Wednesday, February 25, 2015

Legal Geek No. 36: Katy Perry Claims IP Rights in "Left Shark" (of SB Halftime)

This is the latest installment in a series of "Legal Geek" articles and audio segments regarding current events and trends where the geek world crosses streams with legal land.  An audio version will appear on the Current Geek podcast, available for direct download here.
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Welcome back to Legal Geek. This week, based on a listener request, we take a look at another interesting story related to the Super Bowl, this being Katy Perry trying to enforce intellectual property rights in the Left Shark of the halftime show.



 
(Stop!...in the name of love...before you infringe my copyright...)
 
Katy Perry provided a number of nifty visuals and performances during her multi-song halftime show, but the one that transcended the night and turned into the latest internet meme was her performance of the song Teenage Dreams, where dancing beach balls, sharks, and trees surrounded her on stage. The shark dancing on the left side of Perry was hilariously out of choreography and sync compared to the right shark and the rest of the dancers. That led to an explosion of Left Shark parodies and commentary online (and even a snarky ESPN Sportscenter advertisement about the performance).

Of course, this also led to people trying to profit off this sure-to-be-short-lived sensation. One of these people was Fernando Sosa, who started selling sculpted figurines of the left shark on his website Political Sculptor. 

Katy Perry put her best attorneys on the case, and they first sent a Cease and Desist letter to Sosa based on an alleged copyright claim. This claim looked good enough to cause the website host to comply with the Cease and Desist. However, when this story hit the news, legal experts weighed in and confirmed that the Left Shark costume likely was not copyrightable subject matter. 

Costumes and other garments are useful items not typically subject to copyright except for design elements that are separable physically or conceptually from the garment and having originality beyond just contributing to the costume's intended appearance. This rule about costumes and separability was confirmed in the 2014 Compendium of Copyright Office Practices, the same document that explained why monkeys and god-like deities could not obtain copyright at the U.S. Copyright Office.

The Left Shark costume is a full body costume shaped like a shark with fins, eyes, gills, and teeth, all of which appear to be integrated elements not physically separable or conceptually original beyond the use in appearing like a shark. Thus, a copyright claim would likely fail, whether at the copyright office or in court. Katy Perry's attorneys then tried to claim the costume was based on several sketches which Sosa infringes, but this is easily avoided because Sosa never saw the sketches and is not copying anything other than the costume in the halftime show.


That led Katy Perry's attorneys to try something else, specifically filing trademark applications on Left Shark and Right Shark among other shark-related marks. This may just be a tactic to bully small shops and sellers like Sosa out of the market based on the slim potential these applications become enforceable IP rights. But the likelihood that these trademarks will be registered seems slim, as the Left Shark and Right Shark terms came out of the internet meme rather than Perry herself. Thus, she will have trouble proving actual ownership in these marks, let alone that they actually serve the purpose of trademarks, which is to identify an origin of goods and services.

The Bottom Line: Katy Perry and her legal team can't be faulted for trying to protect some profitable moments of fame stemming from her memorable halftime performance, but the claims to IP rights are pretty clearly flawed. If she wants to sell memorabilia and figurines about Left Shark, she will have to just enter the free market and compete with others. Perry will be fine, because after all...

"I kissed a girl, and I liked it..."

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Do you have a question? Send it in!

Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy

Monday, February 23, 2015

Character Insight No. 133: Vic Fontaine

This is the latest installment in a series of "Character Insight" articles regarding the rich history of characters in the Star Trek universe.  An audio version will appear on the This Week in Trek podcast, available for direct download here.
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Welcome back to Character Insight! This week, we review Vic Fontaine from Deep Space Nine.
 
 

Vic Fontaine.jpg 
 (Vic is a smooth and always sharply-dressed man) 
 
Vic Fontaine is a hologram on one of the most popular programs used by the DS9 crew, a program which simulates 1962 Las Vegas on Earth. Fontaine is the owner and entertainer in a club called Vic's Las Vegas Lounge, and he serves as a Guinan-like character for a crew that does not have a Ten Forward lounge, or at least not a sympathetic bartender in the case of Quark.  He provides another necessary relaxation or escape outlet during the stressful Dominion War seasons for the Deep Space Nine crew.

