Category Archives: IP

INTA The Great Wide Open

“Have you ever seen Dallas from a DC-9 at night?” Dallas by The Flatlanders

When you think of Dallas, many images snap to mind. The grainy, jarring frames of Abraham Zapruder’s home movie, Lee Harvey Oswald doubled over from the blast from Jack Ruby’s pistol, Tom Landry stalking the sidelines of the Cotton Bowl in his suit, tie, and hat, the portrait of Jock Ewing hanging over Miss Ellie’s mantle at Southfork, Tony Romo’s smirk, Larry Hagman’s devilish grin as JR Ewing over two generations of Dallas, the soap opera.

Trademarks, however, are not top of mind when you land at DFW or Love Field, not even as you make your way to the flagship Nieman Marcus in downtown Big D.

But here in Dallas this week in May, almost 10,000 trademark professionals–in-house corporate lawyers, outside counsel, Internet and domain name specialists, and flocks of experts and service providers–have descended on Dallas for the 135th International Trademark Association Annual Meeting.

Trademarks and Texas have come a long way since 1888 when the first annual meeting took place. Then, a “brand” in Texas literally meant a symbol seared into the hide of a cow. And justice was meted out by Judge Roy Bean, whose “Law West of the Pecos” entailed more hangings than injunctions for trademark infringement. (We shudder to think of how Judge Bean would have dealt with such devious hombres as counterfeiters and cyber squatters).

And those first INTA attendees back in 1888 would marvel at the range of topics swirling around INTA 2013–social media, fluid trademarks, gtdls, and the “food explosion” and other trendy subjects speak to the complexities and challenges of our brand-centric modern era.

Dallas has been hospitable and impressive. And steeped in history, from the life size sculpture of a long horn cattle drive that speaks to Texas’ Lonesome Dove days to the Texas Book Depository that reminds us of a dark day in November fifty years ago.

Having grown up in Lawrence NJ, I naturally gravitated to the Hotel Lawrence, a venerable establishment that makes up in friendly staff what it lacks in luxury. It’s just a block from Dealey Plaza, and sleeping in the vicinity of JFK’s final ride has conjured up some fitful dreams while rekindling interest in the “single bullet theory” and other conspiracies that seldom haunt my thoughts back home.

Yes, as those Texas troubadours The Flatlanders sing, Dallas is a beautiful sight, and a haunting one too.

QUOTE OF THE DAY: “Hang ’em first and try ’em later.” Judge Roy Bean.

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A King Whose Reign Brewed An Industry

“I don’t lose no sleep at night ’cause things with you are going right/And I hardly ever sing beer drinking songs.”  “I Hardly Ever Sing Beer Drinking Songs” by Johnny Cash

Go into any bar or restaurant on DC’s trendy U Street Corridor or into any joint in new hot neighborhoods such as Bloomingdale or Logan Circle.  For every irony-drenched hipster sipping a PBR, you’ll find dozens of Congressional staffers, lobbyists, lawyers, NGO-sters, and interns pouring over copious beer lists brimming with exotic offerings from microbrews both local (like Northeast DC’s Chocolate City Brewery) to international, such a Belgian premium drafts that rival a good Bordeaux in price and drinking pleasure.   The beer selections at “hoppin'” places such as Birch and Barley are literally dizzying, especially with beers whose alcohol content approach 10%.

It’s easy to forget that just a generation ago, finding an India Pale Ale or English bitter was rarer than a blue moon.  Now of course, Blue Moon Brewery is one of the more ubiquitous standard bearers of the “craft beer” explosion.  And imports once prized for their scarcity and pedigrees, such as Stella Artois and Pilsner Urquel (not to be confused with Steve Urkel), have now gone mainstream, rubbing shoulders with Heineken, Corollas, and even Bud and Miller (apologies to Buddy Miller, the most soulful and compelling alt. country musician/producer/guitarist performing today.)

As chronicled in the Wall Street Journal,, the father of this  beer revolution  was Henry King, a New Jersey native who came to Washington to shake up and wake up a stagnant beer industry.  He realized that the biggest impediment to harnessing the brewer’s art was a federal excise tax that imposed prohibitive costs on would-be small producers.  Leaning on industry, labor, and lawmakers alike, King shepherded legislation to slash the tax,  paving the way for the beer explosion we’re enjoying today.

