Here's My Take On the Tarantino v. Gawker Lawsuit Battle

A few people have asked my opinion on the Quentin Tarantino v. Gawker lawsuit and while I've been happy to lament it with friends and family, I hesitated to weigh in here because I wanted some time to get my thoughts in order. The situation, while comical, says something deeply unflattering about both Tarantino and Gawker, and it brings to light a previously unknown area of law that could have an impact that reverberates through the entertainment and media spheres for a long time. That time to think was also necessary to separate the wheat from the chaff - people have largely chosen sides based on knee-jerk reaction, rather than a thoughtful analysis of the facts (if you like Tarantino's films, Gawker is obviously the devil. If you dislike Tarantino's films, then he's a cry baby who may have instigated this whole fight). Now that I've had some time to process the situation, here's my take:

Whoever wins, we all lose.

For those not in the know, Tarantino sent an early draft of his new script, The Hateful Eight, to several actors he was considering for roles in the film. One of those actors (most likely Bruce Dern of Nebraska fame) gave the script to his agent. Somehow, the script leaked out of the agency and wound up on a website where it could be downloaded and shared by anyone. Angered by the leak, Tarantino spoke to Deadline to discuss how he was so pissed at the situation, he shelved the script completely and would make another film instead. A few days later, Gawker printed a story with the headline Here is the Leaked Quentin Tarantino Hateful Eight Script which contained a link to anonfiles, the website that was hosting the leaked script. Tarantino lost his shit and sued Gawker, claiming that it was liable for "contributory copyright infringement." You can find the complaint here, and you can read Gawker's response to the suit here.

Unlike traditional copyright infringement, contributory copyright infringement is a really muddy area of law, with very little case-law and precedent to accurately predict how a court would rule on this issue. Contributory infringement occurs when someone knowingly causes, induces, or materially contributes to copyright infringement. In this case, Gawker didn't host the script on its own servers, so it can't be liable for direct infringement. But because it linked to anonfiles and essentially told its audience, "here's where you can get it," Tarantino argues that it knowingly caused the infringement to be much worse than it otherwise would have been.

So did Gawker infringe Tarantino's script through contribution? That determination will rest on a lot of factors such as: the intent of the article's author and publisher, the likelihood of readers clicking through to the script, and the actual amount of traffic Gawker is responsible for sending to anonfiles. I honestly don't know how this will shake out, but here's what I do know... whichever way a court rules in this case, it sets a dangerous precedent for artists and web masters alike.

If Tarantino loses, it softens the rights of individual artists to protect their work from prying eyes. It allows websites to purposely drive traffic towards wrongfully obtained work without taking any of the blame for making the infringement worse. On the flip side, if Gawker loses, website owners will become responsible for content they don't host. No matter how you cut it, it creates a slippery slope that could negatively impact a lot of people, especially when you consider the fact that Tarantino filed his complaint in a California Federal District Court. Like New York, the California federal courts are extremely influential, and case-law coming out of those courts can set the agenda for the rest of the country.

To make matters worse, neither Tarantino nor Gawker have particularly good arguments. In the past, Tarantino has openly praised the leaking of his scripts, and his bluster is what made this story news to begin with (if he had handled it privately or through his lawyers, the script might never have leaked as quickly and as widely as it did). Gawker argues that because it's a news website, posting the link was newsworthy and thus, its actions are protected by fair use. But would a real news agency like CNN or BBC post the link? I doubt it. I also doubt that posting a link to an infringed script was the kind of thing the writers of our copyright laws envisioned when they came up with fair use.

I pray that the parties settle before getting to trial because this is not the case to determine such a deeply important issue.

When Rowling Met Galbraith: How An English Lawyer Broke The One Unbreakable Rule All Lawyers Must Follow

This past April, a former military police officer named Robert Galbraith released his debut novel, The Cuckoo's Calling to stellar reviews but terrible sales, selling only 1500 copies. As sales floundered, a British lawyer named Chris Gossage confided to his friend Judith Callegari that Galbraith wasn't a real person, but was in fact the pseudonym for J.K. Rowling, the most famous author in the world. Callegari then did what most of us would do when handed such a world-shattering piece of gossip - she blabbed to anyone who would listen, including a reporter. With the cat out of the bag, sales of Cuckoo skyrocketed to #1 on Amazon.

It's not hard to see why Rowling would do this. As wealthy and successful as Harry Potter made her, the pressure to rebel against typecasting must have been overwhelming. Following the release of Deathly Hallows in 2007, she sought to distance herself from the world of magic by writing a novel for an adult audience. The result was The Casual Vacancy, a thriller which sold like gangbusters, but was panned by critics. I imagine she took a great deal of satisfaction knowing that while Cuckoo wasn't popular when everyone thought Galbraith had written it (it's not like she needed the money), it found love from the very people who felt she could never write a book that wasn't aimed at children. She admitted as much on her website, saying that it was nice to be able to publish "without hype or expectation." So while Rowling was displeased with her identity being leaked, she had still proven her point.

