Archive for the 'Intellectual Property' CategoryPage 2 of 12

National Cannabis Bar Association Supports a Growing Number of Marijuana Lawyers

Marijuana is now legal under state law in Colorado, Washington, Alaska, Washington D.C., and, most recently, Oregon. It is also legal for medical use in 23 other states. Businesses that enter the emerging marijuana market stand to make large profits if they produce a good product. The Huffington Post reported in January that estimates say the US market for legal cannabis grew from $1.5 billion in 2013 to $2.7 billion in 2014, a 75% increase. However, participants in this so-called “green rush” also face a confusing legal landscape that involves myriad potential difficulties.

Marijuana has created a rift in the legal field because it is still illegal under federal law. In certain states, it is difficult for marijuana businesses to receive comprehensive legal advice out of concern that lawyers will further illegal activities. The American Bar Association has expressed ambivalence about the legal profession’s involvement in cannabis as well. However, where marijuana law is practiced, lawyers are beginning to tackle complex legal issues.

What is the National Cannabis Bar Association?

In some cannabis-friendly states, the legal profession is embracing marijuana law. As attorneys begin to delve into this area of law, they need to be able to share ideas and to stay up to date with the latest legal advances. Enter the National Cannabis Bar Association, or NCBA, which was founded earlier this year. The simple goal of the NCBA is to “educate and connect with other cannabis industry lawyers for the purpose of providing excellent, ethical, and advanced legal assistance to this growing industry.”  Marijuana Store

The NCBA Board is comprised of a number of firm-based lawyers and solo practitioners who have already embarked on the complex endeavor of representing clients in the marijuana industry. The Executive Director, Shabnam Malek, is a partner in a boutique marijuana law firm, Brand & Branch LLP. She is a specialist in trademark law, a true area of concern for marijuana businesses now. According to her biography, she “also represents clients in disputes, develops worldwide expansion strategies, and negotiates and drafts agreements, including settlement agreements, co-existence agreements, trademark license agreements, and interstate license agreements.” Ms. Malek is the type of lawyer that the marijuana industry may need in 2015— someone with an understanding of several different areas of law, many related to the issues that all modern businesses face.

What are the Legal Needs of the Marijuana Industry?

Meeting a broad demand for a product requires marijuana businesses to seek the same kind of legal advice that any good business would need. In the current climate, the marijuana industry faces new concerns involving corporate, contract, and employment law. As lawyers like Shabnam Malek know, cannabis-related businesses also face intellectual property issues. For instance, a new cannabis cultivar may be patented if it meets certain criteria. And, with the market as lucrative as it is, holding on to a prize variety of marijuana could mean a big difference to a business.

The conflict with federal law also creates certain unique pitfalls in the industry. For example, marijuana businesses have difficulty moving funds through federally regulated banks. Under 2014 federal guidance, banks can now do some transactions with these businesses. However, the banks must still file special reports that show that each marijuana business is following certain procedures. In another example of federal difficulties, businesses may not be able to register certain federal trademarks, based on language in the law that forbids trademarking certain “immoral” or “scandalous” products. This does not mean that nothing is ever trademarked; but this area requires savvy legal advice.

State laws may also create specific obstacles for marijuana businesses. Legalization of marijuana does not always translate into a statewide acceptance of the drug. Local rules and ordinances may place many prohibitions on the distribution of marijuana and other aspects of business. Taxes are often a key rationale for legalization, and so marijuana businesses must comply with specialized state tax schemes designed for their industry. Finally, states that legalized marijuana are in a sense conducting an experiment: the rules are often still evolving and rapidly changing as policymakers grapple with how to implement new laws.

The NCBA will be a welcome voice in dealing with many of the ins and outs of legalized marijuana. The association can help to create best practices for lawyers and policymakers, meeting the goal of ethical and up-to-date understanding of the field. The NCBA will also help businesses conform to the law and ultimately realize the goal of a profitable and well-regulated marijuana industry.