Back in the day, your choices were Miller Time, Clydesdale Horses, or a Rocky Mountain high from Coors.  But thanks to Henry King, the true King of Beers, we now can enjoy flights of beers from microbreweries in every state of the union.  Full disclosure,  Henry King is the father of my dear friend Ottilie King Droggitis.  Ottilie has shared stories about her dad that certainly made him appear as a larger than life figure.  This story in the Wall Street Journal confirms all that, and more.

Next time you enjoy a cold one from a craft brewery, drink a toast to Henry King.

QUOTE OF THE DAY: “He was a wise man who invented beer.”  Plato

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Another Fine Mess: Stanley Cup Kicks Off In Lockout’s Shadow

“Now ever since I was young its been my dream. That I might drive the Zamboni machine.”  The Zamboni Song by The Gear Daddies.

One of the most exciting and intensely played tournaments in all of sport—and the one with the oldest and most coveted trophy– kicked off last night as the NHL’s Stanley Cup Playoffs got underway.  The contest pits 16 teams who compete in best-of-seven elimination series, with the winners of each round moving on until only two teams remain to face off in the Stanley Cup Finals in June.  My team, the New York Rangers, clawed its way into the playoffs on the strength of shrewd trades, gritty play, clutch scoring, hot goaltending, and a few lucky caroms of the boards.  They will play the team from my adopted home, the Washington Capitals, with Game One scheduled for tomorrow night at Verizon Center.  That arena is  located in DC’s vibrant Penn Quarter, only a stone’s throw away from the city’s dwindling Chinatown.  (I’m still investigating rumors that some visiting players have ordered carry out for between-period noshing).  If past is prologue, it should be a riveting series.  Last season, the Rangers ousted the Caps in seven games.  But Washington scoring star Alex Ovechkin has been scorching opponents, and the Capitals seem destined to skate past the disappointment that has hounded these perennial under achievers like a dogged forechecker.

For a time, however, it seemed doubtful that NHL hockey would be played this season in the arenas of North America.  The contract between the league and its players had expired, and the owners had locked the players out.  No training camp, no pre-season, no games in October, November, December, and into January.  As talks between the factions grew evermore fractious, the league cancelled its mid-season outdoor showcase, The Winter Classic, and gloom descended on the hockey faithful everywhere–from the “Original Six” bastions of NHL tradition (Montreal, Toronto, Boston, New York, Detroit, and Chicago) to the glitzy, frozen showtime of L.A.’s Staple Center, home of the reigning champion Kings.  The issues separating owners and players echoed the tropes we’ve become accustomed to hearing whenever owners, players, and their respective minions drop the gloves and square off for a labor brawl.  Cries of poverty from billionaire owners collide with the players’ refusal to backslide on gains and perks won in years past.  

“We had all been here before”, as CSNY sing in Deja Vu.  And the flashback wasn’t pleasant.  Back in 2004-05, an entire season was lost due to labor strife.  And as the New Year’s ball descended on Times Square to welcome the infant 2013, the odds of salvaging the 2012-13 season seemed longer than Father Time’s beard.  Frtunately–for the owners, players, the fans, the broadcasters, and especially all the hardworking  folks whose livelihoods depend on the games being played–common sense prevailed and a new collective bargaining agreement was inked on January 9, 2013.

By that time,  the League had cancelled over 500 games and only enough time for a 48-game season remained.  The short season felt like a long time coming, but when it arrived, it was fast, furious, and fun.  Cramming 48 games into four months meant more games per week per team, and less rest for the players.  And once play started, it seemed that the turmoil from the lockout was soon forgotten.

But this blog is about IP rights, not sports, so let’s consider whether the casualties from the long labor dispute included more than  lost games and revenue.

Did the lockout hurt the NHL brand?  It appears that it may well have done more damage than forcing fans to fill their sporting void with episodes of Duck Dynasty or Jersey Shore.  According to a study released back in February,  the lockout not only left  hockey fans feeling slighted by the NHL, it also pulled down the League’s overall brand value. Consultancy firm Brand Finance, which tracks the clout of brand names in the real world, estimated that the NHL will lose nearly US$328.2 million in brand value in 2013 as fans spend less money on hockey in the coming year. 

