Recent Articles in Media, Entertainment & Sports Law from LexMonitor

Bookselling Without Borders… Or Barnes and Noble

ppengelley@cozen.com (Pamela Pengelley) — Tue, 16 Mar 2010 12:17:19 GMT

Michael Geist has an article in the March 15, 2010 Toronto Star with which I find myself in total agreement. The specific issue is about the move by Amazon.ca to gain government approval to set up a physical operation in Canada, including assuming responsibility for distribution of its products – rather than outsourcing that distribution [...]

Michael Geist has an article in the March 15, 2010 Toronto Star with which I find myself in total agreement. The specific issue is about the move by Amazon.ca to gain government approval to set up a physical operation in Canada, including assuming responsibility for distribution of its products – rather than outsourcing that distribution through Canada Post.

Predictably, Canadian booksellers have objected and are lobbying the government against the Amazon proposal.

Over the last 20 years the world of bookselling has become increasingly borderless, with the result that more people than ever before are able to access more books than ever before, and at significant savings in cost – always a factor but more so than ever in these days of the world economic meltdown.

I well recall the day that the Borders bookchain opened its first Australian store, in about 1994, in Melbourne, not far from where I lived at the time. There was a massive outcry from Australian booksellers and chains. The end of the world – and their businesses – had arrived. So they said. While as patriotic as the next guy, as I browsed, open-mouthed, the stacks of that huge store (bigger than any bookstore I had ever been in), I shed tears of joy at the sheer range of books on the shelves. Titles I had never seen in an Australian bookstore. And you could buy coffee and wine and cake!

The result was not the death of Australian bookstores or chains, but a huge and much-needed shake up of the local industry. Competition, where none had existed before, drove this shake-up, and as far as I know, the industry is better off for it. Certainly the Australian book-buying public are better off.

Since then, the Internet has revolutionized book-buying, of both new books and second-hand and rare books. I am an avid browser in bookstores. But I also buy online. And here’s the thing. If I’m buying online I don’t care where the book comes from. I will shop around to get the best deal, which is surely the common practice. Amazon.com, Amazon.ca, Indigo.ca. Whoever has the best price, including postage of course, always a factor, is who I will buy from. More often than not, the source is actually Amazon.co.uk. The UK site has an awesome range; their prices, for some reason are often very good, postage rates to Canada are not at all bad – and if speed is an issue, mail, even surface mail from the UK, usually gets to Canada in half the time or less than something coming from the US (where doubtless everything is strip-searched, dog-sniffed, and read to make sure that Al Quaeda has not concealed anything between the pages).

Canadian booksellers raise concerns that, if they lose out to the Amazon behemoth, Canadian authors will lose out, local content will disappear. As a hope-to-be-one-day Canadian author myself (OK, Australian living in Canada author), I have no concerns on that score. Especially in light of the innovations that Amazon are making to encourage first time authors. Indigo, if they are serious about helping the local and promoting Canadian writing and publishing, would do well to take a leaf out of Amazon’s book. Stop whinging about competition. Embrace it. Beat it. We will all be better off for it.

This Week's Fashion Events: Fun, Facts and Fabric!

Mon, 15 Mar 2010 19:11:53 GMT

Hi Everyone! I hope you had a fabolous weekend and the time change isn't messign with you too much.

Have you finalized you plans for this weeK? If not, here is a quick reminder of some events you should attend:

The Los Angeles International Textile Show (also know as L.A. Textile 2010) starts today at the California Market Center ("CMC").

I am speaking at the following two seminars:

On March 16, 2010 from 3:30–4:30 p.m. I will present “Legal Strategies for a Profitable Fashion Business” in CMC, suite C786; and

On March 17, 2010 from 1–2:15 p.m., I will be part of the panel “How to Plan, Merchandise & Sell Your Products in a Slow Economy,” along with Dana Fried, Ken Wengrod, Sheila Hill and Bobby Hines, and moderated by Frances Harder of Fashion Business Incorporated in CMC 13th-floor penthouse, suite 19.

This Wednesday night, MARCH 17, 2010, at the STANDARD, Downtown LA, Fashion Group International of Los Angeles (FGILA) is hosting a Red Carpet Cocktail Event, saluting over 50 of LA's top fashion designers as they walk the red carpet with their celebrity/model muse.

The designers are being tight lipped about their escorts, but we already know that Natalie Cole and Jane Seymour are among the galaxy of stars walking arm-in-arm with their designer. With more than 50 designers under one roof... history will be made.

We are honored to welcome FGILA's most esteemed supporter, the legendary "godfather of LA fashion", Mr. James Galanos.

Australia's own, Katie Cole performing live at 8pm and DJ Ben Adams aka DJ Jag will spin a cool fashion beat throughout the evening.

For Tickets, RSVP here.

USF Contribution Factor - 15.3%

Fri, 12 Mar 2010 19:38:14 GMT

Today, the FCC released its proposed Universal Service contribution factor for the second quarter of 2010. As predicted, it is 15.3% The new rate will go into effect starting April 1, 2010.

DPPA: East Coast vs. West Coast Showdown?

Thu, 11 Mar 2010 20:05:26 GMT

Today, we have a guest post from Biana Borukhovich, Law Student at Touro College Jacob D. Fuchsberg Law Center, Author of "Fashion Design: The Work of Art That is Still Unrecognized in the United States," Wake Forest L. Rev. (April 2009) and founder and President of the Touro Fashion Law Society.

Biana has pointed out that in general, East Coasters favor the Design Piracy Prohibition Act ("DDPA"), while West Coasters are opposed (see Monday's Fashion Law Blog Post on DPPA here).

