Microsoft And The Amazing Technicolor Trade Dress Infringement

"Good artists copy.  Great artists steal." - Steve Jobs

By that logic, the boys in Redmond are pretty great.  A few weeks ago, I was walking through the Prudential Center in Boston and came across the newly opened Microsoft Retail Store.  If you've seen one, then you probably thought the same thing I did: they totally ripped off the Apple Store!  Here's a picture I took the other day:

And for comparison's sake, here's a picture of the Apple Store I worked at three years ago:

Aside from the visual similarities to the store exteriors, both include well-lit, spartan layouts with wooden tables featuring hands-on product displays.  Both stores are divided by product type: MP3 players, smart phones, tablets, laptops, desktops, accessories. They both feature Genius bars where customers can get immediate tech assistance.  Employees in both stores wear brightly colored T-shirts and lanyards, and walk around with touchscreen tablets to ring up customers.  While Microsoft's store is generally more colorful inside, the design language is obviously Apple's.

"Why hasn't Apple sued them into oblivion?" I thought.  [I must admit a little bias and outrage since I'm a rabid Apple partisan]. The resemblance between the stores was uncanny.  Curiosity compelled me to look into it and this is what I found: Microsoft can get away with ripping off Apple because no one is walking into a Microsoft Store to buy Apple products.

You see, U.S. Trademark Law protects something called "trade dress" which is defined as "the total image or overall design or appearance of a product or its packaging."  Trade dress also includes design and layout of a retail space or restaurant.  In an effort to protect its store designs from theft, Apple registered those designs with the United States Patent and Trademark Office (USPTO).  This past May, the USPTO approved Apple's registration; you can see those documents here.  In response, Microsoft filed an objection to that registration, claiming that Apple's store designs aren't distinct enough to be protectable (so we may actually see a fight over this issue soon).

The distinctiveness issue aside, you can understand why Apple would want to prevent Microsoft from using its store designs.  But if Apple sues Microsoft for trade dress infringement, Apple will lose.  That's because Apple can only prevail by showing, among other things, that the Microsoft Store is so similar that people are likely to get confused and walk in thinking it's an Apple Store.  Frankly, that's a losing argument for the following reason.

In a trade dress infringement case, courts can weigh a variety of factors on the confusion issue, including the relationship between the brands in the minds of the consumers.  In this case, Apple and Microsoft are two of the largest corporations in the world (Apple just passed Microsoft as the world's biggest company as measured by stock market value).  Both companies were founded by men who are/were world-famous geniuses.  People are aware that the two companies are in direct competition with one another and know the Apple logo the same way they recognize the Disney logo, the Coca-Cola logo, or the Superman emblem.  Apple is the world leader in electronics sales, specifically when it comes to the iPod (which revolutionized the MP3 player market) and touchscreen devices like the iPad and iPhone - Last quarter alone, Apple sold 17 million iPads and 2 million iPhone 5's... and the phone hasn't even been released yet!  These devices are synonymous with Apple.  Furthermore, Apple's entire line of notebooks and desktops contain the same well-known design scheme, aluminum casing with black accents and a glowing Apple logo.  By the same token, the public recognizes Microsoft's logo from daily use, since 95% of the world's computers run its Windows operating system.  Nearly every business in the world uses Microsoft Word and Excel.  Microsoft is also the creator of the Xbox 360, one of the most successful video game consoles of all time.

If someone did walk into a Microsoft Store looking for an Apple product, they would immediately discover that they were in the wrong place due to the absence of Apple's logo and dearth of Apple products.  Based on these facts, I think Apple is in no danger of losing sales to Microsoft just because the stores look the same.  That is, after all, the whole point of suing for trade dress infringement... that someone has purposely confused the customer in order to draw sales away from the trade dress owner.

