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FACEBOOK AVERTS ANOTHER LAWSUIT

Tuesday, 15 May, 2012 05:00 Written by danieldavidson 0 Comments
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By Daniel Davidson

As if Mark Zuckerberg wasn’t already anticipating a landmark birthday, not because of age but because of Facebook’s anticipated IPO, he can now add a victory over a potential payout to self-proclaimed Facebook co-founder Aaron Greenspan. 

In the lawsuit which was filed with Massachusetts’ U.S. District Court, Greenspan alleged that he was not properly named in Ben Mezrich’s book  The Accidental Billionaire and was completely misplaced in the big screen story of Zuckerberg’s success, The Social Network.  Unfortunately for him, the judge dismissed the case with prejudice in favor of Defendants Benjamin Mezrich, Random House, Inc., Mezco, Inc., and Columbia Pictures Industries, Inc.

Allegations, in addition to the “defamation” cause above, included copyright infringement, contributory copyright infringement, and vicarious infringement.  Greenspan’s claims copyright infringement of his book Authoritas: One Student’s Harvard Admissions and the Founding of the Facebook Era which was granted a copyright in 2008.  In the judge’s opinion, which can be seen in its entirety here, the notion that ideas cannot be copyrighted is discussed.  The judge conveniently lays out examples of what can be copyrighted and what cannot.  For example, the judge writes, “As to Greenspan’s description of Summers’ assistant in (6), the fact of her ethnicity is not protected; however, the plaintiff’s original expression of the idea of an assistant taking notes should enjoy copyright protection.”

The defamation claim is a somewhat backwards theory for him to sue on.  As some may know, defamation is the publication of false statements against someone which are capable of damaging the reputation of someone, and have caused that person economic loss.  Greenspan argues that by being left out of the movie and being referred to by a different name in the book, he was being defamed.  The judge thought otherwise and states that Greenspan would not be held up to “scorn, hatred, ridicule or contempt” due to the name change and omission.

Greenspan, the last of the Mohicans against Facebook, has already noticed the court that he intends to appeal the decision entered on May 9.

MARCH OF DIMES

Tuesday, 24 April, 2012 21:11 Written by danieldavidson 0 Comments
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A man with a big heart, and just as large of fists said, “service to others is the rent you pay for your room here on earth.”  Zies Widerman & Malek feels just as strongly about service to others as a left hook from Muhammad Ali.  That is why we have put a team together and are participating in the walk for babies.

The March of Dimes, a national charity with their focus on the awareness of premature birth, has organized a walk this coming weekend in Brevard County to raise money and eyebrows about the growing problem.  On Saturday, April 28, 2012, at 5:00 p.m. in Jetty Park of Port Canaveral, a walk is being held to raise money for research to find treatments and prevention of babies being born too soon.  To find out more about attending the walk, please visit Team Zies Widerman & Malek’s walk page here. Donations are very welcome too.

Although I am new to this charity, I have been reading up on the issue.  According to the March of Dimes website,  the cause of most premature births is unknown.  Over the past 6 years, more than $15 million has been granted to look further into premature births.  Variables such as genetics, environment, and infections have been associated with possible explanations for a baby coming into the world too early.

In addition to their strides in the prevention spectrum, they also contribute to the treatment of preemies.  Since not much is known about the reasons, March of Dimes’ commitment to the prolonging of life is second to none.

I am thrilled that such a noble cause will be benefitted by the giving hands of Brevard County this weekend.  I encourage all to pay their rent, whether it be this weekend, or in a walk near you.  Cheers.

THE SIMPSONS’ “DUFF” BEER TRADEMARK FIGHT

Friday, 20 April, 2012 17:40 Written by danieldavidson 0 Comments
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By Daniel Davidson

German Brew Masters, Duff Beer UG, are putting News Corp’s Twentieth Century Fox’s (“TCF”) European trademarks for “Duff” to the test.  In a recent suit filed by Duff Beer UG, the actual beer maker, which does not have anything to do with The Simpsons, is asking a European court to reverse a previous decision, by the EU trademark office, that the beer maker could not register “Duff.”

Is it fair to say that it is a little absurd that a trademark exists for a fictional beer?  Don’t get me wrong, the Simpsons has made me chuckle for a long time now, but seriously?  I’m no expert on EU trademark law, but I would have to assume that it is somewhat similar to U.S. trademark law.  If not, I apologize.  So, how is it that TCF was able to allege use of their mark for beer?  Are they selling their “Duff” beer in commerce?  I’ve never bought one (though that would be awesome).

