The Unhelpful Trademark

Who Is Honda 300x270 The Unhelpful TrademarkThose of you who watch Hulu on a regular basis will have noticed the ubiquitous advertising that is increasingly crowded into all the popular shows. From two or perhaps three 30-second advertisements when Hulu debuted, viewers are now subjected to five or six full-minute advertisements, transforming the vaunted “cable killer” into the equivalent of traditional cable TV — except you can’t skip or fast-forward through Hulu’s ads like you can if you have cable and a Tivo. So Hulu viewers are now paying for the dubious privilege of being forced to watch advertisements, which is great for advertisers and not-so-great for the viewing public, the vast majority of whom would be ecstatic if they never had to watch an advertisement ever again. As an added bonus, Hulu’s one-minute ads are too short to get up and go to the bathroom or make a sandwich, so — unless you pause the unskippable ad — you are quite literally stuck on the couch watching a series of terrible advertisements where fat men do midnight aerobics (Aetna), animated cars sing a cheesy jingle (Prius), and Honda salesmen are asked to urinate into a cup to keep the varmints away.

After being subjected to the Honda ads far too many times while trying to power-watch all three seasons of Whitechapel, through my fog of irritation I finally noticed that the tag line for all the Honda ads was HELPFUL®. That can’t be right, I thought to myself. How on earth would the Patent & Trademark Office be gullible enough to allow Honda to trademark the word helpful, especially when their ads use it in the traditional historical context of a salesman saying “It’s my job to be helpful.” My self-righteous indignation was further exacerbated when I went onto TESS and discovered that, lo and behold, the ad was not lying to me. Indeed, the PTO had granted registration number 3704348 to Honda for the word HELPFUL for “Dealerships in the field of vehicles, namely, cars or automobiles and trucks; advertising services, namely, promoting the services of others in the field of cars or automobiles and trucks,” and “Leasing of vehicles, namely, cars or automobiles and trucks.”

But what does that even mean? Translating this ambiguous language into English, the PTO essentially has granted Honda a monopoly on use of the word HELPFUL in any advertisement for the sale or leasing of cars, as well as in connection with the sale or leasing of any car, automobile or truck. To further translate, that means that if BMW or Audi or Ford or Saab or anyone else selling or leasing cars uses the word HELPFUL in their advertisements or sales pitches, Honda can now sue them for trademark infringement. Honda’s lawyers will also likely make the argument that any variant of the word HELPFUL — such as HELP, HELPING, HELPED — also infringes, so no one else is free to say “Happy to have helped,” or “Glad we could help you out,” or “Can I help you?” in the context of an automobile commercial or sale.

To put it mildly, this is shameful. HELPFUL is a word that has been used every day by salesmen in every field for hundreds of years, and now Honda has attempted to gobble up a chunk of its permissible usage and prevent any car company or their salesmen from using it in the context of selling or leasing a car. While I am not a fan of car salesmen, used or otherwise, I am a fan of the English language and its unfettered use. While the abuse of copyright and the overreaching of patent trolls makes most of the headlines, trademark law has been equally undermined by overgrasping corporations, and there is a systemic problem with all intellectual property law. The intended purpose of these laws was to protect originality and inventiveness, not to stifle human expression, but in application all we have seen for the last 40 years is an increasingly restrictive, abusive series of laws that protect the interests of large corporations to the detriment of inventors, creators, artists, and the general public. Contrary to the PTO’s apparent belief, there is absolutely nothing original about a salesman in any field offering to be helpful, and HELPFUL should never have been granted trademark protection.

If you have any questions, I’d be happy to help clear them up. It’s my job to be helpful, after all.

[I can still say that, right?]

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Collaboration Blues

Collaborators Collaboration BluesThis is a tale with a simple premise. You and a friend decide to collaborate on a screenplay. He’s got a great idea for Godzilla meets Colossus meets Gigantor meets angry mythological Greek from Wrath of the Titans, and you’ve got massive writing chops, as evidenced by the 14 screenplays you’ve got moldering in a box in the back of your closet.

So what do you need to do before you start collaborating? You have agreed on a 50-50 partnership and split of the proceeds, but what do you need to do to commemorate that agreement, other than seal it with a handshake?

There are couple things you could do. You could call an attorney who specializes in representing artists and musicians and have him craft an agreement that calls out the nature of your responsibilities, duties and obligations. Alternatively, you could attempt to draft an agreement yourselves based on what you and your friend think is a fair deal. A third possibility would be to take the WGA approved collaboration form and modify that according to the specifics of your situation. My vote, self-interestedly, would be for you to go see a lawyer. This not only serves to protect your legal rights, but is paradoxically the most cost-effective choice, because if you don’t have a written agreement in place, the future consequences can be devastating.