Not everything worked out so well for Gossage though, a partner at the firm that represented Rowling. She sued the firm because he breached the inherent confidence present in the attorney-client relationship (which usually applies to the whole firm even if Gossage himself wasn't representing Rowling).  Even worse, he was just slapped with a fine by the Solicitor's Regulation Authority (the organization that oversees attorney ethics in England) for violating a client's trust.

Regardless of which side of the pond you live on, attorney client confidentiality is a pretty big deal. In most cases, by the time a client seeks the aid of a lawyer, a crisis has happened and the client is often in the midst of a deep personal anxiety. Not only are they emotionally fragile, they are dealing with issues that might require the divulging of sensitive information. Anything from sexual abuse, to financial indebtiture, to murder is on the table, and needs to be discussed frankly in an open and safe environment. If the client can't feel comfortable discussing these issues, then the lawyer can't give the best legal counsel he or she has sworn to provide.

That trust is so important that every country with a judicial system has a rule protecting attorney-client confidentiality. In Massachusetts, where I practice, Rule 1.6 of the Rules of Professional Conduct states that:

A lawyer shall not reveal confidential information relating to representation of a client unless the client consents after consultation.

Without the client's express consent, a lawyer can only reveal confidential information in certain limited circumstances:

1. If it would prevent someone from sustaining substantial bodily harm or death,
2. To obtain legal advice about ethics,
3. To defend himself against allegations of legal misconduct, or
4. To comply with another law or court order.

All 50 states have a rule like this. Depending on the severity of the violation, a lawyer can be punished with fines (as Gossage was), disbarment, or even jail time. Most lawyers take client confidentiality very seriously, not just out of fear of punishment by the local examining board, but because it's the right thing to do.

Every American law student knows the tale of Frank Armani and Francis Belge, two American lawyers who represented Robert Garrow, who was accused of murdering Philip Domblewski in 1973 while Domblewski was camping in the Adirondacks with friends. During a consultation with Armani and Belge, Garrow not only admitted to killing Domblewski, he admitted to murdering and raping several other people. Garrow told them where he dumped the bodies, and his story was confirmed when Armani and Belge personally went to those sites to investigate and photograph the remains.

But because Garrow was their client, Armani and Belge couldn't tell the family members of the deceased where the bodies were.  In fact, Armani and Belge kept silent for nearly a year, despite intense public pressure (they finally disclosed what Garrow had told them after Garrow admitted to the murders during trial). Because they had taken an oath to protect their clients' confidences (no matter how reprehensible), Armani and Belge were not able to discuss what Garrow told them without incurring potential legal repercussions.

In the grand scheme of things, the £1000 (about $1600) Gossage was fined amounts to little more than a slap on the wrist. Gossage claims that he himself is a victim of betrayed confidence, believing that Callegari would keep the secret. Regardless of his excuses, Gossage just learned a valuable lesson about talking out of school, especially when the client is as well-known as Rowling. He should count his lucky stars that she's a world-famous billionaire author, and not a psychotic rapist killer like Garrow.

Anyone Who Argues Against Net Neutrality Is A Greedy Scumbag Who Wants To Take Your Money

I've always wanted to write a salacious hit-bait headline like that. Hopefully it worked and you're reading this. So now that I've gotten your attention, here's what I really want to say... anyone who argues against net neutrality is a greedy scumbag who wants to take your money.

This week, the D.C. Circuit Court of Appeals struck down the Federal Communication Commission’s (FCC) rule protecting net neutrality. And that’s unfortunate because net neutrality is a wonderful thing. For those who don’t know, net neutrality is the principle that all internet traffic should receive free and equal service, regardless of source or content. For the past decade, this is how the internet has functioned. It didn't matter if you were reading an article on a news website, sharing your vacation pics on Picasa, or streaming Raging Bull on Netflix, you could access any content you wanted and it was all treated the same.

Net neutrality is what allowed Google, Facebook, Netflix, and Amazon to get a foothold in the marketplace and become the juggernauts they are today. Realizing the goldmine to be had by controlling access to the internet, the telecoms started implementing policies to do just that. So in 2010, the FCC passed an Open Internet Order allowing it to regulate internet companies the same way it regulates telecoms and cable companies. The goal was to keep access to the ENTIRE internet equal and open to all.

Why Should You Care?

