The dangers of only arguing one half of 43(a)

Posted on April 29, 2015 by rtushnet

Diodato v. Wells Fargo Ins. Servs., USA, Inc., 44 F. Supp. 3d 541 (M.D. Pa. 2014)

Darrell Diodato was employed by Wells Fargo Insurance for thirty-six years as an insurance producer, servicing existing insurance business and originating new insurance business. He specialized in brokering insurance for bowling alleys and family entertainment centers, developing “numerous personal and business relationships with owners” and considering himself to be “the godfather” of the bowling alley insurance industry. Approximately 70% of the revenue he generated was derived from bowling center owners and operators. He signed a trade secret/nondisclosure/nonsolicitation agreement in 2009, allegedly at threat of losing his job.

Wells Fargo fired him in 2011; the parties’ accounts of why diverged drastically, with Wells Fargo claiming job-related misbehavior and Diodato claiming they wanted to get his book of business without having to pay him.After the termination, Wells Fargo distributed about 53 insurance-related documents which identified Diodato as the producer on their respective accounts. (Advertising or promotion?) Wells Fargo continued to run advertisements in Roller Skating Business using Diodato’s name until at least February of 2012 and continued to identify him as a producer on the Wells Fargo website months after his termination.

Diodato subsequently began working with Wells Fargo competitors. He denied that he solicited business from former Wells Fargo clients, but admitted that he maintained relationships with them and told them how to switch to his new business if they asked. Many of the clients he serviced at Wells Fargo indeed “left or removed their accounts from [Wells Fargo] in the period following [his] termination.” Wells Fargo sent cease and desist letters to the competitors, alleging Diodato’s breach of the nonsolicitation agreement and demanding that each ensure Diodato’s compliance with the agreement’s terms.

The court granted summary judgment on Diodato’s fraudulent inducement, breach of contract, and breach of the duty of good faith & fair dealing claims. The unjust enrichment claim also failed because Diodato failed to show that Wells Fargo received an uncompensated benefit from him.

Defamation/commercial disparagement: Diodato alleged three different types of defamation: that his superior informed a Wells Fargo business manager, that Diodato’s actions were “not in Wells Fargo’s best interests”; that the superior “painted a picture” to the head underwriter for an insurer that Diodato’s “business practices were suspect and that he was insubordinate”; and that Wells Fargo’s counsel advised the competitors that Diodato was in violation of the nonsolicitation agreement. The first statement was merely opinion: it was “ambiguous, obscure, and does not imply the existence of specific defamatory facts.” The “best interests” statement didn’t imply a violation of any particular duty or other responsibility as a Wells Fargo employee. However, Wells Fargo didn’t get rid of the “suspect/insubordinate” claim because its only argument was that Diodato failed to sufficiently identify an actual statement. The record showed that the challenged meeting occurred and that Diodato was explicitly described as “insubordinate” and his business practices as “suspect.” As for the C&Ds, Wells Fargo successfully asserted a “competitors privilege.” See Gresh v. Potter McCune Co., 235 Pa.Super. 537, 344 A.2d 540 (1975). In such circumstances, a conditional privilege applied, and Diodato failed to show abuse of the privilege, given Wells Fargo’s argument that it reasonably believed that its efforts were necessary to protect its legitimate and protectable interests as identified in the nonsolicitation agreement.

However, the agreement’s post-employment prohibition on “accepting the unsolicited business of former clients” was broader than necessary to protect against Wells Fargo’s legitimate concerns, and struck it as unenforceable as a matter of law.

Diodato’s claim for violation of §43(a)(1)(B) survived because Wells Fargo only made arguments about §43(a)(1)(A); his claims were based on Wells Fargo’s continued use of his name on its website for nearly seven months after Diodato’s termination and its continued use of his name as its representative in Roller Skating Business after his termination. The complaint clearly alleged a “false or misleading description of representation or fact,” and expressly stated the statutory requirements of both a false designation claim and a false advertising claim. While Diodato abandoned his §43(a)(1)(A) claim, Wells Fargo had notice of the false advertising claim and it therefore survived summary judgment. (It seems extremely unlikely that someone who can’t win a §43(a)(1)(A) claim could show the extra elements of commercial advertising or promotion plus materiality.) The Pennsylvania common law of unfair competition tracks the Lanham Act, so that survived too.

Diodato’s statutory claim for unauthorized use of his name, in violation of Pennsylvania’s Unauthorized Use of Name or Likeness statute survived. That law creates a cause of action for any “person whose name or likeness has commercial value and is used for any commercial or advertising purpose without written consent….” Diodato sufficiently established commercial value in his name. “The record reveals that Diodato has developed long-standing personal relationships with many of the clients he serviced while working for Wells Fargo, and he argues that, in the context of the roller skating and bowling alley insurance businesses, his name ‘has significant commercial value.’” He averred that, over the course of more than 30 years, (1) he spent his own money supporting various fundraising activities; (2) he entertained contacts at annual industry meetings; and (3) he paid $12,000 annually from his own commission revenue to account for costs relating to Wells Fargo’s endorsement of a bowling industry organization. This would allow a trier of fact to find that he expended time, effort, and money “in excess of what any salesperson does to generate customers.”

The court denied summary judgment on Wells Fargo’s breach of contract counterclaim; a jury had to decide exactly what role Diodato played in the transition of his former clients’ business. Wells Fargo lost its trade secret claim because it didn’t provide evidence showing exactly what information it believed Diodato misappropriated or the manner in which he did so. Finally, the gist of the action doctrine barred Wells Fargo’s remaining tort claims for unfair competition, conversion, and tortious interference with existing and prospective contractual relations, because these claims were derivative of its breach of contract claim.

