Copyright and Trademark Law The Uncomfortable Interfaceopyright and Trademark Law The Uncomfortable

Good morning, everyone, and thank you for attending today's CLE webinar on Copyright and Trademark Law: The Uncomfortable Interface. Your presenter today is Mr. Mark Lee. Mr. Lee is partner at Raymond B.C. and the author of Entertainment and Intellectual Property Law, Thomson Reuters, 2018. He specializes in entertainment and intellectual property litigation and counseling in the entertainment and high technology industries and has represented clients as diverse as Elvis Presley Enterprises, Frank Sinatra Enterprises, Brian Wilson, Steve Perry, Neil Young, Doris Day, the Robin Williams Trust, the heirs of John Steinbeck, Larry King, Ticketmaster, Sony Pictures Entertainment, MGM, Motorola, and others. If you have any questions during the presentation, please type them into the Q&A box. Please direct them to the panelists, and questions will be answered at the end of the webinar. A code will be shown during the presentation. It's very important that you write it down, as it will be required in order to claim your CLE certificate. After the presentation, we will email you with instructions on how to do so. This presentation will be recorded for your records and be posted on our website for future reference. I will now give the floor to Mr. Lee.

Thank you. Good morning, everybody. Yes, today we're going to talk about a couple of old friends, copyright and trademark law. They usually get along pretty well together. But as we'll see, there sometimes can be problems, especially when one tries to use one of those intellectual property— disciplines to protect something that the other intellectual property discipline would permit. So let's see if we can get ourselves started here. Okay, there we go. Okay, here we go. So first, I'm going to revisit briefly copyright and trademark law individually. What is copyright? What does it protect? Most fundamentally, copyright law protects what you create. It protects original works of authorship reduced to a tangible medium of expression in the language of the copyright statute. It does not protect However, ideas, other related elements within a work, it doesn't protect short phrases. It doesn't protect titles. It doesn't protect everything in connection with the work, but it does protect many elements. Well, what are the sorts of works that copyright law can protect? As you might expect, a Broadway, things you would expect, books, songs, sound recordings, plays, dances, motion pictures, sculpture, art, architectural works, video games, websites, translations, magic tricks, computer games. Copyright law is a very— provides very broad protection indeed for many sorts of works in both the entertainment and high-tech industries. Trademark law protects something very different. Trademark law essentially protects what you symbolize. It symbolizes a company's or individual's goodwill. It identifies where goods or services come from. And it signifies a predictable level of quality. If you're in the market for a high-quality handbag and you see the Louis Vuitton logo symbol on a product, one will have certain expectations about the quality of product you're going to be acquiring. Now, trademarks can protect all sorts of different things too, and all sorts of different symbols can qualify as trademarks. Words, most obviously and very commonly, can be trademarks. Numbers alone can qualify as trademarks. A slogan can be a trademark. Other sorts of symbols, such as the symbol associated with the artist formerly known as Prince. Geometric shapes can be trademarks. Colors alone can qualify as trademarks in certain circumstances. Think of the McDonald's orange color. Musical notes and sounds can qualify. NBC famously has the 3-tone sound that it makes in connection with its Peacock logo. Or the beginning of Law and Order, there is a certain sound that appears. Smells can actually qualify as trademarks. Moving images can qualify as trademarks. So they can be tricky to register. The Patent and Trademark Office doesn't know what to do with them very well. But think, for example, of the MGM roaring lion logo that has appeared at the beginning of MGM Motion Pictures over the decades. That would be an example of a moving image mark. And a person's name, a person's image, a person's voice, or some other indicia of the person's identity, which you could call a persona, might also qualify as a mark. Same with fictional characters. And now you see posting up some of the sorts of things that can qualify as marks. The number 24 from the former Fox television series. An iconic image of Marilyn Monroe. An image of the fictional character Zorro. Apple computer. Other sorts of things. All of those qualify as trademarks. Now, people, parties, rights owners often want to claim that someone else has infringed their copyrights and/or their trademarks. So the question becomes, can you do that? If so, in what circumstances? What happens if one party owns the copyright or a copyright while another party owns a trademark and what is