In short, the public knows who Apple and Microsoft are, and no one's mistaking one for the other.  Because the likelihood of confusion between the stores is negligible, it's no shock that Apple hasn't commenced a lawsuit against Microsoft.  Microsoft made its retail store plans public back in 2009, and while I wouldn't completely rule out a legal fight over this at some point, I think Apple knows it doesn't have much of a leg to stand on.

[Author's Note: I dramatically over-simplified the trade dress analysis for a few reasons.  First, for the sake of brevity; second, because it can get extremely convoluted and you probably don't care that much; and third, because at the end of the day I truly believe that this case would hinge on the confusion issue.  Of course, if there are any trademark lawyers out there who take issue with my analysis, please feel free to tell me why I got it wrong!]

You Have The Right To Be Paid: Death of the Unpaid Internship

Over the life of this blog I will probably spend a lot of time talking about lawsuits that affect the arts and entertainment world.  You may find some of them boring and some of them engaging.  But even if you decide that talking about pending legal cases isn't fun or interesting, I implore you to pay attention to these two, since they deal with a subject we can all get behind: getting paid for your work.

Last year, Eric Glatt and Alexander Footman, two interns who worked on the film Black Swan, sued the film's distributor Fox Searchlight, claiming that the company's unpaid internship program violated minimum wage and overtime laws.  They argue that they went unpaid, even though they were required to fill out I-9 forms, sign confidentiality agreements and were deemed "employees" covered under workers' compensation laws.  They're now trying to have the case turned into class action.  You can read about the case here and here.  Fox has since amended its program to begin paying interns $8.00 per hour.

Likewise, earlier this year, Diana Wang, a former intern of Harper's Bazaar Magazine filed a suit against the publisher, Hearst Inc., for failing to pay her despite working a full-time schedule (upwards of 55 hours per week).  That case has recently been granted class action status.  Both cases hope to be the death knell for the unpaid internship.

According to Glatt, he took the internship at Fox because he was trying to break into the film business and was told by numerous people that taking an unpaid internship was a necessary stepping stone to eventual paid work.  In fact, due to the Great Recession and persistent jobless claims, unpaid adult internships have been on the rise nationally and have spilled over into a number of industries, not just the glamorous ones like publishing and entertainment.  Glatt argues that unpaid internships are detrimental because "they disrupt the labor market for entry-level workers by forcing people at the beginning of their careers to work for no pay and suppressing wages for people who have been on the job for several years."

I've personally seen the effects Glatt is talking about and he's totally right: entry-level workers get paid in "experience" and mid-level worker pay rates drop to entry-level rates.  When I first started producing television, a producer's day rate was somewhere between $250-350 per day.  As unpaid internships proliferated, producer rates fell to the average day rate of a production assistant - $100-200 per day (for those not in the know, a production assistant is the lowest rung on the entertainment ladder.  The only thing lower than a production assistant is... you guessed it, an unpaid intern).  As a result, production assistant rates dropped and those positions often became filled with interns willing to do the job for free.

This is why I believe the outcome of these cases will be really important:  first, if Glatt, Footman, and Wang win, those victories may stabilize the markets for new and experienced workers alike by preventing drops in wages; second, companies will be forced to scale down their unpaid internship programs or take greater care to make sure they conform to the law (more on this in a bit); lastly, they will validate an area of law that is well established, but rarely gets enforced because so few people are willing to stand up against the companies that employ armies of unpaid interns.  Under the Fair Labor Standards Act (FSLA), internships are considered regular employment unless they meet these six criteria outlined by the Department of Labor:

1. The internship... is similar to training which would be given in an educational environment;
2. The internship experience is for the benefit of the intern;
3. The intern does not displace regular employees, but works under close supervision of existing staff;
4. The employer... derives no immediate advantage from the activities of the intern...
5. The intern is not necessarily entitled to a job at the conclusion of the internship; and
6. The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.