While the DPPA proposes to govern copyright law related to fashion, Biana thinks that violations of Trademark law, specifically counterfeits, give rise to the differences in attitude:

In the U.S., views about whether the Design Piracy Prohibition Act should be passed differ greatly from coast to coast. On the West coast, attorneys in the fashion industry believe that the bill will run many companies out of business, which in result, will devastate our declining economy even more. Conversely, attorneys on the East coast think the passage of this bill is necessary to protect designers and to avoid loss of tax dollars.

Although both sides have legitimate arguments, what is the real reason behind these differing opinions?

Perhaps it’s the annual amount of counterfeiting that each coast incurs. For example, in December 2009, New York City officials confiscated over $1 million in “knockoff” designer handbags, watches, and wallets in Chinatown.

In addition, roughly ten buildings along New York City's Canal Street housing over thirty counterfeit operators were shutdown for illegal sale of counterfeit items. On the other hand, this year, only four storefronts near Fisherman’s Wharf in San Francisco were closed down due to counterfeiting.

Statics show that there is a huge difference in the amount of counterfeiting that occurs from coast to coast. Therefore, I believe that it is a fair assumption that one community is more concerned over counterfeiting than the other, thereby giving rise to the major differences in opinion regarding the passage of the Design Piracy Prohibition Act.

Readers, what do you think? I look forward to your comments.

LA Textile Show: Your Opportunity to Source More Than Fabric!

Thu, 11 Mar 2010 03:14:28 GMT

If you are in Los Angeles and plan on sourcing fabrics or trims next week at the Los Angeles International Textile Show (also know as L.A. Textile 2010) at the California Market Center ("CMC"), I will there too!

I am honored to be speaking at the following two seminars:

On March 16, 2010 from 3:30–4:30 p.m. I will present “Legal Strategies for a Profitable Fashion Business” in CMC, suite C786; and
On March 17, 2010 from 1–2:15 p.m., I will be part of the panel “How to Plan, Merchandise & Sell Your Products in a Slow Economy,” along with Dana Fried, Ken Wengrod, Sheila Hill and Bobby Hines, and moderated by Frances Harder of Fashion Business Incorporated in CMC 13th-floor penthouse, suite 19

Please come by and say hello. This is a another good in-person networking opportunity as well as a chance for all you aspiring fashion lawyers out there to learn more about practicing fashion law.

Jury Picked and Trial Commences in SCO v. Novell UNIX Code Copyright Ownership Dispute

Wed, 10 Mar 2010 22:34:02 GMT

The back story to the dispute between The SCO Group and Novell, Inc., over the ownership of copyrights to UNIX source code is lengthy indeed. But we'll spare you the details and just say that the ownership of the copyrights is a critical issue because it is that very source code that underlies SCO's claims that the open source Linux Operating System infringes on its intellectual property rights, thereby obligating just about everybody who uses the Linux OS to pay royalties to SCO. So needless to say, the open source community is very interested in the outcome of the current trial in The SCO Group v. Novell, Inc., which commenced in U.S. District Court in Utah on Monday.

To briefly recap, the issue of code ownership is being resolved in a slander of title lawsuit brought by SCO against Novell, which formerly owned (and claims to still own) the copyrights in the disputed code. When SCO claimed ownership of the UNIX code in its lawsuit against IBM, Novell made public statements disputing SCO's ownership, thus the claim by SCO that Novell slandered its title to the code. District Court Judge Dale Kimball ruled in favor of Novell on the ownership issue, granting summary judgment dismissing SCO's claims. But last August, the U.S. Court of Appeals for the Tenth Circuit ruled that there were disputed issues of material fact that precluded the grant of summary judgment, and remanded back to the District Court. Judge Kimball recused himself and the trial is now being held before District Court Judge Ted Stewart.

Meanwhile, the main event, the SCO lawsuit against IBM, is being held in abeyance pending resolution of the code ownership issue. If SCO prevails against Novel on the issue of ownership of the code, then the litigation against IBM should be the next event. The allegations in that lawsuit are, in brief summary, that IBM misappropriated SCO's UNIX code and contributed it to the Linux operating system.

We cannot do justice to all of the ins and outs of the SCO v. Novell litigation, nor to the several related lawsuits, in a short blog post. But we can point you to the mother of all Web sites on the subject, www.Groklaw.net, that has been following these litigations in the greatest of detail since at least 2003. Be forewarned that the operator of the site has strong opinions on the issues, but whether you agree with those opinions or not, the site is an invaluable source of relevant documents and up to date information on the conduct of the trial.

The trial is scheduled to take three weeks.

Westmoreland Hall Maines & Lugrin secures $8.3 million negligence verdict for 2004 explosion at Pasadena warehouse fire

mike@androvett.com (Mike Androvett) — Wed, 10 Mar 2010 21:53:56 GMT

The March 2004 explosion at Control Solutions Inc. rattled Pasadena residents. More than 100 firefighters struggled more than 10 hours before containing the blaze, while state, local and federal environmental authorities worked to prevent air and groundwater contamination.

Six years later, a Harris County jury has ruled that an India-based chemical manufacturer, Gharda Chemicals LTD, and its U.S. subsidiary were to blame for the fire by selling metal drums containing components used to make pesticide that were contaminated with a flammable solvent. The jury issued an $8.37 verdict on behalf of Control Solutions Inc., which included $6.2 million in damages and $2.1 million for environmental cleanup costs.