allegedly the same image? How do all these these principles interact. And there are 3 basic rules which I think are fairly generally applicable to this area and which can help guide you as you try to navigate these differences. First, the same conduct can violate both copyright and trademark law. That doesn't— it's not a, I don't think, a controversial idea. But one that bears repeating for reasons I hope will become obvious here in a few minutes. Next, courts sometimes don't like using trademark law to protect copyrightable communicative products, especially when copyright law would permit the use. In other words, courts really don't like it when someone, when copyright law would allow what a defendant is doing, but a plaintiff tries to say, well, wait a minute, maybe they're not violating my copyright when they do that, but they are violating my trademark rights. And we'll discuss that more in a minute too. And third, there's yet a different situation where someone creating a copyrightable work will want to use someone else's trademark within the body of the copyrightable work or as part of the title of the copyrightable work. When can you do that? Well, courts have discussed the issue fairly extensively. The problem is they've arrived at a series of approaches, some of the approaches apparently inconsistent, to determine when someone else's trademark can be used in a copyrightable work. Without violating the Lanham Act. Okay, so let's look at how each of these basic principles can play out in some fairly common circumstances. Here's a case, Warner Bros. Entertainment versus X1X Productions. The case involved a company, X1X, which thought it had a better idea. X1X went around and dug up publicity photos mainly, or sometimes movie posters, and would do some due diligence to see if those particular images were still protected by copyright law. As you probably know, during the 1930s, 1940s, for decades in the US, in order to maintain copyright protection and otherwise protectable images, it was necessary to include a copyright notice on a work when it was published. If you published a work without putting a copyright notice on it, the work would be injected into the public domain for copyright purposes. Further, even if you did include a copyright notice on an image, you had to register the work within 28 years or the work would be injected into the public domain for lack of registration. In addition, you had to register the work again in the 28th year in order to obtain a renewal registration. To obtain extended copyright protection, all of which meant that if a copyright owner was not extremely diligent, the owner could lose copyright protection in a particular image fairly easily. So what X1X Productions discovered was that the studios were not always so careful with regard to maintaining the copyright in movie posters and publicity photos related to major motion pictures. And they would then thus find some particular image that they concluded was in the public domain. They would take the image. They would digitize it. They would, quote, clean it up. They would improve it, quote unquote. And then X1X would claim a new copyright registration in the digitally improved image they had created. After they did that, they would go off and start licensing the image to third-party merchandisers. Well, as one might expect, this did not go down very well with the studios, and Warner Brothers sued for X1X Productions' use of the formerly public domain before being digitally improved and re-registered for copyright images from Gone with the Wind, The Wizard of Oz, and Tom and Jerry. When Warner Brothers sued X1X Productions, they had a number of defenses, but among them were, hey, wait a minute, we own the copyright in our images. And as a copyright owner, we have the right to commercially exploit our images, and that's all we're doing. And therefore, we cannot be liable for trademark infringement, or for that matter, for copyright infringement, because we are the copyright owner, and these particular images which we took came from the public domain. Well, the trial court and the Eighth Circuit Court of Appeals weren't buying it. They didn't buy it for a couple of reasons. They said that with regard to the copyright infringement claim, well, Warner Brothers still had a valid copyright infringement claim. They had one even though the particular images X1X took were in the public domain because the images depicted fictional characters. That originated in earlier works which were still in copyright and in which Warner Brothers owned the copyright. With regard to the Lanham Act claim, the court had no problem in finding Lanham Act liability because it said the images that X1X used were recognizable, had developed what trademark law calls secondary meaning, and were widely associated with Warner Brothers, such that their use on merchandise licensed by X1X was likely to mislead the public as to the source or origin of the goods. So Warner Brothers was able to plead and prove both copyright and trademark infringement. Number 1, and number 2, X1X's