Legal Geek No. 136: Cocky-gate rocks the Romance Novel World

Hi, and welcome back to Legal Geek. This week, we cover a story brought to our attention a few weeks ago by author and friend of the network J.F. Dubeau, a controversy now known in publishing circles and the romance novel world as Cocky-gate.

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Faleena Hopkins is a self-published online romance novel author who writes stories about the fictional Cocker brothers.  All her books are entitled Cocky something, such as cocky marine and cocky senator, for example.  So Hopkins sought a trademark registration for covering the word Cocky in the field of a series of downloadable e-books or regular books in the field of romance.  That trademark was registered by the U.S. Trademark Office earlier this year.

Hopkins then began sending a bunch of cease and desist letters to other romance novel authors who happened to use Cocky in their book titles.  She also had Amazon take a bunch of titles off the Kindle store based on her trademark.  This led to a firestorm within the romance novel and broader publishing community, as enforcement of such a trademark effectively takes one of the most popular words in romance novels off the table as an option for an author.

Our friend JF asked a few weeks ago whether this trademark was legal and what the likely outcome would be.  Well, with a couple more weeks of progress behind us, the answer appears to be developing. 

First, a retired lawyer decided to file a petition to cancel the trademark at the Trademark Office, which is a procedure by which third parties can challenge the validity of registered trademarks.  An IP law firm out of New York and a trade association called the Romance Writers of America have taken over this petition to try and remove this trademark from the register.  

Turning to the merits of this cancellation petition, there does appear to be earlier use by other authors, and the opponents argue that the term is generic or descriptive in this field.  In other words, Hopkins was not the first to commercialize the term, nor should she be able to lock up a term that other novelists in the field often need to describe the plots of their books and the characters within.  While the original Examining Attorney for the trademark came to an opposite conclusion, it seems that this cancellation petition has a good chance of success.

Earlier this week, another development occurred against Ms. Hopkins' position.  She had been sued by the aforementioned Romance Writers of America and The Authors Guild in federal court in New York to stop her from enforcing the trademark.  The district court judge ruled this week that summary judgment should be granted to The Authors Guild because Hopkins was not likely to succeed on the merits of her claims.  The Guild argued that "cockiness" is prevalent in romance novels and thus consumers in the field do not rely on such terms to distinguish the source or author of the book, but instead, the author's name instead.  The court appears to have agreed that a term like "cocky" cannot function as the signifier of a single author or source in this genre.

As silly as this case is, the broader implications were what troubled the publishing field.  Another author was already trying to trademark "forever," and you can imagine how awkward it would be if other generic-type terms like "space" for sci fi novels was locked up by a single party.  Thus, Cocky-gate appears to have led to an affirmance that common words in a field cannot be trademarked at all unless they develop a strong association in the minds of the public with a particular author or source.  That's not the case for Hopkins in the crowded romance novel field, so her claim appears destined to fail.

The Bottom Line is, sometimes the cutting edge of legal fields comes from those you least expect it from.  While Hopkins was within her rights to pursue and then enforce her trademark, it seems to better follow our rules and norms if that type of registration is cancelled or not allowed to register in the first place.  The Trademark Office is not perfect, and that's why we have cancellation proceedings and the courts to rely on, as in this case.

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Legal Geek No. 135: Sports Gambling Wins at SCOTUS and Star Wars Fictional Card Game in Court

Hi, and welcome back to Legal Geek. This week, we cover the breaking news of this week's Supreme Court decision to allow sports gambling nationwide, followed by coverage of how a fictional card game from Star Wars is being enforced by Disney in a copyright lawsuit.

https://archive.org/details/LegalGeekEp135

In 1992, Congress passed the Professional and Amateur Sports Protection Act or PASPA, a law that barred state-authorized sports gambling outside the state of Nevada.  That left Nevada and specifically Las Vegas as the only places where a person could legally bet on the outcome of any single sports game, and the profits obviously rolled in there.

This law was challenged as unconstitutional by the state of New Jersey, which obviously has a bustling casino scene in Atlantic City and other places.  While New Jersey lost at every federal court case leading up to the Supreme Court appeal, the highest court in the land ruled 6-3 this week in the case Murphy v NCAA that the PASPA was unconstitutional.