If the internship meets all six criteria, then the employer is not responsible to pay the intern as a regular employee.  Of course, Glatt, Footman, and Wang are arguing that the criteria were not met and they should have been paid as regular employees. [Side note: as with many of the federal websites, the Department of Labor is a very useful resource for people who want to know if their employer is violating their rights].

I think there is some legitimacy to unpaid internships if there is an actual educational component; mostly as a real-world training tableau for students.  During my first year in Los Angeles, I took 7 unpaid internships.  Some of them were beneficial and I learned a lot.  I was taught how to edit, direct, and produce (sometimes just by watching, but sometimes I was lucky enough to have a mentor who taught me).  More often than not, however, the internships were a flimsy pretext for free labor.  Often, I was relegated to picking up coffee and taking lunch orders.  I frequently used my car to make deliveries and was compensated neither for the miles I drove nor the gasoline I expended.  I once spent an entire month at a Venice-based editing studio and not a single person there learned my name (they kept calling me Marcus for some reason).  I even worked unpaid on a decent-sized film for 96 straight hours without a break.  I did all this in the hopes of making a name and eventually getting paid work.  And while paying gigs did eventually come, there's no reason I had to accept unpaid work to get there.

In the coming months, I'll be working on a project called "The Artist's Bill of Rights," a resource for artists to learn their rights. I don't mind spoiling the First Amendment which is, in my opinion, the most important:

YOU HAVE THE RIGHT TO BE PAID

After all, as an artist, your work is your livelihood, and being paid for your work is a statement about your worth to yourself and to the project.  Directors, producers, and publishers don't work for free; neither should you.  But if the circumstances are right and you are willing to give away your work, you should know exactly what you're getting in return.  Most young artists will take an unpaid internship at one point in their careers and if they do, I hope the information I posted above will help them make smart decisions about what they can expect out of the internship.  And hopefully, if these cases find in favor of the plaintiffs, the days of interns fetching coffee and dry-cleaning without pay are numbered.

Quincy Jones: Steve Wynn Did Not Threaten to Kill Joe Francis and Bury Him in the Desert

Here's something fun for a Friday!  This is the opening paragraph of Yahoo's report on the on-going legal feud between Las Vegas casino magnate Steve Wynn and Girls Gone Wild auteur Joe Francis:

"Music mogul Quincy Jones testified Thursday that he never told "Girls Gone Wild" creator Joe Francis that casino mogul Steve Wynn had threatened to kill the soft-porn producer and have him buried in the desert."

I think that may be the greatest sentence ever written... Kudos to Yahoo's Anthony McCartney!  For the record, I have no desire to become gossip blogger, but sometimes the goings-on in the entertainment industry are so ludicrous that I can't help but report on them.   According to this LA Times piece, Francis made the death threat accusation while fighting with Wynn over an alleged $2 million gambling debt owed to Wynn's casino.  Francis further accused Wynn of plying him with prostitutes to keep him gambling in the hopes of luring high rollers to the casino. A Nevada judge awarded Wynn $7.5 million in a defamation lawsuit over that claim.

Anyone who has paid attention to Hollywood over the past decade knows that the entertainment industry is on the precipice.  Movie ticket sales are down, the networks are hemorrhaging money because of technological advances in time and space shifting (i.e. DVRs, iTunes, iPad, etc.), and there are overreaching attempts by the major media companies to kill websites that display their copyrighted works.  But I guess sometimes we all need a distraction from the bad news facing the industry.  And who knows, maybe there's a killer movie in here somewhere.  I say Zach Braff could play Francis and Laurence Fishburne could play Quincy Jones!

Who would you cast?

Filmmaker-2-Filmmaker: Tip 1 – Wiretapping

This is the first in what I hope will be an ongoing resource for up and coming filmmakers.  I want to warn you guys that it’s going to be a bit dry… I’ve fallen asleep twice while writing it.  So if you want to read something fun, take another pass at my Avengers analysis.  To kick off the inaugural Filmmaker-2-Filmmaker, I’m going to talk about something that doesn’t seem like a big deal, but it’s an issue that shows up often in documentaries and reality TV: recording phone calls, or, in legal speech, wiretapping.

