Todd McFarlane created the Spawn comic book, movie, tv show, etc.  A hockey fan, McFarlane admittedly named a character, a bad guy, Anthony ‘Tony Twist’ Twistelli, after a real-life hockey player.  Merely the name was used, not likeness or biographical data. In other words, other than the fact that both are violent, the character was perhaps inspired but not ‘based’ on the hockey player. The real Tony Twist sued on misappropriation of name, defamation and other torts.  At trial Twist argued that the use of his name made him entitled to 15% of the combined revenues of all Spawn products plus another 5% for the negative impact due to the nature of the use (this from a hockey goon).  The jury agreed and awarded him $24 million.  Insert your own thoughts about the jury system here.  The trial court granted a judgment notwithstanding the verdict.

If I were putting together a case book for First Amendment, Theory of Publicity or Entertainment law issues, I would include this Missouri Court of Appeals decision throwing out the verdict on First Amendment grounds.  

BTW: Those of you keeping track of the workers taking control of the means of production, may be interested to study the career of McFarlane.  He walked away from the Spiderman gig at Marvel to found his own comic book company, and now has enough money to have purchased one of McGwire’s record-setting homerun balls.

 

 

I just got an email from my friend, emailharvest@email.com, offering to sell me software for $40 which will harvest 100,000 email addresses in an hour.  However, just so I don’t get this company wrong, there is a disclaimer: “We are strongly against continuously sending unsolicited emails to those who do not wish to receive our special mailings.”  Remember the Magritte painting, ‘This Is Not A Pipe’?

Snapnames, purveyor of the Snapback product, and would-be joint-purveyor of the Wait List Service for expired domain names, puts out a good summary of the state of the domain name industry available here.  Highlights from the most recent issue: after falling for many months, the total of .com, .net and .info names might finally have risen in July.  However worldwide registrations of the gTLDs seems to be only 30-40,000 a day.  Snapnames offerred a prediction: an industry which sells 30-40,000 units a day worldwide at $2 to $3 per unit gross margin, cannot support 122 healthy companies.

So we are not going to see 122 registrars a year from now.

Upate: Thestreet.com article on domain name industry trends.

Next update:  Ross of Tucows and Brett of the ICANN blog have taken me to task on this prediction.  Let me be more specific.  We are not going to see 122 registrars running profitable gTLD registrar businesses a year from now.  We may see many companies obtaining accreditation incidental to other businesses, another argument for the title of this blurb.

Sometimes you wake up in the morning thinking: “I’m going to sue somebody today, I just don’t know who.”  It is for just this moment that there is a John Doe Order – an ex parte order from a Court allowing a remedy such as seizure, where a specific defendant cannot be identified, and the intellectual property itself might have a limited economic value.  A typical fact pattern would arise where the trademark or copyright owner can establish a likelihood of piracy of a short-lived property (such as a logo commemorating a specific Super Bowl or arena concert) at an upcoming event.  At the event itself, a marshall can then seize goods falling under the parameters set out in the order.  The point is that the Super Bowl or whatever will have come and gone (and the market already destroyed) by the time the IP owner identifies the t-shirt bootlegger, serves papers, has a hearing, etc.

The Anand and Anand firm of India writes to tell me that the practice has reached India.  Recently, of India’s 40,000 cable operators, only 3,500 had entered into licenses from the owner of the rights to broadcast in India the Soccer World Cup.  Given the transitory nature of both the World Cup rights and the cable operators themselves (and the normal timeframe of the Indian courts), the Delhi High Court granted a order against anonymous defendants whereby the rights owner, accompanied by a court-appointed commissioner, was able to locate the unlicensed cable operators and shut down the unauthorized World Cup transmissions.

In India, they call this an Ashok Kumar Order.

 

This Australian article via Dave:  The Berman bill (see prior posts) which proposes to legalize certain forms of hacking of users’ computers by a copyright owner in order to prevent unauthorized duplication of files on P2P networks, would run afoul of Australian law which states in pertinent part: “Under section 9a of the Victorian Summary Offences Act (1966), ‘a person must not gain access to, or enter, a computer system or part of a computer system without lawful authority to do so’. The penalty if convicted is up to six months’ jail.” 

I am going to guess that many countries in which American copyright owners do business have similar legislation.  For example, an anonymous famous UK solicitor points us to the following UK litigation:

Computer Misuse Act 1990
1. -(1) A person is guilty of an offence if-

(a) he causes a computer to perform any function with intent to secure access to any program or data held in any computer; (b) the access he intends to secure is unauthorised; and
(c) he knows at the time when he causes the computer to perform the function that that is the case.

The article departs from the sensationalist tone of the first sentence (and my title) to point out that such anomalies will more likely result in harmonization of some type (or modulation of the Berman Bill) before we see the RIAA joining the cast of an Aussie version of Oz.

Interestingly, section 7b of the Victorian Summary Offences Act requires that anyone digging a hole in public must light the hole at night.  Section 7d prohibits the throwing of an animal into a canal. I provide the link above, if you don’t believe me.