copyright registration in its digitally improved specific images did not provide it with a defense to that infringement. Now, another case that kind of raises the same issue, Polar Bear Productions versus Timex Corp. What happened in this case was that Timex had entered into a license agreement with a video producer, Polar Bear Productions. The license expired. Timex decided it wanted to keep using some of those images, and so it spliced them into a reel, a continuously running reel that it showed at trade shows around the country. Polar Bear discovers it, and Polar Bear sues not only for copyright infringement, a claim on which it easily prevailed, but also on trademark infringement, claiming that people seeing the particular images of Polar Bear used by Timex would mistakenly believe that Polar Bear had authorized the use. The court again rejected an argument that Timex made that you couldn't plead and prove both copyright and trademark infringement. Not only that, the court rejected an argument Timex made that Polar Bears' state law trademark infringement claims were preempted by the Copyright Act, holding that trademark and copyright law are different rights protecting different wrongs, and that therefore the The Copyright Act did not preempt state trademark law liability. Okay. Next. What about situations where people want to use trademark law to protect a communicative product? Well, the leading case here is a Supreme Court case. Daystar Corp. v. 20th Century Fox Film Corporation. And it, as often happens, arose in a kind of complicated factual setting. What happened there was 20th Century Fox obtained rights in a book written by Dwight D. Eisenhower. I'm embarrassed to say I'm not remembering the title of the book, but it was like Victory in Europe or some words to that effect. Fox then produced a 26-episode television series in the late 1940s based on the book, and that television series included some narration from the book. Later, Dwight D. Eisenhower, the book publisher, renewed the copyright in the book, but Fox forgot to renew its copyright in the television series. That caused another company, Daystar, to get Betacam copies of the footage. It edited down the footage to about half of the length of the original. It cut out all of Fox's trademarks and it plugged in all the Daystar trademarks and then resold the set using a different title, World War II Live: Campaigns in Europe. Fox didn't like this very much. It realized it could not assert a copyright infringement claim because it had let the film footage fall into the public domain for copyright purposes, but nevertheless held that Daystar's use of this footage could mislead the public as to the source or origin of the footage because Fox was the originator of the footage. That worked in the lower courts, but when it went up to the Supreme Court, the Supreme Court reversed 8 to nothing. Why? Well, in an opinion written by Justice Scalia, Justice Scalia held that the Lanham Act protects only against use of marks on physical goods and that therefore it did not protect the creative content of the works. And it didn't want— the court did not want to allow trademark law to protect the creative content of works because doing so, in the words of Justice Scalia, would create a species of mutant copyright law that limits the public's federal rights to copy and use public domain works. Now, why was that a problem? Well, the problem is that copyright law protection is finite. It lasts a very long time, but it does not last forever. Trademark law, on the other hand, could in theory lasts for infinity. As long as one has trademark rights, as long as one makes trademark uses of them, so long as one does not allow others to dilute the strength of the mark, one can claim trademark rights and works. And so the Supreme Court was nervous that allowing marks to— trademark law to protect works that had fallen into the public domain for copyright purposes would effectively create a perpetual copyright, which is directly contrary to the constitutional basis for copyright protection. Now, the Supreme Court was not the first one to address that issue. The Second Circuit Court of Appeals had ruled similarly a few years before in another case, EMI Catalogue Partnership versus Hill Holiday Connors Cosmopolis. And in that case, the owners of the song Sing Sing Sing with a Swing, which is a very famous swing jazz era song performed by Benny Goodman and his orchestra, could not claim Lanham Act protection for and could not allege a Lanham Act violation of an advertiser's use of the phrase swing, swing, swing with the same style of music. And the— what happened was an advertiser took— got permission to use for copyright purposes the Benny Goodman song Sing, Sing, Sing, and they joined it to an ad for golf clubs and had the golf ball going swing, swing, swing using the same music as the Benny Goodman song. The song owner, EMI Catalog Partnership, claimed that, well, people hearing the song in this ad with similar lyrics are going to be misled into believing that we authorized use of the song. We