The Update Post – updates on the Blurred Lines verdict, the Washington Redskins trademark, Oakland Raiderettes, and the NCAA EA Sport video game

Posted on July 31, 2015 by Kenneth Tanji, Jr.

In the NCAA athletes’ lawsuit regarding the use of player names, images, and likenesses in EA Sports video games, the court approved a $60 million settlement.

Regarding the Oakland Raiderettes’ lawsuit for unpaid wages, the lawsuit was settled for $1.25 million and California passed a law confirming their right to be paid like other employees, including compensation for time spent at practice and public appearances.

The verdict in the Blurred Lines copyright case was reduced from $7.3 million to about $5.3 million, with an appeal expected in the future.

Finally, a federal judge upheld the cancellation of the Washington Redskins’ trademarks using the Redskins name, which was previously discussed here.

Posted in Copyright Law, Employment Law, Trademark Law | Comments Off on The Update Post – updates on the Blurred Lines verdict, the Washington Redskins trademark, Oakland Raiderettes, and the NCAA EA Sport video game

Employment Law – Mandatory Paid Sick Leave Arrives in California

Posted on June 30, 2015 by Kenneth Tanji, Jr.

As of July 1, mandatory paid sick leave is the law in California.  Some of the more important things to know about the new law are the following:

–   both full-time and part-time employees are entitled to paid sick leave;

–   there are different methods employers can choose to calculate accrued paid sick leave and to allow for the usage of paid sick leave, but in any event employees are entitled to use at least 24 hours or 3 days (whichever is greater for that employee) of paid sick leave per year;

–  employers can cap the accrual of paid sick leave at 48 hours or 6 days (whichever is greater for that employee) ;

–  paid sick leave can be used by the employee for themselves or for a family member;

–  paid sick leave can be used for the diagnosis, care or treatment of an existing health condition or preventive care, and can be used for leave because of domestic violence, sexual assault, or stalking; and

–  retaliation against an employee who requests paid sick leave or uses paid sick leave is prohibited.

For more information on the new paid sick leave law, see the California Department of Industrial Relations website.

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Patent Law – The Patent Troll Update: News and Strategy – Spring 2015

Posted on May 31, 2015 by Kenneth Tanji, Jr.

The latest on patent trolls and how to stop them:

Why do companies settle against patent trolls?  An example is a $533 million verdict against Apple.

The most popular venue for patent cases is the Eastern District of Texas.  One of their judges just retired to join a patent law firm that primarily represents patent defendants.

The US Supreme Court uses the term “patent troll” for the first time.

Significant parts of a patent used by a podcast patent troll have been invalidated by the US Patent Office.

Finally, how Life360 fought off a patent troll, all it took was over a million dollars (see the comments to the article).

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ADA Lawsuits – updates on the defense of ADA cases – spring 2015

Posted on April 29, 2015 by Kenneth Tanji, Jr.

the latest from the ADA lawsuit front:

California legislators will take another shot at reform this year;

California Congressional Representatives will also try their hand at ADA reform;

The Wall Street Journal reports that ADA lawsuits are not just a California problem;

This includes Pennsylvania;

Finally, an Orange County Register reporter weighs in on ADA cases;

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Copyright Law – aftermath of the Blurred Lines verdict

Posted on March 28, 2015 by Kenneth Tanji, Jr.

The copyright trial over Blurred Lines has ended in a $7.4 million verdict in favor of Marvin Gaye’s family and against Pharrell Williams and Robin Thicke.

The verdict will likely be appealed, in the meantime the Gaye family is having their own problems as to what to do with the money, assuming the verdict survives the appeal.

Music commentators have all weighed in on the effect of this verdict.  The majority believes the verdict will stifle creativity, although others think not much has changed since bringing these types of lawsuits is difficult.

We will cover the legal issues in detail when the expected appeal is argued.

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Gym release protects it from liability unless there is gross negligence

Posted on February 28, 2015 by Kenneth Tanji, Jr.

A California court has ruled 24 Hour Fitness’ release protects it from liability when a member injures himself while using gym equipment as long as it was not grossly negligent in the maintenance of that equipment.

Timothy Grebing was using the low row machine at the 24 Hour Fitness in La Mirada.  As Grebing pulled the handlebar, a clip that connected the handlebar to a cable that was attached to the weights failed, causing the handlebar to break free from the cable and striking Grebing in the forehead.  As a result, Grebing said he suffered head, back, and neck injuries.

Grebing signed 24 Hour Fitness’ release, which like most releases of this type states that 24 Hour will not be liable for any injury resulting from the negligence of 24 Hour.  The low row machine was ordinarily inspected twice a day.  15 minutes before Grebing’s injury, another 24 Hour member noticed a problem with a similar clip on a different machine and reported that to 24 Hour.  There was evidence that perhaps the wrong type of clip was used on the low row machine.

Based on this, the court found the release was valid to protect 24 Hour.  Ordinary negligence is a failure to take reasonable care to protect others from harm.  Gross negligence is “such a lack of care as may be presumed to indicate a passive and indifferent attitude results.”  The release said Grebing would not hold 24 Hour liable for ordinary negligence.  Even if Grebing’s injuries were caused by a failure to properly maintain the low row machine, 24 Hour demonstrated that it took some steps to keep the low row machine safe with its twice a day inspection.  Also, if 24 Hour did use the wrong type of clip, that would indicate ordinary negligence vs. gross negligence.  In addition, there was no notice that the low row machine itself was not working properly before Grebing’s injuries.  Therefore, the court found there was insufficient evidence to find 24 Hour was grossly negligent to have a trial and therefore judgment was entered for 24 Hour.