It doesn’t seem to be crazy that TCF could come out on top.  In 1996, TCF was able to cease an Australian beer distributer from “cheersing” their “Duff” beer.  I did a quick google search to make sure that TCF isn’t selling “Duff” beer.  In doing so, I came across an article in which they claim that the creator of the Simpsons, Matt Groening, is against making a real beer called “Duff” because it would encourage kids to drink.

It will be fun to see which way the European court goes with this one.  Here is to the weekend.  Cheers.

‘THE LAST SAMURAI’ INFRINGEMENT CASE DECIDED

Tuesday, 10 April, 2012 05:55 Written by danieldavidson 0 Comments
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By Daniel Davidson

The trial, which started in Mach of this year, has finally ended with the accused being the victors.  The suit which was filed by brothers and writers, Aaron and Mathew Benay, accused producers Marshall Herskovitz, Ed Zwick, and their production company, of stealing the script that their agent pitched, also titled ‘The Last Samurai,’ and including an American civil war hero becoming a samurai.

The jury, after seven days, finally came to a decision that the script was never put in front of Bedford Falls, and therefore, could have never been stolen.  This left the remaining matters of the lawsuit, including the issue that an implied contract existed between the parties, moot.

Earlier in this drawn out litigation, an appeals court affirmed the dismissal of a copyright infringement allegation and remanded the matter to the lower court to ultimately determine if there was any implied contract between the parties.  The answer to that question was no, without the question ever being answered.  From the jury’s deliberation, they came to the conclusion that the initial element of there even being a potential implied contract was lacking.  No script, no contract, no money for the brothers.

It must be huge relief for the producers that have been battling the allegation for more than six years.  Also, they were the last defendants on the hook after a judge dismissed Warner Brothers from any liability in the matter.

Although the brothers have lost a copyright infringement battle for a script that could have potentially made them a vast amount of money with ‘The Last Samurai’ grossing close to $400 million, not all is lost.  Well, maybe it is.  Cheers.

GINGRICH WITH THE UPPERHAND IN COPYRIGHT INFRINGEMENT CASE?

Thursday, 05 April, 2012 06:00 Written by danieldavidson 0 Comments
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By Daniel Davidson

On January 31, 2012, I reported that, like many others before him, Newt Gingrich was sued for copyright infringement by Frank Sullivan.  Sullivan is the co-author, and former member of Survivor, of the rock ballad, “Eye of the Tiger.”

Gingrich, sued for copyright infringement for his use of the rock song as entrance music at some of his presidential nomination rallies, has finally responded to the complaint filed by Rude Music, Inc.  As I predicted in my last post, a major defense to the allegations is that Newt’s campaign purchased an ASCAP license which would allow for him to use songs, such as “Eye of the Tiger,” that are affiliated with ASCAP.  Why would you need any other defense?  A license is a license.

Well, the response didn’t stop there.  They also included that Jim Peterik, the only other co-author of the song, has been very vocal in his opposition to the lawsuit.  Even quoting him as saying, “’Eye of the Tiger’ as a ‘motivational’ song which he felt was appropriate for use in motivating people into action like voting and to ‘shake ‘em out of their doldrums.’”

I had commented in my previous post that I was hoping to see this instance of copyright infringement go to the end so that it could answer the question of whether political candidates were covered under fair use when using songs at their campaign rallies.  John McCain and Charlie Crist settled their suits out of court, leaving the question unanswered, and it looks like the question will remain unanswered because, inevitably, the question going to be answered is whether there was a valid license to use the song.

To me it seems that this complaint was filed with the sole end game being to receive a monetary settlement.  With Sullivan jumping at the opportunity to follow the likes of Jackson Brown and David Byrne, he seems to have not done the homework.  If the ASCAP license exists, I could see the pages being turned on Sullivan, and him looking to settle this case.

Federal law allows for a prevailing party in a copyright case to collect attorney’s fees.  Therefore, if Rude Music goes down, they could be on the hook for Newt’s bill.  Although this is true, it is my understanding that judges are very hesitant in awarding attorney’s fees unless it can be shown that the lawsuit was frivolously filed.  In the case at hand, if Sullivan’s attorney’s fired off a cease and desist letter, and Newt’s attorney’s came back with a license, then the suit was filed anyways, there could be a better chance that Newt could collect his attorney’s fees and costs.

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THURSDAY, MAY 17, 2012

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