are associated with this when we're not. The court rejected that, said, well, you can't use trademark law to do something that copyright law permits. Because the copyright owner permitted use of the song in the ad, you cannot also claim trademark rights in the song for itself. Would have been an interesting question if Benny Goodman had brought a claim saying the public is going to think that I authorized this, but that was not an issue in the case before. Another example, Lionsgate Entertainment Inc. versus TV Ameritrade Services Company. There, Lionsgate Entertainment owned the motion picture Dirty Dancing, and in the movie there's a famous scene, as you can see shown in this image. There's also a famous line that says, "Nobody puts baby in a corner." TD Ameritrade ran an ad in which it showed a broker holding a piggy bank in the same manner as is shown in the motion picture and had above it the phrase "Nobody puts your old 401(k)" in the corner. Lionsgate Entertainment said, well, gee, that's got to violate our Lanham Act rights. People who see that are going to immediately think of our Dirty Dancing movie. They're going to be misled into believing that we authorized this. Or we are associated with this when we did not and we are not. However, the district court dismissed the claim out of hand, going so far as to say that copyright law preempted the Lanham Act to preclude false association claims based on use of that phrase from the motion picture. The court buttressed its argument by reliance on Daystar saying, well, here, that phrase, that pose obviously was not used, was not affixed on any physical products. And therefore, whatever false association there is in connection with the creative content of the motion picture can be protected by copyright law. Another example. Now, I have 3 cases here because these are all unpublished, but they're all remarkably consistent. This involves use of trademark law, rather trade dress law, to protect websites. As I'm sure we all know these days, you get on websites, there are a lot of websites that look sort of similar in a vague way, but it's hard to pin down exactly what the similarity is except maybe in color scheme, in use of type style, perhaps in the way the particular images are called up or the sequence in which they appear. Though it's difficult to allege copyright infringement against websites, who only have those sorts of similarities because the uses are so vague. It's hard to pin down exactly what they are, but they look and feel similar. Well, that's a problem in copyright law because, at least in the Ninth Circuit Court of Appeals, there is some very solid case law which holds that you cannot allege copyright infringement based on look and feel similarities. The leading case involves a suit by Apple against Microsoft, which alleged that there was copyright infringement liability because the graphical user interfaces looked and felt the same. The Ninth Circuit held that there was no protection for look and feel. In the copyright setting, and so that's a problem. Well, some enterprising attorneys said, I know what we'll do. Maybe you can't get look and feel liability in copyright law, but in trade dress law, we always get look and feel liability. And so they proceeded to try to allege that there was trade dress infringement liability when websites look and felt the same. Those arguments, though, were all unsuccessful, as you can see here. In all of the listed cases, the court held that the plaintiff failed to plead trade dress infringement based on overall look and feel. They all acknowledged that it was theoretically possible, but they enacted what I would consider extraordinarily difficult and specific pleading requirements in which you not only had to identify the specific elements that you claimed constituted the look and feel, but that you also had to describe how the specific elements interacted to create that look and feel. And, uh, all three of these cases hell that you couldn't do that. One sees similar attempts made in the video game industry. Many video games, as you may know, have very similar elements, plot points, etc. But plaintiffs have attempted to allege that there is trade dress similarity, and courts in the video game setting, similarly to the cases listed here, have tended to reject those arguments because they held those pleading requirements were not met. Now, moving to the third area. What happens when you want to use someone else's trademark in your copyrighted work? Can you do that? If so, when? And when can you not do that? Courts have given— have answered that question, but they've not always done so in a consistent way. I've listed here as the first identified approach what is probably the most popular amongst the appellate courts right now, and that's called the balancing approach. The balancing approach was created by the Second Circuit Court of Appeals in a case called Rogers v. Grimaldi that's shown here. What happened was, of course, Fred and Ginger Rogers were a famous dance team immortalized in the 1930s and '40s, whose fame has