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briefly noted: another court rejects proof of purchase requirement for class ascertainability

Posted on April 27, 2015 by rtushnet

Really briefly!  In re Scotts EZ Seed Litig. 304 F.R.D. 397 (S.D.N.Y. 2015).  It would defeat the purpose of class actions.  Also, though, there couldn’t be an injunctive relief class after the challenged statement was removed from packaging.

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Court makes the write choice on descriptive fair use

Posted on April 27, 2015 by rtushnet
Marketquest Group, Inc. v. BIC Corp., No. 11-cv-618 BAS
(S.D. Cal. Apr. 17, 2015)
 

Marketquest website using All In One and The Write Choice marks
Marketquest sued BIC for infringing its registrations for ALL-IN-ONE
and THE WRITE CHOICE for, among other things, pens.  BIC included “The Write Pen Choice” in online
advertising and displays for writing instruments, including its pens, in 2010. The
ads included BIC ® and ROUND STIC ® at the top of the page, followed by “The WRITE
Pen Choice for 30 years!,” unaccompanied by either TM or ®.  A BIC subsidiary that sells promotional
products, Norwood, included the phrase “All in ONE” on its 2011
product catalogue. Norwood ® was printed in a larger font on the cover of the
catalogue, and “All in ONE” appeared below and to the right of it.
 

Bic write choice ad
The court initially determined that these uses had “some
likelihood of confusion” and the “potential” for infringement and the case
proceeded to summary judgment, which BIC then won on fair use.  Fair use requires descriptive use, other than
as a mark, fairly and in good faith only to describe the defendant’s goods or
services.  Some possibility of confusion
is compatible with fair use, since the existence of the defense reflects “the
undesirability of allowing anyone to obtain a complete monopoly on use of a
descriptive term simply by grabbing it first.” 
The Ninth Circuit has said that the degree of consumer confusion remains
a factor, along with “the strength of the trademark, the descriptive nature of
the term for the product or service being offered by [the plaintiff] and the
availability of alternate descriptive terms, the extent of the use of the term
prior to the registration of the trademark, and any differences among the times
and contexts in which [the plaintiff] has used the term.”  (Follow along and see how many of these the
court considers—which says more about the undesirability of the Ninth Circuit’s
laundry list than the quality of the district court’s analysis here.)
 
As for “All in ONE,” the court found that it had the meaning
“an entity or object which combines all the required or appropriate elements,
items, or functions in one” for over 130 years. 
All didn’t mean “everything,” but “everything appropriate.” Marketquest
argued that “all in one” wasn’t descriptive because Norwood “produced other
catalogs in addition to their `all in ONE’ Catalog that year which featured
their housemarks and sub-brands.”  So
what?  “All in one” meant “appropriately
consolidated.” “Trademark fair use is designed to protect uses of the plain
meanings of common words, and semantic contortions cannot render Norwood’s
meaning or use uncommon.”
 
When a trademark owner claims a descriptive phrase, it
accepts the risk that such marks are weak and that others will make descriptive
fair use of them.  Norwood used the
common meaning of “all in one,” other than as a mark.  The only remaining issue was BIC’s good
faith.  Knowledge of the marks alone was
not enough.  “While it is true that a
larger corporation may not roll over a small corporation’s mark, any
organization that imbues secondary meaning to common phrases assumes the risk
that another organization in the same business sphere will use that phrase for
its common meaning. Marketquest was on notice that its ALL-IN-ONE marks were,
by their very nature, susceptible to such confusion.”  Marketquest also claimed that the use of both
marks in the same year demonstrated bad faith, but use of two common
descriptive phrases in “wide-ranging marketing materials” was also
insufficient.
 
Plus, Norwood “largely mitigated the risk of confusion” by
prominently printing its NORWOOD® mark in every location including the phrase. “Spatially,
there is no implied association between the Norwood mark and the All in ONE
descriptor. All in ONE is printed in a standard font, and it is followed by a
list of generic types of items included in the catalog.” Several places in the
catalog also explained the phrase’s context, including: “Our primary product
resource, featuring all product lines in ONE catalog.” Norwood did “everything
possible, short of an explicit disclaimer, to mitigate the risk of confusion,”
and disclaimers aren’t required.
 
The “write pen choice” fared similarly.  There was no evidence of actual or potential
confusion.  Marketquest argued that BIC’s
use was suggestive, but “the ‘write choice’ is a trite pun, notable only for
its obviousness.”  The words were used
with conventional spacing (rather than something like WriteChoice) and did not denote
a trademark use.  The court cited
evidence that advertisers use puns in 10-40% of ads, because consumers feel
pleasure when they solve an easily solved riddle, and they may transfer this
positive affect to the product being advertised.  “This simplistic pun is directly related to
BIC’s pen product, and ‘write’ is far more descriptive of a pen than of
Marketquest’s general promotional products business. To preclude BIC from
making this pun would effectively eliminate this avenue of commercial speech.”
 
BIC took similar measures to reduce the likelihood of
confusion here, including modifying its promotion from “The WRITE choice for
over 30 years!” to “The WRITE Pen Choice for 30 Years!” BIC also “rigorously”
labeled its marks with ® or TM, and used only its house font to write the
phrase. “While Marketquest often uses a nondescript cursive font for ‘the write
choice’ logo, its failure to make a more distinctive mark is again an assumed
risk.”  This was undisputedly good faith.
 
Marketquest also couldn’t suggest a viable alternative for
the phrase.  Its suggestion of “the right
choice” “eliminates any pun and begs readers to ask: ‘Why not use the obvious
pun here?’”  Its problem, if any, was of
its own making.
 

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briefly noted: another court rejects proof of purchase requirement for class ascertainability

Posted on April 27, 2015 by rtushnet

Really briefly!  In re Scotts EZ Seed Litig. 304 F.R.D. 397 (S.D.N.Y. 2015).  It would defeat the purpose of class actions.  Also, though, there couldn’t be an injunctive relief class after the challenged statement was removed from packaging.