Vic was modeled after 20th Century entertainers like Tony Bennett and Frank Sinatra. Indeed, Frank Sinatra Jr. was initially approached to play this role, which would have been a nice touch, but he declined because he only had interest in playing an alien character on Star Trek. Even without evoking the actual bloodline, the vocal jazz abilities of Fontaine accurately depict the entertainers of the period.

One theme which Deep Space Nine does not pick up as much as TNG or Voyager is the advancement and autonomy of artificial intelligence. Although Vic shows up much less than the EMH and Data, his programming includes high levels of perception and intuitiveness, as well as the ability to control when he is turned on and off. 

That enables some serious character self-awareness and development, making Vic almost like a real crew member rather than a hologram. If anything, these themes could have been investigated more, as it's one type of holodeck use we can almost always approve of at This Week in Trek. 

Quote from His Way:
Vic Fontaine: If you're gonna work Vegas in the '60s, you better know the score. Otherwise you're gonna look like a Clyde.
Major Kira: A Clyde?
Vic Fontaine: A Harvey, you know?
Lt. Commander Worf: Harvey?
Vic Fontaine: A square. You know what a square is, right?
Chief O'Brien: It's one side of a cube.
Vic Fontaine: Well, I guess that answers my question.


 

Fontaine helped some of the other real crew members overcome significant hurdles in their lives. He gives advice to Odo when he wants to start a romantic relationship with Kira, and his setup of these two leads to a positive outcome where Odo may have bumbled it by himself. Vic also helps Nog regain confidence to face the real world again after he withdraws from reality when dealing with the loss and prosthetic replacement of his leg in a Dominion War battle.  
Thus, Vic is an effective barkeep counselor role which the Deep Space Nine crew needed during the toughest times of the show. This is a rare example of a great late-season addition to balance the direction where a show is headed, and Vic even gets to sing off the Deep space Nine crew in the show finale.


Quote/Song from What You Leave Behind:
Vic Fontaine: Ladies and gentlemen, tonight is a very special night for some friends of mine. They've been together a long time. But like the man said... nothing lasts forever. So gang, this one's from the heart.  
 

James Darren played Vic Fontaine, and he retired from acting shortly after DS9. Darren was involved in many 1950's and 1960's TV shows, but his other most famous role likely was as Officer Jim Corrigan on T.J. Hooker.
 
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Feedback can be sent to me with future segment suggestions on Twitter @BuckeyeFitzy. Until next time, live long and prosper...

Wednesday, February 18, 2015

Legal Geek No. 35: Trademarking Sports Slogans like "The 12th Man"

This is the latest installment in a series of "Legal Geek" articles and audio segments regarding current events and trends where the geek world crosses streams with legal land.  An audio version will appear on the Current Geek podcast, available for direct download here.
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Welcome back to Legal Geek. This week, we take a look at one of the most prominent sports slogans in use today and the interesting legal wranglings going on behind the scenes about use of the slogan.



iStock_seahawks  
(I think this is where Darrell, the Trek Nerd, sings a daily song...)
 
The 12th Man is a slogan used primarily with football teams to refer to the fans backing the team in the bleachers. It is particularly associated with the Seattle Seahawks, who embrace the title so much that fans wave flags with the number 12 on it. With Seattle playing in the most recent two Super Bowls, some may just assume this prominent slogan is a Seattle based thing.

However, The 12th Man is actually registered as a trademark by a completely different football program, and Seattle has had to negotiate just to maintain the rights to allow its use! Even sports fandom cannot escape the craziness of IP law.

The actual owner of the trademark on The 12th Man is Texas A&M University, and the story behind this slogan is fantastic. In short, a 1922 game between the Aggies and Centre College was so riddled with injuries that A&M had zero reserve players left to put in the game if another player got hurt. So the coach recruited a young man from the stands and had him suit up just in case another body was needed. Even though that 12th man never had to go in the game, the story became legend in Texas and the Aggie fans adopted the moniker The 12th Man.

After using the mark for many decades, Texas A&M began applying for and procuring the trademarks in the 1980's and 1990's. A&M has then sent a number of cease and desist letters to other professional and collegiate football teams using the trademark. When Seattle ramped up marketing efforts behind this slogan in 2005, A&M sued the Seahawks and the litigation ended up in settlement and a license agreement.