Normally when people think of wiretapping, they think of this:

A couple of federal agents sitting in an unmarked van decked out with monitors and microphones listening to phone calls made by gangsters.  But in reality, you see it all the time when your on-air talent makes a phone call while being filmed.  In my producing days, we recorded phone calls for a variety of reasons: maybe a phone call made more logical sense to the narrative we were telling; maybe the person wasn’t willing to be put on film; maybe the person lived in another state and we didn’t have the budget to fly cast and crew to that location for an on-camera meeting.  I once produced a show where we filmed a phone call instead of trying to get a live interview because the subject had a history of violent criminal activity and was an accomplished bow hunter.  It would have been great to get him on screen, but it just wasn’t worth the risk to our safety.

So how do you protect yourself if you want to make an on-air phone call because you either won’t or can’t get your subject live?  The very first thing you want to do is make a good faith attempt to get a personal depiction release from anyone whose voice you want to use – yes, even if you’re only going to use their voice and even if you don’t identify them by name. A depiction release should be a major part of any producer’s arsenal and is the best and easiest way to protect yourself legally. [If you need help drafting one, drop me a line. I’m going to tackle the topic of release forms in a future post.]

But maybe the person won’t sign a release form, or you make an executive determination that trying to get a release would be futile.  Then what do you do?

You determine if you are filming in a one-party or two-party consent state.  Here’s why: if you are in a one-party consent state, as long as one of the phone call participants knows you're filming the call and allows you to film it, you will generally not be subject to criminal or civil penalties, even if the other side does not consent.  Conversely, if you are in a two-party consent state, both phone call participants must allow you to film the call; without consent of both sides to the conversation, you could be liable for civil and/or criminal penalties depending on the state.  Let’s take a quick look at some sample penalties for violating the consent laws:

• Massachusetts is a two-party consent state.  A violation of the consent law carries a maximum criminal penalty of five years in prison and a fine of up to $10,000.  Mass. Gen. Laws ch. 272, § 99(C).  Massachusetts also permits civil suits against persons who violate the consent laws.  Courts may award actual damages, punitive damages, attorneys fees and litigation costs.  Mass. Gen. Laws ch. 272, § 99(Q).
• California is also a two-party consent state.  A first violation of the consent law is punishable by a fine of $2,500 or less and/or imprisonment of less than 1 year.  Subsequent offenses carry a fine of up to $10,000 and a 1-year imprisonment.  Cal. Penal Code §§ 631, 632.  Like Massachusetts, California permits civil suits.  Anyone injured by a violation of the consent laws can recover damages of $5,000 or three times the actual damages, whichever is greater. Cal. Penal Code § 637.2. The court may also impose an injunction preventing the use of that wiretapped phone call. Cal. Penal Code § 637.2(b).
• In comparison, New York is a one-party consent state and does not permit civil suits against persons who violate the consent laws.

To determine what type of state you’re in, you should check out the Reporters Committee For Freedom of the Press.  This website is a great resource for video journalists and documentarians.  It has a handy chart outlining which states are one-party or two-party, which states have criminal and civil penalties, and will give you detailed breakdowns of how the law works in each of the 50 states.  I used this site all the time during pre-production and principal photography and I like to think that having this handy resource kept my colleagues and me out of trouble.  It’s such an invaluable tool that I’ve gone ahead and placed it on my Resources For Filmmakers page.

The analysis doesn’t end there, however.  You may be in a one-party consent state, but if you have to make a phone call across state lines, it falls into federal jurisdiction.  In that case, you should assume that a two-party consent law applies, even if you’re making a call to another one-party state.