According to the Houston Chronicle:
Shortly before the blaze, 32 drums of Chlorpyrifos were placed in a "hot box" in the Houston company's Pasadena warehouse for melting, based on procedures provided by the manufacturer, the statement said. During the melting process, the contaminated chemicals exploded and caught fire.
The flames spread quickly throughout the warehouse and Control Solutions' nearby office building, destroying virtually everything inside, attorneys for the company said. Harris County fire investigators determined the "hot box" to be the ignition source.
The fire not only destroyed the buildings, "but also threatened the health and safety of the surrounding area," said attorney George H. Lugrin, IV of Houston trial law firm Westmoreland Hall Maines & Lugrin, P.C., one of those who helped win the $8.37 million verdict. "Hopefully companies will now think twice before selling products that put us all at danger."
Mark Boyd, president of Control Solutions, also expressed his appreciation for the jury's decision.
"There are few things worse than watching your buildings go up in smoke," Boyd said in the prepared statement. "We have worked extremely hard to rebuild and grow our company and are looking forward to putting that terrible day completely behind us."
The fire took more than 11 hours to control with help from nearly 125 firefighters from the Pasadena, Seabrook, Deer Park and La Porte fire departments. Because the warehouse stored hazardous chemicals, the U.S. Environmental Protection Agency along with state and local environmental officials became involved in efforts to prevent groundwater contamination and to monitor air pollution.
Control Solutions continued its business operations following the blaze and has since rebuilt its production facilities and offices.

ENTERTAINMENT LITIGATION: LINDSAY LOHAN SUES E*TRADE FOR $100 MILLION

Wed, 10 Mar 2010 21:15:26 GMT

ACTRESS CLAIMS BABY GIRLFRIEND COMMERCIAL IS ABOUT HERActress Lindsay Lohan is once again in the news. This time, however, it's not because of what Lohan and her running buddies have done in some nightclub, or the latest in the ongoing...

ACTRESS CLAIMS BABY GIRLFRIEND COMMERCIAL IS ABOUT HER

Actress Lindsay Lohan is once again in the news. This time, however, it's not because of what Lohan and her running buddies have done in some nightclub, or the latest in the ongoing feud between Lohan and her father. Instead, Lohan has made the news by filing a $100 million lawsuit against the online stock trading company, E*Trade, over their "milkaholic" baby girlfriend commercial.

Lohan's break as an actress came in the 2004 motion picture "Mean Girls." After that film, Lohan tried to expand her influence into the music arena, releasing a couple of albums to mixed reviews. Lohan graced the cover of Vanity Fair magazine (right) with a pictorial spread that evoked images of Marilyn Monroe. However, instead of becoming a "triple threat" -- actress/model/singer -- Lohan has become more widely known for being fodder for tabloids and paparazzi. With stories about her lesbian lover and their widely reported breakup, stints in rehab, car accidents, public feuds with her father and "overexposed" pictures of Lohan all over the 'net, Lohan is now the symbol of young Hollywood and their unabashed desire to have a good time.

Now comes Lohan's latest foray into the news: a $100 million dollar lawsuit against E*Trade for their latest "baby" commercial. After the jump, I'll detail why Lohan's lawsuit has the feel of a publicity stunt. And if you haven't seen the commercial which debuted during the Super Bowl, you can view that after the jump as well.

LOHAN'S CLAIM IS WEIRD

The essence of Lohan's claims is that E*Trade's latest baby-talking commercial -- featuring a "milkaholic" female baby named "Lindsay" -- was about her. Lohan alleges that the ad violates her right of publicity -- her right to protect her name and likeness from unauthorized commercial use. In other words, Lohan's lawsuit alleges that E*Trade used her name -- "Lindsay" -- to capitalize on her fame and celebrity and imply an endorsement of E*Trade where none exists. Lohan and her lawyer seek $100 million in damages -- $50 million compensatory (i.e. actual damages) and another $50 million in punitive damages. Lohan also seeks to enjoin E*Trade from airing the commercial again. You can view the complaint (courtesy of TMZ) filed on Monday, March 8, 2010 here.

Lohan is going to have some issues with her claims. First, her lawyer will likely regret claiming that the E*Trade spot is a "parody" of Lohan. The Ninth Circuit has repeatedly recognized that a celebrity's right of publicity is subject to First Amendment limits when the use is "transformative." That means that if the offending use contains other elements, like parody, which transform that use beyond the use of the celebrity's name and likeness, then the publication is protected by the First Amendment. It's hard to believe that what Lohan's attorney admits is a "parody" would not be viewed as transformative. Lohan's claim is therefore barred by the First Amendment.

More importantly, Lohan's claim depends on her being recognized "by one name only" -- Lindsay. Lohan's lawyer claims that Lohan has achieved such single name recognition -- like Madonna or Oprah. That argument seems preposterous on its face. Searching the imdb.com database of entertainment-related names for "Lindsay" does not generate a result with Lohan's profile. You can view the five results for yourself here. Indeed, when the spot premiered during the Super Bowl, I didn't think of Lohan when the spot used the name "Lindsay." If "Lindsay" does not bring Lohan instantly to mind, then E*Trade cannot be said to be using Lohan's name or likeness in the ad.

THE LIKELY RESULT

Whatever prompted Lohan and her lawyer into suing E*Trade, the likely result of this case will not be good. If Lohan continues with her claim, I am confident that a competent defense will be mounted and that the case will be dismissed. Lohan filed this case in New York. Had she filed this case in California, the repercussions from this filing would include the likely award to E*Trade of its attorneys fees in defending this meritless case. Claims for misappropriation under California's statutory scheme would result in attorneys fees and costs awarded to the "prevailing party." I previously warned of potential "blow back" -- unintended negative consequences -- resulting from filing weak lawsuits to protect celebrity clients. This is one of those cases.