So, in California when signing a typical release before doing physical activity, you should not expect to find the facility or operator responsible for injuries caused during the activity unless you can prove gross negligence.

For more on this case, see this article from a health club industry publication and click here for the court’s full opinion on this case.

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The Update Post – updates on foie gras, the Raiderettes, the “Blurred Lines” copyright case, and Yelp’s business tactics

Posted on January 30, 2015 by Kenneth Tanji, Jr.

A federal court has overturned the California ban on foie gras on preemption grounds.

One of the Raiderette minimum wage lawsuits has settled for $1.25 million and a California legislator has introduced a bill to require minimum wage pay for cheerleaders.

The trial between the Marvin Gaye family and Pharrell Williams and Robin Thicke regarding the copyright of “Blurred Lines” may be delayed for appeals based on what version of “Blurred Lines” is heard by the jury.

Finally, the FTC has apparently dropped its investigation on Yelp’s business practices.

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Business Law – Law Student Cannot Enforce Attorney’s Million-Dollar Challenge

Posted on December 29, 2014 by Kenneth Tanji, Jr.

For the last post of the year, we go to the 11th Circuit Court of Appeals, where that court recently ruled that law student Dustin Kolodziej cannot enforce attorney James Mason’s million-dollar challenge that his criminal defense client could not travel from the Atlanta airport to a nearby La Qunita hotel within 28 minutes (click here for the court’s opinion).

After Mason’s client was convicted of quadruple murder, Mason was interviewed on NBC and challenged anybody to show him that his client could have traveled from the Atlanta airport to a certain nearby La Quinta hotel within 28 minutes, which Mason argued would have to have occurred in order for his client to commit the murders.

Kolodziej, taking the challenge literally, recorded himself traveling from the Atlanta airport to the La Qunita hotel within 28 minutes.  When Kolodziej informed Mason of his feat and sought to cash in his million dollars, Mason for some reason refused.  Kolodziej then sued Mason.  Mason got the case dismissed at the district court, which led to this appeal to the 11th Circuit.

The 11th Circuit ruled that no contract was formed between Mason and Kolodziej.  If a contract existed, it would have been an oral unilateral contract.  All contracts, including oral unilateral contracts, require an offer; an acceptance; consideration; and mutual assent to enter into a contract.

In this case, the court found that no reasonable person would have understood Mason’s challenge to be a serious offer of a contract and the challenge should have been interpreted as a rhetorical expression.  The court noted there was no direct contact between Mason and Kolodziej up until the point Kolodziej made his demand.  Mason never took any action to indicate that he intended the offer to be serious such as providing specifics of what it would take to meet the challenge or setting money aside in case the challenge was met.  Kolodziej never made any effort to contact Mason to confirm the existence of the offer, to ensure the offer was still valid, or to confirm the details and terms of the challenge.  Thus, the 11th Circuit ruled the district court was correct in ruling in favor of Mason and against Kolodziej.

For more on this story, see these articles from The Hollywood Reporter and Courthouse News Service.

 

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Patent Law – The Patent Troll Update: News and Strategy – Fall 2014

Posted on November 30, 2014 by Kenneth Tanji, Jr.

This is the latest on patent troll news:

Most notably, the US Supreme Court ruled that patents on ideas done on a computer are more suspect

The FTC settles its first case against a patent troll

A court imposed a $1.4 million attorney fee sanction against a patent troll

Brooklyn Law School students show that if you have free legal help, it’s easier to defeat a patent troll

Finally, in a similar example, Adam Carolla settles his suit (with the assistance of the Electronic Frontier Foundation) with a patent troll

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Copyright Law – Marvin Gaye family gets to go to trial vs. Robin Thicke and Pharrell Williams over Blurred Lines

Posted on October 31, 2014 by Kenneth Tanji, Jr.

Blurred Lines, that song of 350 million youtube views and counting, is claimed by Marvin Gaye’s family to be an infringement of the copyright to the Marvin Gaye song Got to Give it Up (click here for a video of Got to Give it Up and here for a mash-up of the two songs).

Robin Thicke and Pharrell Williams, who along with Clifford Harris, Jr., composed Blurred Lines, are in a battle with the Gaye Family in the US District Court in Los Angeles on this copyright issue (the lawsuit can be viewed here).  Thicke/Williams filed a motion for summary judgment, which is asking to court to rule that a trial was not necessary because it was so clear that they should win.  That is a tough standard, and so it is not a total surprise that the judge denied the motion.  Therefore, the Gaye family can go to trial on their claims.

To establish copyright infringement, a copyright holder must show ownership of a valid copyright and copying of elements of the work that are original.  Since direct evidence of an intent to copy is usually not available, a copyright holder can show copying by showing the alleged infringer had access to plaintiff’s work and that the two works are substantially similar in idea and in expression of the idea.

Got to Give It Up is a well-known song, there is no dispute Thicke/Williams had access to the song.  The ownership of the copyrights is not being contested.  So the main issue is whether the two songs are substantially similar.

The court first ruled that for purposes of this motion, the copyright is limited to the lead sheets, aka sheet music, that was originally submitted to the copyright office, excluding elements in the final recording such as the party noise and falsetto singing and the sounds of the instruments.

Regarding the similarity of the two songs, the two sides between them hired musicologists that examined the elements of the songs.  The Gaye expert contended there were substantial similarities in things like the signature phrase in main vocal melodies, hooks, hooks with backup vocals, core them, backup hooks, bass melodies, keyboard parts, and unusual percussion choices.  The Thicke/Williams expert disagreed with these contentions.  After extensive analysis of the sheet music, the court ruled a trial was needed to see who was right.

For more on this case, see this Hollywood Reporter article, which has attached a copy of the court order denying the motion for summary judgment.

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