Unfortunately, Verizon hated this, so it sued the FCC, claiming that its Open Internet Order was an overreach of federal power. The D.C. court agreed. That means it’s now legal for internet providers to:

• Block any website they want for any reason,
• Charge ISPs more money to host streaming content, meaning your Netflix subscription is about to increase by orders of magnitude,
• Cap and throttle internet usage with impunity, charging higher fees for better broadband access.

So if Time Warner wanted, it could now block any website it's not affiliated with. Prefer to get your news from NBC, Fox, or NPR? Too bad. Time Warner owns CNN so that’s the only news outlet you might be able to get. Even if it decides not to block those websites outright, it can charge ISPs higher fees to carry those websites, or throttle the bandwidth given to those websites making them load much slower. HuffingtonPost has a pretty solid rundown about how the internet might look in the absence of net neutrality.

Ultimately, the death of net neutrality will mean that a few giant companies can discriminate against sites and content they don't like and funnel your internet experience in ways they deem appropriate (during oral arguments, Verizon’s attorney admitted they would be pursuing different economic schemes if not for the Open Internet Order). With the internet providers controlling content, fewer and fewer startups will be able to get a foothold in the market, significantly affecting innovation.

Net neutrality opponents have argued that so much traffic comes from "big video sites such as Netflix and YouTube, [that it] clogs up the system and imposes delays on everyone else. These companies should be paying their fair share." Which sounds eminently reasonable until you realize that Verizon made $2.23 billion in the third quarter of 2013 alone, so it's not exactly hurting for cash.

Pro-neutrality advocates have argued that there's plenty of bandwidth to go around and charging extra because of the nature of the content is "naked corporate greed." I agree, and so do Facebook, Google, Yahoo, Amazon, and Netflix, who favor net neutrality and stand to lose a lot of money if the telecoms get their wish.

How This Affects Artists

The loss of net neutrality is bad for everyone, but it’s especially bad for artists because art is frequently visual in nature, and unlike text, visual media requires a lot of bandwidth. If I’m a filmmaker and I put my latest film on YouTube, how likely are you to watch if it takes 10 minutes to load because you’re on a lower-tiered broadband plan which doesn’t include video streaming? If I write a song that contains explicit sexual content, how will I get anyone to listen if Comcast starts arbitrarily banning content it deems to be pornographic in nature?

The end of net neutrality becomes another way for large corporations to trample the rights of individual artists, something I’ve railed about on this site for a while now. Limiting the artist’s ability to display and promote his or her work not only affects the individual’s ability to make a living, but it affects society at large because it stifles creativity and limits innovation.

Why There’s Still Hope

The Atlantic's Kevin Werbach offers some credible arguments that, despite the ruling, there’s some hope for the future. First, even though the D.C. court’s ruling now eliminate the only rule preserving net neutrality, no rules even existed before 2010. And it’s not like we were plunged into an internet-restricted hellscape during that time. In fact, immediately following the court’s ruling, Verizon announced that there would be no changes to its services for customers.

Second, the court made it’s decision on a fairly limited technicality and gave the FCC a roadmap for fixing this whole mess. In a nutshell, if the FCC placed internet services into the same category as it did the telecom giants, it would be able to reinstate the Open Internet Order in some form. The fact that internet providers are not classified as "common carriers" like the telecoms is the main reason the rule was invalidated by the court. And throughout the opinion, the court repeatedly references the FCC’s “choice” or “decision” to classify internet providers differently than telecoms.

Given the Commission’s still-binding decision to classify broadband providers not as providers of “telecommunications services” but instead as providers of “information services,” see supra at 9–10, such treatment would run afoul of section 153(51): “A telecommunications carrier shall be treated as a common carrier under this [Act] only to the extent that it is engaged in providing telecommunications services.”

Granted, reclassifying broadband providers as common carriers would require some legal jiu-jitsu by the FCC, and it’s unclear to me that the law would easily permit FCC Chairman Tom Wheeler to make that choice. Even if he could, he might not want to since it would probably result in a  political battle with congressional Republicans, who, it should be noted, absolutely hate net neutrality. Right now, the FCC is more likely to appeal the court’s ruling than reclassify. But reading the decision it became clear to me that the court was telling the FCC how to regain the upper hand. The decision repeatedly slaps down Verizon's claims and states explicitly that it “think[s] it quite reasonable to believe that Congress contemplated that the Commission would regulate [broadband internet service providers].”

Probably the best way to resolve the matter is to get Congress to pass pro-net neutrality legislation, which is obviously easier said than done. Luckily, there’s a lot of money in this fight and for once, it’s not a case of the big guys (i.e. big corporations) lobbying against the little guys (i.e. you). Sure, Verizon, Comcast, and Time Warner have a lot of money to lobby Congress. But you know who else has a lot of money to lobby Congress? Facebook. Google. Amazon. Yahoo. And they fucking love net neutrality.