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Court makes the write choice on descriptive fair use

Posted on April 27, 2015 by rtushnet
Marketquest Group, Inc. v. BIC Corp., No. 11-cv-618 BAS (S.D. Cal. Apr. 17, 2015)
 

Marketquest website using All In One and The Write Choice marks
Marketquest sued BIC for infringing its registrations for ALL-IN-ONE and THE WRITE CHOICE for, among other things, pens.  BIC included “The Write Pen Choice” in online advertising and displays for writing instruments, including its pens, in 2010. The ads included BIC ® and ROUND STIC ® at the top of the page, followed by “The WRITE Pen Choice for 30 years!,” unaccompanied by either TM or ®.  A BIC subsidiary that sells promotional products, Norwood, included the phrase “All in ONE” on its 2011 product catalogue. Norwood ® was printed in a larger font on the cover of the catalogue, and “All in ONE” appeared below and to the right of it.
 

Bic write choice ad
The court initially determined that these uses had “some likelihood of confusion” and the “potential” for infringement and the case proceeded to summary judgment, which BIC then won on fair use.  Fair use requires descriptive use, other than as a mark, fairly and in good faith only to describe the defendant’s goods or services.  Some possibility of confusion is compatible with fair use, since the existence of the defense reflects “the undesirability of allowing anyone to obtain a complete monopoly on use of a descriptive term simply by grabbing it first.”  The Ninth Circuit has said that the degree of consumer confusion remains a factor, along with “the strength of the trademark, the descriptive nature of the term for the product or service being offered by [the plaintiff] and the availability of alternate descriptive terms, the extent of the use of the term prior to the registration of the trademark, and any differences among the times and contexts in which [the plaintiff] has used the term.”  (Follow along and see how many of these the court considers—which says more about the undesirability of the Ninth Circuit’s laundry list than the quality of the district court’s analysis here.)
 
As for “All in ONE,” the court found that it had the meaning “an entity or object which combines all the required or appropriate elements, items, or functions in one” for over 130 years.  All didn’t mean “everything,” but “everything appropriate.” Marketquest argued that “all in one” wasn’t descriptive because Norwood “produced other catalogs in addition to their `all in ONE’ Catalog that year which featured their housemarks and sub-brands.”  So what?  “All in one” meant “appropriately consolidated.” “Trademark fair use is designed to protect uses of the plain meanings of common words, and semantic contortions cannot render Norwood’s meaning or use uncommon.”
 
When a trademark owner claims a descriptive phrase, it accepts the risk that such marks are weak and that others will make descriptive fair use of them.  Norwood used the common meaning of “all in one,” other than as a mark.  The only remaining issue was BIC’s good faith.  Knowledge of the marks alone was not enough.  “While it is true that a larger corporation may not roll over a small corporation’s mark, any organization that imbues secondary meaning to common phrases assumes the risk that another organization in the same business sphere will use that phrase for its common meaning. Marketquest was on notice that its ALL-IN-ONE marks were, by their very nature, susceptible to such confusion.”  Marketquest also claimed that the use of both marks in the same year demonstrated bad faith, but use of two common descriptive phrases in “wide-ranging marketing materials” was also insufficient.
 
Plus, Norwood “largely mitigated the risk of confusion” by prominently printing its NORWOOD® mark in every location including the phrase. “Spatially, there is no implied association between the Norwood mark and the All in ONE descriptor. All in ONE is printed in a standard font, and it is followed by a list of generic types of items included in the catalog.” Several places in the catalog also explained the phrase’s context, including: “Our primary product resource, featuring all product lines in ONE catalog.” Norwood did “everything possible, short of an explicit disclaimer, to mitigate the risk of confusion,” and disclaimers aren’t required.
 
The “write pen choice” fared similarly.  There was no evidence of actual or potential confusion.  Marketquest argued that BIC’s use was suggestive, but “the ‘write choice’ is a trite pun, notable only for its obviousness.”  The words were used with conventional spacing (rather than something like WriteChoice) and did not denote a trademark use.  The court cited evidence that advertisers use puns in 10-40% of ads, because consumers feel pleasure when they solve an easily solved riddle, and they may transfer this positive affect to the product being advertised.  “This simplistic pun is directly related to BIC’s pen product, and ‘write’ is far more descriptive of a pen than of Marketquest’s general promotional products business. To preclude BIC from making this pun would effectively eliminate this avenue of commercial speech.”
 
BIC took similar measures to reduce the likelihood of confusion here, including modifying its promotion from “The WRITE choice for over 30 years!” to “The WRITE Pen Choice for 30 Years!” BIC also “rigorously” labeled its marks with ® or TM, and used only its house font to write the phrase. “While Marketquest often uses a nondescript cursive font for ‘the write choice’ logo, its failure to make a more distinctive mark is again an assumed risk.”  This was undisputedly good faith.
 
Marketquest also couldn’t suggest a viable alternative for the phrase.  Its suggestion of “the right choice” “eliminates any pun and begs readers to ask: ‘Why not use the obvious pun here?’”  Its problem, if any, was of its own making.
 
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Needless markup: outlet stores’ pricing not deceptive

Posted on April 27, 2015 by rtushnet
Rubenstein v. Neiman Marcus Group LLC, 2015 WL 1841254, No.
CV 14–07155 (C.D. Cal. Mar. 2, 2015)
 
Rubenstein bought two items of clothing from the Neiman
Marcus Last Call Store (a discount store, as opposed to the usual upscale
Neiman Marcus store) that was purportedly sold for markedly lower than the
“Compared to” price that a consumer would pay at traditional Neiman Marcus
retail stores.  Outlet stores often sell discounted
clothes that are “after season” or clothing that had very little popularity and
did not sell, so consumers have allegedly become accustomed to seeing products
at outlet stores that once were sold at the traditional retail store.  Rubenstein alleged that the use of “Neiman
Marcus” in the name of the Last Call Stores caused her and other Last Call
Store shoppers to reasonably believe that the Last Call Stores are outlet
stores of traditional Neiman Marcus retail stores and that the Last Call Stores
sell “after season” and unsold products that were previously sold at
traditional Neiman Marcus retail stores.
 
Neiman Marcus labels its Last Call products with a tag that
shows a markedly lower price from the “Compared to” price, and Rubenstein
alleged that she and putative class members reasonably believed that this
“Compared to” price represented the price that the exact same product would be
sold at the traditional Neiman Marcus retail store. However, the Last Call
products were manufactured strictly for sale at the Last Call Stores, and
allegedly were of inferior grade and quality to the products sold at the
traditional Neiman Marcus stores. Because the products were never sold at
traditional Neiman Marcus stores, Rubenstein argued that they couldn’t be compared
to any price and that the insinuated discount (and the implied quality) was
false and misleading.
 
Members of Congress have complained to the FTC about this
practice: “it is a common practice at outlet stores to advertise a retail price
alongside the outlet store price-even on made-for-outlet merchandise that does
not sell at regular retail locations. Since the item was never sold in the
regular retail store or at the retail price, the retail price is impossible to
substantiate. We believe this practice may be a violation of the FTC’s Guides
Against Deceptive Pricing (16 CFR 233).”
In particular, “[u]nlike the use of the words ‘Compared to’
in the context of a regular retail store, where a price comparison might
suggest the price for similar product sold at a competing store, when used in
connection with Defendant’s Last Call outlet store, the words ‘Compared to’ can
reasonably be interpreted by reasonable consumers to be a price comparison with
the price of the exact same product when it was previously for sale at
Defendant’s regular retail store.” Even the name “Last Call” reinforces the
implication that the stores sell products previously available at Neiman Marcus
stores, and in that context, “Compared to” allegedly conveyed the message that
these products were formerly sold in regular Neiman Marcus stores for that
price, not just the message that goods of a like grade and quality were sold
somewhere else for that price.

That all seems plausible to me to state a claim for the usual California
claims, but not to the court.  The court
didn’t find the “Compared to” tag and “Last Call” name sufficient. It turned to
the FTC’s Guides Against Deceptive Pricing for help. The Guides distinguish
between “former price comparisons,” “retail price comparisons,” and “comparable
value comparisons.”
 
Former price comparisons indicate
that the retailer formerly offered the good at the listed price, and are
indicated by language such as “Formerly sold at $___” or “Were $10, Now Only
$7.50!” Other language to indicate a former price includes “Regularly,”
“Usually,” “Formerly,” or “Reduced to.” Retail price comparisons indicate that
the same article is sold by other merchants at a particular price, and are
indicated by language such as “Price Elsewhere $10, Our Price $7.50” or “Retail
Value $15.00, My Price $7.50.” Comparable value comparisons merely indicate
that merchandise of “like grade and quality” are sold by the advertiser or
others in the area at the listed price, and can be indicated by language such
as “Comparable Value $15.00.”
 
Rubenstein’s argument was contrary to the FTC’s
guidance.  There was no evidence that
Neiman Marcus affirmatively claimed that its Last Call stores sold merchandise
previously for sale at the flagship stores. “‘Last Call’ could just as easily
refer to the last call for merchandise from a prior season or the last call for
a third-party manufacturer’s clearance items.” (That seems tendentious—it’s
not just as easy to make the jump from Neiman Marcus to another store. Neiman
Marcus’s value proposition is its exclusivity, not that it dines on others’
scraps.) The “Compared to” tags “would most likely be interpreted by a
reasonable consumer as a comparable value comparison.”  Thus the complaint didn’t sufficiently allege
misleading advertising techniques or improperly advertising of a former price.

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Needless markup: outlet stores’ pricing not deceptive

Posted on April 27, 2015 by rtushnet
Rubenstein v. Neiman Marcus Group LLC, 2015 WL 1841254, No. CV 14–07155 (C.D. Cal. Mar. 2, 2015)
 
Rubenstein bought two items of clothing from the Neiman Marcus Last Call Store (a discount store, as opposed to the usual upscale Neiman Marcus store) that was purportedly sold for markedly lower than the “Compared to” price that a consumer would pay at traditional Neiman Marcus retail stores.  Outlet stores often sell discounted clothes that are “after season” or clothing that had very little popularity and did not sell, so consumers have allegedly become accustomed to seeing products at outlet stores that once were sold at the traditional retail store.  Rubenstein alleged that the use of “Neiman Marcus” in the name of the Last Call Stores caused her and other Last Call Store shoppers to reasonably believe that the Last Call Stores are outlet stores of traditional Neiman Marcus retail stores and that the Last Call Stores sell “after season” and unsold products that were previously sold at traditional Neiman Marcus retail stores.
 
Neiman Marcus labels its Last Call products with a tag that shows a markedly lower price from the “Compared to” price, and Rubenstein alleged that she and putative class members reasonably believed that this “Compared to” price represented the price that the exact same product would be sold at the traditional Neiman Marcus retail store. However, the Last Call products were manufactured strictly for sale at the Last Call Stores, and allegedly were of inferior grade and quality to the products sold at the traditional Neiman Marcus stores. Because the products were never sold at traditional Neiman Marcus stores, Rubenstein argued that they couldn’t be compared to any price and that the insinuated discount (and the implied quality) was false and misleading.
 