Ironically, the Court's decision was written on the basis of federalism by conservative Justice Alito, while opening up similar arguments for other progressive causes like marijuana legalization and sanctuary cities to be regulated by the states instead of the federal government.  More specifically, PASPA was deemed to violate the anti-commandeering doctrine from the 10th Amendment, which bars the federal government from compelling state officials to implement federal policy.  So forcing states to maintain their bans on sports gambling to serve federal law interests was not constitutional.  So what does this decision mean?

Basically, it's now left to the states to decide whether to enact laws to allow such gambling, just like with state-run lotteries and the like.  New Jersey hopes to be up and running in a couple weeks, while other states like Pennsylvania, West Virginia and Delaware have legislation pending already in hopes to be open for gambling business by football season.  This decision will also hopefully curtail the illegal betting markets and pressures that have been present since PASPA's introduction in the early 90s.  So sports and betting fans, stay tuned for some local betting near you soon.

Turning to our second story, a mobile game app developer named Ren Ventures and Sabacc Creative Industries created a virtual card game called sabbac.  Lucasfilm and Disney took umbrage to this because the game sabacc first appeared in the novelization of the 1980 movie The Empire Strikes Back, and the app developer allegedly uses several copyrighted images and characters from the Star Wars universe to promote their game on Facebook and Twitter.  Thus, after a Cease and Desist letter in April 2017, a lawsuit was filed last December.

Last week, Lucasfilm moved for a summary judgement win by claiming that Ren Ventures is clearly willfully infringing on the copyrights and trademarks of Star Wars.  Ren Ventures has counterclaimed based on its registered trademark for the game name sabacc, saying that Lucasfilm is infringing its trademark.

So who wins in this battle of the sci fi stars?  While it's true that Ren Ventures has a trademark for the name sabacc for computer games and apps as of 2016. Lucasfilm likely has the superior claim thanks to the much older copyrighted materials.  The mere concept of a game described in a piece of literature would not be automatically protected by copyright or trademark, but Ren Ventures probably crossed the line more clearly with marketing materials used on social media.

The Bottom Line is, anytime something is a big money maker like sports gambling or the Star Wars franchise, it's not surprising when others come in to try and get a piece of the pie.  In the case of gambling in New Jersey, the motives are solely profit-driven, while in the case of Ren Ventures, the app may be just as much a fan homage to Star Wars as a play for profit.  If nothing else, we learn once again not to mess with Jersey casinos or Disney, the king of enforcing IP rights.

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Legal Geek No. 134: Giuliani Brews Up a Storm(y) about Campaign Finance Laws

Hi, and welcome back to Legal Geek. This week, we review the media blitz Rudy Giuliani has been on in the previous week as an attorney for President Trump, and explain why his comments regarding payments to Stormy Daniels don't paint a full picture of the issues surrounding the administration on this issue.

https://archive.org/details/LegalGeekEp134


If you aren't up to speed on the sideshow that is the Stormy Daniels story, here's a brief overview.  Stormy Daniels is an adult film star who apparently had an affair with Donald Trump about a decade ago.  Daniels was paid $130,000 in late 2016 just before the election by Trump's attorney Michael Cohen to keep her from reporting the affair to news outlets at that time.  As the FBI investigation into Russian meddling in the 2016 election led by special counsel Robert Mueller works through the process of investigating Cohen and others, this payout and the affair have become public knowledge and a source of debate of potential crimes or violations they may reveal.

Coming back to this week, Rudy Giuliani took to the cable TV news airwaves with many appearances and statements regarding the Stormy Daniels payout and his take on it.  Here's his quote regarding potential campaign finance violations:

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Campaign finance law is a field with ever-changing parameters, as the Supreme Court often weighs in on the laws and regulations applied by the Federal Elections Commission or FEC.  Limits on individual contributions to a political campaign are set forth in Section 30116 of Title 52 of the U.S. Code, and there's a duty to report any payments made to or on behalf of a campaign so that voters can be sure who follows the fairness rules.  That latter point is where the debate will hinge.

According to Section 30116, all contributions made by a person, directly or indirectly, on behalf of a particular candidate, shall be treated as contributions from such person to the candidate, even if an intermediary is involved in some manner.  Daniels's attorney is making a public case that the payment from Michael Cohen to her was inherently related to Trump's campaign given the timing shortly before the election and the broad language of the law at hand.  Cohen certainly made the payment as an agent of Trump, and he's since been reimbursed by Trump for the payment to Daniels.  It's not as simple as Giuliani claims because the law clearly covers more than just movement of actual campaign funds.