Court Rules that Batmobile is DC Comics’ Copyrighted Character

The 9th Circuit has ruled that the Batmobile is entitled to copyright protection.

The defendant in the case, Mark Towle, produced replicas of the Batmobile through his business, Gotham Garage. Mr. Towle advertised these replicas on the internet, on a website called batmobilereplicas.com. Mr. Towle never disputed that he intended to copy the Batmobile, but claimed that he was unaware that copying the various versions of the car was copyright infringement. DC Comics, published the original Batman comic book series, and still owns the exclusive rights to the Batman comic book series.  Batmobile

Let’s explore some of the issues involved in this case. Quoting the decision, “to the Batmobile…”

What is (and isn’t) Copyrightable?

Copyrights can apply to written works, music, plays, movies, and many other materials. However, even when a publisher clearly owns the copyright to their work, questions may remain about what exactly is covered by the copyright. As the decision states, ‘courts have recognized that copyright protection extends not only to an original work as a whole, but also to “sufficiently distinctive” elements, like comic book characters, contained in their work.’ In other words, there may be elements of a work that are not protected by copyright; these tend to be ones that are not so unique to that particular work.

When is a Character Distinctive Enough to be Copyrightable?

A character in a comic book, television show, or movie must be distinctive to be protected under a copyright. The decision in this case states three criteria to help figure out whether a character is truly distinctive enough to be copyrightable:

  • The character must generally have physical and conceptual qualities.

This means that the character has to be more than just a drawing, and more than just an idea. For example, many characters in written books are not considered protected by copyright.

  • The character must be sufficiently delineated to be recognizable as the same character whenever it appears.

In other words, the character must be identifiable even if its look changes somewhat over time as it appears in comic books, movies, or on TV. The character has to have some consistent traits or attributes that let everyone know who (or what) it is.

  • Finally, the character must be “especially distinctive” and contain “some unique elements of expression.”

This means that some common or classic characters (like a basic princess, wizard, or knight) may not meet the criteria, especially if they have a limited role in the work. Characters that are really part of a unique story may qualify, on the other hand, even if they do not really speak (R2-D2) or if they are not sentient (like a car!).

So, is the Batmobile a Character?

According to this decision, the Batmobile is a character. It meets the three criteria above:

It has both physical and conceptual attributes- it has been drawn by comic book artists and made into a 3-D version for TV and movies.

It is recognizable- It has been around in one form or another since 1941. As the case notes, “it is almost always bat-like in appearance, with a bat-themed front end, bat wings extending from the top or back of the car, exaggerated fenders, a curved windshield, and bat emblems on the vehicle.” It also has consistent “crime fighting attributes,” with the most “up-to-date weaponry and technology.”

It is especially distinctive – It is one of Batman’s trusty sidekicks, and has a “unique and highly recognizable name.”

What Does This Decision Mean for DC Comics?

When a publishing company owns a copyright to an element of a work, like a character, it means that no one can make a derivative character (i.e. an adaptation of the original) without the consent of the owner.

What Does This Decision Mean for the Future of Copyright Law?

This decision helps to clarify the law. It defines what types of characters can be copyrighted, and included objects in that definition. This puts potential copyright violators on notice that they can’t make and sell derivative copies of some objects we’ve seen in movies, on TV, or in comic books. We will probably get to see how far this logic goes in future cases, as more publishers, and authors try to stop their characters from being copied.

A Murder Victim’s Facebook is Off-Limits Before Trial

In the age of technology, social media has become the new frontier for evidence gathering in criminal cases. Especially amongst the younger population, the majority of communication is not simply verbal anymore—it’s written through Facebook messages, tweets, and pings, or even conveyed through pictures via Instagram, Twitpic, and Snapchat. To some, this may seem like a gold mine of information with any potential incriminating evidence entirely recorded somewhere in the Internet ether.