endured through the decades. Federico Fellini decided to produce a movie in Italy he called Ginger and Fred. It was about a couple of Italian dancers who had nothing to do with Fred Astaire and Ginger Rogers. It was released. Ginger Rogers decided she didn't like it because she thought it could mislead the public into thinking that she was associated with it when she wasn't. She filed suit. She alleged the Lanham Act violation and also violation of her right of publicity and various other claims. The producers of the film raised as a defense, among other things, that they had a First Amendment right to use Ginger Rogers' name in the title of a motion picture that was not about Fred Astaire or Ginger Rogers. And the Second Circuit had to address that question. The Second Circuit concluded that, well, yes, they did have a First Amendment right to use Ginger Rogers' name, and it articulated a standard by which courts could determine whether such uses should or should not be permitted under the First Amendment. They call this approach the balancing test, although I'm not sure that there's really a lot of balancing involved. Basically, under this standard, a court is to first look and see if the use of someone else's trademark has any artistic relationship to the creative work. And that relationship can be very low under this standard. It can be minimal. Simply got to be more than zero. If it does, then under this standard, the court will assume that the use is permitted by the First Amendment unless that use is explicitly misleading. The court in the Rogers v. Grimaldi case concluded that the use of Fred and Ginger was artistically related. And was not explicitly misleading, and therefore concluded that the use was permissible under the First Amendment and did not violate Ginger Rogers' Lanham Act rights. And the court did not articulate very clearly exactly what was and was not sufficient to be explicitly misleading. One almost would get the impression that Instead of the title Ginger and Fred, the producers would have had to say, you know, Ginger Rogers has endorsed our movie as the title before something could be explicitly misleading. But this approach has proven very popular. The Ninth Circuit Court of Appeals, at least several panels of the Ninth Circuit, have adopted it in several cases. The case I've listed here is a case I worked on, Brown v. Electronic Arts, Inc. That use involved the Madden NFL video games. For many years, those video games included not only then-current NFL players, but also would have historic NFL players, including a representation of Jim Brown of the Cleveland Browns. Because those players were famous. Jim Brown is arguably the greatest football player of all time. Jim Brown didn't like it. He filed suit alleging violation of his right of publicity and of his Lanham Act rights. The trial court dismissed Jim Brown's Lanham Act claim saying, well, under the Rogers v. Grimaldi test, we think the use is artistically related and we think that it is not explicitly misleading. And so it ruled in favor of Electronic Arts and against Jim Brown. On appeal, the Ninth Circuit essentially accepted that argument, although it recognized the difficulties inherent in it. Among other things, the same panel that ruled in favor of Electronic Arts in the Jim Brown case the very same day ruled against Electronic Arts in a class action suit brought by a number of collegiate athletes who alleged that their rights of publicity had been violated, with the court holding that, well, the right of publicity claim is not speech protected by the First Amendment and can be subject to right of publicity liability, but the Lanham Act rights asserted by Jim Brown cannot support a Lanham Act claim because under the Rogers v. Grimaldi balancing test, the use was artistically related and was not explicitly misleading. Another example of this involved a claim brought by one of the background singers you see there. He was a background singer in Harold Melvin and the Blue Notes. He performed on Soul Train, and when Soul Train issued the box set you see here, He argued that use of his image in the background of these performances violated his Lanamac rights because the public seeing the performances would mistakenly conclude that he had authorized their use in this box set. The district court had little difficulty in rejecting that argument because, number one, the use was artistically related to the song, and number two, it was not explicitly misleading. Now, courts haven't always followed that balancing test, though. Some courts have simply addressed it as a commercial speech issue. The most famous case in that space is Jordan v. Jewel Food Stores, Inc. And there, Jewel Food Stores decided to congratulate Michael Jordan for his induction into the NBA Hall of Fame with a congratulatory feature that you see in Sports Illustrated magazine. It was a special issue. Everyone was congratulating Michael Jordan. And so they ran this. And they claimed, well, Michael Jordan sued saying, hey, look, you're using my name to promote yourself. They