If this hush money payment does qualify as a contribution under campaign finance laws, then it should have been disclosed.  Furthermore, there are criminal penalties for knowing or willful failures to report such contributions.  So there's a lot left to untangle in the facts surrounding Cohen and his payment to Daniels, as well as the knowledge and intent of Cohen and Trump, as there are big differences depending on whether Daniels approached Cohen to extort a payment or Cohen voluntarily sought out Daniels.

Of course, even if the FEC finds this to be a violation of campaign finance laws, another hurdle to cross is whether President Trump can actually be sued or held liable while in the executive branch.  Presidential immunity may not go so far as to protect from a lawsuit of this variety, but it would be a question of first impression at the courts if it occurs.

The Bottom Line is, Campaign finance laws are in place to allow voters to have a fair and full picture of the candidates they cast ballots for.  By obfuscating how the law actually reads and is applied, Giuliani is trying to paint a positive picture for his client Trump.  But his oversimplifications and misstatements will likely not carry the day at the FEC.  What's more interesting than the salacious nature of this affair or the one-sided comments of Giuliani is the potential effect of this issue on the Trump Administration.  While this by itself is likely not enough to remove Trump from office, it's one of a number of factors that could combine into an avalanche should something like the Russia investigation produce more problems.

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Legal Geek No. 133: NCAA Bends the Rules for All-Athlete DWTS Season

Hi, and welcome back to Legal Geek. This week, we review an interesting recent decision of the NCAA to allow a current player to make and keep prize money from appearing on the TV show Dancing With The Stars, without exhausting her eligibility.

https://archive.org/details/LegalGeekEp133 

The latest season of Dancing With The Stars premiered this week, and this all athlete-season is the biggest opening since Avengers Infinity War came out last weekend.  Jokes aside, this season of the dancing competition show features several human interest stories in the competitors, including a current college athlete in Notre Dame women's basketball player Arike Ogunbowale. 

Ogunbowale hit last second shots in the national semifinal against Connecticut and again in the national championship against Mississippi State to lock up the NCAA title for the Fighting Irish last month.  Needless to say, she's at the peak of fame in college athletics, and she plans to return for one more season in which she will be the face of women's college basketball.  However, as we've covered before on this segment, the NCAA strictly prohibits athletes from profiting on their likenesses while playing college sports.  These rules are under siege in court cases ongoing around the country, but they do stand currently.

What happened here was a narrow reading or interpretation of those rules.  NCAA Bylaw 12.4.1.1 prohibits college athletes from being paid "for value or utility that the student-athlete may have for the employer because of the publicity, reputation, fame or personal following that he or she has obtained because of athletics ability."  The NCAA is allowing Ogunbowale to accept prizes from Dancing With The Stars because such prizes will not be awarded based on her athletics ability, meaning basketball ability.  The NCAA is not allowing her to participate in any promotional materials for the show, however.

The NCAA may be backing down a bit because the writing is on the wall for this rule and modern college athletics.  By showing some flexibility, albeit with a flimsy interpretation of rules since Ogunbowale is only on the show because she's an athlete with specific abilities and achievements that make her an interesting story, the NCAA may be trying to forge a new path forward in defining what it means to be an amateur athlete.  But we really won't know for sure until other athletes are in similar positions and asking for NCAA permission.

The Bottom Line is, the NCAA has had to bend the rules in certain circumstances like for Olympic games athletes, but this television appearance based on recent fame generated from playing college basketball is new ground that the NCAA used to be much more wary of allowing.  We will continue to monitor whether the NCAA becomes more flexible or stands its ground as the court cases continue against it to try and allow payment of college athletes in some manner.

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Legal Geek No. 132: A Kickstarter Scam for the Ages in Tabletop Games

Hi, and welcome back to Legal Geek. This week, we cover a scam in the Tabletop game space that has recently come to light, as a lesson in why we all still need to be careful with Kickstarter and other funding websites.

https://archive.org/details/LegalGeekEp132 

Kickstarter has been a force in the tabletop board game development space for years, as many developers and publishers use the service as a pre-order system to fund first print runs of new games.  When dealing with funding concepts like Kickstarter, there's always a chance for fraud however.