Another study, from Toronto-based firm Charlton Strategic Research Inc.,  found that while the NHL’s image has improved since the lockout ended,  it has  not recovered fully.

In remains to be seen whether an exciting “second season” of playoff hockey will provide the antidote for the lockout’s hangover.  Perhaps if a marquee team from a major media hockey market like New York, Boston or Chicago hoists Lord Stanley’s Cup in June, the lingering effects of labor strife will melt away like ice really should on the verge of the vernal equinox.

QUOTE OF THE DAY:  “If any man tells you he loves America, yet hates labor, he is a liar. If any man tells you he trusts America, yet fears labor, he is a fool.”—Abraham Lincoln

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Like Water For Trademarks: “Fluid” Marks Take Shape


“So, if you’re tired of the same old story, oh, turn some pages.
I will be here when you are ready to roll with the changes.”  Roll With The Changes,” REO Speedwagon.

A few weeks ago, a colleague asked me if I could take her place speaking on a panel about “Fluid Trademarks.”  My first reaction, expressed  silently to myself–“What in the world is a “fluid trademark?”  My second reaction, expressed out loud and with utmost confidence–“Fluid Trademarks? Sure, I’d be happy to fill in for you.”   I figured, “I’m an experienced trademark guy.  I’ve  been an adjunct professor of trademarks at two Washington DC law schools. How hard could it be?”  And, my colleague and I, along with three other trademark lawyers, were about to start our own boutique law firm specializing in trademark law.  So accepting a speaking gig would be good exposure for the new firm–Kelly IP, LLP–which we launched on April 29.  [Check us out at

I began to tap into my brain’s logic center, hoping that I could solve the “fluid trademark” conundrum through sheer force of mental exertion.  I knew that trademark law protected far more than just names like “Amazon,” logos like Ford’s “Blue Oval,”  and symbols like McDonald’s  “Golden Arches.”  Protectible marks include color, like Owens Corning’s  pink for fiberglass insulation, sounds, like the roar of MGM’s lion, product shapes, like that of the iPod, and even the decor of restaurants, such as Fuddrucker’s.  Did “fluid trademark” refer to protection for clear, viscous substances, like motor oil or the irradiated, pulsating  ectoplasm of a lava lamp?

Fortunately, before my mental gymnastics led to a brain sprain, I summoned a Google web browser.  And the answer was staring me in the face.  The conventional multi-colored GOOGLE logo had morphed into a whimsical design, like the one above commemorating Valentine’s Day and the birthday of George Ferris, inventor of the Ferris Wheel.  A quick web search on Google itself confirmed what quickly had become self-evident.  GOOGLE is the quintessential  “fluid trademark.”  Without abandoning its primary mark and logo, from time to time–and for one day only– Google swaps its conventional, static mark for a colorful, whimsical, and often dynamic alter-ego.  As described on Google’s website, these  “Doodles are the fun, surprising, and sometimes spontaneous changes that are made to the Google logo to celebrate holidays, anniversaries, and the lives of famous artists, pioneers, and scientists.”

 Google began tinkering with its logo in 1998, even before the company incorporated.  According to Google lore, “founders Larry [Page] and Sergey [Brin] played with the corporate logo to indicate their attendance at the Burning Man festival in the Nevada desert. They placed a stick figure drawing behind the 2nd “o” in the word, Google, and the revised logo was intended as a comical message to Google users that the founders were “out of office.” While the first doodle was relatively simple, the idea of decorating the company logo to celebrate notable events was born.” 

The public’s appetite for and delight in Doodles grew, leading Google to assign a team of designers to come up with events and achievements to commemorate by adapting Google’s trademark in what has now become a “trademark” style of innovative variation.  So far, over 1,000 Doodles have graced Google’s homepage since Larry and Sergey created their first “out-of-office” graphic message.

From that somewhat random origin, the so-called “fluid” trademark has become not merely a fad; they are the wave of the future.  As one commentator, Lisa Pearson of Kilpatrick Stockton LLP,  puts it, “the most innovative companies are adopting fluid trademarks.”  That’s no doubt because fluid trademarks are eye-catching, flashy, fresh, and interactive.  They clearly are a marketers delight–building consumer interest and brand loyalty.