said, well, no, we're not because we're not explicitly inviting you to endorse any product. We're not explicitly inviting the public to purchase any product. We're simply congratulating you and talking about what a great guy you are. And therefore, we're only engaged in speech. Excuse me. Well, the trial court actually accepted that argument, to my surprise. The Seventh Circuit Court of Appeals reversed it, said, well, no, this is obviously image advertising. Yeah, you're congratulating Michael Jordan, but you're really associating yourself with Michael Jordan to benefit yourself, to bask in the reflected glow of the public's goodwill towards him. And therefore, you're engaged in commercial speech, and therefore, you're liable for violating his Lanham Act rights. And he eventually won a jury verdict of, I think, $9 million on the grounds that he wouldn't license his name to anybody for less than that. It's good to be Michael Jordan. Another test. That looked like it was going to gain some currency for a while but has fallen into disfavor is what I've characterized as the alternative means or intermediate review approach. Now, I'm surprised that test hasn't gotten more traction because it was initially accepted or adopted by the US Supreme Court. In the 1980s, an organization in San Francisco decided to launch the Gay Olympic Games. The problem was that the U.S. Olympic Committee owned what is called a statutory trademark in the word Olympic. Now, statutory trademarks can be different from normal trademarks because, among other things, they do not require evidence of likely confusion. If one owns a statutory trademark and you can prove that somebody else commercially used that statutory trademark, you have violated that statutory trademark. So the USOC had a low burden of proof. They said, hey, they're using Olympic in a title, we have the exclusive right to put Olympic in the title of athletic events, therefore they violated our statutory mark. The Gay Olympic Games said, well, wait a minute, this is political speech, and we therefore should have the right to make that speech in the title of this event, which is promoting our agenda. The trial court didn't buy the argument. The Ninth Circuit Court of Appeals didn't buy the argument, borrowing explicitly from earlier Supreme Court authority saying that if you can communicate your message in ways that don't infringe someone's mark, you should be able to do that. It should be required to do that. And so the U.S. Supreme Court affirmed the Ninth Circuit's decision. The Supreme Court decision did not use the alternative means language that the Ninth Circuit had employed. It had instead borrowed some language from some of its earlier decisions involving what it's called intermediate review. But it nevertheless affirmed the result and rejected the political speech argument made by the plaintiff in the case. Now, I had a case representing Frank Sinatra Enterprises. You can see in the lower right-hand corner, Frank Sinatra had a famous television special called The Main Event Live, aired in the early '70s. An album was released that went gold multiple times. Very popular. Then years later, someone decided to create an unauthorized Frank Sinatra tribute show at the Venetian Hotel in Las Vegas. Well, they actually had a solid basis to do that as far as right of publicity goes, because the Nevada right of publicity statute explicitly permits impersonators, and they got rights to the music, but they forgot that Frank Sinatra Enterprises had common law trademark rights in the title of Main Event. And so we were able to persuade a court on summary judgment that they had violated our trademark rights. Actually, no, I take that back. It wasn't summary judgment. Court held there was a dispute of fact. We had to try that case through a jury. But the court rejected the First Amendment defense that was articulated there, applying the intermediate review standard that had been adopted by the Supreme Court, and by largely ignoring the Rogers v. Grimaldi balancing test that some panels had adopted. Some courts have applied yet a different standard in this area. They've applied a traditional likelihood of confusion standard. And another case I worked on kind of illustrates that, Elvis Presley Enterprises versus Capiz. What happened here was a restaurant in Houston decided to call itself the Velvet Elvis. You see this inside, it had a wide range of memorabilia posted on the wall, with its most prominent image being a huge image of Elvis Presley on black velvet. It used Elvis's likeness, uses Elvis's name to promote itself pretty heavily. Represented by other counsel, Elvis Presley Enterprises filed suit and they lost in the trial court with the trial court holding that the use was a parody and therefore that the restaurant had a First Amendment right to engage in that use without compensating Elvis Presley Enterprises. We were able to persuade the Fifth Circuit Court of Appeals that was a mistake, basically because of some testimony the owner of the bar gave that he did not intend the bar to make any sort of