The Artful Jurist

The other day, a friend was talking to me about an artistic project he hopes to have published.  The final work will likely involve some atristic contribution from another person.  I immediately chirped up that a collaboration agreement was in order.  And that advice applies whether you're working with a friend, a relative, or even your own mother.

Some don't quite get why you need a written agreement if the person you're collaborating with is a close friend or relative.  And, maybe in many cases, it isn't absolutely essential.  Your mother isn't likely to try to cheat you, is she?  Well, most people's mothers, anyway.

But here's the part people usually don't think about...

You collaborate on a work of art with your mom.  There's no written agreement between you.  All goes just swimmingly...that is, until the day when, as is the ultimate finale for us all, Mom passes away.  At that point, what happens to all of Mom's stuff.  Well, it passes to her heirs, either through a will or trust or through the laws of intestate succession.  And, by "Mom's stuff," that also means any copyrights she holds at the time of her death.  Suddenly, part of the copyright on your joint artistic project belongs to someone other than Mom -- maybe a sibbling or sibblings; or Mom's spouse at the time of her demise; or someone else who, for whatever reason, has a claim on her estate.  Now suddenly you're in a joint authorship arrangement with someone you never intended to be a part of it, and your copyright (with all its accompanying rights) is being shared with that unintended partner.

Now that might all work out just fine.  But, then again, depending on who that unintended future partner is, it might not.

Moral of the story:  there are good reasons to have a written collaboration agreement with whomever you work...even Mom.

Okay, does anybody else see those Volkswagen "punch dub" TV commercials and think to themselves, "This is just begging to be the subject of litigation"?

Long ago, they did away with those cartoon Hawaiian Punch commercials.  (Remember?:  "Hey, how 'bout a nice Hawaiian Punch?"  "Sure!"  POW!)  I've lived under the impression that socking people in the nose for fun is no longer politically correct, and the soft drink's manufacturer probably didn't need the headache of dealing with people chanting that their commercials promoted violence and were a bad influence on impressionable children.

But here we are in the oh-so-PC 21st century, and an auto manufacturer has an entire ad campaign featuring the mostly forgotten "slug bug" game of the '60s where the idea was to punch your friend if you were the first to spot a VW Beetle.  Volkswagen calls it a fun, engaging way to reintroduce the VW brand to new markets.  (I suppose those new markets would be prize fighters?)

Okay, the people in the commercials are just actors, and no one's really getting hurt there.  But I've seen other commercials -- less flagrantly violent ones -- that have come under fire for promoting bad things.  And, if someone gets really hurt when his "punch dub" buddy gets a little carried away, is that injured person then going to have a lawsuit to file against Volkswagen for promoting unsafe behavior?  Is the person who gets sued going to blame VW for prompting him to do it?

Too silly even to consider, you scoff?  Well...Can you say "Twinkie Defense"?

In the battle for truth, justice, and the American way, comic book characters are often the source of legal conflict.  That’s because comic book sales are big business, totaling more than $400 million last year alone…and that’s not factoring in what happens when a character like Batman or Superman makes a splash in the movies.  Then you’re talking about potentially the billion dollar range.  So it’s no surprise that, when a comic book character becomes a break-out success, litigation can spring from those who claim that the people making all the money actually stole the idea for that character from the plaintiff.

But, just in case you were thinking that only the A-list biggies are worth fighting over, sometimes even the more minor, supporting characters can be fought over.  Case in point, the legal battle between former Spider-Man artist Todd McFarlane and science fiction writer Neil Gaiman.

In 2002, Mr. Gaiman sued Mr. McFarlane, his former collaborator, claiming he jointly owned the copyright on minor characters in the Spawn comic book series.  A jury in federal court found in Mr. Gaiman’s favor, and since then the two have been trying to calculate what Mr. McFarlane owes Mr. Gaiman.

Among the minor characters Mr. Gaiman recently claimed are his creation are what’s described as two avenging angels in armored bras and thong bikinis.  Let me tell ya…Nothing strikes terror into the heart of evil like a thong bikini.  But, whether these characters will be judged to meet the standards necessary for a copyright claim is something that may have to be decided by the court.

Typically, characters don’t qualify for copyright protection.  But superheroes are often such extreme examples of characters, that they sometimes can be copyrighted.

There have been many courtroom dramas on the American stage...and a lot of theater that's based on things that ended up in court.  This Sunday's Tony Awards ceremony includes nominations for a Broadway show that's based on one of the 21st century's truly big litigations.  I'm talking about the musical, Enron.

Based on the implosion of the Texas energy giant that redefined the term "corporate greed," Enron is up for four Tonys, including Best Original Score, Best Performance by a Featured Actor, Best Lighting Design, and Best Sound Design.  (You can check out the full list of nominations at the Tony Awards website.)

In addition to the plethora of news stories that the real Enron made when its business tactics were uncovered in 2001, you can be certain the company also made years of billable hours for the lawyers called in by several different parties on both sides of the legal complications (yours truly, among the countless many attorneys who worked on some aspects of the case).

Until it's time to render a verdict, Judges usually walk the line of neutrality while hearing a case.  But that doesn't mean a judge can't suggest that the parties try to work it out amongst themselves, and that's what a federal judge in New York has recommended in the much publicized case involving artist Shepard Fairey's "Obama Hope" poster.

Mr. Fairey has been at odds with the Associated Press, which claims the artist, in creating the poster, made an unauthorized copy of the A.P.'s copyright protected photograph of then presidential candidate Barack Obama.  Mr. Fairey has admitted that the poster was based on an A.P. photo.  He has also admitted that he originally lied about which photo he had used.

The New York Times reports that U.S. District Court Judge Alvin K. Hellerstein has urged the the parties to try to resolve the matter, and he is further reported to have said that the A.P. is eventually going to win, anyway.