As featured in the Washington Post, the artist who inked superstars LeBron James and Kobe Bryant is suing the makers of the video game NBA 2K16. The game featured the tattoos on the arms of the players. Solid Oak Sketches alleges that the game developers refused to pay to license the designs after it offered such an arrangement, but used them in the game regardless.
As with so many issues, it always pays to get a release. By the same token, LeBron could try charging rent to the artist for the space on his arm where the design rests.
When you are looking at bringing a lawsuit or defending one, what are you looking for? Are you looking to carpet bomb the other side, or are you aiming for a business-like solution to a problem. While you want your lawyer to be aggressive, keep in mind that needless rudeness promotes silly retaliation from the other side, and that gets expensive.
Also, you need to know that 96% of the cases in Los Angeles County settle, and that judges will fight both sides to get the matter resolved. The system simply is not built to have all cases go to trial. You should consider the analogy of the starting pitcher, who has done his job if he pitches seven productive innings.
Keep in mind that intelligent jurors are also going to be asking “why are we here?” There are occasions where the analogy is more like football, where the starting quarterback takes the game on his shoulders, all the way to victory. Fancy way of saying, “know when to hold ‘em and when to fold ‘em.”
As a start to the new year, let’s take a look at the legal doctrine of “nominative fair use.” This doctrine essentially says that you shouldn’t be sued for simply describing something, even though another party might take offense or believe that their intellectual property rights have been affected as a result.
For example, Mike Piazza was just elected to the Baseball Hall of Fame. He let it be known just recently and in his autobiography that he would want to go in as a Met and not as a Dodger. Yet the Dodgers trumpeted his election and his years as a Dodger, including him on Dodgers.com, and Piazza cannot object.
Why not? Nominative fair use, of course. He cannot complain because he was a Dodger.
Second case in point, Terry Welles. She listed herself online as a former Playmate in Playboy and Playboy sued her (no, we will not give you a link!). She won before the 9th Circuit (I was there for the hearing) despite the fact that she showed up in a rather revealing outfit before a panel with two women judges of a certain age. She won because she had been a Playmate and she was strictly describing her former status. Denominative fair use triumphs.
T.J. Simers, late of the Los Angeles Times, was a talented sports columnist until he was no longer there. He said he was constructively discharged and discriminated against for his age. He sued and got a substantial verdict before an L.A. jury.
As reported in the Times, the trial judge cut the verdict dramatically, finding no evidence of constructive discharge, but left in place the discrimination count.
Big verdicts are oft-reported; subsequent court actions, not so much. My torts professor pounded into our heads that litigation is a process. Turns out that when he was in private practice, he bought a nice boat on the strength of a substantial trial verdict, only to have the trial judge overturn the jury finding on the basis that there was no substantial evidence to support it.
Why do so many cases settle? Because of events like this. Keep in mind that the trial judge is always the 13th juror. By the way, the Times is still not happy with the result and has promised an appeal. Happy New Year.
So you are the hot new prospect for the “Minnesota Mud Hens”. Your arch-rival “Wisconsin Webmasters” base stealer comes in cleats up and hits your leg at second base. Blood everywhere. The team doc stitches you up and gives you a shot to prevent infection. The shot needle breaks and you end up with an infection. You are out for the season. Can you sue the needle manufacturer?
Years ago the answer would have been “no” because only the team had bought the needle, not you. Thus the team had a contract with the needle manufacturer, not you. The answer as to why you can now sue is “product liability.” The courts have decided that modern society requires transferring the liability for the loss to the responsible party, which is not you, the second baseman.
The seminal case in California took place in an old courtroom, which had a chandelier hanging over the judges’ benches. The attorney for the plaintiff posed the question, “Your honors, do you mean to tell me that if the chandelier were to come down on your heads, leaving you dead and your wives as widows, that the only one with a right to sue would be the procurement agent for the State of California?” The judges spent the rest of the argument nervously looking up at the chandelier, before ruling for the plaintiff!
Lori Kozak writes:
We have blogged previously about the litigation involving cancellation of the “Redskins” trademark as disparaging and the team’s appeal to the 4th Circuit, claiming (among other arguments) that the disparagement provision of Lanham Act Section 2(a) is unconstitutional because it violates free speech under the First Amendment.
Today, the U.S. Court of Appeals for the Federal Circuit handed down a decision in In re Tam, Appeal No. 2014-1203, finding that the disparagement provision of Lanham Act Section 2(a) violates free speech under the First Amendment.