Under the license, the Seahawks can use any rendition of the number 12 on flags, shirts, and other merchandise (and they do, as evidenced by the iconic flag above), but this merchandise must remain distinguished from the full 12th Man mark. That's why the iconic flag has only the number 12 on it.

This license is expected to end in 2016, which means either Seattle will find alternative 12 brands of their own to market to fans or renegotiate the license and pay Texas A&M. It will be interesting to see what the Seahawks ownership group chooses to do, although it is notable that the company owning the Seahawks various IP has pending trademark applications on 12's, We are 12, and The 12's, all of which are apparently used pretty commonly already by Seattle fans. Not that there's anything Borg like about "We are 12," but I digress. 

The Bottom Line: the passion of sports fans will not be abated by little things like trademark lawsuits, but it is interesting to see programs do battle in court over something seemingly so silly as what moniker the fans choose to use. Seattle fans will continue to enjoy the spirit of the 12th Man moniker, and if their team would just learn to run the ball on the 1 yard line, everything would be great. 

I guess Seattle's coaches live by the moniker "smoke weed every day."

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Do you have a question? Send it in!

Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy

Friday, February 13, 2015

Character Insight No. 132: Thy'lek Shran

This is the latest installment in a series of "Character Insight" articles regarding the rich history of characters in the Star Trek universe.  An audio version will appear on the This Week in Trek podcast, available for direct download here.
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Welcome back to Character Insight! This week, we review Thy'lek Shran, an Andorian commander from Enterprise.
 
 
Shran, 2154.jpg
 (Andorians should really be used more in the next iteration of Star Trek, considering how cool they look) 

Shran serves in the Imperial Guard for the Andorians, and he is the commanding officer of the warship Kumari. That provides Shran with many opportunities to run into Captain Archer and the Enterprise throughout the four seasons of this show.
 
Unlike prior Star Trek series, Enterprise actually features Andorians in several episodes. At the time of Enterprise, the Andorians and Vulcans are engaging in hostilities with one another. As a result, Shran first meets Captain Archer and T'Pol when he imprisons them while looking for a secret Vulcan sensor array for spying on Andorian space. Archer accidentally helps Shran uncover this array, leading to a partnership and friendship that is highly valuable for the Enterprise crew moving forward.

The next year, Shran insists on Archer to be a neutral arbitrator of a Vulcan-Andorian dispute, which helps the Vulcans gain more respect for the humans. Shran also assists the humans when the time comes to investigate and then destroy the Xindi superweapon after the Xindi begin attacking Earth. Shran and Archer also use their ships and combined forces to repel a Vulcan invasion force long enough to prevent a significant battle at Andoria that could have shattered peace in the quadrant irreversibly.

From Proving Ground:
Commander Shran: The last time we met, you helped my people avert a war. I don't like unpaid debts.
Captain Jonathan Archer: We keep doing each other favors.
Commander Shran: Isn't that how alliances are born?

That tentative peace is also threatened when a Romulan ship disguised as a Tellarite vessel destroys Shran's ship the Kumari a few months later. However, once again Archer helps Shran find the truth and stop the Romulan subterfuge, although it requires a memorable hand-to-hand combat duel between the two commanding officers before that happens. The last time we see Shran is during the finale of the show, when Archer helps him once again, this time in rescuing his abducted daughter following Shran's retirement from the Imperial Guard.

Shran is an enjoyable character who has a fun bit of rebel to him, even though he turns out to be an unexpected close ally to Captain Archer and the Enterprise crew. Similar to the critical Weyoun character played by the same actor in Deep Space Nine, the character of Shran becomes a key cog in the story of three factions, with the humans rising up to become the unifying force in this circumstance to establish the Alpha Quadrant's mighty new Federation.  Without such a strong acting performance in the initial appearances, this character likely does not end up being as important as he turns out.

Jeffrey Combs played Shran, and he played many roles on Star Trek with the most notable being this role as well as Weyoun of the Dominion. He still acts today, and he will appear in the new Fox show Gotham next week in the episode Red Hood for those who want to see his latest performance.