I predict that Lohan will quietly dismiss this case soon -- before E*Trade has to defend itself. If she doesn't, then the consequences may be as entertaining as some of Lohan's other forays into the press -- at least to us lawyers.

Wake Up and Smell the Threats: Two Recent Examples of Why Municipalities Need Cyber Insurance

ppengelley@cozen.com (Pamela Pengelley) — Wed, 10 Mar 2010 16:56:53 GMT

Odd as it may seem to those of us who live and breathe cyber, tech and privacy insurance, I have heard anecdotally of municipal authorities who profess that their cities and towns do not need to incur the expense of buying cyber insurance. “Why do we need it? We don’t operate on the internet,” they [...]

Well, my response is “why don’t you think you need it?” Do you maintain a bank account? Do you store personally identifiable information about private citizens, whether in your property records, police files, tax databases or otherwise? Are your employees able to access your municipality’s computer systems remotely? Is it really possible that every single piece of information you maintain is recorded on paper and nothing is stored on a mainframe, whether located on- or off-site? Come on. Its 2010. That’s virtually impossible, isn’t it? Haven’t you read my December 23, 2009 post “No One is Immune. Even Government Entities Need Cyber/Tech Insurance.” Since that posting, additional municipalities have suffered cyber attacks and been the subject cyber lawsuits.

Most recently, hackers broke into a bank database and stole $378,000 in funds from the Town of Poughkeepsie, New York. Shortly thereafter, leaders of the neighboring City of Poughkeepsie, New York (same name, but this one’s a City) authorized the purchase of cyber insurance with a minimum policy limit of $500,000. According to the City’s mayor, it will be one of the first municipalities in its area (the Hudson Valley, north of New York City) to purchase such insurance. (I guess that officials in the other local towns and cities and their brokers don’t read this blog. Shame on them). Needless to say, if I was a broker or underwriter, I’d descend on the region and market the need for cyber insurance till I dropped. To their credit, officials in the City of Poughkeepsie also announced that they were increasing the limits on their employee theft (fidelity) insurance from $25,000 to $100,000 per occurrence and their separate theft coverage from $100,000 to $500,000 per occurrence for certain City officers, at an added cost of a reasonable $10,000 premium Smart, prudent and forward thinking. (Now, about that name).

While this was going on, my own local municipality, Lower Merion Township, Pennsylvania, was involved in its own brouhaha. If you haven’t heard (and, to be honest, who hasn’t heard), the Lower Merion School District provides all of its approximately 2300 high school students with an Apple laptop. (No wonder my taxes are so high). What school officials didn’t do was notify students and parents that the laptops had built-in cameras which school officials could turn on and off without warning. While officials say this system was used only approximately 43 times, and only when the computers were reportedly lost or stolen, the use of the system on one occasion has lead to the filing a federal court class action lawsuit, purportedly brought on behalf of all Lower Merion high school students. Many local students and parents with whom I have spoken are not necessarily in favor of this lawsuit (I’ve heard comments like: “all I’m doing is paying lawyers… at the expense of increased taxes…” and “I’ll be taking money out of one pocket and putting it into the other…” and “the school district didn’t mean any harm; they were just protecting their property…”); nonetheless, it has caused the Township to hire Big Firm lawyers to investigate the situation and deal with the fallout. To the point, even if the School District didn’t do anything wrong, or simply made a mistake, the attorneys’ fees alone likely will run into the six figures. (My tax dollars at work). Would cyber insurance cover such an incident? Perhaps, depending on the facts and the coverages purchased. It certainly wouldn’t hurt.

In short, these latest incidents further highlight the need for underwriters and brokers to get out there and market cyber/tech/privacy insurance products to municipalities and other public institutions. How could the City of Poughkeepsie be one of the few communities in the Mohawk Valley to purchase such insurance? The Valley is an hour or so outside of New York City, as close to the insurance capital of the U.S. as one can be. And its communities are un- or underinsured? Seriously? Needless to say, there must be similar pockets of Americana which are similarly uninsured. In this age of computer crime and the ease with which insurance professionals can communicate with distant clients, it shouldn’t be difficult to get the word and the products out. In other words, let’s all get to work.

Three Keyword Rules for Law Firm Websites

geri@legalmediamatters.com (Geri L. Dreiling) — Wed, 10 Mar 2010 14:29:36 GMT

Prospective clients use keywords to find lawyers and get answers to their legal questions. For organic search engine results — those listings that appear on pages that are not ads — keyword usage is essential. Follow these three rules when preparing your legal content to give your law firm's website a search engine boost.

Follow these guidelines for search engine–optimized legal content

Geri L. Dreiling

When computer-assisted legal research was introduced, many law students learned the importance of search terms. If you understood how they worked and which ones to choose, your odds of quickly finding relevant, on-point case law improved.

Keywords are also search terms, but, instead of researching cases, prospective clients use them to find lawyers and get answers to their legal questions. For organic search engine results — those listings that appear on pages that are not ads — keyword usage is essential.

When it comes to legal content writing, follow these three keyword rules:

Research your keywords.
Use your keywords.
Assess the performance of your keywords.

1. Research your keywords.

Whether you’re trying on clothes or coming up with keywords, one size does not fit all. Practice area, geographic location and even your competition may help determine which keywords are best for your website’s legal content.