Boarders Tabletop Game Studio served as a primary distributor for the southeastern Asia market when it came to several popular Tabletop game Kickstarter projects, including Anachrony and Gloomhaven.  The company also came up with a service where backers from this region would group together to save on shipping, which can otherwise be very cost prohibitive for individual backers far away from most tabletop game companies based in Europe and the U.S.

But these customers started to see warning signs a few months ago when shipping information began to be inconsistent with Boarder's deliveries, and the company became unresponsive to e-mails and chat requests.  The suspect activity came to a head when one game designer who worked with Boarders to distribute in southeast Asia announced on their Kickstarter page that Boarders had received the shipment of the backer's games but had stopped all contact and had absconded with the product and the down payment for fulfillment.  That was allegedly a $20,000 heist of sorts.

This led to further investigation by some companies and project backers, and it was discovered that Boarders had collected backer funds for many other projects without actually pledging to purchase the product.  That's the definition of fraud, taking money under a pretense that is completely false.  

Project backers in these countries have started to band together to make police reports and help local reporters investigate this situation.  Outside one Facebook update in late March indicating the board game café the company runs was closing permanently, there has been no communication from Boarders.  There appears to be at least 10 companies where Boarders did not pay them for games sent to Boarders as a distributor, and over $35,000 of product not delivered to consumers. 

While several isolated incidents have occurred over the years on single Kickstarter projects where the creators did not deliver product and absconded with the funds, this collection of activities is quickly becoming the biggest case of fraud ever reported in the tabletop game industry.  Unless facts begin to change in a hurry, these project backers and companies appear to be out of luck.  That's just sad, in an industry made for the purposes of having fun and making people happy.

The Bottom Line is, there's always some risk when crowdfunding or investing in a potential game or product.  When adding a third party intermediary like Boarders to the mix, that's simply another risk factor that has to be considered.   It will be interesting to see if game companies and Kickstarter itself puts in some more protections to try and avoid such fraudulent activity from occurring in the future.  But for now, keep safe with your investments, friends.

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Legal Geek No. 131: The Accelerated Federal Judicial Nominee Process under Trump

Hi, and welcome back to Legal Geek.  This week, we update you on the tribal sovereign immunity strategy used in some pharma patent cases, and then review the reasons behind a surprising set of trends in how quickly open seats in the federal judicial system have been getting filled so far under President Trump.

https://archive.org/details/LegalGeekEp131

A few months back we covered a case where a pharmaceutical company assigned its patents to a Native American tribe and then argued tribal sovereign immunity of that tribe stopped the patents from being challenged for invalidity in government proceedings.  Recently, Congress has introduced a bill that would exclude patent proceedings from what tribal sovereign immunity applies to, which would eliminate this potential loophole.  While it remains to be seen if this becomes law, do not be surprised if other similar loopholes are located and leveraged even if this one is addressed.  In other words, never doubt the genius ideas of some litigators with big budgets and a lot of time.

Turning to this week's main topic, the Trump presidency has certainly been marked with a lot of memorable news moments.  However, other than the tax bill passed a few months ago, it's hard to point to many things that will be long-lasting legacies of this presidency.  One notable exception to this is our subject today: the federal judiciary.

While it may be easy to overlook with sexier news stories always popping into your attention each week, the Trump administration has established unprecedented success in quickly nominating and gaining approval of new federal judges.  Federal judges at all levels from local courts to the Supreme Court are appointed by the executive branch and then reviewed by the Senate for approval before joining the federal bench, and these are lifetime appointments for the judges.  Thanks to the presidency and the Senate being held by the same party for this two-year period, any opposition to Trump's generally-conservative nominees has been mitigated.

Here's some numbers to explain Trump's quick filling of the federal bench compared to prior presidents.  He has nominated 69 potential judges to the bench in his first year in office, compared to 34 in Obama's first year, and Obama is more in line with the average.  The Senate has already confirmed 29 of these judges, 15 of them at the Court of Appeals level or at the Supreme Court.  That number of 15 high-level judge confirmations in one year is nearly more than the first years of the last three presidents combined, as Obama had 6, Bush 7, and Clinton 3.  So the Trump Administration is filling up a lot of the federal judiciary with judges who may hold more with his views than the judges they may be replacing, and such a trend is somewhat troubling.