But is “fluid” necessarily good from a trademark law perspective?  Fluid marks certainly buck conventional wisdom, which holds that trademarks should remain the same, consistent, and dependable.  Although they may evolve to fit the times, as did Betty Crocker and Colonel Sanders, those evolutionary changes unfold gradually, and stay in place for decades.  But a mark that can change overnight on a designers whim?  Ask a trademark lawyer 20 years ago whether fluid trademarks make a brand stronger or weaker and she’d almost certainly blanche at even the thought of tinkering with a brand’s image as bravely and brazenly as Google and other companies have been doing.  (Other notable fluid marks include, well, a couple of fluids–Absolut Vodka, whose variations on its bottle theme helped define a new era in liquor branding; and Perrier, which temporarily replaced its name with provocative words “Sexier, Crazier, Flirtier, and Sassier,” all in Perrier’s signature script:

But the trend towards “fluid” trademarks has been inexorable, even as it might give trademark purists heartburn.

So what are brand managers and the trademark lawyers who love them supposed to do?  Work together.  Make sure that fluid marks conjure up the original mark–that they are, as Lisa Pearson puts it, “recognizable riffs” on the underlying mark.  Make sure the original mark also remains in use, and is not discontinued for any appreciable amount of time. (Dropping a mark for an extended period can give rise to claims that it has been abandoned). 

Reserve “fluidity” for strong brands with strong recognition–brands that, like Timex, can take a lickin’ and keep on tickin’. ( It does little good to tinker with lesser known brands if consumers might not recognize their “fluid” cousins) 

Don’t throw out the baby with the bath water–keep what works, and make sure the variation play off the mark’s basic characteristics. 

Consider protecting the variation through copyright registration, when appropriate. Besides serving as trademarks du jour, Google’s Doodles are works of art and subject to copyright.  Google, in fact, has an online store where it sells posters and other articles featuring its various Doodle designs. 

And last, be gentle with the public if, as may be inevitable, fluid marks inspire imitation and parody as sincere forms of flattery.  Nothing can tarnish a brand faster than a heavy- handed enforcement campaign directed against loyal customers.  If there is no alternative to litigation, be sensitive to the public relations angles, and choose the defendant carefully. 

My education on fluid trademarks is hardly complete.  There are nuances and subtleties to rolling out and protecting a succesful “fluid” trademark campaign that remain to be discovered.  But so far, innovative brands like Google, Absolut, Perrier, and others who have dared to defy conventional wisdom, have energized their trademarks while captivating the public’s imagination.  Any guess about what Google’s next Doodle wil be?

QUOTE OF THE DAY: “If we don’t change, we don’t grow.  If we don’t grow, we aren’t really living.”  Gail Sheehy

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Seeing Red: When It Comes To Ketchup There’s No Contest

Ketchup bottle“Anticipation. Anticipation. You’re making me wait. Keeping me waiting.” Anticipation by Carly Simon.

Back in the day–before plastic squeeze bottles with wide plastic tops let gravity do its work–coaxing ketchup from the bottle took patience, elbow grease, and courage. You never knew whether your insistent slapping of the bottom would propel the rich tomato red condiment–not quite a paste but hardly a sauce–strategically on the burger and fries as intended, or wildly on shirt and pants (the likelihood of misfiring being directly proportional to the amount of white being worn). And there was only one brand of ketchup worth risking that humiliation–Heinz Tomato Ketchup.

Recently, I heard about a new, hip restaurant boasting about its house-made ketchup. My reaction? Why bother? It can only lead to heightened expectations that are sure to be dashed when the homemade stuff just doesn’t measure up.

How could it?

To quote Carly Simon again: “Nobody does it better.” Heck, for years Heinz was really the only “ketchup.” Its main competitor in the tomato wars, Hunt’s, didn’t dare call its rival product ketchup, settling instead for the woefully weaker term “catsup.”