comment on Elvis Presley, but he instead was simply commenting on the '50s and the '60s and the way of life that was present there in Houston. The Fifth Circuit Court of Appeals said, well, in that case, we're just going to look to see if the use is likely to confuse the public. And if it is, we're going to hold the bar liable. It engaged in a traditional likelihood of confusion analysis and concluded that, well, yes, it was likely to mislead the public. And therefore, Elvis Presley Enterprises would prevail on its Lanham Act claim. All right. So what are the big takeaways? One, after Dastar, pursuing simultaneous copyright and trademark infringement claims can get complicated when a plaintiff asserts trademark rights in some or all of a copyrightable work. Copyright ownership is not an automatic defense to a trademark infringement claim. Remember the X1X decision. X1X had a copyright, I guess you could say, in its digital recreation of the public domain images, but that did not insulate it from liability on either copyright or trademark grounds because it could not mislead the public. With regard to the source origin of the goods. 3, a copyrighted work cannot function as a trademark for itself. No matter how famous a song is, simply hearing the song and saying, oh, that's a song by whomever it may be by, is not sufficient to establish trademark rights in that song for itself. Although, of course, the song could be could eventually become a trademark for some other product or service if it is sufficiently associated with it. Four, elements of a creative work that have acquired secondary meaning can qualify for trademark protection regardless of copyright status but may require more proof of secondary meaning. In other words, someday Mickey Mouse is going to fall into the public domain for copyright purposes. When that day comes, Disney nevertheless will almost certainly be able to claim continuing protection in those specific images of Mickey Mouse that have acquired secondary meaning as trademarks and will be able to obtain continuing trademark protection for them. But it or any other copyright owner who is trying to do this will have to show proof of secondary meaning. Courts tend to be reluctant to protect public domain works without such a showing. Fifth, if someone complains about use of your trademarks in a copyrighted work, you can count on a complicated First Amendment analysis. In most of the country, most of the time, you can probably figure that the Rogers v. Grimaldi balancing test will be in play, but you can't always count on that, and some other courts have adopted different standards that might arrive at different results. And that is the end of my presentation. Now, uh, I I see, let's see, I'm happy to answer any questions. I see that there is one question now, so let me just take a look at it and see if I can answer it. Here's the question. First, in 2008, a movie came out that used a supernatural concept I'd written and copyrighted in 1997. However, the execution of my concept was totally different. Mine was a spiritual screenplay Theirs was a schlocky horror movie and also made sequels using the concept. I shopped to Hollywood in '98 to 2001. I don't have a paper trail to link legal copyright infringement. I decided to take it as a form of flattery that they stole my concept and thus didn't sue. Any perspectives and advice? Okay, first, I'm not sure what you mean by concept. It's difficult to obtain copyright protection For ideas, you can only get protection for the specific way in which the idea is written down. That means absent another legal principle I'll get into in a second, ideas basically are free as the air and can be used by anybody. Now, the way that's handled in most pitch meetings is under what's called the implied-in-fact contract doctrine, that being that I will tell you, I will pitch my idea to you if you will pay me if you use it. And so it is possible to recover, at least in theory it's possible to recover on an implied-in-fact contract theory. However, in practice it's extraordinarily difficult. I'm aware of about 27 reported decisions dating back almost 20 years, and in the Central District of California, for example, involving those sorts of cases, and in none of those cases has the plaintiff prevailed, typically because there's insufficient evidence to support the claim. Now, so to deal with your situation, if someone took your idea and twisted it to use it in a different way and you don't have a solid paper trail, you probably legally would have a very, very, very, very difficult time prevailing. And so you're probably best served to not have tried to pursue your legal rights because your chances of prevailing would have been pretty low, I'm sorry to say. And that's my answer to that question. Are there any other questions that anyone else has? I'm happy to try to answer them. Okay, I have— I don't see anything. And so if no one has any other questions, thank you very much. I've enjoyed the opportunity to speak with you this morning.

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