For example, the keyword “attorney” may be more often searched in Missouri, whereas “lawyer” is the preferred search term in New York. The word “attorney” may be used more often with some types of practice areas.

Keyword research can also reveal which term your competitors prefer. Legal Media Matters has sometimes found that law firms in a given region prefer using “attorney” on their websites but “lawyer” is the more frequently searched term. That means that favoring “lawyer” may give you a search engine boost.

In our recent blog post “Attorney Websites: Seven Tips for Legal Content Writing,” we highlighted three free keyword websites that will allow you to perform some basic research: Google Insights, Wordtracker and Google AdWords.

There are additional fee-based options. At Legal Media Matters, we provide a more comprehensive in-depth keyword research and competition analysis for our clients.

2. Use your keywords.

Keyword research will help you identify main keywords, main supporting keywords and long-tail keywords.

Your main keyword phrase is the one that should be most heavily emphasized on the page. The main keyword might be emphasized anywhere from four to 10 times in a 500-word text.

For example, if you’re writing a web page about boat accidents, the best main keyword phrase could be “boating accident attorney.”

The main supporting keyword phrase comprises words that also receive some search queries. Using them can help improve readability and present more search engine opportunities.

For the boating accident web page, a supporting main keyword phrase might be “boating accident lawsuits.”

A long-tail keyword phrase contains more than three keywords. Although searches involving the long-tail keywords are less frequently found, they still provide good search engine opportunities. And because the people using the long tail keyword phrase know what they’re looking for, they may be more likely to become clients.

One example of a long-tail phrase is “boating accident victim compensation.” A sentence including that phrase might read: “For a boating accident victim, compensation and reimbursement for medical expenses may be a primary concern.”

Incorporating the main keywords, supporting keywords and long-tail keyword phrases into your legal content is important — just don’t forget that readability for your clients cannot be sacrificed. Balancing the twin aims of being found on the Internet and then converting those searches into inquiries is, admittedly, a challenge. The fact that legal concepts are discussed can further complicate readability.

At Legal Media Matters we’ve found the best solution for balancing the sometimes competing interests is to subject the text to an independent copyedit before it is published.

3. Assess the performance of keywords.

You’ve done your keyword research and incorporated the terms into your legal content. Now you must determine whether they’re effective.

Most programs, including Google’s free analytics program, record the keywords that lead people to your website. Are the keywords people are using the ones you optimized your text for initially? Are some keywords performing better than others? Which keywords are better at keeping people on your site longer?

If you find some pages working better, you may be able to use that information to boost your underperforming pages.

Do you follow any special keyword rules when writing your legal content? If so, let us know.

To learn more about our keyword research or legal content writing services, contact Legal Media Matters via our online contact form or email geri@legalmediamatters.com.

If you're looking for more legal content writing, PR or marketing tips, subscribe to the Legal Media Matters email alerts: Get articles via e-mail

A Special Thanks

A special thanks to lawyer and tech blogger Nicole Black, who, in honor of International Women’s Day, highlighted women who blog about law and technology for Blawg Review. I’m excited to have been listed for my legal content writing tips.

New FTC Commissioners Confirmed

Tue, 09 Mar 2010 20:58:38 GMT

It has been quiet on the FCC front as all hands seem to be focused on the upcoming National Broadband Plan. In the meantime, I didn't want this development at the FTC to go unnoticed. Our firm's sister blog, Adlawaccess, provided this report on the confirmation of two new Commissioners. A statement by the FTC Chairman is available here.

With the FTC active in enforcement on prepaid card and mobile marketing matters, and with the FTC seeking an end to the "common carrier exception" to its jurisdiction, it is worth monitoring activities at the FTC.

FGILA Red Carpet Fund Raiser: Meet the Designers

Tue, 09 Mar 2010 19:23:09 GMT

Last October, Fashion Group International of Los Angeles (FGILA) kicked off LA Fashion Week with a spectacular event called…MEET The Designer & The Muse THAT INSPIRES THEM…

It was historic … as it was the first time ever, to have so many fashion artists in the same room or in this case roof-top of the spectacular STANDARD, Downtown LA! The overwhelming positive media coverage and response from everyone involved and ultimately the success in raising integral funds for the Scholarship Program for the FGILA Foundation has prompted our organization to present this event bi-annually, to coincide with the launch of the LA Fashion Week Programs across our city.

And guess what? We are doing it again on MARCH 17, 2010. And you don't want to miss your chance to mix and mingle with LA's top designers!

Who: you. mixing and mingling with LA's top designers and the muse that inspires them
Where: The Standard, downtown LA
When: March 17, 2010
RSVP: here
Ticket prices are as follows:

It is shaping up to be a fabulous event and I hope to see you there!

The Need for Lawyers to Learn the Ground Rules of Talking to Reporters

Tue, 09 Mar 2010 13:52:09 GMT

Lawyers can get better access to all the facts and documentary evidence than non-lawyers because they enjoy the protection of the attorney-client privilege—i.e., they cannot be compelled to testify concerning their legal advice to their clients, or the knowledge they obtain in the course of being able to provide such advice, or the documents they review in determining those facts.

By contrast, non-lawyer advisors, even those public relations firms retained by law firms to assist in litigation, do not share this protection: their documents may be subject to a “qualified” privilege, but there may be occasions when, notwithstanding that privilege, they will be forced to disclose to the opposition their written advice and strategic documents provided to lawyers that have hired them. And in any event, they will almost never be given the protection of the attorney-client privilege to avoid testifying to conversations to which they have been privy because, as non-lawyers, they cannot claim to be rendering legal advice. Indeed, if they are present while lawyers are providing such advice to clients, they may actually create a waiver of the privilege, leading to the horrifying possibility that even the lawyers and clients may be forced to testify as to what was discussed.

