Month: March 2011

‘Oh, Really?’ Gray ethics in ‘Lincoln Lawyer’

In ‘Oh, Really?’ the Biederman Blog’s editors — voracious consumers of all matters pop culture — cast a curious, skeptical, fun and smart end-of-the-week eye on popular productions, sharing their keen observations about legal matters these raise. In The Lincoln Lawyer, Lionsgate’s sly and appealing legal thriller, Matthew McConaughey plays the crafty, hustling defense attorney Mickey Haller (a character created by best-selling author Michael Connelly a one-time Los Angeles scribe). Mickey carries out most of his legal work from the backseat of his Lincoln town car (explaining the movie’s title) and seems to defend clients chiefly on their capacity to put up cash. This gives him a clientele of assorted dirt-bags and drug addicts but also happens to land him what he first thinks may be the case of a lifetime: He’s asked to defend Louis Roulet (Ryan Phillipe), the scion of a dripping in wealth Beverly Hills family, against a rape charge. While the case looks easy at the start, it fast slips into the iffy for Mickey and his investigator (William H. Macy) after Roulet lies about crime-scene evidence but maintains his innocence. Mickey soon discovers evidence that ties Roulet to a murder that sent another of  the attorney’s clients (Michael Pena) to prison. This thrusts Mickey’s professional ethics into a tailspin. Should he violate his personal ethics and the Model Rules of Professional Conduct by disclosing...

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White House offers its copyright vision

Victoria Espinel, the Obama administration’s “intellectual property and enforcement coordinator,” has released a White Paper with recommendations to Congress on intellectual property issues, such as sentencing guidelines for criminal infringers, streaming, infringement, circumvention, wiretapping and public performance right for sound recordings. In her position, created when President Bush signed the “Pro IP ACT” in 2008, Espinel has through her paper expressed particular concern over online piracy and counterfeiting. The administration advisory recommends increases in sentencing guidelines for “trademark and copyright offenses when infringing products are knowingly sold for use in critical infrastructure, national defense, national security or by law enforcement.”  Espinel also carefully notes that sales indirectly affecting national defense would not be swept in this provision. Other pertinent recommendations include three proposed legislative changes to give enforcement agencies tools they need to combat infringement. These clarify that infringement by streaming is a felony, expressly authorizing government communications with rights-holders on infringement and circumvention and allowing wiretapping in criminal copyright and criminal trademark investigations. Streaming a felony? The first recommendation clarifies that, in appropriate circumstances, infringement by streaming or by “other similar new technology,” is a felony. Some have criticized this recommendation as vague because they say its definitions of “appropriate circumstances” and “streaming” are unclear. Perhaps this recommendation sets the stage for more discussion by lawmakers on another version of the Combating Online Infringement and Counterfeits Act (COICA), which failed...

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In Chicago, a flap over Tweets, FB posts

Does the poster or the company own the content on social media sites? That’s the question pending before the U.S.  District Court in Chicago, which will take up interior designer Jill Maremont’s claim against Susan Fredman and her swanky company  — an action that will go on after prevailing over motions to dismiss and for summary judgment. According to Venkat Balasubramani at Eric Goldman’s Technology and Marketing Law Blog, companies should have a social media policy that designates official accounts and that specify who owns the posts on them. The policy also should clarify who “owns” the followers and fans of those accounts. Balausbramani says litigation on this issue will increase as companies see the value of social media. Maremont worked at Susan Fredman Design Group where she developed a big following on Facebook and Twitter. But she  was hurt in a car accident and was out of work for some time. While she was recuperating, she alleges that Fredman and the firm impersonated her on her Facebook and Twitter accounts. While the company’s copyright and trademark arguments were not discussed in this order, it is likely they will be discussed at trial. The first prong of Maremont’s action comes under a false endorsement claim of the Lanham Act, which covers instances in which the public is misled by an individual’s endorsement of a product or service due to...

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High court snubs appeal, dings record industry

The Supreme Court has  slammed the door on Universal Music Group and the recording industry in its bid to prevent a big pay-out to Marshall Mathers (aka Eminem), and, many say, opened the door for further legal negotiation and potential litigation by other recording artists whose songs and ringtones are distributed digitally on iTunes and other online distribution services. The Supreme Court, in declining Universal’s appeal, left standing a September, 2010, ruling by the Ninth District appellate court adverse to not only the company but, analysts have said, the industry, too. The appellate court had been asked to decide if contracts’ provisions on “Records Sold” or “Masters Licensed” set royalty rates for sales of Eminem’s music as permanent downloads and master-tones.  The court decided Mather’s contracts were unambiguous, finding, in effect, that licensing provisions should pay a 50% royalty rate, not the 18%-23% that had prevailed commonly in the trade.  Because digital music sales have become the central means by which consumers buy music now, the higher court rulings will prompt big, costly changes in the music industry, analysts say, readjusting royalties due artists by their industry. This more will affect big-selling recording veterans, whose contracts were struck before the digital age but also may empower artists with greater bargaining powers, some say. Universal insists the case affects only Mathers and sets no...

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‘Hope’ leads to more disputes for the AP

The Associated Press and Shepard Fairey reached a settlement earlier this year, ending a two-year dispute as to whether the artist violated copyright terms in using a 2006 photo by a photographer from the news collective of Barack Obama as inspiration for the iconic presidential campaign “Hope” poster.  The New York Times reported that both parties agreed that “neither side surrendered its view of the law” and agreed on undisclosed financial terms. But it seems Fairey’s argument that his use of the photo was covered by a fair-use defense has not swayed the AP from further litigation, now with others who employ the imagery in other fashions. Fairey created his poster to back Obama in 2008, and, in  2009, he preemptively sued the national news collective after it accused him of copyright infringement. AP released a timeline of key events pertinent to the suit, buttressing their argument. In settling the dispute, Fairey has agreed not to use another AP photo without permission. He and the AP also will share rights to the Hope image. But fueling the litigious saga, the AP discussed fresh federal complaints it launched Wednesday against three clothing retailers: Urban Outfitters, Nordstrom and Zumiez. The AP asserts the retailers infringed its copyrights with clothing emblazoned with the Hope image. Obey Clothing, embroiled in a separate copyright suit by the AP since 2009, supplied the retailers with the disputed clothes...

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