And let’s face it, if forced to choose between something with the sturdy, no-nonsense name “ketchup,” and the something else that made you sound like you spoke with a lisp, there really wasn’t much of choice at all. Not even Fred MacMurray and his three sons welcoming us to his home for Huntz could make buying catsup palatable

Last Sunday night, on “Mad Men,” the AMC drama about 1960s mores, morals, or lack thereof set in an advertising agency, leading man Don Draper and his team vie against his former protege, Peggy Olsen, for the lucrative Heinz ketchup account. It's a heavy weight bout waged in secret, because the Heinz guys are shopping for a new firm on the sly. Both Draper and Olsen create inventive presentations centered on the singularity of Heinz, the one true ketchup. A generic term so synonymous with its brand name that there is really no substitute, only disappointing also-rans. Today, salsa has supplanted ketchup as the best-selling condiment. But no watery tomato dip, whether spicy, medium, or mild, can ever replace Heinz ketchup as an iconic American condiment brand. Because Heinz=ketchup, and ketchup=Heinz. Everyone is else, from Hunt’s to Del Monte, has always been playing, well, catch-up.

QUOTE OF THE DAY: “The fashion industry isn’t merely content to encase my meaty flanks in skintight denim. Oh, no! That denim also has to be white, a color that attracts ketchup, wine, garlic aioli, and any other foodstuffs I might otherwise be able to enjoy if I wasn’t wearing ridiculously tight pants.”
Diablo Cody

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Bring Us Your Tired, Your Poor, Your Textbooks?: First Sale Goes Global

“If you really like it you can have the rights,
It could make a million for you overnight.”  Paperback Writer,
Lennon and McCartney

So you’ve come to the U.S. from Thailand to pursue a degree at an elite American college.  Things are looking up, until you’re hit with that first tuition bill and the accompanying rapid onset of sticker shock.  Financial aid and student loans are options, but you’re not enthralled by the prospect of leaving school a quarter million dollars in debt.  So what do you do?  If you’re Supap Kirtsaeng, a math student at Cornell and a Thai national, you think fast and do some simple arithmetic.  The textbooks for courses at Cornell and other schools can be bought for a fraction of the cost back home.  And the cost of shipping them to the United States barely eats into the prospective profits.   So, as Mr. Kirtsaeng did, it becomes a simple exercise to have relatives back home buy up textbooks for resale here. Kirstaeng reportedly netted over $100,000 through this international used-book program–enough to pay for two Ivy League semesters.

While Mr. Kirtsaeng was sailing through school, a major U.S. book publisher was stewing–and suing. John Wiley & Sons charged Kirtsaeng with infringing its copyrights. Wiley claimed that the law allowed it to “divide and conquer” the world markets, setting different prices for different markets–with the U.S. editions commanding this highest price tags. Wiley recognized that a provision of Copyright law called “the first sale doctrine” allows anyone who buys a copyrighted work, such as a book or cd, to resell it without permission from the copyright owner. But according to Wiley, the protections of the first sale doctrine ended at the U.S border.

The trial court and appeals court agreed with Wiley. Undeterred and showing the pluck that led him to conceive his bookselling strategy, Kirstaeng appealed to the Supreme Court, urging the nine justices to conclude that the law means what it says–that the first sale of a copy lawfully made under the U.S. Copyright law exhausts the copyright, regardless of where that sale takes place.

In a 6-3 ruling, the High Court sided with Kirstaeng, holding that because the books were Real McCoys “lawfully made” by the copyright owner, they were subject to the first sale doctrine.

Reaction to the Court’s ruling divided along predictable lines. Consumer groups praised it as ushering in new freedom for American consumers to shop worldwide for copyrighted materials. As one spokesperson told the New York Times “Americans [will] no longer be the chumps who pay the highest prices in the world . . .”

Others were chagrined, predicting drastic changes in the way content, such as books and software, will be distributed. As the Business Software Alliance wrote in its brief “Software authors will have little incentive to price their programs for foreign markets if they can simply be resold in the United States and thereby undercut the price of the domestic version.”

The Times even pondered whether “the decision might even hasten the near-demise of print–spurring publishers into a digital works where they can license their books rather than sell them . . .”

Two years ago, the Supreme Court could not decide whether the first sale doctrine allowed the importaion for resale of copyright-protected watches intended for foreign markets. Now, with its decision in the Kirstaeng case, the scope and international reach of the first sale doctrine no longer is in doubt. Proving once again that even with global forces aligned against you, sometimes all it takes is the old college try.

