring trademark issues.

By: Violet Petran

Good #$%$ News for Broadcasters

You may have noticed that broadcast TV is far more restrained in its use of profanity, sex, and violence than cable. Even on basic cable, it’s not uncommon for some shows to drop the S-bomb like it’s going out of style.

But on a broadcast network (ABC, NBC, FOX, basically anything you can pick up with just an antenna), forget about it. Why is this? Well, the FCC has, under U.S. law, the explicit power to regulate the content of television broadcasts. How is this possible? After all, content-based restrictions on any form of speech are very difficult to justify constitutionally.

Well, the rationale is that the “airwaves” are public property, and as a representative of the public, the FCC has the power to prohibit obscene or profane material on the public airwaves. Also, these content-based restrictions are justified by the pervasiveness of radio and TV broadcasts, and their easy accessibility by children. However, the Communications Act of 1934 (the law that created the FCC) specifically prohibits them from censoring any content other than indecency.

This power is usually exercised when a member of the public complains about a particular program.

This power, though, apparently has limits. The WSJ Law Blog reports that the Second Circuit Court of Appeals has found that the FCC’s current indecency policy is so vague as to be unconstitutional (also reported here). The opinion can be read here (the court’s opinion contains profanity, as you might imagine). The lawsuit was filed by private broadcasters in response to an FCC crackdown on “fleeting expletives” – single utterances of profanities that can lead to six-figure fines.

While it’s generally agreed that federal and state governments have the power to censor content which is “obscene,” the FCC, with the greater discretion it has to censor over-the-air broadcasts, also prohibits material which is “indecent” – which is an easier standard to meet than obscene.

However, according to the court in this case, “indecency,” as used by the FCC, is so ill-defined that broadcasters have no real way to tell if something they wish to broadcast will be permitted or not. A basic requirement for a law to be fair is for it to be clear, so a person can be reasonably certain if a given course of conduct runs afoul of the law.

Laws that regulate speech are particularly susceptible to challenges based on vagueness, because they often compel people to engage in self-censorship far beyond what the government would be allowed to mandate. This means that they “chill” expression that’s clearly protected under the First Amendment, and they give those tasked with enforcing the law far too much discretion, possibly leading to selective enforcement, based on a particular political agenda. Furthermore, the fact that a single violation of the FCC’s indecency rules can carry fines in the hundreds of thousands of dollars further encourages content produces to steer far wider of the unlawful zone than they need to.

So, what will the practical result of this ruling be? Well, it may be extremely limited, especially if the FCC doesn’t appeal to the Supreme Court, or the Supreme Court decides not to hear their case.

This case is only binding precedent in the judicial circuit in which it was decided, so it’s not likely that broadcasters in other parts of the country will operate under the assumption that it’s law.

The Supreme Court has actually already heard this case, but it was to resolve an issue unrelated to the First Amendment. However, several of the Justices indicated that if the case comes back to them on this issue, they would be inclined to rule against the FCC. So, it’s possible that the FCC may decide that an appeal to the Supreme Court would be a losing proposition, and let this ruling stand.

However, this case originated when the FCC, under the Bush administration, zealously enforced its decency rules, and arguably looked at them through a conservative Christian lens. It’s possible that the Obama administration doesn’t want to put up a fight to hold onto this particular power, and will appeal the case to the Supreme Court just so the FCC can get some clear guidance on what type of speech it can and can’t regulate on decency grounds.

Should the Supreme Court rule the FCC’s policy unconstitutionally vague, will we start hearing the F-word in episodes of The Office? Almost certainly not. The power of the FCC to regulate indecency on the airwaves was never in question in this case, and is unlikely to ever be seriously questioned in court.

All this case says is that the FCC has to craft clearer guidelines as to what it considers indecent. Now, to the chagrin of some “pro-family” organizations (for whom “family values” translates to “MY values, or else”), this will probably lead to networks getting a little more latitude to broadcast expletives than they did in the past. However, this will largely be due to networks no longer engaging in extreme self-censorship, to avoid accidentally running afoul of the FCC’s vague decency standards.