Thus, lawyers need to learn how to talk to the media directly. They have access to the facts and for that reason are more credible in the eyes of many reporters. They also know the legal issues and risks involved in the litigation and won’t be as likely to make an error that could lead to a damaging public comment that prejudices the case. And most importantly, they can work with the client and other lawyers to develop a believable message, based on the facts, that can drive and command the message in the media, correct factual distortions pushed out by the other side and avoid poisoning of the jury pool.

But in order to be most effective, lawyers enjoying the benefit of the privilege must learn the basic ground rules for talking to the press. This will be a first in a series of blog posts explaining both the ground rules as well as the special vocabulary and techniques for being most effective in talking to reporters.

For now, let’s start with four voices that can be chosen and, once chosen, must be agreed to ahead of time by a reporter and/or his or her editor.

First, “on the record” means speaking with attribution, a name and identification as the lawyer in the case.

Second, “on background” must be defined ahead of time, since many people, reporters and non-reporters alike, mean different things by this expression. The best definition should be “on background—by this I mean you can use my quotation, but identify me only as a ‘spokesperson’ or ‘lawyer for’ and don’t mention my name.”

This is often confused with the third expression, “deep background,” which is why both the second and third must be defined and agreed upon by the lawyer and the reporter before proceeding. “Deep background” means “you can use my facts as long as you do not attribute them to me, or if you have to use any attribution, then you can use something anonymous like a ‘knowledgeable source’ or ‘source familiar with the situation.’ Or you can use the fact without any attribution at all and confirm the fact with others.”

Finally, there is “off the record.” Many people use that expression to mean “on background” or “on deep background.” It is highly recommended that “off the record” be followed by this statement: “You must agree that you cannot use what I say at all unless I change the ground rules and allow you to. You cannot mention the substance of what I say to anyone or that I am saying it. I am telling you this only for your own understanding and for no other purpose.”

In other words, don’t use “off the record” if you can avoid it. And if you must, use it only to explain a complicated problem that you don’t want to see in print at that moment in time.

On the other hand, we advise that even if you decide to use “off the record” and fully trust the reporter or editor who agrees to that ground rule, always be careful since many reporters, even in good faith, might unconsciously repeat the information and not even realize they are violating the ground rule. Thus, we always assume that even an “off the record” comment might be repeated or used, so we never use this expression to communicate something that is not a fact that can be documented and proven.

In subsequent postings, we will offer examples of the use—and misuse—of these different voices, as well as vocabulary that should be used and communication techniques that work best with reporters.

Ben Roethslisberger's Sexual Assault Accusations Not Good for Business

Mon, 08 Mar 2010 20:32:24 GMT

On March 5, 2010, ESPN.com reported that Pittburgh’s Steelers Quarterback Ben Roethslisberger was accused of sexual assault at a Georgia nightclub that allegedly occurred in the early hours of Friday morning. Roethslisberger is also being sued by a Nevada woman, who claims he raped at a Lake Tahoe hotel in 2008, which he has counterclaimed for damages.

Regardless of the veracity of these allegations, Roethslisberger’s image will likely be affected. He’s now part of the list of renowned athletes, such as Kobe and Tiger, who have faced accusations of sexual misconduct. The two-time Super Bowl Champ has endorsements with Nike and Dick’s Sporting Goods. According to the online Pittsburgh Post-Gazette, in 2009, Ben received $2.5 million from endorsements out of his $15.3 million annual income. Yet his reputation appeared unaffected from the 2008 rape allegations.

Ben has confronted these accusations head on as soon as they arise. It appears that other athletes may benefit from Ben’s approach of grabbing the bull by the horns right away. As a Zen-Buddhist would say, it is better to solve big problems while they are still small.

"LOOK:" Oscar Night Fashion and DPPA is Rising from the Dead

Mon, 08 Mar 2010 17:11:01 GMT

The best part of the Oscars is the fashion. While there were definitely some misses last night, and some boring entries, my favorite look was Sandra Bullock's metallic Marchesa gown. And for the record, she is one of my favorite actress ~ I am SO glad she won (Best Actress for The Blind Side in case you turned if off after the red carpet)!

On an interesting side note, Fashionista has a story this morning, listing this dress as Five Oscars Dresses ABS by Allen Schwartz is Bound to Knock-Off.

Companies like ABS and designers like Allen Schwartz are part of the reason New York Senator Charles Schumer is preparing to re-introduce the Design Piracy Prohibition Act, reports the Boston Globe yesterday in a story titled, "If the shoe fits, they’ll copy it."

This is Schumer's FOURTH attempt at getting new fashion copyright legislation into congress, which some believe is due to pressure from campaign contributor Barry Diller and his wife, Diane Von Furstenberg, who is president of Council of Fashion Designers of America ("CFDA").

This time, Schumer is being aided by Jeannie Suk, Harvard Law professor and co-author of Standford Law Review article, "The Law, Culture and Economics of Fashion," in which a new fashion copyright infringement standard is proposed. (because substantial similarity wasn't difficult enough for judges or Nimmer, see section 13.03).

Suk, and her co-author C. Scott Hemphill, propose that fashion designs will be "infringing" i.e. an illegal knock-off if they are a "close copy" or are not "substantially dissimilar."

WHAT DOES THAT MEAN?! And how in the world will judges figure that one out? Is a "style guide" included in the Act?