On Being Nice

Last week, I wrote this article about ways to fight back against infringers that didn't require commencing a lawsuit. It was well-received and widely read. In that article, I threw in a blurb describing why you should be nice to your adversaries and how doing so could lead to a better legal outcome for you. To my surprise, I got a lot of pushback on that. Several readers found the advice to be downright controversial. Their general view was "I'm the victim, so why do I owe it to someone who stole from me to be nice?"

It's a legitimate point and hard to argue against. But I'll try anyway.

From my seat, being nice makes practical sense. Judges and juries are people too, and like us mere mortals, they're susceptible to all sorts of biases. And since these are the people who will determine your legal fate, you want them to LIKE YOU. Making an effort to show magnanimity in light of your victimization can do just that. It's really that simple. "But Greg, it shouldn't matter if I'm likable. The judge and jury have a civic duty to do justice even if the victim is a jerk." Yes, absolutely right. Except the law is never as one-sided as it appears from your side. While you may feel victimized, it may in reality be a gray area. Most cases fall closer to the middle than any one side, which is why your appearance, your attitude, and your facial expressions may be enough to sway a jury your way (or not).

I'm not saying you have to be friendly to your adversary. I'm not saying you need to walk over to him in front of the jury, shake his hand, and call him your mate. But neither should you rail against him, call him names, and undermine him. Let your arguments stand on their own without interference from your emotions. You can - and always should - be direct in your dealings when it comes to legal matters, but that doesn't preclude being nice either. In a legal setting you will be adversaries, but that doesn't mean you need to be enemies as well.

Here's another reason. We have a real kindness deficit in this country. American culture is adversarial by design (our government and judicial systems were built on principles of adversity, as juxtaposed with the British system, which is inquisitorial) and when it goes unchecked, it can make us meaner, less trusting, and more litigious. It can lead to situations like one I experienced today. A young Hispanic man approached me while I waited for my train at Back Bay Station in Boston. He smiled and introduced himself in broken English. He showed me his cell phone and told me it wasn't working, and he began to ask if he could make a call on my phone. Before he finished his statement, I pointedly told him "No!" It took him a few moments to register my denial and he sputtered out a few more words before looking dejected and shuffling off to ask someone else for help. Before he left, he meekly thanked me for my time.

I was immediately crushed by how casually cruel I had been. I shut him down before he could even ask for help... how easy it was for me to be so dismissive and disrespectful to someone I didn't know. And the more I thought about it, the more I realized that none of my rationalizations withstood any kind of scrutiny. Yes, I didn't know him. Yes, I didn't trust him. Yes, he might have stolen my phone. But so what? I can afford a new one. I can easily wipe the memory of the old one from my computer so sensitive data couldn't be accessed. Assuming I was right to distrust him, what was I was protecting anyway? I was so disrespectful to someone I had just met, imagine how effortless it would have been if I had actual animosity towards him.

Being nice takes work, it takes effort. It's especially hard when you think someone has wronged you and your instinct is to treat them like the worst rat bastard that ever lived. I ask you to take the higher road; don't act like I did today. Be the better person and treat your adversary with respect. That's how you win allies in and out of court. BE NICE. Because even if you lose your case, you can at least walk out of that courtroom with your head held high.

Ask Greg: How To Fight Back When Someone Has Infringed Your Work

Q. I recently discovered that someone was selling T-shirts featuring my illustrations. They've credited me as the artist on their website, but I've received no financial restitution and they didn't ask my permission. I want them to either pay me or stop selling the T-shirts altogether. What are my options for getting them to stop?

A. Let's be honest, you don't want to sue anybody. You don't have the time and you probably don't have the money, and even if you did, the effort and emotional toll it takes is astronomical. So before you go down that road, there are some things you can do to save time and money, and hopefully avoid court.