Unfortunately, if you find yourself in a two-party consent situation and one of the parties won’t consent, there really aren’t many workarounds if you need that phone call for narrative purposes.  In the few instances where that happened to me, I simply made the call off-screen and then staged it later with the information gathered from that call (hey, it’s reality TV!).  I want to give a word of caution here: if you’re in a two-party state and you don’t get consent from the party being called, you cannot simply film the call and drop out the sound later.  The criminal and civil penalties are not generally based on whether the other side’s voice is heard, they’re based on whether you knew or should have known about the consent laws and knowingly violated them anyway.

At the end of the day, producers aren’t lawyers.  Even if you have the best intentions and good information, you can still screw up (i.e. recording an interstate phone call without both parties’ consent).  If that happens, don’t try to lawyer yourself out of the situation.  Call me or an attorney you trust and inform them what happened.  There are always ways to protect yourself, even if you step in it.

Why Apple May Not Be A Billion Dollars Richer

(Author’s note: on top of being an Apple fanboy, I should disclose that I worked for Apple from October 2008 until August 2009 in their Westchester, NY retail store).

Maybe I spoke too soon.  There's a write-up over at Gizmodo (by way of the good people at Groklaw) explaining how the jury verdict in the Apple v. Samsung trial was flawed and may spend the next few years winding its way through the appeals process.  The crux of the problem seems to be the inconsistent findings of the jury and the relatively quick deliberation (3 days) for what was a fairly convoluted case.  There may be other problems as well, such as how the Galaxy Tab escaped patent infringement.

So it looks like this issue is far from resolved and Apple isn't going to collect its billions anytime soon.  Groklaw's analysis is a real eye-opener and if you're at all interested in this case, you should check them out.  I feel like I should have a deeper analysis here beyond "whoops," but in truth I didn't see all the evidence, I wasn't in the courtroom, and I don't know how deliberations went down in the jury room.  Having been a juror and a judicial clerk, I have a unique insight into the process and I can say that juries tend to take their responsibilities seriously.  Indeed, there's evidence here that the jurors in Apple v. Samsung made their choice deliberately and carefully.

Regardless of whichever way this case swings, I stand by what I said in my original post: Samsung should take the opportunity to invest in brilliant designers/ engineers and innovate new ways to differentiate itself from Apple's design language.  Take a look at the Windows-enabled Nokia Lumia 900.

This phone is sleek, attractive, and the Windows Metro operating system accomplishes the same tasks as iOS, but in a radically different (yet appealing) way.  It's just gorgeous!  Furthermore, Apple's design aesthetic is nowhere to be found.   I'm an iPhone man through and through, but I've seriously considered making the switch.  I'm not competent to speak about Microsoft's business strategy, but its design strategy is a winner.  Samsung may ultimately come out of this process in better shape than we expected, but nobody becomes an industry leader by following what others are doing.  To lead from the front, you need to innovate.  That's what Apple has done, that's what Microsoft is (finally) doing, and if Samsung doesn't want to be an also-ran, that's where it should be putting whatever money it doesn't eventually have to pay Apple.

Apple To Be A Billion Dollars Richer!

(Author’s note: on top of being an Apple fanboy, I should disclose that I worked for Apple from October 2008 until August 2009 in their Westchester, NY retail store).

I have a second Apple-related post coming next week, but as a gadget freak and a design junkie, I would be remiss if I didn't say something about Apple's courtroom victory over Samsung this Friday.  A jury of nine has smacked Samsung with a $1.05 billion fine as punishment for violating Apple's various mobile phone patents.  In a nutshell, Apple claimed that Samsung blatantly ripped off the iPhone's software and hardware designs following the release of the first iPhone in 2007.  The jury agreed.  Now I'm completely in the bag for Apple, but that doesn't mean the verdict was wrong.  After all, it's difficult to look at this...