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Feedback can be sent to me with future segment suggestions on Twitter @BuckeyeFitzy. Until next time, live long and prosper...

Tuesday, February 10, 2015

Legal Geek No. 34: IP for Food Recipes?

This is the latest installment in a series of "Legal Geek" articles and audio segments regarding current events and trends where the geek world crosses streams with legal land.  An audio version will appear on the Current Geek podcast, available for direct download here.

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Welcome back to Legal Geek. This week, we take a look at an interesting question that walked into my real life office this week, just like the interesting characters that walk into Saul Goodman's office.



(Tabasco.com wants you to know to sauce up this taco, or burger, or whatever...)
   
One of the recurring "great ideas" that many people seem to come up with are new recipes for food items. Indeed, just this week a potential client asked about patenting a new food recipe, and the inquiry is more common than you might think. The most memorable of these interactions since I started practicing law was with a man who believed he invented the cheeseburger taco 5 years ago, and a quick Google image search quickly ended that notion.

But are food recipes protectable with patents or any other IP?

The general answer on the patent side usually ends up being no, but not because food recipes are disqualified from patent protection. On the contrary, recipes can be patented if novelty and non-obviousness over the known prior art in the food preparation field can be shown. The problem is proving some sort of unique peculiarity or counter-intuitive feature that would make a food recipe a non-obvious improvement over what is already known. It's usually an incredibly difficult hurdle to overcome for this type of invention.

Trademarks cover business names and product names, so recipes do not really come under the scope of that type of IP. While trade secrets can be used to protect recipes like the famous Coca Cola secret recipe, this is not the type of protection most food connoisseurs are interested in, especially if public recognition or exclusivity is desired

That leaves copyrights, which have long been the recommended path for creators who just want to have some protection and/or a certificate on the wall. However, copyright protection requires originality in the creative expression, which means underlying facts are not protectable even if the creative organization or way the facts are expressed are protectable.
 
Last week a Cleveland federal court made some headlines by confirming that food recipes in a recipe book cannot be copyrighted so as to block other competitors from using the same set of ingredients to make a food product. This decision is in line with many other court decisions over the years which have confirmed basic lists of ingredients and functional directions for combining them are not an original creative expression entitled to copyright. So copyright won't work either.

The bottom line: if you come up with a great food recipe, the only likely way to protect it with public IP would be by patent, and that would be a significant uphill battle in most circumstances. So share the wealth food junkies, and we will all benefit from your delicious creativity.

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Do you have a question? Send it in!

Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy

Sunday, February 8, 2015

Character Insight No. 131: Alexander Rozhenko

This is the latest installment in a series of "Character Insight" articles regarding the rich history of characters in the Star Trek universe.  An audio version will appear on the This Week in Trek podcast, available for direct download here.
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Welcome back to Character Insight! This week, we review one of the most hated characters of Star Trek, Alexander Rozhenko of TNG and Deep Space 9.
 
 
Alexander Rozhenko, 2370.jpg

 ("Children on Star Trek, aren't they so much fun!?!?!") 

Alexander is the son of Worf, who was conceived when ambassador K'Ehleyr had a brief encounter with Worf during a mission on the Enterprise to defuse a potential crisis with the Klingons. Although Worf did not intend to recognize him as a son when he finds out about him a couple of years later, K'Ehleyr ends up being killed and he is forced to recognize and raise the son, at least when his own human parents cannot take full care of Alexander. 

That brings yet another child character into the world of the Enterprise, one which challenges the viewer nearly as much as Worf himself. Anyone who is or has been a parent can relate to some of these struggles:

From Reunion
Alexander Rozhenko: Where are the other Klingons?
Lieutenant Worf: There are no others on board.
Alexander Rozhenko: Why?
Lieutenant Worf: The Federation and the Klingon Empire were enemies for many years. No other Klingons have asked to serve in Starfleet.
Alexander Rozhenko: Why?
Lieutenant Worf: A warrior does not ask so many questions!

Indeed, Alexander struggles with theft and lying after coming aboard, but with the help of Worf and a friendship with Deanna Troi, he eventually stops being a miscreant. Perhaps most ironically, he becomes even closer friends with Deanna's mother Lwaxana, which makes for perhaps the most annoying duo in Star Trek history. Even Worf doesn't like that development.