1. Send the infringing party a “cease and desist” letter. You'd be surprised how often people don’t even realized they're infringing someone else's work. Oftentimes, they think the work is in the public domain simply because it's available online. And even when people do infringe your work on purpose, an officious sounding letter is usually enough to make them stop. While you can always draft a cease and desist yourself, it has more teeth if it comes from a lawyer.
2. Negotiate! If you reasonably feel that the infringer isn't acting with malicious intent, give them a call and see if they're willing to talk turkey. You want to get royalties for all T-shirts already sold, and you definitely want to get a fee for all future sales. If this works, it's a classic win-win. They stay in business and you get a financial benefit. At the very least, you'll get a sense of their motives.
3. Use social media to rally people around your cause. This can be a surprisingly effective way to get public support and put pressure on the infringer to do the right thing. You may have heard this story about a graphic designer who wasn't paid for poster designs he made for Spike Lee's newest film, Oldboy. The designer sent an open letter to Lee recounting his abuses. This was a smart choice on the part of the designer. Even though Lee, like most directors, has no role in the marketing of his films (marketing is almost exclusively the domain of the studio), by going right to the top, the designer started creating groundswell. And if he can get Lee to go to bat for him, the pressure placed on the studio could be overwhelming.
4. Lastly, BE NICE, no matter how much of a jerk the other party is. That old saying about catching more flies with honey than with vinegar - it's absolutely true. I can't tell you how many times I've seen victims of infringement get swatted by a judge because they acted like unrepentant assholes. If you look worse than the guy who actually stole from you, you're going to lose, plain and simple. In general, when interacting with a potential legal adversary, you should follow my patented Famous Three Step Rule For Dealing With Infringers: First time be nice. Second time, be nice. Third time, be nice. You can always be direct, but politeness really can make the difference in your outcome.

If you do all of these and the infringer still won't pay you back or cut you in, it's time to sue. Call a lawyer and get that ball rolling ASAP (you have three years from the discovery of the infringement to bring a lawsuit). And if you have anymore questions, don't hesitate to Ask Greg.

Ellen Page And The Strange Case Of The Misappropriated Likeness

It’s been a weird couple of months for Ellen Page, the elfin actress behind Juno. A few months ago, her likeness was stolen for the hit video game The Last of Us. Now, a video game that she actually participated in and lent her likeness to, Beyond: Two Souls, has featured her in a digital nude shower scene, pictures of which leaked without her consent, and which show the whole shebang.

Let's talk about The Last of Us first. Back in June, the video game made a splash, and not just because it was a critical hit. One of the game's main characters, Ellie, looked suspiciously like Page, so much so that people were asking Page if she acted in the game (she didn't). In fact, early concept art of Ellie art didn't just resemble Page, it was clearly her face.  Behold!

The one on the left is the concept art of Ellie and the middle is the version of Ellie that appears in the game, altered to look less like Page. If you're not convinced by these side-by-sides, just google "last of us ellen page" and you'll see comparison after comparison. What's striking is how even after the developer, Naughty Dog, changed Ellie's appearance, she pretty much still looks just like Page.

Anyway, Page caught wind of this and instead of suing the pants off Naughty Dog, she said this:

I guess I should be flattered that they ripped off my likeness, but I am actually acting in a video game called Beyond: Two Souls, so it was not appreciated.

Naughty Dog is pretty lucky Page isn't lawsuit-happy because she has a solid case for Appropriation of Likeness, a tort that prohibits the use of someone's name or likeness for commercial purposes without their consent (in California, name and likeness are actually protected by statute - California Civil Code Section 3344(a)). If she decided to sue, she could put Naughty Dog out of business.

So now we arrive at Beyond: Two Souls, the game that Page actually participated in by doing the voice and motion capture (see pic above) for her character. At one point, the game features a scene with digital version of Page's character taking a shower, all of her lady parts tastefully obscured. Unfortunately,  pictures from a developers-only version of the game leaked out, showing those lady parts in their entirety (Page, of course, did not pose nude for this scene. She filmed her role wearing a mo-cap suit - a leotard fitted with digital nodes that capture her movement).

Who's to blame? The game's developer, Quantic Dream, seems like the obvious target since it made the nude model to begin with; without the model, this controversy would never have arisen (in the law, we call this "direct causation"). But Quantic Dream claims that it made it impossible to view the model's lady parts within the course of normal gameplay. Their story is that an unauthorized developer took the model and filled in the blanks, as it were. So is Quantic Dream off the hook because someone found a way to view that model in an unintended way? And even if Quantic Dream was the right party, could Page sue the company for Appropriation of Likeness? She did permit the use of her face, after all, but does her "likeness" extend to her other features? Consider also that since Page didn't actually pose nude, all the "blanks" that were filled in by the unauthorized developer were done from imagination - does that alter the analysis? At this stage, it's unknown whether Page had an anti-nudity clause in her contract, and whether a 3D rendering of her body would qualify for the purposes of an Appropriation claim (there's some case law indicating that it might qualify). Basically, there are a lot of unknowns.

Here's what makes the whole thing even more fascinating: Sony, Beyond's distributor, is also the distributor for The Last of Us. This puts them in an awkward situation vis-a-vis their relationship with Page. Twice in one year she's become a victim of a high-profile game they released.  And once the pictures are out in the world, they're out there; there's no getting them back.

It'll be interesting to see if Page decides to pursue the matter legally. In the meantime, I'm sure she's learned her lesson: no more video games with Sony.