QUOTE OF THE DAY: “The love of one’s country is a splendid thing. But why should love stop at the border?” –Pablo Casals


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Mississippi Burning Over Paris: Faulkner Sues Woody

“There’s a whole lot of magic when you’re in Paris. . . .I want to tell you ’bout all I see.  Stars in my eyes that you would not believe”  Midnight In Paris, Stephen Stills

It never occurred to me that Woody Allen and Stephen Stills shared the same aesthetic.  Stills, of course, achieved fame and notoriety as a member of The Buffalo Springfield and Crosby, Still, Nash and (sometimes) Young.  He’s written and sung anthems for his generation–(“For What It’s Worth, Carry On, Woodstock)–and his battles, on and off stage, are the stuff of legend, including an episode in the early ’80s when Stephen’s then-bandmate Bonnie Bramlett  reportedly punched Elvis Costello in a Ohio Holiday Inn bar.

Woody Allen, on the other hand, has always favored wits over fists.  When Stills was telling the crowd at Woodstock that he was “scared shitless” before breaking into Suite:Judy Blue Eyes, Woody was probably playing Dixieland clarinet at his regular weekly gig at Michael’s Pub in Manhattan while pondering  the absurdity of life.  The auteur claims to have been thrown out of college for cheating on his metaphysics exam (“I looked into the soul of the boy sitting next to me”).  In Annie Hall, when he dates the wispy Rolling Stone writer (Shelley Duvall), his absolute disdain for the entire Rock genre is palpable.

Yet when it comes to France’s City of Lights, Woody and Stephen see eye to eye, with Woody taking a title out of the Stephen Stills songbook.  Stephen’s 1976 solo album contained “Midnight In Paris,” with lyrics celebrating the joy and wonder of that magical place.  Woody’s 2010 film by the same name not only won praise from critics and audiences, but also exuded the same spirit of awe and wonder as Stills’ song about “stars in your eyes that you would not believe.”

Woody’s Paris, too, is populated by an unbelievable constellation of stars.  When struggling writer Gil Pender (Owen Wilson) is stranded by his shallow fiance on a gaslight Paris lane, he soon finds himself whisked upon a journey to past–to the literary salons and speakeasy of jazz age Paris, where he encounters a who’s who of the era’s cultural elite.  Hemingway, the Fitzgeralds, Picasso, Gertrude Stein, and even Dali!, populate Gil’s nightly jaunts.  When he returns to the present, aglow with  heady banter and bon mots, he’s eager to share his new-found enlightenment.  In one scene, Pender exclaims, “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.”

This line added to the picture’s panache, but hardly was a defining moment.   With so many literary and artistic heroes crowding each frame, and with the Hemingway character itching for a fight in every scene, Woody’s nod to Faulkner hardly stood out.

But it didn’t escape the attention of Faulkner’s estate.  And unlike Woody’s many fans, Faulkner’s folks did not see this as a laughing matter, even though the line merely paraphrased Faulkner and gave him attribution.  They’ve sued.  Faulkner Literary Rights, LLC, the owner of William Faulkner’s literary properties,  filed a complaint in the US District Court in Mississippi against Woody’s studio, Sony Pictures Classics, Inc. for copyright infringement, violation of the Lanham, and commercial misappropriation. Faulkner’s estate asks for “damages, disgorgement of profits, costs and attorneys fees.” The complaint states, “The Copyright Act grants Faulkner the exclusive right to reproduce and distribute the Book and the Original Quote.”  The complaint also alleges that, “The use of the infringing quote and of William Faulkner’s name in the infringing film is likely to cause confusion, to cause mistake, and/or to deceive the infringing film’s viewers as to a perceived affiliation, connection, or association between William Faulkner and his works, on the one hand, and Sony, on the other hand.”

Sony’s response so far has been terse and emphatic:   “There is no question this brief reference (10 words) to a quote from a public speech Faulkner gave constitutes fair use and any claim to the contrary is without merit.”

The merits of this literary/cinematic stand-off will now be played out in a Mississippi courtroom.  Whether it will be all sound and fury, signifying nothing remains to be seen.  But even though Woody Allen may appear diffident, Faulkner should not take him lightly.  As he showed when playing Fielding Melesh in Take The Money And Run, Woody can be a  formidable interrogator.   Perhaps Mr. Allen will invoke the literary conceit from Midnight In Paris and journey to the past himself to confront his accuser, where he’d surely use his signature line of cross-examination: Are you being coy, Mr. Faulkner?