Perhaps one of the biggest problems with Alexander's character is that a lot of his character development happens on the holodeck, the place where he builds his friendship with Lwaxana. He also regularly runs a Deadwood sheriff and deputy program with his father Worf, although of course this leads to a silly holodeck malfunction episode. Almost as much fun as tecnhobabble!

When it wasn't the holodeck, it was time travel, as a future version of Alexander travels back 40 years in time to try and convince Worf to train his son as a warrior to thereby avoid the fate caused by Alexander becoming a diplomat. But this time travel changes the timeline anyway, according to Star Trek writer mumbo jumbo, so Alexander can follow in his father's eventual ambassador footsteps without dooming Worf to death. Apparently. 

During Deep Space Nine, Alexander has lost his close relationship with his father. So he joins a Klingon crew for the Empire and slowly learns how to be a respected warrior, which causes Worf to reconcile his relationship with Alexander. Happy endings for everyone.

There's little doubt Star Trek writers, for whatever reason, seriously struggle to write good stories around children characters.  As a result, Alexander was an interesting concept for story and character development that turned into an annoyance rather than a crowning achievement of writing.

Various actors played Alexander. James Sloyan had the most notable history, appearing in the movie Xanadu before Star Trek, but this role was also the last notable one for child actor Brian Bonsall who was in Family Ties before his appearances in TNG.

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Feedback can be sent to me with future segment suggestions on Twitter @BuckeyeFitzy. Until next time, live long and prosper...

Wednesday, February 4, 2015

Legal Geek No. 33: Google Patents Improved Web Browser Privacy

This is the latest installment in a series of "Legal Geek" articles and audio segments regarding current events and trends where the geek world crosses streams with legal land.  An audio version will appear on the Current Geek podcast, available for direct download here.

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Welcome back to Legal Geek. This week, we take a look at one of the more interesting issued U.S. patents of the new year, as Google innovates in the field of internet user browsing privacy.


image
(Going incognito, to protect things like your bank account and your perverted ways!)
   
Internet users have for some time been able to browse in incognito or private modes in various browser applications. These modes mean that your search history, cookies from a session, and browsing history will not be retained on your computer. In addition to preventing others from snooping on your internet history, these modes can be used to avoid autofill information, accidental saving of important log-in credentials to accounts, logging into multiple accounts on a website in different windows, and performing searches not affected by your history or other users on the same device. 

These modes have been only manually activated to date, requiring diligence of the user in remembering to activate private browsing whenever it is desired. In January, Google has secured a patent that innovates and moves private browsing to the next level. The patent, U.S. Patent No. 8,935,798, is directed to a system and a computer method of automatically enabling private browsing so that the user does not have to manually activate privacy mode. 

The method words by having the browser analyze the content of the web page to determine whether privacy mode is appropriate. For example, the patent claims specifically recite having the browser determine whether a web page being opened was previously filtered or selected to not appear in search results, and if so, the privacy mode is automatically started and the web page is opened in that privacy mode. Thus, the user can establish parameters for automatically triggering privacy mode – such as when they enter a credit card number on a site, or when they visit certain high-security websites – and the protection will just happen. It's a potentially very smart implementation of privacy mode browsing when it matters most.

This could be a potential boon for helping keep personal information private, but as with all privacy mode browsing, this does not keep websites and service providers from tracking your activity. Furthermore, high quality forensic techniques have proven to still be able to reconstruct the browsing history in the current iterations of privacy modes. And granting the patent to Google may mean this technology remains locked up in a single browser like Chrome unless Google licenses or shares this technology to competitors, which not all users will adopt. 

The bottom line: Although this patent is a win for most under privacy law, it will not change the fact that privacy mode browsing is no more protected from official searches and seizures than regular browsing. So no becoming a criminal or terrorist and expecting this new innovation to somehow shield you in court from having your online misdeeds be discovered and used against you. Still, anything that can help keep credit card and bank numbers and login credentials more secure is a step in the right direction. Enjoy the smart, private browsing.

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Do you have a question? Send it in!

Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy