Tuesday, November 26, 2013

Another One for the No Good Deed Shall Go Unpunished File

For those who live in Southern California, you may recall reading about a bear who had an affinity for Costco meatballs (I mean, who wouldn't).  He loved them so much in fact that he would often return to Glendale after relocation to the Angeles National Forest in search of these frozen delicacies.  Hence, the residents of Glendale dubbed him "Meatball."  

Unfortunately, Meatball's repeated incursions to Glendale to forage for his food of choice (or maybe it was just his "comfort food?") landed him in line to be euthanized.  Well, one resident, Sarah Aujero, found that solution to be unbecoming and began a Twitter campaign to raise funds to find Meatball a more permanent home in this world.  The campaign Twitter moniker she chose was @TheGlendale Bear.  The effort became so successful, it included branded shirts, tote bags, and stickers which Ms. Aujero sold to pay for a new enclosure at Lions, Tigers & Bears sanctuary for Meatball.  She even obtained a trademark for the products bearing the Meatball name.  Ms. Aujero says that she would often use her own funds to bridge the gap between expenditures and donations and that she does not make money off of Meatball.  Meatball has been at the sanctuary for over a year.

Now, comes the legal part.  The sanctuary wants Ms. Aujero to hand full control of the Twitter account and assign all rights to the copyright to the sanctuary.  As you may expect, the sanctuary "lawyered up," and these lawyers took a fairly aggressive stance with Ms. Aujero.  So much so that when Ms. Aujero refused to sign over the rights to these items--although, she did tell the sanctuary it was free to use the name for fundraising efforts--the lawyers informed her that she would no longer be allowed on the sanctuary's property.  A somewhat childish response given that Ms. Aujero started the campaign to raise funds which went to the sanctuary. 

Ah, wait, it gets better.  Apparently, a publisher asked Ms. Aujero to right a children's book about Meatball.  She agreed and said that she would donate a portion of the proceeds to the sanctuary.  The sanctuary objects because they believe that Ms. Aujero is exploiting Meatball and they believe it is their job to protect the animals from exploitation.  What is clearly left unsaid by the sanctuary is that they would prefer to be the ones doing the exploitation.

By now, you are probably thinking why these two are fighting when they appear to be on the same side? My thoughts exactly, there has to be some way to resolve this without devolving into a long drawn out dispute.  In my practice, I am often asked for my legal advice on a matter to which I respond with discussing what my clients wish to achieve from a business perspective.  Maybe the sanctuary and their attorneys should have a similar conversation to figure out how best to raise funds for the sanctuary and Meatball instead of having to raise funds to pay attorneys' fees fighting this particular fight. 

Monday, November 4, 2013

Blurring the Lines Between Robin Thicke and Marvin Gaye: Marvin Gaye's family Sues Robin Thicke

Robin Thicke filed a declaratory judgment action against Marvin Gaye's family in order to have the court declare that his song, "Blurred Lines" did not infringe Marvin Gaye's copyright in the song "Got to Give It Up."  Notably, at the time of filing the lawsuit, the Gaye's were not asserting that "Blurred Lines" infringed their copyright.  One of the requirements of a declaratory judgment action is that there is an actual conflict between the parties over their rights/remedies.  This is certainly a case of some really awful legal advice on the part of those advising Robin Thicke.  Usually, a lawsuit would be a last resort option, not the first.  Also, if Mr. Thicke thought that his song would infringe, he may have been better served trying to work out a deal with the Gaye family to settle without resort to litigation.  Alas, he fired first.  

In response, and not unsurprisingly, the Gaye family sued Robin Thicke for stealing two of Marvin Gaye's songs.  The lawsuit includes an allegation that Robin Thicke has a "Marvin Gaye fixation," meaning that there may be other songs of Mr. Thicke's which "borrow" ("steal") Marvin Gaye's copyrighted material. 

Some music critics noted that "Blurred Lines" was influenced or reminiscent of "Got to Give It Up."  This may be what caused Thicke to file the declaratory judgment action.  There is a question as to whether a song is "influenced" or "reminiscent" of another's copyrighted material is sufficient to show infringement.  That will be what the court will determine in the not so near future.