QUOTE OF THE DAY: “It seemed the world was divided into good and bad people. The good ones slept better… while the bad ones seemed to enjoy the waking hours much more.Woody Allen


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“What, Me Worry About ©?” Mad-Made Law

“All around me are familiar faces.  Worn out places, worn out faces . . . no expression, no expression.”  “Mad World,” Gary Jules

I heard the new today, oh boy.  Mad Magazine,  that bastion of irreverent, sometimes imbecilic humor, turns 60 this year.  I hadn’t realized Mad was still being published, much less that it’s lasted this long.  Alfred E. Newman, pictured above, hasn’t looked a day older than, 16 since I used to read Mad religiously in the ’60s.

As I came of age, I moved on to other sources for literary laughs–National Lampoon, Spy, and, today, The Onion. But I never forgot Mad.  It’s iconic features like  the Cold-War classic–Spy vs. Spy, the spot-on TV and movie parodies, Dave Berg’s The Lighter Side, and all the rest remain comedy touchstones that influenced generations of humorists and infused them with the Mad sensibility for the absurd, the ironic, and, yes, the insightful.  The magazine taught generations of readers to filter the “truth” through humor’s unflinching lens.  Could Jon Stewart, Stephen Colbert, and The Simpson’s have wielded their political, social, and cultural rapiers if there had been no Mad?   No way.

Mad’s contribution to our warped world view is  undeniable.  Less remembered is Mad’s enduring contribution to the law.  As hard as it may be to picture Alfred E. in a three-piece pinstripe and tassel loafers, the irrepressible nudnik had a star-turn in the courtroom that shaped copyright law and paved the way for tuneful satirists like Weird Al Yankovik.

The year was 1964, and Beatlemania had gripped the land.  Yet Mad  was in a nostalgic mood, running parodies of classic songs.  The piece provided  Mad-ingly twisted lyrics and instructed readers to sing them “to the tune of” the targeted song.   In this way, Mad skewered 25 songs.   Among them was a parody of Irving Berlin’s “A Pretty Girl Is Like A Melody,”  which Mad retitled “Louella Schwartz Describes Her Malady.”

Readers thought this and the other song parodies were a scream.  Not Irving. Althouth he was known for such comedy gems as “Snookie Ookems,” Berlin, apparently, had no sense of humor when it came to others poking fun at his expense.  So he unleashed his lawyers to go after Mad, crying foul and claiming irreparable harm.  Fortunately for life, liberty, and the pursuit of laughs, the Second Circuit Court of Appeals disagreed, resulting in a ruling that went down in legal history as “the Mad exception.”  The Court wrote:

 the plaintiffs have not asserted that the music-buying public could have had any difficulty in differentiating between the works of plaintiffs and defendants. Neither is there a claim that defendants’ parodies might satisfy or even partially fulfill the demand for plaintiffs’ originals; quite soundly, it is not suggested that ‘Louella Schwartz Describes Her Malady’ might be an acceptable substitute for a potential patron of ‘A Pretty Girl Is Like a Melody.’

Stripping away the legalese, the Court said that Mad’s creative expression trumped Berlin’s rights.  While copyright is important, even more important is free speech.  After all, a society that can’t laugh at itself is doomed, if not to fail, then to bore itself into oblivion.  And we have Mad to thank for reminding us of that for the last 60 years.  Hopefully, Alfred E. Newman will continue to shine his gap-toothed countenance on us for generations to come.

QUOTE OF THE DAY: “The U.N. is a place where governments opposed to free speech demand to be heard!”  Alfred E. Newman


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Summertime Things

Do You Know The Way To San Jose?” Hal David and Burt Bacharach.

It’s been a long time between posts–largely because a trial in San Jose, CA beckoned me out West and I’ve just begun to settle back into the blogging routine.

While I was away, the Olympics took place in London, largely without any of the ambush advertising/trademark incidents many feared might infiltrate the event. Hanes, the underwear maker, produced a tv commercial featuring a well-muscled model swinging on a series of metal rings, perhaps bringing to mind the Olympic rings symbol without paying to become an official Olympic sponsor. But mostly, the advertisers that aired commercials during the Olympic fortnight played by the rules while the athletes swam, ran, dove, dressaged and rhythmically tumbled their way to gold, silver, and bronze, if not to lucrative commercial endorsements.

