Legendary Talking Heads frontman David Byrne is steamed, and he’s not going to take it anymore! No, it’ has nothing to do with his passion for bicycling. It has something to do with copyright infringement.

It seems that Florida governor Charlie Crist, an independent candidate for the Senate, had used one of Byrne’s songs, the Talking Heads classic “Road to Nowhere” without Byrne’s permission.  From Billboard:

“Byrne is seeking $1 million in damages from Gov. Charlie Crist, who’s also Florida’s former Attorney General, and his senatorial campaign for use of the song earlier this year in a website and YouTube ad attacking his then-Republican primary opponent, Marco Rubio. Crist has since changed his campaign and is running as an independent candidate.

The suit (Case Number 8:10-CV1187-T26 (MAP)) was filed early Monday afternoon in the United States District Court for the Middle District of Florida in Tampa.

Byrne tells Billboard.com that he became aware of the Crist ad from a friend in New York, where the Talking Heads co-founder resides. “I was pretty upset by that,” says Byrne, who had Warner Bros. Records contact the Crist campaign, which subsequently stopped using the ad. But, Byrne contends, “in my opinion the damage had already been done by it being out there. People that I knew had seen (the ad), so it had gotten around. The suit, he adds, “is not about politics…It’s about copyright and about the fact that it does imply that I would have licensed it and endorsed him and whatever he stands for.”

“Road to Nowhere” appeared on Talking Heads’ 1985 album “Little Creatures.”  It reached No. 25 on Billboard’s Mainstream Rock Tracks and was nominated for Best Video of the Year at the 1986 MTV Music Video Awards. It also appears in several films, including “Reality Bites” and “Religulous.” None of the other Talking Heads members are involved in the suit.

Byrne’s attorney Lawrence Iser — who also represented Jackson Browne in his successful suit against 2008 Republican presidential candidate John McCain’s illegal use of his song “Running on Empty” — says that the Crist campaign did not obtain either a synchronization license required to use Byrne’s composition or a master use license for the Talking Heads’ recording. The ad also violates the Lanham Act of the U.S. Trade Statue, implying a false endorsement of Crist by Byrne.

“I was fairly astonished that this soon after the settlement of Browne vs. McCain, yet another politician with national aspirations is doing this again,” Iser says. “We just a year ago settled Browne vs. McCain, and the defendants there — including the Repbulican National Party — made a pledge…they would respect artists rights and license copyrighted works. To have it happen again in January is fairly shocking. They can’t say, ‘We didn’t know that you have to get a license to use songs in commercials.’…They absolutely did know.”

Iser says the $1 million damages claim is based on previous offers Byrne has received for use of his songs in commercials.

Iser says he’s not sure how long the Byrne case will take to resolve. Browne vs. McCain took about nine months.

Byrne isn’t the only musician to have a song involved in Florida’s hotly contested senatorial campaign. Rubio used the Steve Miller Band‘s 1976 hit “Take the Money and Run” for a YouTube ad attacking Crist. Miller issued a statement saying that, “The Steve Miller Band and Steve Miller do not endorse Marco Rubio’s campaign or any political candidates and respectfully request that Mr. Rubio learn more about publishing law and intellectual property rights. I also ask that in the future he extends me the courtesy of asking permission before using my songs.” The ad was subsequently stopped, and a spokeswoman for Miller says the matter has been settled to his satisfaction.”

The take-home message is, always ask for permission. Politicians have been getting caught in this trap since Ronald Reagan used Bruce Springsteen’s “Born in the U.S.A.” One would think that, as lawmakers, most of whom are lawyers, they’d be sophisticated enough to understand this.

Why is this important?

I won’t argue that facebook isn’t a great resource for keeping up with friends and old acquaintances and for networking but it can also be fraught with danger.  For one thing, while you can choose which pictures to upload to facebook, you have no control over what others post.  Sure, you can “de-tag” yourself from a picture but you have no way to remove the potentially harmful picture.  To make matters worse, many employers now conduct pre-employment google and facebook searches of potential employees which may lead to trouble getting hired.  Kathy Potter, Director of the Career Center at Santa Clara university says that employers are using “online resources to reject applicants, not to make final hiring decisions.”  To make matters worse, it is very difficult to permanently delete something from Facebook.