Copying is Copying: Homages, Tributes, and Fanboyism Are Dangerous For Artists

As far as the law is concerned, copying is copying, no matter how noble your intentions.

I'm an artist too, so I get it. We are constantly bombarded by stimuli, so it's hard not to be inspired by those images. And it's even harder to avoid relying on those images when we make our own work. My advice is to try even harder than that. Because, unfortunately, copyright holders (often, but not always, large corporations) are less inclined to care about why you copied them and more inclined to sue you into oblivion if that's what they feel is required to protect their work.

Case in point: last month, a Boston-based company called Autonomie was sued for trademark infringement by Converse for making a sneaker so similar to Converse's iconic Chuck Taylors that it's nearly impossible to tell the two apart (the shoe is actually manufactured by a British company called Ethletic). Here are the shoes side-by-side.

But this isn't just ripping off for the sake of ripping off. Autonomie is all about using eco-friendly materials and fair trade practices so as to produce "high-quality garments at competitive prices to consumers that wish to make purchases with a social and environmental impact without having to sacrifice their own personal style, or break their wallet."  That's a pretty good reason, right? Too bad. The law says this is trademark infringement because there's a high likelihood that the two shoes would be confused with each other, thus steering profits away from Converse. In trademark law, this is called "blurring." Autonomie's reasons may be noble, but noble doesn't go very far in court.

Remember the whole Robin Thicke/ Marvin Gaye copyright infringement situation that came up a few months ago? Thicke was so inspired by Gaye's work that he wanted to make a song that sounded like something Gaye himself might have written. The end result was that Thicke's fanboyism got him in a legal tussle with Gaye's family.

The reasons for copying rarely matter from a legal perspective. There are very few mechanisms in the law that allow it, and they only apply in certain situations. Fair use, is the most commonly used exception but the only way to find out if it protects you is to get sued, go through months of litigation and thousands of dollars in legal fees, and find out in court. As far as I'm concerned, getting sued and winning is the same as losing because the amount of time and money required to defend yourself would never be recouped.

Copyright holders don't care what your reasons are. They only care if your work will take money out of their pocket. So don't pay homage. Don't pay tribute. Don't use the copyrighted works of others unless they give you written permission. If they don't give you permission, be creative and find another way to express yourself. Be original always in all ways, because copying someone else, even if your intention is to honor them, is the quickest way to get legally smashed. And instead of making art, you'll be paying off copyright fines.

Tortious Interference on Parks and Recreation: How Rent A Swag Can Fight Back Against Tommy's Closet

[Parks & Recreation is the best comedy on TV these days, so in honor of its new season, I've taken a look at one story issue that's been bugging me since last season's finale.  Enjoy!]

Tortious interference occurs when a person intentionally damages the  business relationships of another.  Parks & Recreation occurs at 8:00pm, Thursday nights on NBC.  The former is a type of civil liability imposed on one party who financially harms another party.  The latter is an exceptionally sweet and intelligent sitcom that none of you are watching.  What do the two have in common?  A lot, surprisingly.

Last season, Tom Haverford - played by Aziz Ansari as a pop-culture obsessed, clothes horse, mogul wannabe - started a business called Rent-a-Swag, a store where the "teens, tweens, and in-betweens" of Pawnee, Indiana could rent "the dopest shirts, the swankiest jackets, the slickest cardigans, the flashiest fedoras, the hottest ties, the snazziest canes and more!"  Per the store's fake website, "before you waste your money on something that won't fit in a month, or fight with your parents over that sick velvet blazer they won't buy for you - step into Rent-A-Swag."  It's a good idea, right?

Anyway, the business took off and Tom was thisclose to leaving his job at the Parks and Recreation Department.  Unfortunately, Tom discovered that a competitor opened a rival store directly across the street called Tommy's Closet.  The competitor (whose identity I won't reveal here) informed Tom that Tommy's Closet was designed specifically to drive Rent-a-Swag out of business.

I don't know how the Parks & Recreation writers intend to resolve the situation (it will likely be sweet and goofy), but if I was Tom's attorney, I would advise him to sue the pants off (hehe) the owner of Tommy's Closet.  In tort law, there's something called tortious interference with an expected economic advantage and it gives business owners a way to stop those who maliciously attempt to drive expected consumers away from their business.  To win, Tom would have to prove that:

1. Tom had a reasonable expectation of economic benefit from the operation of Rent-a-Swag,
2. The competitor had knowledge of that expectation,
3. The competitor intentional interfered with Tom's expected economic benefit, and
4. Tom suffered economic damage as a result of the interference.