The FCC’s stubborn insistence on keeping its decency standards as vague (sorry, “flexible”) as possible has gotten pretty old. Maybe if they went to the effort to come up with some clearer guidelines, life would be easier for them and the broadcasters. Broadcasters can focus on creative shows (if they want to, which they apparently don’t) without worrying too much about accidentally violating a vague rule, and the FCC will be able to spend much less time enforcing its vague rules.

Of course, there might be some losers in this: the family groups that organize mass complaints against networks because someone thinks they might have heard an extra utter the F-word in the background will have to find something else to keep themselves busy.

By: Rusty Shackleford

Representing Yourself Isn’t Always a Bad Idea

Many people believe that it is never a good idea to represent yourself in court. And, usually, they’re right. Exceptions to this rule occur all the time, however. People do represent themselves in court, and they sometimes win against experienced lawyers. Of course, this is often because they had rock-solid legal cases, with the law and facts obviously on their side. In closer cases, it would be much more difficult for a non-lawyer to prevail.

Every once in a while, we hear about the legal equivalent of a David and Goliath story. According to the ABA Journal (also seen here and here), a couple who ran a small business went up against Toyota, and their top-shelf lawyers, and won (opinion).

Even more impressive, they handled most of the trial by themselves (where they lost), but appealed and ended up winning in the 9^th Circuit Court of Appeal. It’s important to note that these people went into this lawsuit with a lawyer, but the legal fees became too much for them, so they decided to go it alone. It’s telling that the people who won a lawsuit representing themselves were smart enough to not assume that they didn’t need a lawyer.

The case involved a trademark dispute with Toyota over its Lexus brand. A married couple went into business together as car brokers, which help people who are looking for a specific car find that car for the best price. They specialized in helping people buy Lexus models, and used the term “Lexus” in their domain names and advertising. However, they simply used the “Lexus” trademark to describe the business they’re in, rather than to identify their business. They used terms like “buy a Lexus” or “find a Lexus” in the domain names for their websites, and did nothing to suggest that they are affiliated with Lexus.

And because trademark law only protects names and logos to the extent that they identify a business, rather than describing the service the business provides, the couple won. Nonetheless, intellectual property law is, by its nature, extremely complex and abstract. It’s sometimes difficult for some lawyers to wrap their heads around the concepts, so the fact that non-lawyers won an appeal in an IP case is extremely impressive.

There are many reasons why a person might choose to represent themselves in a major civil or criminal case.

One reason is simple narcissism, and it’s the one you probably associate most closely with people who represent themselves. Some people simply think that they’re better than any lawyer out there, and that their case is so important that they can’t trust it with anyone else but themselves. This is sometimes seen in criminal cases, owing to the very low legal standard for allowing a person to proceed pro se.

In order to represent yourself, you simply need to prove that you’re mentally competent to stand trial. As one commenter put it, if a person can tell the difference between the judge and a cantaloupe, he’s entitled to represent himself. This sometimes leads to results that would be funny if they weren’t so embarrassing. Given that you’re constitutionally entitled to a court-appointed attorney in criminal cases, it’s hard to imagine what goes through somebody’s head when they decide that this is a good idea.

So, narcissism is a bad reason to represent yourself. Are there any good reasons?

Well, there are some proceedings, such as small claims court in many states, where you aren’t even allowed to bring an attorney, and the rules governing those courts are designed to be easy for laypersons to understand. Going pro se here is obviously not a bad idea – it’s sometimes your only option.

But what about most other civil cases, where neither party is entitled to a court-appointed lawyer, but where having a lawyer is highly desirable, like the case described here? Well, it depends. If relatively little money is at stake, it’s entirely possible that the cost of a lawyer might exceed the maximum amount a plaintiff can recover, or the maximum amount a defendant can be forced to pay. In such a case, it might just be a good idea to settle. Failing that, representing yourself might be an option, if not the only option.

In this case, the defendants were facing a lawsuit which, if successful, would have crippled their ability to market their business. They recognized that the stakes were high enough to justify hiring an attorney, which is a good indication that they were smart enough to represent themselves (it takes a good deal of intelligence and judgment to recognize that there are things you don’t know). However, the fees simply became too high for them to retain their lawyer, and they apparently couldn’t find a cheaper one. However, that didn’t change the fact that this lawsuit could have crippled their business, so they put in the time learning the relevant law, and gave it their best shot.

It should be noted that, given the facts, the law was pretty squarely on their side, which likely made their job quite a bit easier, but this was still no easy feat.

So, what does this mean for prospective pro se litigants? For one thing, it doesn’t change the fact that it’s rarely a good idea to represent yourself in court. These particular defendants, according to all accounts, put in a huge amount of work learning the relevant law, probably with the help of friends and family.

While stories like this certainly are uplifting and inspirational (if you’re a total law geek, anyway), they aren’t all that common. When all is said and done, in any legal proceeding, it’s better to have a lawyer than to not have one, all other things being equal.

By: Rusty Shackleford

LimeWire Lawsuit: Courts Struggle to Keep Pace with Technology

Nature doesn’t always evolve at a continual pace, but sometimes demonstrates leaps and jumps in progression.  This is a good principle to keep in mind when discussing the Recording Industry Association of America’s victory over LimeWire in a copyright infringement lawsuit.  The case is a testament to how the justice system trudges along at a snail’s pace while the internet hops along merrily at hi-speed. 

The text of the suit alleges that Limewire induced its users to obtain copyrighted material, as over 93% of its content was unauthorized.  But that’s not really what concerns me here, and it probably doesn’t bother you either, since to some extent a lot of the content on the net is likely unauthorized.   

What bothers me is that the suit was filed ages ago way back in 2006, but the ruling is just now coming out and it’s already 2010.  Do you know how long that is in internet years?!  It’s worse than dog years, and LimeWire can probably be considered well beyond geriatric by now.  Does anyone even know about LimeWire anymore?  Headlines even describe the suit as making the world yawn because of how long the ruling took to make. 

So are there any remedies for the court’s heavy-footedness?  Luckily, new developments within the LimeWire suit itself may provide clues for the justice system’s future.  Recently the RIAA has asked a judge to issue a permanent injunction demanding that LimeWire be shut down. 

In my opinion, injunctions- orders that require the defendant to take or refrain from action- may be just what the court system needs to get up to speed with internet concerns.  Here are a few reasons why injunctions are favorable for addressing online music copyright concerns:

·        Injunctions are one of the system’s quickest method of relief- some injunctions can be obtained in a day or two, can go into effect immediately, and often last indefinitely 

·        Injunctions cut to the heart of the offense: they focus on what the person is doing wrong rather than the secondary ripple effects

·        Music is an art, which means that it is valued subjectively.  To a certain degree it is difficult to attach a monetary value as a measure for punishment

·        Since money is typically not the issue in an injunction, courts save time by not having to sift through tons of financial documents (like in the current Goldman Sachs lawsuit where 2.5 billion pages were dumped onto the court) 

Of course, injunctions are not available in all cases, and some claims deserve legal damages in the form of money.  Moreover, a focus on injunctions probably requires the general public to make a drastic paradigm shift.  We’d have to move our attention from quantity-based evaluations to more qualitative determinations, which may be difficult to do for a numbers-based society. 

Still, the use of injunctions can do a lot in getting violations addressed quickly.  I just don’t know why the RIAA waited until after a ruling before they petitioned for one.  Maybe they yawned and fell asleep while the case dragged on. 

By: Jay Rivera

Even Politicians Can Commit Copyright Infringement

It’s campaign season, and you know what that means: politicians walking onto stages while catchy-but-inoffensive rock music plays in the background.

Campaign theme songs have become as American as apple pie. However, many politicians have found themselves in hot water with the people who own the copyrights on these songs, and end up receiving cease-and-desist letters from the artists. By pure coincidence, I’m sure, this tends to happen when the artist has serious disagreements with the political beliefs of the candidate using their song.

We’ve seen minor spats like this between Heart and Sarah Palin, as well as The Foo Fighters and John McCain, among many others. In both of those cases, the Republican candidates’ use of the songs was rebuked by the artists mainly because of divergent political views (though some of the statements by the artists do come off as a bit self-important).

Most recently, the progressive rock band Rush has taken issue with the use of some of their songs by Kentucky Senate candidate and darling of the Tea Party movement Rand Paul (also reported here). This time, however, the members of Rush have taken pains to insist that this is not a political issue, and it’s simply about respecting intellectual property rights.

Now, regardless of these artists’ reasons for being opposed to politicians’ use of their music, whether or not they have a legal basis to stop them is another issue.

Under copyright law, the owners of a copyright on a work (in the case of a song, there are at least 3 separate copyrighted works involved: the musical composition, the lyrics, and the sound recording) have several exclusive rights associated with that work. Most obviously is the exclusive right to reproduce, which is the basis by which copyright owners can prevent people from making unauthorized copies of their work, which is what most people think of when they think of copyright infringement.

However, another exclusive right, which isn’t discussed as often, is relevant here: the right to publicly perform the copyrighted work. Copyright owners, in addition to being able to prevent others from reproducing their works, can prevent others from performing their works in public.

There is no question that playing these songs constitutes a public performance. However, there are some issues with the copyright owners trying to stop this, especially if it’s for political, rather than economic, reasons (copyright law protects economic interests, after all, and not the copyright owner’s political sensibilities). First of all, in the U.S., we have this thing called the First Amendment. You may have heard of it. It exists to protect some of the rights that Americans hold most dear, free speech being among them.

Over the last 200 years or so, the Supreme Court has had to work out just what type of speech the First Amendment protects, and what it doesn’t. While this area of jurisprudence is a bit muddled, to say the lease, one thing is clear: political speech receives just about the strongest protection possible. Courts will not enjoin (or in any way punish) political speech unless there is a very, very good reason. And, unfortunately for the artists, as long as the necessary royalties are paid to the copyright owner (usually the record company, not the artist), there’s very little they can do to stop this.

Generally, mainstream artists are represented by large record labels, who participate in a complex licensing scheme that, when you boil it down, allows anyone to use a song for a given purpose as long as they pay a license fee that is uniform across the industry.

This may be a sad state of affairs for the artists, but it’s the system we live under. The artists involved here signed up with the major record labels, and that has served them very well, financially. In exchange, they gave up some legal control over what is done with their music. Even if this weren’t the case, if they licensed their music to someone for public performance, they probably couldn’t do much to go back on the deal if they didn’t like the political context in which the music was used.

Unfortunately, the only way around this would be to record and distribute their music completely independently. This has been done, but it’s not easy. In such a case, the artists would presumably own all of the copyrights associated with their music. In that case, they could refuse to license their music for use in political campaigns for politicians they didn’t like (or, indeed, they could grant or refuse licenses for any reason).

And even if they did own all the copyrights on their music, the campaigns might have an argument that their use of these songs in this manner constitutes fair use. Because this use doesn’t really change the market value of the songs (nobody is going to listen to a song in the background at a campaign event instead of buying it – whether they were going to buy it or not, this would not change their decision).

Furthermore, the fact that the use of this music is for the purpose of advancing a political view, or for the purpose of “commentary or criticism” bolsters the fair use argument.

This is moot, however, considering that most mainstream music artists don’t have this type of control over their music.

This may change someday, especially with the rise in digital distribution and other technologies (making the recording and distribution of music without the aid of a record company much easier). Until then, however, musicians (and the rest of us) may just have to endure the image of a stodgy old Republican shambling onto a stage with Ricky Martin playing in the background.

By: Rusty Shackleford