Do yourself a favor and do your best to regulate what the internet says about you because you never know what sort of information the “open graph” will learn about you.  Your career will thank you.

The takeaway of this to business owners is that, in addition to being vigilant about your trademark or servicemark in the physical realm, you must keep an eye on typosquatters as well. It is always a good idea to register typographically incorrect but close versions of your trademarked domain name as well; the extra few dollars you pay to the domain registrar just might be worth it.

Wrong.

Check out this video by Reason.tv‘s always-interesting Nick Gillespie (some subtitles NSFW):

Gillespie spells it out perfectly: this is protected parody under Section 107 of the U.S. Copyright Act, and not copyright infringement. YouTube and Constantin Films could be setting up the downfall of creativity on the Internet (rimshot, please!).

In Arista Records, LLC v. Doe 3, the Second Circuit upheld a district court ruling rejecting the defendants’ request to quash the plaintiff record companies’ (Arista, Atlantic, BMG, Capitol, Elektra, Interscope, Maverick, Motown, Sony BMG, UMG, VIrgin, Warner Bros., and Zomba) subpoena to the defendants’ Internet service provider (ISP) for confidential information which would identify the defendants. The defendants argued, among other things, that the First Amendment’s right to privacy and right to anonymous speech protected them from such disclosure. The Second Circuit disagreed, holding that, when such anonymous use of the Internet involved copyright infringement, the copyright holders’ need for the infringers’ identities to enforce their intellectual property rights outweighed the defendants’ First Amendment right to anonymous Internet use. To paraphrase the court, the First Amendment is not a license to infringe copyrights.

The heart of the Second Circuit’s decision rested on the lower court’s analysis of the plaintiffs’ copyright rights versus the defendants’ First Amendment rights under the five Sony Music Entertainment Inc. v. Does 1-40 (326 F.Supp.2d 556 (S.D.N.Y. 2004) factors:

(1) [the] concrete[ness of the plaintiff's] showing of a prima facie claim of actionable harm, . . . (2) [the] specificity of the discovery request, . . . (3) the absence of alternative means to obtain the subpoenaed information, . . . (4) [the] need for the subpoenaed information to advance the claim, . . . and (5) the [objecting] party’s expectation of privacy.

Sony Music, 326 F. Supp.2d at 564-65.

The defendants argued that the plaintiffs did not make a sufficiently particularized showing in order to overcome the defendants’ qualified First Amendment privilege. The lower court and the Second Circuit disagreed, given that the plaintiff record companies provided a detailed record of the alleged copyright infringement, as well as specifying exactly what information they sought from the defendants’ ISP, the State University of New York at Albany (SUNYA).

This case touches on many big issues: the First Amendment versus intellectual property rights, the extent of the fair use doctrine, the record companies versus the “little guy.” If anything, Arista Records, LLC v. Doe 3 clarifies exactly what a copyright plaintiff will need to show in order to pierce the First Amendment’s qualified right to anonymous Internet use. It will be interesting to see if this case advances to the Supreme Court.

h/t – Leagle.com

But this isn’t a blog or a website about video games, and while my inner-child thinks that this game is a blast (as a child of the 1980s, playing through this game as other characters probably crossed my mind ten times a day), the lawyer in me saw huge red flags. In other words, given the intellectual property implications of mashing together the work of others, I wouldn’t be surprised to see the game’s creator Jay Pavlina receive some cease-and-desist letters in the mail very soon.

The problems? First, each character is a trademarked property: Mario, Link, Samus, and their respective franchises belong to Nintendo; Mega Man belongs to Capcom; and Simon Belmont, Bill F., and their respective franchises belong to Konami. Second, video games are protected under copyright. This protection, among other aspects, extends to the games’ code itself, which Super Mario Bros. Crossover likely appropriated in both its use of the original Super Mario Bros. game and each character’s individual mechanics. And third, Pavlina took great care into making this game, including details such as the music, which changes to a theme from each character’s game depending on the level and the situation. Seeing as how the advent of the Internet and file sharing has transformed the landscape of the music industry, I wouldn’t be surprised to see that Pavlina’s appropriation of this music will also be an issue should the copyright and trademark holders involved take action.