It wouldn't be very entertaining to watch, but Tom would most assuredly win a lawsuit against his competitor.  First, Tom had a good reason to expect an economic benefit; he was already receiving it!  His business was booming during the tail end of Season 5.  Tom was even able to hire employees and pay dividends to his stockholders.  Second, the competitor told Tom (in front of other people, I might add... witnesses!) that he was aware of Rent-a-Swag's financial success.  In fact, during the Season 5 finale, he tried to buy Rent-a-Swag from Tom because it had become a known moneymaker.  Third, the competitor admitted his desire to drive Tom out of business out of a misplaced sense of revenge and was actively luring customers away with free pizza and prizes.  Finally, we see in the Season 6 opener that Tommy's Closet had succeeded in drawing customers away from Rent-a-Swag; the episode shows Tom alone in his store, all the customers having fled across the street.  Tom has clearly suffered an economic damage.

While these kinds of malicious actions are rare, they do happen.  Therefore it's important for all artists and small business owners to be aware that there are options available to them should they become victims of tortious interference.  As a rule, the law doesn't look kindly upon those who open a business solely to spite another business.  In the real world, Tom has options - and so do you.  Of course, this is TV and I'm sure that whatever the Parks & Recreation writers come up with, it will be a hell of a lot funnier than watching this play out in a courtroom.

[You can also make a credible argument that Tom has a trade dress claim - a form of trademark infringement that protects a store's interior design - against the competitor since we learn that the interior of Tommy's Closet looks exactly like the interior of Rent-a-Swag.]

Robin Thicke Sues Marvin Gaye's Family To Prevent Being Sued By Marvin Gaye's Family

John F. Kennedy once said that "victory has a thousand fathers, but defeat is an orphan."  This is never more true than in the entertainment world, which is why Robin Thicke, Pharrell Williams, and T.I. (aka Clifford Harris Jr.) have decided to sue Marvin Gaye's family and Bridgeport Music in order to deny their parental rights to Blurred Lines.

The Gaye family claims that Blurred Lines ripped off Marvin Gaye's Got To Give It Up, and they're demanding a substantial monetary payout.  If they don't get it, they'll sue for copyright infringement.  In response to the threat of legal action, Thicke preemptively sued them and is seeking a declaration from the court that Blurred Lines doesn't infringe Got To Give It Up.

Before we go any further, listen to both songs and compare for yourself.

Here's the SFW version of Blurred Lines:

[youtube=http://www.youtube.com/watch?v=yyDUC1LUXSU&w=560&h=315]

And here's Got To Give It Up:

[youtube=http://www.youtube.com/watch?v=fp7Q1OAzITM&w=420&h=315]

The lawsuit also contains allegations by Bridgeport Music that Blurred Lines plagiarized Funkadelic's Sexy Ways:

[youtube=http://www.youtube.com/watch?v=JxKOQ3SfGhg&w=560&h=315]

Now I consider myself something of a musical ignoramus, but even I can tell when one thing sounds like another thing.  While there are some similarities between the songs, primarily because of the up-tempo beat, I think it's pretty clear that Blurred Lines is a wholly separate entity.  Which means no infringement took place because copyright law doesn't protect individual elements of a work when those elements are commonly used in an industry or genre (known in the legal biz as "scènes à faire").   So in the hip-hop/R&B world, where uptempo bass-heavy beats are the norm, that similarity by itself would not be enough to constitute copyright infringement.  There would have to be greater similarities between the songs in the lyrics and melody for a court to find some form of plagiarism.

So, if Thicke isn't in danger of losing an infringement case, then why did he sue the Gaye family in such an aggressive fashion, especially after stating in his complaint that he has the "utmost respect for and admiration of Marvin Gaye, Funkadelic and their musical legacies"?  Certainly Thicke and his partners aren't content to share the glory with 997 other fathers.  Blurred Lines is THE most talked about song of the summer.  It's a legitimate phenomenon.  Why should they share the substantial revenues they'll accrue with another artist?  Even if that artist inspired them to begin with?

But I actually think this lawsuit is less about money than about sending a message.  See, Blurred Lines is a real winner, and if Thicke can be bullied into settling out of court for several hundred thousand dollars in order to avoid a long and costly trial... well that's a pretty easy way to make a few bucks.  Sadly, this type of thing isn't uncommon in the entertainment world.  In fact, it's downright mundane.

"Your hit song/TV show/movie has something vaguely in common with my lesser known song/TV show/movie and if you don't pay me, I'll tie you up in litigation for years."

It's a very common tale.  My guess is that Thicke decided to take the fight to the Gaye family to show that he can't be bullied.  Will this type of preemptive lawsuit work or will a judge dismiss it and basically tell Thicke to wait until he gets sued?  I have no reason to believe it won't have the desired effect.  If it does, I think you'll see a lot more of these preemptive lawsuits.  If it doesn't, the moral of the story will remain the same: you can't be a hit without people bleeding you for everything you're worth.