Why is this happening?  In addition to the White House and the Senate being held by the same party, the obstructionist recent past of judicial nominations has been the primary driver to where we are today.  During Obama's presidency, judicial nominations languished in front of the Senate as nobody could drive these nominations through, including most notably the year-long delay on Supreme Court nominee Merrick Garland before Obama left office.  The obstructionism continued when Neil Gorsuch replaced Garland on the Supreme Court nominee agenda, and all the while more and more open judicial seats were left unfilled thanks to retirements not being replaced.

So it's clear why a critical mass of seats are there to fill, but the obstructionism of past Senates came to a head when the GOP removed the filibuster rule that used to apply to judicial nominees, making it possible to push for votes with only 50 members on board instead of 60 out of 100 under the filibuster rules.  Without the filibuster rules, a simple majority can push through a lot of nominees in a short period of time, and that's precisely what happened.  So while the overloaded dockets of federal courts caused by so many open seats is being addressed, the process for vetting and approving judicial nominees has changed significantly.

Not surprisingly, one party had to be the first to take advantage of that situation.  If a blue wave occurs in future elections, we may see similar results with Democrats in charge, but with different ideological judges.  However, the big crush of openings available in the judiciary won't likely repeat itself like this, meaning the long-lasting effect of the Trump presidency may be first and foremost, a reshaping of the federal bench to be far more conservative.

The Bottom Line is, when there's obstructionism in government processes, sometimes that forces only the cream of the crop to move forward.  Unfortunately, it can also lead to opportunities like this one, and it may indeed be the biggest effect of that landmark 2016 election.  We will keep an eye on the courts moving forward to see where they go.

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Legal Geek No. 130: Does a Hacky Sack World Record create a Right of Publicity?

Welcome back to Legal Geek, coming to you from a new home studio, so apologies for any sound quality quirks while we get used to the new space.  This week, we review an ongoing case from Illinois in which a hacky sack world record holder is claiming he has a right of publicity that comes from his world record holding status, in a conflict with Wendy's and Guinness World Records.

https://archive.org/details/LegalGeekEp130

Children of the 90's will remember the hacky sack craze, a game in which you kick a small footbag or beanbag repeatedly with your feet and knees to keep the footbag off the ground for as long as you can.  In 1997, a man named Ted Martin set the record for consecutive kicks of a hacky sack, as he achieved 63,326 kicks in a little less than 9 consecutive hours of play.  That record still stands today, per the record keepers at Guinness World Records.

Ted Martin leveraged this world record into a commercial business, as he sells footbags to those still interested in the hacky sack game.  Thus, it should come as no surprise that Martin objected to the unauthorized use of his name when Guinness and Wendy's combined on a 2013 kids meal promotion that gave out footbags with marketing asking kids if they could beat Ted Martin's longstanding record.  The interesting legal question is whether Martin's world record entitles him to sufficient fame to make a right of publicity claim against such a marketing practice.

Under the Illinois law being applied, the federal courts thus far have denied Martin's requests to hear this case in detail.  Their reasoning has included the fact that Martin does not challenge Guinness's rights to publish his name and record in their book, and that it would be a farce to allow them to sell a book with Martin's name in it while prohibiting the same recitation of a fact in promotional materials.  Martin argues this is a distinction between free speech and commercial speech that the courts do not comprehend.

As you might guess, when a person like Martin represents themselves in court and makes such broad sweeping arguments, it's probably not a great sign.  He does cite an interesting prior case in Illinois where retailer Jewel-Osco was found liable under the Illinois right of publicity law for including Michael Jordan in a full page ad in a magazine congratulating him on his Hall of Fame induction while also connecting him with their store slogan.  However, Jordan is on another level of celebrity fame, and the apparent association between Jordan and Jewel-Osco was much stronger in that case than the association that could be implied by the Wendy's advertisements here.

The Bottom Line is, a hacky sack world champion likely has some ability to commercialize his small claim to fame and protect that fame with trademark and branding type protections.  When it comes to proving higher burdens of proof associated with most right of publicity laws as applied to private citizens instead of celebrities, cases like this one often fall short.  So while Martin will continue to hold the world record, a payday does not appear to be in his future for this case.

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