As a practicing fashion lawyer, litigator, former COO of apparel companies and the fourth generation of my family to work in fashion, law professors and politicians with no hands-on fashion industry experience should not be allowed to "fix" something that they have no practical knowledge of.

This proposed legislation will do nothing but hurt the $350 billion dollar United States Fashion Industry. Doesn't Schumer know the rule, "three strikes, and you are out?"

Stay tune for more on why the DPPA is a VERY BAD IDEA and will only harm the fashion industry.

Photo Credit: Fashionista.com

Divorce, Facebook Style

mike@androvett.com (Mike Androvett) — Fri, 05 Mar 2010 22:05:58 GMT

The time-tested vow for married couples to stay together "until death do us part," is increasingly colliding with social media networks. One recent study of 5,000 divorce filings found that one in five lawsuits mention Facebook. Brad LaMorgese of Dallas-based McCurley Orsinger McCurley Nelson & Downing says Web sites such as Facebook provide wayward spouses an easy way to rekindle with former flames, while online communications create digital trails of deceit. And after a breakup, couples often tussle over who gets to maintain shared networks of online friends and acquaintances.

"Social media is becoming really relevant to our practice," says LaMorgese. "We see people trying to lock their spouses out of their online networks. We'll get discovery to see what they've done to their pages and find that they're posting updates about their new boyfriends or girlfriends while they're still married."

Writes Time magazine: Battles over finances and custody remain the Iwo Jima and Stalingrad of divorce cases. Opposing lawyers will press any advantage they have, and personal information on sites like Facebook, MySpace and LinkedIn is like decoded bulletins from enemy territory.

Half the fun of social-networking sites is the posting of personal news. The other half is the posting of personal opinion, something spurned spouses typically have in spades. MySpace and its ilk offer the giddying cocktail of being able to say something in the privacy of your home that will be publicly accessible, along with a chaser of instant gratification. All this at a time when people are often less than their best selves. On the walls of two Facebook groups - I Hate My Ex-Husband and I Hate My Ex-Wife, which together had been joined by 236 Facebook users as of early June - posts include all manner of (often misspelled) vitriol, including some colorful British slang: "my husband is ... a dirty smelly chavvy theivin alcoholic drug addict selfish scum bag" and "my ex wife is a no good lieing slag," each of which was posted alongside a smiling photograph of the commenter.

Fashionable Friday: Recommended Reading

Fri, 05 Mar 2010 20:15:21 GMT

Here's what I am reading this week:

Genius is misunderstood as a bolt of lightning [Seth's Blog]

Are you a Leader or just a Boss? [The Practice of Leadership]

The Impact of Bloggers on New York Fashion Week and How Businesses Spend Their Social Media Dollars [FMM]

A Lawyer's Misery For Sale on Craigslist, The Disappeared: Slackoisie and Lost (tip:do not read this and drink liquids at the same time) [Simple Justice by @ScottGreenfield]

Personal Brands: Don’t Pack More Than You Can Carry [Personal Branding Blog]

The Assault On Anywhen and then the follow-up: The Anywhen Manifesto [both from ChrisBrogan.com]

Advertiser Protection under CDA Section 230 for User-Generated Online Contest Submissions Will Go to Jury

Fri, 05 Mar 2010 13:51:32 GMT

A hard-fought battle between two sandwich franchises has yielded an opinion dealing with the application of Section 230 of the Communications Decency Act to videos submitted as part of an online contest. The result is an unusual ruling that sends to a jury the issue of whether the advertiser that sponsored the contest was an "information content provider" with respect to the videos, and thus is ineligible for CDA Section 230 protection. Doctor's Associates v. QIP Holder LLC, 2010 U.S. Dist. LEXIS 14687 (D. Conn. Feb. 19, 2010).

The dispute between the Subway sandwich franchise (Doctor’s Associates) and the Quiznos sandwich franchise (QIP Holder) stems from an advertising campaign that commenced in 2006. Quiznos sought to compare the meat content of certain of its sandwich products to comparable Subway offerings, and fashioned a campaign that included television advertisements and an online video contest that solicited submissions from users who were asked to create a video demonstrating "why you think Quiznos is better." The contest Web site was hosted at a domain, "meatnomeat.com," which featured four sample videos prepared by the advertising agency that fashioned the campaign and also displayed user-generated videos that Quiznos and its advertising agency deemed to satisfy the contest rules.

Subway brought an action against Quiznos and iFilm, which partnered with Quiznos on the video contest, under the Lanham Act for false and deceptive advertising and various related state law claims, alleging that, in brief summary, the tv ads, the sample videos and the user-submitted videos unfairly compared its products with Quiznos products. On Quiznos’s motion for summary judgment, the court found numerous issues of material fact, including on the issue of whether Quiznos made false representations in connection with the Internet portion of the campaign.

With respect to the user-generated videos, Quiznos argued that it was immune from liability under CDA Section 230 because the contestants were the exclusive creators of the videos, and that Subway sought to hold Quiznos liable as a publisher of those videos in contravention of the proscription in CDA Section 230(c)(1) against treating a provider or user of an interactive computer service as the "publisher or speaker of any information provide by another information content provider." Subway argued that Quiznos went beyond the role of a traditional publisher in that it solicited disparaging material and shaped the ultimate content of the videos such that it was "responsible" for the creation or development of the content.