Members of Congress have complained to the FTC about this practice: “it is a common practice at outlet stores to advertise a retail price alongside the outlet store price-even on made-for-outlet merchandise that does not sell at regular retail locations. Since the item was never sold in the regular retail store or at the retail price, the retail price is impossible to substantiate. We believe this practice may be a violation of the FTC’s Guides Against Deceptive Pricing (16 CFR 233).”
In particular, “[u]nlike the use of the words ‘Compared to’ in the context of a regular retail store, where a price comparison might suggest the price for similar product sold at a competing store, when used in connection with Defendant’s Last Call outlet store, the words ‘Compared to’ can reasonably be interpreted by reasonable consumers to be a price comparison with the price of the exact same product when it was previously for sale at Defendant’s regular retail store.” Even the name “Last Call” reinforces the implication that the stores sell products previously available at Neiman Marcus stores, and in that context, “Compared to” allegedly conveyed the message that these products were formerly sold in regular Neiman Marcus stores for that price, not just the message that goods of a like grade and quality were sold somewhere else for that price.
That all seems plausible to me to state a claim for the usual California claims, but not to the court.  The court didn’t find the “Compared to” tag and “Last Call” name sufficient. It turned to the FTC’s Guides Against Deceptive Pricing for help. The Guides distinguish between “former price comparisons,” “retail price comparisons,” and “comparable value comparisons.”
 
Former price comparisons indicate that the retailer formerly offered the good at the listed price, and are indicated by language such as “Formerly sold at $___” or “Were $10, Now Only $7.50!” Other language to indicate a former price includes “Regularly,” “Usually,” “Formerly,” or “Reduced to.” Retail price comparisons indicate that the same article is sold by other merchants at a particular price, and are indicated by language such as “Price Elsewhere $10, Our Price $7.50” or “Retail Value $15.00, My Price $7.50.” Comparable value comparisons merely indicate that merchandise of “like grade and quality” are sold by the advertiser or others in the area at the listed price, and can be indicated by language such as “Comparable Value $15.00.”
 
Rubenstein’s argument was contrary to the FTC’s guidance.  There was no evidence that Neiman Marcus affirmatively claimed that its Last Call stores sold merchandise previously for sale at the flagship stores. “‘Last Call’ could just as easily refer to the last call for merchandise from a prior season or the last call for a third-party manufacturer’s clearance items.” (That seems tendentious—it’s not just as easy to make the jump from Neiman Marcus to another store. Neiman Marcus’s value proposition is its exclusivity, not that it dines on others’ scraps.) The “Compared to” tags “would most likely be interpreted by a reasonable consumer as a comparable value comparison.”  Thus the complaint didn’t sufficiently allege misleading advertising techniques or improperly advertising of a former price.
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So, that happened: MPAA Creativity Conference

Posted on April 24, 2015 by rtushnet
The Motion Picture Association of America, in partnership
with Microsoft and ABC News
Creativity Conference
(File under: you invited me! 
Also, no surprise, the food was good and the perks nice—you could get
your photo made in a James Bond pose with the swirl around you, among other
things. Stormtroopers accompanied the MPAA intro: is that really the message you
want to send?)
 
Chris Dodd, MPAA: Film & tv industry = greatest
innovators of the country. 1.9 million jobs dependent on flim & TV
industry. More than 450 unique online services available for legally streaming
movies & TV, more than 100 in the US. 
MPAA created a website, wheretowatch.com, to find them. Tech &
content support and rely on one another (Microsoft).
 
Fred Humphries, Microsoft: Industry is sustaining America’s
global competitiveness. Microsoft invests more than $10 billion in R&D each
year. Devoted to empowering 300 million young people.  (Wonder about the young people they’re not
devoted to empowering …)  Need policies
and programs to enable us to do more—gov’t, entertainment, and tech sectors
discussing future of growth.
 
Tom Sebroski (sp?), ABC News: ¾ of consumers about to own
smart device.  We don’t want to be left
out.  Will we be surfing 500 channels or
telling our fridge to play Scandal?  ABC News now available on the Apple Watch and
X-Box. We are learning how to tell stories in 6 seconds; storytelling is the
heart of the endeavor. Instantly we’re all storytellers w/power of social media
w/ability to curate and form our own narratives with one click.  Charleston, SC footage as example.
 
Cathy McMorris Rodgers, House Republican Conference Chair
Interviewed by John Carl, White House correspondent for ABC
News
Rodgers: our office looks a lot like a startup, because we
want to encourage that culture.  (Oh, for
Evgeny Morozov commenting on this.) 
Carl: did fictional portrayals of Washington inspire you?
Rodgers: American history, biographies.  (I guess the answer is no.)
Carl: portrayals of Washington are so dark right now—Scandal, House of Cards.
Rodgers: that is a concern; people ask about it.  (Earlier she jokingly blamed House of Cards for Congress’s low
approval ratings.) Congress is based on relationships, getting to know each
other and finding common ground. People are hungry to get things done.  (Like the TPP, I guess?)
Carl: what’s necessary for creativity to prosper?
Rodgers: Americans taking the risk to fail.  Smart, creative people with ideas for
positive impact.  (Wow, this is more
anodyne than I thought it could be.) 
Sometimes the status quo stamps down any new approach on Capitol Hill.
Potential to improve federal gov’t delivery of services—Veterans
Administration.  A private company
knocked on my door and said it could help. 
App providing appointments for doctors that accept your insurance.  The VA gives lots of reasons it can’t do
that.  Need to embrace new tools.  (For a very small fee.)  Need to start embracing the ideas of these
companies w/in the gov’t. Education, encouraging blended learning.  Bringing tech into the classroom—a student
spends a portion of time one on one w/teacher, a portion in a small group, and
a portion on the computer, watching a video or getting curriculum from
different perspective & taking a test. 
Kids love it!
 