...and not see that Samsung totally ripped off the iPhone.  This is an important victory because design is a big part of how we see and interact with the world. Permitting someone to co-opt the design language of an innovator without due deference sends the wrong message about what kind of society we are.  Patent infringement is a kind of theft, and our legal system was constructed as a way of protecting the rights of those who innovate.  One of the consequences of the verdict is that gadget designers will no longer be able to draw from the Apple well - within the year, we're likely to see smartphones and tablets take on radically different design elements, both in hardware and in software.  This is a good thing both for business and for the design world and I think that Steve Jobs would have been a fervent supporter of this outcome.

I'm currently reading his biography by Walter Isaacson and it's fascinating to see how Jobs approached each and every product as if it were art.  To him, a product shouldn't be defined solely by its function; it must be aesthetically pleasing as well.  Jobs once said to Fortune Magazine, “in most people’s vocabularies, design means veneer. It’s interior decorating. It’s the fabric of the curtains of the sofa. But to me, nothing could be further from the meaning of design. Design is the fundamental soul of a human-made creation that ends up expressing itself in successive outer layers of the product or service.”  When Jobs led the Macintosh development team back in 1982, he made his engineers redesign the Mac's circuit boards because they weren't pretty enough.  Even though the circuit board wouldn't be seen by the average user, to Jobs the entire computer had to be perfect - inside and out.  Otherwise, it failed as art.

Jobs was so protective of his design aesthetic that in 1985, when Steve Wozniak (Jobs' best friend and business partner) left Apple to design a universal remote, Jobs refused to let Wozniak hire the same company that designed the Macintosh.  He didn't want any other product to look or feel anything like the Mac.

Of course, Jobs famously appropriated Picasso's mantra "good artists copy, great artists steal," so maybe there's a little irony in Apple's triumph over Samsung.

Suing The Avengers

(Author's note: I don't want to be a one-trick pony, so this'll be the last of my legal movie analyses for a little while - unless there's a demand... or unless I change my mind).

Warning: Spoilers! If you haven’t seen The Avengers and don’t want to know what happens, read no further.

This past May, as I sat in the theater thoroughly enjoying Joss Whedon’s “The Avengers,” I began to wonder: what if I had been injured by falling debris during the final battle between the Avengers and the invading Chitauri army?  Anyone who has seen a comic book movie knows that superheroes cause a lot of collateral damage.  The Avengers is a unique example because destruction isn’t solely the result of the alien horde descending on New York with their massive floating bio-mechanical weapons.  The good guys who are charged with protecting the city cause their fair share of damage as well.  Unlike previous superhero entries, The Avengers have not one, but three super-powered being (Hulk, Thor, Iron Man), each with significant anger issues.

In fact, it has been estimated that approximately $160 billion in property damage was caused during the battle of New York.  That figure is staggering, not least of which because, thanks to the unsurpassed leadership of Captain America, the Avengers were able to keep the battle confined to a 4-6 block radius.  We also know that the Chitauri invaded New York without warning and the sudden nature of the attack meant that the Avengers did not have enough time to clear the battle zone of bystanders.  The film goes out of its way to show us innocent civilians caught in the crossfire.  It stands to reason that with so much damage, a storm of laser fire, and so little opportunity to get innocents out of harms way, someone is going to get badly hurt.  So when the battle is done and the superheroes have long since departed, who can you sue to recover your medical costs?

The obvious answer is to sue S.H.I.E.L.D.  After all, S.H.I.E.L.D. assembled the Avengers, and in legal parlance, is both the “actual” and “proximate” cause of the injuries.  But S.H.I.E.L.D. is a government agency and is protected by Sovereign Immunity, a legal doctrine that prevents government entities from being sued for monetary damages.  In certain situations, however, the government can waive its immunity by way of the Federal Tort Claims Act (FTCA), which allows federal agencies to be sued for damages as if they were private entities.  Under the FTCA, if you can prove that the Avengers acted without due care in their rescue of the city, you can sue S.H.I.E.L.D. for the negligent acts of its employees (in tort law, we call this Respondeat Superior).

