Sunday, September 23, 2012

Entertainment Law Podcasts

This week I discovered Gordon Firemark's Entertainment Law Update Podcast series.  I've listened to three episodes so far:

Firemark, G. (2012, February 1). Episode 28 - Political campaigns, combat helicopters, and Batmobiles. Entertainment Law Update Podcast. Podcast retrieved from iTunes.

Firemark, G. (2012, March 29). Episode 29 - 360 deals, rights of publicity, and more. Entertainment Law Update Podcast. Podcast retrieved from iTunes.

Firemark, G. (2012, April 29). Episode 30 - JOBS Act, crowdfunding, limited editions. Entertainment Law Update Podcast. Podcast retrieved from iTunes.

One can learn a lot from experienced entertainment attorneys like Gordon. Several lessons stood out from the three podcasts.

While my company has not been involved in production of the Batman films, I did meet the person who built the Batmobile for The Dark Knight. He was very proud of the design, and said he would let me see it. He also created the Speed Racer car, which I did get to see in person. In Episode 28, Mr. Firemark discusses legal issues that arose when a company made and sold Batmobile lookalikes. The company claimed it was a fair use because the vehicle was functional and therefore not subject to trademark law, but the courts decided certain features of a vehicle’s design could be trademarked. Therefore, it is necessary to license a unique design before producing and selling a lookalike vehicle. My question is, who owns the right to the Batmobile likeness, the comic creator or the person/vehicle artist who made the Batmobile car for the movie? This is a question I should consider if I hire this person to build cars for future films.

Episode 29 deals with 360 deals. Some record companies are in trouble for charging fees for putting together an entire 360 deal, when their contracts only entitle them to commissions on part of the deal. In one case, charging the fee led to canceling of the entire contract and loss of all fees, but this does not appear to be the trend. It is important for my company to make sure any fees are fully outlined in my contracts, so I don’t invalidate my contract by charging a fee that is not allowed. This is just one more reason why a good entertainment attorney should be involved in any major transaction.

One option my company has looked at for funding certain projects is crowd funding. Episode 30 discusses the JOBS Act (Jumpstart Our Business Startups), which is intended to jumpstart businesses through crowd funding. Mr. Firemark goes through the many challenges that are currently affecting implementation of the law. It appears that he is planning a conference later this year to teach people how to prepare to take advantage of the new form of funding the moment it is available. It costs just over $300 to attend the conference, and I look forward to attending.

I also look forward to keeping up with future Gordon Firemark Entertainment Law Update podcasts. A total of seven are available on iTunes right now, and I’d love to dig up archives for other episodes applicable to my business interests.

Thanks for reading!

Profitably yours,


Sunday, September 2, 2012

Three Controversies

1. One of the latest legal controversies in America is the design patent battle between Apple and Samsung that came to a close last week.

A number of analysts and investors have weighed in on the result, one that favored Apple in an American court:

Professor Michael Risch of Villanova University, brought up one of the most intriguing points of discussion. While most analysts focus on the impact of the verdict on competition like Google’s Android platform and Microsoft’s Windows mobile platform or on Apple’s ability to safeguard its valuable intellectual property, Risch seems to think “Not being able to copy may make [Samsung] do better things than Apple.”

I agree, and believe that, while companies should be able to license certain aspects of technology to promote healthy competition, they should also have to rely on their heads somewhat and innovate new value into the “conversation” of a competitive marketplace. Where would video games be if Nintendo had not reinvented gaming with the Wii? Both Microsoft and Sony have been forced to put out peripherals called Kinect and Move just to compete.

The design patent victory by Apple, while a seeming victory today, may actually hurt them in the future when competitors come up with innovative and mass market designs before those features occur to Apple. For now, investors seem to think Apple got the better end of the stick.

2. By way of contrast, a second legal controversy occurred between the same two companies in a very different forum with a different result. While Apple won the fight in North American courts, Samsung appears to have won a separately filed, but less important verdict against Apple in Japanese courts:

According to this article, Samsung using “the synchronizing technology that allows media players to share data with personal computers” does not infringe on Apple’s patents.

While a relatively minor victory for Samsung, it could be a positive victory for consumers who really ought to be able to find that feature in any mobile device, just implemented and coded in a unique way.

I am curious whether the forums the two companies chose to file in had anything to do with the disparate results. Apple’s victory came in a court just miles from their headquarters. Japan certainly seems like it might be a more friendly forum to a Japanese company, even though people in Japan are big fans of Apple products.

Were these cases really decided on their merits or are geography and national loyalty the reasons major legal precedents have just been set? Only the courts know for sure.

3. In other entertainment news, this time from the publishing industry, a Navy Seal may be about to be sued by the Pentagon for writing a book, No Easy Day, that tells a different story about the killing of Osama Bin Laden than that told by the White House:

The Pentagon claims breach of contract because the soldier, Matt Bissonnette, agreed in writing not to divulge classified information, and a few copies of the book have already been distributed and paid for. Whether there is classified information in the book or not, it seems like a valuable service to let the American people know what really happened. If Barack Obama or his staff is lying, we ought to know about it even if someone at the Pentagon wants to call it Classified.

As a Veteran myself who had a Top Secret security clearance while in the military, I understand the importance of operational security. We don’t want soldiers still serving to be compromised in any way or put in danger. I also believe strongly that certain information should be in the hands of the people who are paying for it, the American taxpayers.

Is classified information a type of trade secret of the US government? Should we view classified information and trade secrets/other intellectual property as analogous or completely different things? Where should the government’s right to keep things secret end and the public’s right to know begin?

The author of the book is a patriot and war hero, not simply someone trying to make a quick buck off a book at the expense of fellow Navy Seals. He should be treated as such. Unless there is something really important (force protection issues) about what is divulged in the book, the Pentagon should let the author go and even support his book. A cooperative approach might even help them recruit new heroes.

If Hollywood is not prosecuted for making movies about fake Navy Seals fighting terrorists, why should we go after this Navy Seal who fought real ones? Don’t Tom Clancy and John Grisham fiction give terrorists at least as many ideas as the truth? If anything, the patriotic exploits in No Easy Day might discourage terrorists from messing with our sharpest soldiers and the people and ideals they support and defend.

That said, Bissonnette should have included the Navy in the book publishing process much earlier in the process, and the military should in general keep soldiers aware of their obligations to keep certain information secret for the good of those serving and the country they serve.