Carl: Trade and the TPP.
Rodgers: I’m optimistic it will pass. 
Carl: you are giving President authority to make the deal.
Rodgers: in the negotiations, this is different than past
years. Congress laid out a long list of criteria, and has the committees of
jurisdiction allowed to vote up or down if it meets our intent. That provides
more oversight.  I’m hopeful.  Good vote on Ways & Means.  Washington is the most trade-dependent state
in the country.  We want to make it here
and export it there.
 
Jim Williams, FAA manager. 
Unmanned aircraft. We figured out how to approve these aircraft, but
can’t grant exemption to everyone at once—has to be individual companies.  Movie companies were attractive model.  (Now we get a drone demo. I think this is also
the Star Wars music playing, which again makes me a tad nervous.  I don’t have a lightsaber to fend the drones
off.)
 
Aerial mob drone guy: drones allow continuous motion across
360 degrees, allowing new film angles, movement along path. Low-altitude aerial
cinematography: crane shots, etc. can be gotten and combined: we can fly
through a front window and out the back door of a building, which is the only
way to get that shot.  New creativity,
budget savings—a lot faster to set up. 
Not just a creative tool—used for many different jobs.  We’re very proud that we’re creating new
things with our hands.  Can be used to inspect
power lines, turbines, oil pipelines; security robots to monitor a facility;
labor resource.  (He’s talking about
creating new jobs but the description is of technologies that will allow
employers to shed jobs.  That’s not to
say these innovations are bad, but query what jobs they create.)  We feel very creative in that we’re
developing new businesses. 
 
Howard Lukk, Indie Filmmaker and Uber Geek: Most of the
stuff in Back to the Future 2 is
here, except for the flying cars.  (He
left out the other part of the quote: “The future
is already here. It’s just not very evenly distributed.”)
Sidhant Gupta, Researcher, Microsoft: What inspired him
growing up was Stargate: SG1.  (One of us!) What tech do they have, what’s
next?
Juju Chang, Co-anchor of ABC News Nightline: lifelong Star Trek fangirl.  Engineers are often inspired by creative
works.
Lukk: Engineering is a creative field.
Chang: then take the tech and infuse it into the creative
process.
Lukk: historically it took 10-15 years for technology to
become commercial (film, radio, TV).  But
the creative side doesn’t change in terms of storytelling: that’s still the
core.
Hollywood is wrestling with VR—changing the passive
experience of what the filmmaker wants us to see. VR = look around and see new
things, not just the actors.  Audience
can have control. How do we get the story across?
Gupta: in video games, you still have cut scenes with
director controlling. Still trying to figure out how to let the viewer run the
show.
Lukk: most of the time the audience isn’t interested in
selecting its own ending.  Game design
and filmmaking are likely to merge.
Gupta: in a game if you don’t do well you criticize
yourself; in a film you criticize the director.
Haptic technologies: trying to use bursts of air so that it
feels like you get feedback from the physical world, e.g. when you hit a curb
in a game. Trying to detect gestures without putting a camera everywhere.
Lukk: computational cinematography: use multiple cameras to
capture different parts of a scene, allowing sophisticated visual effects.  (That is very cool.)
Gupta: we are moving towards making medical devices to
diagnose cancer by sensing in the same way.
 
Daniel H. Marti, U.S. Intellectual Property Enforcement
Coordinator, Executive Office of the President: IP industries accounted for
over 60% of US exports.  Recorded music,
software, etc. over $156 billion dollars. That’s why it’s so important to
protect IP and open foreign markets to US creative content.  This year’s IP Day theme is “Get Up! Stand
Up!” for music, invoking Bob Marley’s song—an anthem for human rights. Tap into
this spirit/call to action to speak up for artistic communities the world over.
Respect right to make a living off artistic labor, and reject those who believe
that theft of creative output is acceptable.
 
Creativity = human expression, building communities. Sharing
brings communities together and helps create common identities.  (Well, it depends on what you pay, I
guess.)  We need to build a safe, secure,
and stable internet.  Fostering
multistakeholder processes in which all participants—government, private
sector, civil society—can marginalize antisocial/criminal activity. Stakeholder
responsibility promotes environment conducive to creativity. Promote innovation
in those in the business of connecting creators and consumers. Respecting IP
promotes tech for communicating creativity. Desire to tell stories to wider
audiences has long chain of innovation, creating new industries along the way—print,
film, radio, TV.  (Interesting how all of
those industries have an early and sometimes extended history of copying w/out
paying that enabled them to get off the ground. 
Sauce for the goose?)  (Also I am
a little creeped out that he just straight-up introduced a Microsoft ad for its
holotechnology, as if he worked for Microsoft and not for the US
government.  Truth in advertising?)
 
U.S. Representative Karen Bass (CA-37): “I represented Fox
when I was in the state legislature.”  Upside
of redistricting, I got Fox back.  (So
she is literally the representative from Fox?) 
Stories and characters once thought unmarketable have been catapulted to
fame: 12 Years a Slave.
 
Nancy Utley, President, Fox Searchlight Pictures: some
interesting stuff about getting films at film festivals—you could see why she
got into this business.  Also discussed
that her movies aren’t very effects-driven/tentpole, and screens are pretty big
at home, so they need to get people to go to theaters/not wait for Netflix.
Sometimes it’s a star, sometime it’s participating in a cultural conversation,
sometimes it’s just very different (Black
Swan), or awards; it’s easier for older people who don’t mind going out as
much.
 
