Playboy sues divorce lawyer/former columnist/former Playboy model, for filing application for LAWYER OF LOVE (name of her Playboy column). I would assume LAWYER OF LOVE was a generic term for trademark lawyer. Defendant owns a registration for the mark LIFE'S SHORT, GET A DIVORCE. Background here.
Plaintiff, movie distributor (The Weinstein Company), attempts to obtain exclusive license to distribute movie. It emails producer "We confirm that we accept your offer." Producer immediately emails back "we're going over the terms, we'll get back to you." (my paraphrase). Then producer does the deal with a different distributor. Distributor attempts to argue either (1) exclusive license created by oral communications, or (2) emails constitute written contract.
Held: The oral communications can't create a binding transfer of an exclusive copyright license as there has to be a signed writing, as per the statute of frauds in the Copyright Act. The emails don't create a transfer as defendant clearly and immediately indicated that it was not yet willing to enter into the contract.
Bonus footnote 4: Defendant argued that plaintiff couldn't make the 'oral transfer' argument as it had taken a contrary legal position in another lawsuit. Held: 'Judicial Estoppel' exists not when a party argues a certain position in another proceeding but when a tribunal adopts that position.
I agree with Prof Goldman and Prof Volokh on this one: this is an excellent intro to true everyday cyber law: website customer has payment dispute with website developer so developer 'seizes' the site. Contracts, conversion and copyright discussed.
A meditation on a 'user generated submission' license agreement.
For soccer and contracts fans:
. . . here is a blurb indicating that the 9th Circuit held that a clause waiving cell phone customer's rights to bring a class action was unconscionable and unenforceable. HT Venkat.
Smoking Gun discusses Van Halen's contractual demands that there be no brown M&Ms supplied to it. It had nothing to do with M&Ms.
Licensing a Work, and When Licensing Doesn't Work: "is the case for contracts somehow expanding copyright rights vastly overstated?" along comes a fairly conclusive 'No' in the form of Reuters v. GMU."
Topps contracted with an Argentinian company to provide Bazooka gum in various South American markets. The Argentinian company licensed and the trademark and had access to 'technology' (no doubt relating to how to fold a small comic strip around a brick-like piece of gum). The contract terminated and the Argentinian continued use of both the trademark and the technology. 2d Circuit: not ripe for summary judgment. Background: my reaction to this fact pattern two years ago was 'hmmm.'
Michael Carrier and Greg Lastowka: "Against Cyberproperty"
Ever since cyberproperty burst onto the legal scene a decade ago, courts and scholars have assumed that it is inevitable. This Article shows that it is not. Scholars have examined one element of the link between cyberproperty and property in asking whether cyberspace is the correct model for websites and e-mail servers. But remarkably, they have neglected the other property foundations of cyberproperty.This Article shows that none of the primary theories supporting property - Locke's labor theory, Hegel's personhood rationale, and utilitarianism - justifies cyberproperty. It demonstrates that the concept lacks property's limits. And it finds that existing statutory prohibitions against spam, electronic invasion, and copyright infringement are more narrowly targeted and less likely to quash competition and speech. The Article concludes that the time has come to abandon cyberproperty.
The Dozier Internet Law Firm came in for recent criticism of copyright mis-use when claiming that posting of its cease and desist letters were barred by copyright. Greg Beck has done some more digging and points us to Dozier's User Agreement. You can't link to it but it's interesting.
Prof Lessig: "On the Texas Suit Against Virgin and Creative Commons."
"Slashdot has an entry about a lawsuit filed this week by parents of a Texas minor whose photograph was used by Virgin Australia in an advertising campaign. The photograph was taken by an adult. He posted it to Flickr under a CC-Attribution license. The parents of the minor are complaining that Virgin violated their daughter's right to privacy (by using a photograph of her for commercial purposes without her or her parents permission). The photographer is also a plaintiff. He is complaining that Creative Commons failed "to adequately educate and warn him ... of the meaning of commercial use and the ramifications and effects of entering into a license allowing such use." (Count V of the complaint)."
American REd Cross press release: "American Red Cross Defends USe of Emblem and Mission."
Prof Patry: "Forum Selection Clauses: The 2d Disses The 7th":
"Many commercial contracts have forum selection clauses, including those whose subject matter is intellectual property. In an attempt to overcome common law hostility to such clauses (based on a fear that they "ousted" courts of jurisdiction), the Supreme Court has encouraged enforcement of properly constituted and agreed-to clauses that place jurisdiction in foreign courts over the parties' disputes. (Whether those courts will agree to be so roped into the dispute is a different matter)."
Deborah Wilcox: "Making Deals With Evolving Technologies In Mind" (drafting pointers re anticipating changing circumstances).
A student at USC has put together 'The Small Print Project,' a collection of electronic contracts of adhesion, with commentary. The purpose of the project is:
" . . . to document experiences — both good and bad — presented by the millions of EULAs (End User Licensing Agreements) as they are both designed and encountered, knowingly or otherwise. This project will only last 8 weeks or so as an academic endeavor, however, this site is designed with the hopes of fostering discussion, suggestion, exposition and implementation of EULAs (electronic and otherwise) in an effort to help define, describe and mediate the nature of agreements in the digital age."
and, perversely, to serve as a forms file. HT Boing Boing.
I'm reminded of the time I reviewed a contract with an inexpertly drafted cross-indemnification clause. As far as I could discern, in the event of dispute, each side paid the other side's legal fees. True story.
Legal Tags discusses the license agreement that comes with genetically modified kittens.
Brinks Hofer: 'Fifth Circuit Rules That Inconclusive Trademark Settlement Is Crackers' (Parties terminate trademark infringement action pursuant to entered agreement - settlement agreement lacked essential terms of a trademark license and held unenforceable agreement to agree).
This case is a must-read, and I would venture that it is a must-teach, in contract drafting classes, from now on.
Read the whole thing, but if you are in a rush, reading the portion of the original agreement between Apple Corp and Apple Computers, particularly clause 4.3, and then read paragraphs 81 to 105 of the decision, for the key as to how the Court interpreted clause 4.3, which said that Apple Computer could use the logo to transmit music, but it couldn't use it to sell CDs.
Apple Corp v. Apple Compueter, [2006] EWHC 996 (ch) (08 May 2006).