On this issue, the court referenced the opinion in MCW v. badbusinessbureau.com, 2004 U.S. Dist. LEXIS 6678 (N.D. Tex. Apr. 14, 2004), which featured that perennial CDA Section 230 litigant, the RipoffReport Web site and its operator, Ed Magedson. The MCW ruling is one of the very few of the many brought against the RipoffReport (a/k/a badbusinessbureau.com, Xcentric Ventures) in which the plaintiff survived a pre-trial motion brought pursuant to CDA Section 230.

The court In Doctor's Associates v. QIP concluded that it is "unclear" at this stage of the litigation whether Quiznos went beyond the traditional role of a publisher with respect to the contest videos and "actively participated in creating or developing the third-party content" and thereby went beyond the traditional role of a publisher with respect to the contest videos:

In MCW, for instance, the operator of a consumer complaint website was found to have gone beyond the traditional publisher's role because they "actively encourage, instruct, and participate in the consumer complaints posted on the websites" by, inter alia, encouraging consumers to take pictures of a company's owner and offices for posting on the website. 2004 U.S. Dist. LEXIS 6678 at *34-*35. In the MCW Court's view, by actively soliciting disparaging material, the defendants went beyond the publisher's role and "incurred responsibility for the information developed and created by consumers." Id. at *35.

Here, the Defendants invited contestants to submit videos comparing Subway and Quiznos and demonstrating "why you think Quiznos is better." The domain name used to solicit entrants for the Contest, "meatnomeat.com," is arguably a literal falsity because it implies that the Subway sandwich has "no meat." In addition, the four "sample videos" designed by the Defendants to shape the Contest submissions arguably contain false representations because they depict the Subway sandwich as having no meat or less meat than a Quiznos sandwich. In these circumstances, the Court cannot conclude, as a matter of law, that the Defendants are not responsible for the creation and development of the contestant materials. Whether the Defendants are responsible for creating or developing the contestant videos is an issue of material fact, best submitted to the jury after viewing all of the relevant evidence. A reasonable jury may well conclude that the Defendants did not merely post the arguably disparaging content contained in the contestant videos, but instead actively solicited disparaging representations about Subway and thus were responsible for the creation or development of the offending contestant videos. FN 5

FN 5:

As the MCW Court explained, the CDA "does not require a court to determine only whether a party creates or develops the information at issue. Being responsible for the creation or development is sufficient." 2004 U.S. Dist. LEXIS 6678 at *35 n.12. "This distinction is significant because a party may be responsible for information created or developed by a third party without actually creating or developing the information itself." Id

Lanier Law Firm's Toyota lawsuit invovles UT student's terrifying crash

mike@androvett.com (Mike Androvett) — Thu, 04 Mar 2010 20:57:56 GMT

Amid thousands of accounts of sudden acceleration involving Toyota vehicles are tragic stories like that of 22-year-old University of Texas student Anna Pham. Pham's mother, a Vietnamese immigrant, saved for years to purchase the 2008 Toyota Camry for her daughter. In December, Anna was backing out of a parking space at an Austin shopping center when the accelerator revved, causing the car to shoot backward and crash into another car. Anna suffered injuries to her face, chest, shoulder and leg.

Attorneys with The Lanier Law Firm and The Tammy Tran Law Firm have filed a lawsuit against Toyota Motor Corp and the dealership where the car was purchased, The Auto Spot. "A car is not a cheap little piece of equipment," says attorney Mark Lanier, founder of The Lanier Law Firm. "It costs a lot of money and it ought to at least have the same safety features that you have in a blowdryer to keep it from frying you if it drops in a bathtub."

The Lanier Law Firm is handling more than 300 cases against Toyota for clients in California, New York and Texas. Mr. Lanier has served as a national commentator on Toyota's problems on both CNBC's "Squawkbox" and Fox Business Network's "Varney & Company," where he stated, "Juries tend to penalize corporations when they place profits ahead of the consumer's safety." His views also have been featured in a commentary published by FOX News.

Toyota has recalled more than 8.5 million vehicles covering 17 different models, including recalls based on unexpected acceleration, faulty floor mats, brake problems, drive shaft malfunctions, and other problems. The National Highway Traffic Safety Administration has recorded 34 deaths attributed to unintended acceleration in Toyota vehicles. Mr. Lanier says Toyota has not responded to his call for an investigation of whether the recalls are a process problem, such as malfunctioning electronics, rather than a parts problem like faulty floor mats. In January, Mr. Lanier won a $56.3 million verdict against heavy equipment manufacturer Caterpillar Inc. in a vehicle defect case.

"There are a lot of the same issues in this case," says Mr. Lanier. "We have a company that knew it had a problem and did little to nothing to fix it while customers suffer the consequences."

Designers Take a "Clue" from the Movies for Fall 2010

Thu, 04 Mar 2010 19:20:28 GMT

Over at Fashionista, Kate Kaunitz posted, An Ode to Clueless yesterday, which included a quote from Fashionista editor Lauren Sherman:

"It’s safe to declare AW10 the season of Clueless.”

The debate on where trends come is fascinating. It seems that the majority of people polled would say trends come from:

designers;
celebrities; or
the street.

Well, in for Fall 2010, it looks like many designers have looked to the movies and channeled their inner Cher Horowitz, including Miu Miu, Alexander Wang, Proenza Schouler, Prada, Jil Sanders, and shoe designer Robert Clergerie.

I agree with Fashionista: film has a tremendous impact on fashion. I loved Clueless and the trends it inspires. Remember the effect Flashdance had on fashion in in the eighties?

What is your favorite "fashion" film or favorite film inspired trend?

photo credit: fashionista

ps -- I would be remiss not to mention how sad I am over the tragic loss of Brittany Murphy. She was just genius in this movie and I was a big fan. She will be missed.