Juju Chang, ABC Nightline (chair)
Lori McCreary, Executive Producer, “Madam Secretary,” and
President, Producers Guild of America
Barbara Hall, Creator & Executive Producer, “Madam
Secretary”
Evan Ryan, Assistant Secretary of State for Educational
& Cultural Affairs, U.S. Department of State: In Egypt, met with high
school students: one asked “do you see drag races every day?”—his impression of
US was determined by Fast and Furious
films—people who haven’t visited the US think of the US as being its films. No
way to overstate the impact of our media globally.  The
Interview of course; House of Cards
is popular among the Chinese leadership, who thinks it’s reality-based.  It would be great if film & TV portrayed
other countries/the people of other countries as more complex and human in
their aspirations.
U.S. Representative Rosa DeLauro (CT-3): don’t trivialize
the hard work of these jobs; women don’t get as many bites at the apple as men
do in these jobs. So don’t make them frivolous characters.
This discussion was mainly interesting because of how
ego-boosting it was for non-Hollywood types in DC—what did the shows get right
and wrong—and for Hollywood from DC’s perspective—how important and influential
they are. It’s the entertainment/political/industrial complex.
 
Nancy Pelosi, House Democratic Leader: Culture, creativity,
good jobs.  I had a depressing
realization during her conversation with Chris Dodd: Sarah Palin is probably
not even two standard deviations away from regular politicians on the word
salad scale.  Pelosi finished with: you
wouldn’t steal a sweater, so you shouldn’t steal movies because they are
property—it’s in the Constitution.

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So, that happened: MPAA Creativity Conference

Posted on April 24, 2015 by rtushnet
The Motion Picture Association of America, in partnership with Microsoft and ABC News
Creativity Conference
(File under: you invited me!  Also, no surprise, the food was good and the perks nice—you could get your photo made in a James Bond pose with the swirl around you, among other things. Stormtroopers accompanied the MPAA intro: is that really the message you want to send?)
 
Chris Dodd, MPAA: Film & tv industry = greatest innovators of the country. 1.9 million jobs dependent on flim & TV industry. More than 450 unique online services available for legally streaming movies & TV, more than 100 in the US.  MPAA created a website, wheretowatch.com, to find them. Tech & content support and rely on one another (Microsoft).
 
Fred Humphries, Microsoft: Industry is sustaining America’s global competitiveness. Microsoft invests more than $10 billion in R&D each year. Devoted to empowering 300 million young people.  (Wonder about the young people they’re not devoted to empowering …)  Need policies and programs to enable us to do more—gov’t, entertainment, and tech sectors discussing future of growth.
 
Tom Sebroski (sp?), ABC News: ¾ of consumers about to own smart device.  We don’t want to be left out.  Will we be surfing 500 channels or telling our fridge to play Scandal?  ABC News now available on the Apple Watch and X-Box. We are learning how to tell stories in 6 seconds; storytelling is the heart of the endeavor. Instantly we’re all storytellers w/power of social media w/ability to curate and form our own narratives with one click.  Charleston, SC footage as example.
 
Cathy McMorris Rodgers, House Republican Conference Chair
Interviewed by John Carl, White House correspondent for ABC News
Rodgers: our office looks a lot like a startup, because we want to encourage that culture.  (Oh, for Evgeny Morozov commenting on this.) 
Carl: did fictional portrayals of Washington inspire you?
Rodgers: American history, biographies.  (I guess the answer is no.)
Carl: portrayals of Washington are so dark right now—Scandal, House of Cards.
Rodgers: that is a concern; people ask about it.  (Earlier she jokingly blamed House of Cards for Congress’s low approval ratings.) Congress is based on relationships, getting to know each other and finding common ground. People are hungry to get things done.  (Like the TPP, I guess?)
Carl: what’s necessary for creativity to prosper?
Rodgers: Americans taking the risk to fail.  Smart, creative people with ideas for positive impact.  (Wow, this is more anodyne than I thought it could be.)  Sometimes the status quo stamps down any new approach on Capitol Hill. Potential to improve federal gov’t delivery of services—Veterans Administration.  A private company knocked on my door and said it could help.  App providing appointments for doctors that accept your insurance.  The VA gives lots of reasons it can’t do that.  Need to embrace new tools.  (For a very small fee.)  Need to start embracing the ideas of these companies w/in the gov’t. Education, encouraging blended learning.  Bringing tech into the classroom—a student spends a portion of time one on one w/teacher, a portion in a small group, and a portion on the computer, watching a video or getting curriculum from different perspective & taking a test.  Kids love it!
 
Carl: Trade and the TPP.
Rodgers: I’m optimistic it will pass. 
Carl: you are giving President authority to make the deal.
Rodgers: in the negotiations, this is different than past years. Congress laid out a long list of criteria, and has the committees of jurisdiction allowed to vote up or down if it meets our intent. That provides more oversight.  I’m hopeful.  Good vote on Ways & Means.  Washington is the most trade-dependent state in the country.  We want to make it here and export it there.
 
Jim Williams, FAA manager.  Unmanned aircraft. We figured out how to approve these aircraft, but can’t grant exemption to everyone at once—has to be individual companies.  Movie companies were attractive model.  (Now we get a drone demo. I think this is also the Star Wars music playing, which again makes me a tad nervous.  I don’t have a lightsaber to fend the drones off.)
 
Aerial mob drone guy: drones allow continuous motion across 360 degrees, allowing new film angles, movement along path. Low-altitude aerial cinematography: crane shots, etc. can be gotten and combined: we can fly through a front window and out the back door of a building, which is the only way to get that shot.  New creativity, budget savings—a lot faster to set up.  Not just a creative tool—used for many different jobs.  We’re very proud that we’re creating new things with our hands.  Can be used to inspect power lines, turbines, oil pipelines; security robots to monitor a facility; labor resource.  (He’s talking about creating new jobs but the description is of technologies that will allow employers to shed jobs.  That’s not to say these innovations are bad, but query what jobs they create.)  We feel very creative in that we’re developing new businesses. 
 