Neil Armstrong, the first man to walk on the moon, and the quintessential American hero, passed away, but not without NBC committing one of the most egregious gaffes in recent memory. “Astronaut Neil Young, first man to walk on the moon, dies at age 82,” read the online report’s headline at One small step for man, one giant screw up for journalistic kind. Neil Young, by the way, is alive and well, tearing up stages with his longtime band Crazy Horse adding their unique brand of raw rock to Neil’s Ragged Glory for the first time in years.

The Republicans held their convention in Tampa, undermining their claim to competency by scheduling the event in Florida during the height of hurricane season, and by inviting Clint Eastwood to interview an empty chair.

And just last week, legendary lyricist Hal David died. David teamed with Burt Bacharach on a string of top 40 and Oscar-winning hits during the 60s and 70s, including “Do You Know The Way To San Jose,” “Alfie,” and “Raindrops Keep Falling On My Head.” His keen and provocative lyrical sense was typified in this line from Alfie: “What’s it all about, Alfie? Is it just for the moment we live? What’s it all about when you sort it out, Alfie? Are we meant to take more
than we give or are we meant to be kind?” I vote for kind.

On the trademark front, the Court of Appeals for the Second Circuit give Christian Louboutin a qualified victory in the “Red Shoes” case I wrote about in one of my earliest posts. The lower court had kicked out Louboutin’s claim of trademark rights for the red outer soles of its shoes, reasoning that a single color could never function as a trademark in the fashion industry. But the Second Circuit booted that categorical rule, concluding that an earlier Supreme Court case upholding a single-color trademark for an industrial product applied equally to the realm of fashion. Still, Louboutin again failed in its effort to block YSL from selling a monochromatic shoe that was red, top to bottom. The appeals court ruled that Louboutin’s trademark only covered red soles with contrasting uppers, where the red created visual “pop.” So, in the spirit of Neil Armstrong, we can conclude that the Red Shoe decision was one small step for Louboutin, but not a giant leap for shoe-kind.

QUOTE OF THE DAY: “Imagination will often carry us to worlds that never were. But without it we go nowhere.” Carl Sagan

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Y Not MCA? Village People Singer Reclaims Copyrights

“Macho, macho man.  I’ve got to be a macho man.”  The Village People

Mention the Village People, and thoughts turn to jam-packed stadium crowds lifting their arms above their heads to spell out Y-M-C-A.  And invariably, those of us of a certain age recall the eclectic archetypes who comprised the Village People and made them so iconic–the sailor, the police man, the Indian Chief, the biker.   With songs like “YMCA,” “In The Navy,” and of course, “Macho Man,”  the “People” left their indelible mark on American culture.  Their music has joined “Shout,” “The Macarena,” “The Electric Slide,” and “The Hokey-Pokey,” in the Pantheon of wedding and bar-mitzvah music.

Now, one Village Person is trying to get his due, financially speaking, and he’s cleared the first hurdle.   Long ago, the People signed away their copyrights.  But as reported in the New York Times, , a long-dormant provision of the Copyright Act let’s musicians such as Bruce Springsteen, Tom Petty, and Eagles, have a do-over.  The law says that after 35 years, an artist who signed away rights as a youngster, often on unfavorable terms, can “recapture” those rights by following procedures set out in the Act.

And that’s what Victor Willis, the YMCA’s “cop,” has done.  He’s won the first stage of a legal battle, with a Federal court ruling that he is entitled to terminate his portion of the YMCA’s publishing deal for “YMCA” and 3o-plus other songs.

An appeal could follow.  Or, Willis can try to strike a new and better bargain.  But whatever the outcome, one thing’s for certain:  when it comes to dealing with similar efforts by musicians to terminate their deals and reclaim their rights, record labels can no longer afford to brush them off.

On the TV show “Different Strokes,” diminutive Gary Coleman famously was prone to exclaiming “What you talkin’ about Willis.”  Now when the YMCA’s Willis and others talk, the record industry will listen.

QUOTE OF THE DAY:  “You’re a local band until you get a record contract, then all of a sudden Bruce Springsteen is your competition.”  Sammy Llana, The Bodeans

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