However, the Constitution has long protected the right to privacy. Thus, when it comes to online communications, especially those intended to be private, lawmakers and judges alike have been extraordinarily cautious in balancing one party’s need for information against another party’s right to privacy.  Facebook Killing

A recent decision rendered by the California Court of Appeals for San Francisco County rightly explained why the careful preservation of privacy in criminal cases is so important in an increasingly digital generation. Specifically, the Court held criminal defendants may not compel social media platforms like Facebook and Twitter to disclose a victim’s private online communications before trial begins.

Can Criminal Defendants Use Victim’s Internet Profiles as Evidence?

The case involved a gang-related drive-by shooting in the Bayview District of San Francisco that resulted in the death of Jaquan Rice, Jr. and serious injuries to his girlfriend. The shooters were identified as Lee Sullivan and Derrick Hunter, both members of a gang called “Big Block.” In its case to the grand jury, the prosecution maintained Rice was a member of rival gang “West Mob,” and this gang rivalry was the driving force behind the drive-by and murder. San Francisco Police Department Gang Task Force expert Inspector Leonard Broberg testified to the grand jury that “gangsters are now in the 21st century and they … do something called cyberbanging. They will actually be gangsters on the Internet. They will issue challenges; will show signs of disrespect, whether it’s via images or whether it’s via the written word.”

Defendants Sullivan sought to obtain all public and private social media records from Facebook, Instagram, and Twitter of Rice and purported witness Renesha Lee, the former girlfriend of Sullivan, to help build his defense case prior to trial. Sullivan believed such records would expose Rice as “a violent criminal who routinely posted rap videos and other posts threatening [Hunter] and other individuals.” The defense further argued that obtaining the records before trial was necessary to ensure Sullivan’s constitutional right to present a complete defense to the charges against them for a fair trial and their rights to effective legal assistance and confrontation of adverse witnesses.

Although the lower court bought defendant Sullivan’s arguments for the records, the Court of Appeals quickly and rightly reversed the decision and denied him access. However, the Court of Appeals did not deny access to such records indefinitely. The Court emphasized that pretrial access to confidential information by the defense was off limits, but the defense could potentially access such information during trial. The Court of Appeals reasoned that if it were to allow pretrial access, a trial court might be forced to weigh the defense’s need for information against a victim or witness’ right to privacy without enough information from either side to make a truly balanced decision. Such a process would be far too risky and the price could potentially be a breach of victims or witnesses’ constitutional right to privacy. The Court further maintained that enforcing this decision would not breach Sullivan’s constitutional rights to fair trial or effective assistance, because it was limited to pretrial access and any evidence required to afford him a full and fair trial could eventually play out once trial actually began. Thus, Sullivan was denied access to Rice and Lee’s social media records until trial.

This Court of Appeals decision sheds important light on how new mediums of evidence might fit into the frameworks of evidence law and criminal procedure without disrupting constitutional individual rights.

Fan Made Power Rangers Film Shows the Limit of Copyright Law

power rangers fan film and copyright law

Anybody remember the Power Rangers?

Power Rangers was one of the biggest children’s shows during the 1990s. The popular franchise was about a group of teens who protected the earth from alien invaders. Although Saban Brands had licensed footage from Super Sentai, a popular Japanese show, Power Rangers created original material to attract an American audience. The show was a huge hit and it continues its popularity even today. With over twenty seasons, Power Rangers is one of the most profitable children’s franchises ever made.

Although Power Rangers is primarily a children’s show, it has adult fans. One of those fans is Joseph Kahn, a long-time music video director. Kahn recently tried to pay homage to Power Rangers by creating an R-rated short film version.

Kahn’s vision of Power Rangers depicts the original teens as adults who suffer from PTSD.  The film uses professional actors including James Van Der Beek and Katee Sackhoff. The tone is dramatically darker, with sex, drugs, and guns prominently featured. Kahn uploaded his film onto YouTube and Vimeo, where you can view the short film here.