This begs the question, Does the doctrine of fair use protect Pavlina and Super Mario Bros. Crossover? Section 107 of the 1976 Copyright Act defines “fair use” as “including such use [of the works] by reproduction . . . for the purposes such as criticism, comment, news reporting, teaching . . . scholarship, or research.”  Such uses are “not an infringement of copyright.”  In order to determine whether a use is fair use, a court must consider “(1) the purpose and character of the use . . . (2) the nature of the copyrighted work . . . (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole . . . and (4) the effect of the use upon the potential market for or value of the copyrighted work.” Under these factors, and especially factor three, Super Mario Bros. Crossover fails under the fair use assessment, although it is arguable that, because Pavlina is not seeking to profit from the game, his use is fair. As Chris Kohler of Wired points out, “My advice would be to immediately start tweaking it into a parody.”

Another possible potential defense is that Super Mario Bros. Crossover is a derivative work, defined in Section 101 of the Act as “a work based upon one or more preexisting works.” Derivative works are protected, but according to Section 103(a), “protection for a work employing preexisting material in which copyright subsists does not extend to any part of the work in which such material has been used unlawfully.” Further, under 103(b), “copyright in a . . . derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material.” The copyright in the preexisting material exists separately of that in a derivative work. What this means is that the game as a whole, as put together by Pavlina, may be a protected derivative work . . . but only if the copyright in the preexisting material was lawfully used. Based on what we know, this does not seem to be the case.

Super Mario Bros. Crossover is certainly a unique game, and a very interesting product from an intellectual property standpoint. While I am a staunch believer in intellectual property rights and would not fault Nintendo, Capcom, or Konami for asserting their copyright and trademark claims, I am also a fan of creativity, and I believe that it should not be punished. If the video game companies were smart, they would recognize a clever and, quite frankly, flattering fan-made labor of love when they see one, and perhaps snap up the rights to it and offer it on the Wii Virtual Console. This would engender good-will amongst the gaming and Internet communities, and show that the video game companies are hip to what their fans consider worthy products. It would also give them good publicity.

My one question, though: whatever happened to Luigi?

This is a great opportunity for any veterans out there and its a great way for us lawyers to say thanks for the service and dedication provided by all the soldiers, sailors, airmen, and Marines in this country.

Negotiation is just what it sounds like: the parties and their lawyers get together to hash out an agreement. Books such as Getting to Yes by Roger Fisher and William Ury of the Harvard Negotiation Project describe useful techniques to make negotiations smooth and civil, and to ensure that each party gets what they want without feeling wronged.

Arbitration refers to a process where the parties submit their grievances to a third person, an arbitrator, who makes a decision that the parties agree to be bound to. The arbitration process is commonly used in sports and union disputes.

It has been my personal observation, however, that mediation is one of the best ways for potential litigants to resolve their disputes. In mediations, the parties themselves–with or without their lawyers–discuss their problem with the aid of a mediator, an unbiased and uninterested third-party who acts as a referee. The mediator’s job is to act as a facilitator, setting the bounds of the discussion and helping the parties come to an agreement that they choose to be bound by. The mediator does not make decisions for the party, though he may make suggestions from time to time.

Some of the advantages of mediation are that it is private, voluntary, and much more cost effective than litigation. Mediators, such as Safe Harbor, Inc., are a great place to start if you are looking to resolve a legal dispute without the pains of a trial.

Employment lawyers work with businesses who need help writing employee handbooks, hiring and firing employees, and navigating the complexities of statutes such as the Americans with Disabilities Act of 1990 and its Amendments Act of 2008, the Occupational Safety and Health Act, and the Civil Rights Act of 1964.

Employment Lawyers also help those employees who may have been terminated wrongfully or who may be suffering from discrimination in the workplace. This past week, the Boston Globe‘s employment blog, Job Doc, posted a letter from someone complaining of a retaliatory firing.

The best advice for anyone in business, both employers and employees, is to seek the counsel of a competent attorney-advisor.