Sony Wins "Midnight in Paris" Lawsuit, Inadvertently Proves My Case About Copyright Duration

"The court has viewed Woody Allen’s movie, 'Midnight in Paris,' read the book, 'Requiem for a Nun,' and is thankful that the parties did not ask the court to compare 'The Sound and The Fury' with 'Sharknado.'" - District Court Judge Michael P. Mills

*****

Last October, William Faulkner's estate sued Sony Pictures Classics, the distributor of the hit Woody Allen film Midnight in Paris, claiming that a line used by Owen Wilson's character in the film was pulled straight from Faulkner's 1950 novel Requiem for a Nun without permission from the estate.  Such a use, the estate argued, constituted both copyright and trademark infringement.

Just for comparison's sake, here's the line from the book: "The past is never dead. It's not even past."

And here's the line from the film, said by Owen Wilson's character Gil Pender: "The past is not dead! Actually, it's not even past.  You know who said that? Faulkner. And he was right. And I met him, too. I ran into him at a dinner party."

When I heard about the lawsuit, I rolled my eyes.  "This is exactly the kind of frivolous lawsuit that makes people hate lawyers," I groused to my wife.  The line was so minimal and seemed like a clear-cut case of fair use.  The suit didn't seem like a credible attempt to protect Faulkner's legacy; it looked like a cynical ploy designed to cash in on a box-office hit.  Judge Mills, as evidenced by the above quote, agreed.  In an opinion issued yesterday, he dismissed the Faulkner case against Sony, finding that film's use of the Faulkner quote fell within the fair use exception to copyright infringement.

But the content of the opinion interests me less than what this case means to copyright policy.  Because whether Judge Mills intended it or not, the dismissal speaks volumes about a problem with the way this country shields copyright holders from piracy.  Namely, that copyrights are allowed to live for too long and that results in too many lawsuits.

Back in April, I wrote this Sherlock Holmes piece discussing why the current scheme of copyright duration should be changed to better serve the current copyright landscape. Right now, any work of art fixed in a tangible medium is protected by U.S. Copyright Law for the life of the author plus 70 years.  I argued that allowing copyrights to last for so long actually stifles creativity and innovation in the following ways:

1. Artists are less incentivized to create new works because of the looming spectre of legal action
2. Owners of profitable copyrights like Sherlock are less incentivized to create new works of art as long as they can continue to profit from those copyrights
3. Copyright owners like the Faulkner estate are incentivized to pursue legal action against even the most minimal use of their copyright because the length of the copyright's life acts as a mandate to keep the work protected at all costs

And that's exactly what happened here.  Under our current copyright law, Requiem for a Nun is still protected 62 years after publishing and 50 years after the death of the novel's author.  It will continue to be protected until 2032.  This permits the descendants of the author to pursue all uses of that work anytime they see green and to concoct unreasonable arguments in defense of that green (the Faulkner estate, as part of its now dismissed trademark claim, argued that the use of William Faulkner's name in the film is likely to deceive the audience into believing that an affiliation exists between Faulkner and Sony).  And while the verdict in this case was proper, it won't be the last time this happens.

A shorter copyright duration is better because it allows the author and his immediate family to profit from his creation, but it also devalues the property after the author's death by coming into the public domain sooner.  And that's a good thing.  If Faulkner is no longer profitable, then that frees up people to use his characters in new and interesting ways, while also incentivizing the estate to create something new.  Someone argued with me once, claiming that letting the work into the public domain would open it to bastardization, copying, and retread.   But I fail to see how that's a bad thing.  If a filmmaker wants to stage a remake of Sherlock Holmes starring Justin Bieber as Sherlock and Chester Cheetah as Watson, well sure that will probably suck big time, but that doesn't diminish Conan Doyle's original writings.  Those remain untouched and intact.  And anyway, the integrity and profitability of a work are not often related.  If they were, the Broccolis would never have greenlit a James Bond movie where Denise Richards played a nuclear scientist.

The purpose of copyright protection isn't to provide a golden parachute for the author and his beneficiaries until the end of time.  It's mean to foster originality and ingenuity for the betterment of society.  Hell, even the head of the Copyright Office, Maria Pallante, suggests shortening the duration of copyright to life of the author plus 50 years.

The point is, until we revamp our copyright law to stop favoring the corporate copyright holders, we're going to continue seeing lawsuits like Faulkner v. Sony any time a large copyright owner sees a potential conflict with its interest.  When I look at Judge Mills' decision, I don't see a single judge smacking a plaintiff for filing a frivolous lawsuit.  I see an indictment of a system that allows the suit to be brought in the first place.