Kahn’s R-Rated Power Rangers quickly gained Internet press. Saban Brands condemned the short film as a violation of its copyright. Response from the cast of Power Rangers was mixed; some of the actors thought the short was well-made while other cast members cringed as Kahn’s film drifted from the children friendly atmosphere of the franchise. YouTube and Vimeo removed the short film at Saban Brands request.

After Internet outrage and Kahn’s insistence that his film was fair use, Saban Brands negotiated an agreement with Kahn. The short film is back online, but it now comes with a warning that the video is not connected to Power Rangers and is intended for a mature audience.

Fan Fiction That Adopts Too Much of the Original Violates Copyright

Internet users largely supported Joseph Kahn, calling the copyright restrictions a violation of Kahn’s free speech rights. Kahn himself defended the film as an exercise of fair use. Although Kahn and Saban Brands have already settled, the dispute has raised questions about professional directors and actors making fan fiction of copyrighted works.

First, Kahn doesn’t have a free speech defense to alleged copyright violations. The Constitution is only a restriction on government action. Private companies are not bound by the First Amendment and Saban Brands, YouTube, and Vimeo are certainly private entities. Kahn doesn’t have a right to advertise his R-Rated Power Rangers film more than Saban Brands has a right to protect the image of their copyright franchise.

Since it’s established that Kahn doesn’t have a protected free speech right here, we only have to determine whether Kahn’s R-Rated Power Rangers was a fair use of Saban Brand’s property. The fair use question involves balancing a number of different factors, including the purpose and character of the work, the proportion of the use of the copyrighted material, economical impact, and the intent and motive of the defendant.

On one hand, the short film is very distinct from Saban Brands in tone. The film is extremely dark and gritty, with the characters suffering from PTSD, where the Power Rangers were always light and family orientated (if you ignore the violence). All the material in the film is original. Kahn produced all the scenes on his own, without any footage from Saban Brand. Kahn hasn’t outright taken any work from Saban Brands; the only issue is the use of the characters and the brand name.

However, a reasonable person could believe Kahn’s film was a product of Saban Brands based on the character of the short film, even though the tone is dramatically different. The film uses the same characters and costumes. The short film was produced by a professional director and cast by professional actors. Kahn’s work preserves some of the cheesiness of the franchise, including the over-the-top acting. Although the acting is over the top, the film takes itself very seriously. It’s difficult to classify the work as a parody. All these facts could lead a person, without any background knowledge, to believe the Kahn’s work was intended to be a continuity and thus a reproduction of the original Power Rangers.

The Reality of Our Legal System

I just went through a rather long drawn out discussion about fair use, but Saban Brands and Kahn have already settled their dispute. This case never went to court. It’s important to note that one of the factors was intent and motive of the defendant. A prolonged court battle would have damaged Kahn’s reputation with producers. A protracted court battle would have drained Saban Brand’s resources.

The reality of our civil legal system is that trial is rarely the correct answer. Although lawsuits are always being filed, most of them never make it before a jury. It’s ironic that a dispute over a franchise that portrays violence to children is ended merely by talking things out.

Forever 21 Was Caught Pirating Software from Adobe

Everyone knows that stealing is wrong. If you walk out of a store without paying for merchandise, you shouldn’t be surprised when an alarm sounds.

forever 21 sued by adobeForever 21, a retail-clothing store, would agree with this premise in the context of someone stealing a blouse or a skirt. You would think that they would also agree with this premise when it comes to software programs?

In January of this year, Adobe filed a lawsuit against Forever 21 for copyright infringement. Autodesk and Corel joined Adobe in the lawsuit and alleged that Forever 21 pirated software such as:

  • Photoshop
  • Acrobat
  • Illustrator
  • WinZip
  • Autodesk
  • PaintShopPro

The companies alleged that the piracy happened on 63 different occasions. It’s still unclear how Adobe became aware of the infringing acts, but the company has been encouraging employees to turn in their employers for using unauthorized copies of its software programs.

The alarms have been set off. Now Forever 21 has to show proof of purchase or face an expensive legal battle.



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