The Asian-American rock bank The Slants had been denied registration of their mark on the grounds that the mark is derogatory of persons of Asian-American descent. That refusal has now been overturned and the case returns to the Trademark Trial and Appeal Board, who will have to approve the trademark if no other provisions bar it from being registered.
No doubt the Redskins feel that Christmas came early this year, as this decision helps to boost their efforts to keep their “Redskins” trademark registrations.
Lori S. Kozak is a partner in the firm’s Los Angeles (Century City) office.
You are with your girlfriend at the baseball game. The foul ball is coming toward you and it is your great chance to impress. You have your Mickey Mantle mitt that your dad gave you. The ball is coming, takes a weird turn and hits you on the head. In addition to your machismo being wounded, you have a concussion, have to leave the game under escort and see your girlfriend flirting with the guy next to her as you depart. Can you sue?
You assumed the risk of this happening by going to the game. Your ticket likely has legalese to that effect, but even in the absence of such language, courts have said that the exposure to the foul ball is just part of the grand old game.
Last season, a lawyer in the Bay Area filed suit against the Oakland As alleging that there should be netting throughout the stadium and not just behind the plate. The retort is not to mess with the game and put the risk on the customer. Based on tradition and case law, I am betting on the As.
When I go to parties and describe what I do, one of the most common responses is, “Oh, so you are a patent lawyer.” Actually, I am not. There are differences amongst copyright, trademark and patent that are important to know as each has separate protection under the law.
- A copyright is for an expression in tangible form. So for example, think of “Brian’s Song”, the classic movie about a football player dying young.
- That can be contrasted with a trademark. A trademark (or trade dress) is a unique moniker that has strong associations with the American public. A useful example is the Oakland Raiders football logo on their helmets or their battle cry, “Just Win Baby.”
- A patent is for a product that is so unique as to command the protection of the law. An example of this might be a football helmet that has impact resistance.
So if you have something that merits intellectual property protection, the first thing to do is to identify what it is that you will be seeking. The second thing to do is to call reputable counsel before you rush to market.
I went to see my beloved UCLA Bruins lose to Monmouth State from the great state of New Jersey. It was a surprise that the Bruins have redeemed themselves by beating both Kentucky and Gonzaga. While they did not do it at the UCLA game, the Jerseyites have become somewhat famous for sideline antics, including the Creation of Adam from the famous Michelangelo fresco.
In response, there are noises that the NCAA is going to ban sideline demonstrations. Let’s be clear. We are not talking about something obscene or mocking the other team. Neither are we talking about disrupting the game. We are talking about something childlike but not childish…in other words “fun.” With the NCAA fighting off paying its athletes, here’s voting that they do not feel the need to take away something that is an additer to amateur sports. Do we really need another court case on something like this?
Jeffrey Kravitz and Andrew Russell write:
As featured in the Los Angeles Times former USC football coach Steve Sarkisian has filed suit against the university, claiming it threw him under the bus. Time will tell, as in all lawsuits, but several facts seem paramount. First, Coach Sarkisian did not tell USC that he was an alcoholic when applying for the job. Second, he apparently denied the disease when asked. Third, USC did send him to two counselors, according to the Times. Fourth, he did not seem to be able to meet the requirements of the job.
As a UCLA alumna, I have joked to my USC friends about whether he would have been fired had USC started the season well. I think I do the university a disservice. It has been a fine school for years and no longer can be razzed by us Bruins as the University of Spoiled Children or Figueroa (the street that it is on) Tech. USC promises to fight on to contest the suit and we support this decision.
That said, alcoholism is considered a disability and when notified, California employers are required to engage in the interactive process to determine whether a reasonable accommodation exists that does not present an undue hardship. Moreover, California Labor Code Section 1025 requires private employers to accommodate employees who wish to voluntarily enter an alcohol rehabilitation program, assuming again that it does not impose an undue hardship on the employer. However, California law does not excuse an employee’s failure to perform his or her job duties, even if it the result of their alcoholism. In addition to its statements that Sarkisian denied he was an alcoholic, USC will certainly argue that Sarkisian embarrassed the university at pep rallies, showed up to work drunk, missed team meetings, failed to deliver on the field, and underperformed in other facets of his job. If USC terminated Sarkisian based on these failures to properly perform his job duties, whether or not Sarkisian’s alcoholism had a role likely will not matter.
For more on the issue, please be sure to check out Fox Rothschild attorney Tom Basta’s post on our Employment Discrimination blog and his feature in the article, “What Steve Sarkisian Needs to Prove to Win His Discrimination Case—and Why It’s So Hard” on LXBN.