Thus, in order to sue S.H.I.E.L.D. under the FTCA, we must determine if Iron Man, Hulk and Thor are employees of S.H.I.E.L.D.  The FTCA defines employee as, “officers or employees of any federal agency, members of the military or naval forces of the United States, members of the National Guard while engaged in training or duty… and persons acting on behalf of a federal agency in an official capacity, temporarily or permanently in the service of the United States, whether with or without compensation….”  So, were Iron Man, Hulk, and Thor acting on behalf of S.H.I.E.L.D. in an official capacity?

It’s best to stop right here because this will lead us down a rabbit hole that isn’t worth the travel.  S.H.I.E.L.D. can probably be liable for your medical costs, but there are inherent problems with suing a clandestine black-ops organization staffed predominantly with super-powered beings.  Chiefly, how can you know such an organization even exists?  To the best of my recollection, the finale of The Avengers had various news reports blaming the team individually for the destruction and nary a mention of their handler organization was to be found anywhere.  As far as the public is concerned S.H.I.E.L.D. doesn’t officially exist.  And even if you were to somehow hale them into court, you're only going to anger them.  And we all know what happens when you get Bruce Banner angry.

Besides, there’s lower hanging fruit to be had.

You can sue Tony Stark in his individual capacity for negligent rescue.  After all, he’s a billionaire and can afford it.  Not only that, he’s the sole member of the Avengers whose real life identity is known to the public at large.   A lawsuit against Stark sounding in negligence is a goodly bet.

In tort law, there is generally no duty to rescue someone in distress.  However, if you do commence a rescue, it must be done reasonably.  Any defendant who rescues unreasonably can be liable under a negligence action if the aggrieved party is injured as a result of the unreasonable rescue.  In this case, there’s no legal precedent instructing us how to deal with an armored man wearing jet boots leading an alien horde bent on destruction through the city.  Even still, I would be willing to argue in front of a judge that Stark’s actions, though well intentioned, were unreasonable.  Why?

1. At extreme speed, Stark led hundreds of aliens on a chase through the canyons of Manhattan, weaving in and out of columns, buildings, and directly into heavily trafficked areas.  Any professional driver will tell you that as velocity increases, there’s an inverse relationship with control (there’s a reason the world’s fastest cars are driven in the middle of the desert… they can’t stop and don’t corner).  Stark would know this due to his extensive time in the Iron Man prosthesis.
2. Both Stark and his alien nemeses fired lasers at each other for the duration of this chase.  Logic tells us how difficult it is to hit a moving target; it is even more difficult when both targets are moving at great speed.  The likelihood of both Stark and the Chitauri warriors accidentally striking bystanders and real property with their laser blasts is increased exponentially.  Moreover, Stark is a world-renowned genius (he built a fist-sized fusion reactor in a cave with only spare missile parts, after all).  He either knew or should have known the likelihood of causing bystander injury, yet he continued to lead chase through Manhattan.
3. Later in the battle, Stark led a hundred foot long space snake directly down Park Ave into the path of Bruce Banner, whose ability to stop the snake was, as far as Stark is concerned, highly questionable.  At this point in the battle, Banner had not yet transformed into the Hulk and had not demonstrated to his teammates that he could call out the Hulk at his command (it was pretty awesome though, right?).  As far as Stark knew, he was leading that beast right into the heart of Manhattan where it would crash into the team, killing every member of the Avengers, destroying a significant part of mid-town, and possible murdering hundreds – if not thousands – of innocent New Yorkers.

When you willfully undertake a rescue that could wind up killing thousands, that is per se unreasonable.  If I were a lawyer in the Marvel Universe, I would be unhesitant in representing a class-action suit against Tony Stark in his individual capacity.

There may be more causes of action that I just can’t think of at the moment, but I think Stark is your best bet to recover damages in a case like this.  And honestly, you’re lucky if you get injured in an attack that was prevented by Iron Man.  Imagine if all that damage were caused by a hero with no assets... like Aquaman.