Howard Lukk, Indie Filmmaker and Uber Geek: Most of the stuff in Back to the Future 2 is here, except for the flying cars.  (He left out the other part of the quote: “The future is already here. It’s just not very evenly distributed.”)
Sidhant Gupta, Researcher, Microsoft: What inspired him growing up was Stargate: SG1.  (One of us!) What tech do they have, what’s next?
Juju Chang, Co-anchor of ABC News Nightline: lifelong Star Trek fangirl.  Engineers are often inspired by creative works.
Lukk: Engineering is a creative field.
Chang: then take the tech and infuse it into the creative process.
Lukk: historically it took 10-15 years for technology to become commercial (film, radio, TV).  But the creative side doesn’t change in terms of storytelling: that’s still the core.
Hollywood is wrestling with VR—changing the passive experience of what the filmmaker wants us to see. VR = look around and see new things, not just the actors.  Audience can have control. How do we get the story across?
Gupta: in video games, you still have cut scenes with director controlling. Still trying to figure out how to let the viewer run the show.
Lukk: most of the time the audience isn’t interested in selecting its own ending.  Game design and filmmaking are likely to merge.
Gupta: in a game if you don’t do well you criticize yourself; in a film you criticize the director.
Haptic technologies: trying to use bursts of air so that it feels like you get feedback from the physical world, e.g. when you hit a curb in a game. Trying to detect gestures without putting a camera everywhere.
Lukk: computational cinematography: use multiple cameras to capture different parts of a scene, allowing sophisticated visual effects.  (That is very cool.)
Gupta: we are moving towards making medical devices to diagnose cancer by sensing in the same way.
 
Daniel H. Marti, U.S. Intellectual Property Enforcement Coordinator, Executive Office of the President: IP industries accounted for over 60% of US exports.  Recorded music, software, etc. over $156 billion dollars. That’s why it’s so important to protect IP and open foreign markets to US creative content.  This year’s IP Day theme is “Get Up! Stand Up!” for music, invoking Bob Marley’s song—an anthem for human rights. Tap into this spirit/call to action to speak up for artistic communities the world over. Respect right to make a living off artistic labor, and reject those who believe that theft of creative output is acceptable.
 
Creativity = human expression, building communities. Sharing brings communities together and helps create common identities.  (Well, it depends on what you pay, I guess.)  We need to build a safe, secure, and stable internet.  Fostering multistakeholder processes in which all participants—government, private sector, civil society—can marginalize antisocial/criminal activity. Stakeholder responsibility promotes environment conducive to creativity. Promote innovation in those in the business of connecting creators and consumers. Respecting IP promotes tech for communicating creativity. Desire to tell stories to wider audiences has long chain of innovation, creating new industries along the way—print, film, radio, TV.  (Interesting how all of those industries have an early and sometimes extended history of copying w/out paying that enabled them to get off the ground.  Sauce for the goose?)  (Also I am a little creeped out that he just straight-up introduced a Microsoft ad for its holotechnology, as if he worked for Microsoft and not for the US government.  Truth in advertising?)
 
U.S. Representative Karen Bass (CA-37): “I represented Fox when I was in the state legislature.”  Upside of redistricting, I got Fox back.  (So she is literally the representative from Fox?)  Stories and characters once thought unmarketable have been catapulted to fame: 12 Years a Slave.
 
Nancy Utley, President, Fox Searchlight Pictures: some interesting stuff about getting films at film festivals—you could see why she got into this business.  Also discussed that her movies aren’t very effects-driven/tentpole, and screens are pretty big at home, so they need to get people to go to theaters/not wait for Netflix. Sometimes it’s a star, sometime it’s participating in a cultural conversation, sometimes it’s just very different (Black Swan), or awards; it’s easier for older people who don’t mind going out as much.
 
Juju Chang, ABC Nightline (chair)
Lori McCreary, Executive Producer, “Madam Secretary,” and President, Producers Guild of America
Barbara Hall, Creator & Executive Producer, “Madam Secretary”
Evan Ryan, Assistant Secretary of State for Educational & Cultural Affairs, U.S. Department of State: In Egypt, met with high school students: one asked “do you see drag races every day?”—his impression of US was determined by Fast and Furiousfilms—people who haven’t visited the US think of the US as being its films. No way to overstate the impact of our media globally.  The Interview of course; House of Cardsis popular among the Chinese leadership, who thinks it’s reality-based.  It would be great if film & TV portrayed other countries/the people of other countries as more complex and human in their aspirations.
U.S. Representative Rosa DeLauro (CT-3): don’t trivialize the hard work of these jobs; women don’t get as many bites at the apple as men do in these jobs. So don’t make them frivolous characters.
This discussion was mainly interesting because of how ego-boosting it was for non-Hollywood types in DC—what did the shows get right and wrong—and for Hollywood from DC’s perspective—how important and influential they are. It’s the entertainment/political/industrial complex.
 
Nancy Pelosi, House Democratic Leader: Culture, creativity, good jobs.  I had a depressing realization during her conversation with Chris Dodd: Sarah Palin is probably not even two standard deviations away from regular politicians on the word salad scale.  Pelosi finished with: you wouldn’t steal a sweater, so you shouldn’t steal movies because they are property—it’s in the Constitution.
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Deducting points for a 3-point landing in copyright claim

Posted on April 24, 2015 by rtushnet

Horizon Comics Prods., Inc. v. Marvel Entertainment, LLC, No. 15-cv-11684 (D. Mass. filed Apr. 23, 2015): Newly filed; the claim is that movie Iron Man’s armor infringes the copyright in another comic armored suit.  All I’ll say right now is that one part of the allegations is clearly silly: the complaint alleges that one movie poster is a copy of an image from plaintiffs’ cartoon:

Radix image and Iron Man 3 poster

Three Point Landing is such a trope that it has its own supercut, as well as its own entry on TVTropes.  (Warning: link goes to TVTropes.  I accept no responsibility for the time you’ll spend there.)  I would kind of love to put together the exhibits for the motion to dismiss, actually.

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