So what’s in a collaboration agreement? In its simplest form it is a contract that spells out the parties’ relationship, a template which spells out who owns what, and what each of you can do with your creation. Typically, the provisions of the agreement discuss (a) ownership percentages, (b) responsibilities of each collaborator, (c) division of profits, (d) division of expenses, (e) how each party will be credited if the work is produced, (f) what happens if someone withdraws from the project, (g) what happens if there’s a dispute, and (h) licensing and sale rights, including one party’s right to block an assignment of rights.

These are all, of course, the types of things that one would like to know before entering into a relationship, but they’re also eerily reminiscent of the kind of things one sees in prenuptial agreements. And in the artistic world, mentioning the word “agreement” at the start of the creative relationship tends to create the same level of discomfort that murmuring the word “prenup” does at the start of a romantic one. People think they will always be friends, despite the wealth of evidence negating that proposition. For every Captain and Tennille, for every Batman and Robin, there’s a Beatles, a Nirvana, and a Red Hot Chili Peppers throwing off old band members like quarks from a dying universe. The sad truth is, bands break up, writing teams bicker and fall apart, people move on. The dream of undying friendship and never-ending relationships dissolves in a puff of smoke when it confronts the tabloid reality of straying partners, financial problems, disaffection and death. Having a written agreement in place to protect your rights during the inevitable evolution of your relationship is simply the smart thing to do; it prevents headaches, misunderstandings, bad feelings and – most importantly – legal disputes.

Apart from the obvious financial consequences that arise when one doesn’t know how much of a song or project one has rights to, there’s also the very real problem that without a written agreement delineating the parties’ respective rights, no one is going to bid on your project. If your collaborator can kill any deal because he has veto power, or as 50% owner his consent is required, the producers and powers-that-be are simply not going to be interested in meeting with you. You can’t pitch your project, or sell your deal, if you are in the midst of a dispute with your former business partner over who owns your creation. As long as any dispute exists, your ability to move forward and get your project produced is nil. And in the unlikely event you manage to offload it to some unsuspecting publisher or producer, you now risk getting sued not only by your erstwhile partner but also by the production company you just duped into buying your product.

When the band breaks up, it’s the ugliest of ugly divorces. But forewarned is forearmed, and those realists (or cynics) who are smart enough to have a collaboration agreement buried in their files will thank the day they had a premonition of things to come, and chose to have that difficult conversation with their friends, colleagues, collaborators or bandmates. After all, it’s not much of a friendship if the mere mention of putting an agreement into writing is enough to destroy it. So fear not, and have a collaboration agreement signing party.

[And don’t forget to invite the groupees. I mean . . . muses].


Faulkner Goes Folksy On Fair Use

Who Is Faulkner 193x300 Faulkner Goes Folksy On Fair UseWhile the astute reader may have noticed that the company that owns William Faulkner’s literary rights sued Sony for copyright infringement based on a misquoted snippet of a sentence that appeared in Midnight In Paris, it was news to me when I stumbled across the article in the ABA Journal this morning. Given that I try and keep abreast of happenings in the world of copyright, and this should really have been BIG NEWS (in all caps, even), I was shocked that the coverage was so ho-hum, with nary a vitriolic diatribe to be found anywhere. I was even more shocked to find that plaintiff’s counsel was claiming that the alleged offending language was the most famous Faulkner quote ever, and that the American public was somehow familiar with it.

The quote itself, from the novel Requiem for a Nun (the sequel to Sanctuary, for you Yoknapatawpha County-heads out there) is fairly straightforward, and short: ”The past is never dead. It’s not even past.” The paraphrase from the movie has Owen Wilson saying: “The past is never dead. Actually, it’s not even past.” Given that Wilson is time-travelling back to 1920s Paris at the time he makes the statement, it’s more a reflection of his actual condition (i.e., the past is not past because he’s currently living in the past) than a comment on Faulkner’s line of dialogue, though it’s also obviously a play on what Faulkner wrote. As one might expect in a movie that is chock-a-block filled with fictional cameos from literary lions from the past, there is a fair amount of word play going on, the kind that Woody Allen is known for but that might equally be heard from high-spirited Harvard doctoral candidates trotting out bon mots at drunken dinner parties (though perhaps I’m romanticizing that last bit in an Andre Dubus kind of way).

Is the quote memorable? Sure, if you have a mind for that kind of thing, or if you are a literature major studying for your GREs.

Does America know Faulkner? No, not really. Teens might have to read The Sound and the Fury in 10th grade, but if that’s no longer on the standard curriculum then I think it’s safe to say your average 16-year-old is not picking up books from the classic age of American literature (e.g., 1920s – 1950s) and doing any pleasure reading between mega-sessions of Assassins Creed III or Call of Duty and the incomprehensible lure of the latest vampire-romance novel. As for adults, they aren’t exactly thronging Barnes & Noble’s classics aisle or crashing Amazon’s servers in their haste to download Faulkner’s oevre to their Kindles.

Sony’s counsel eloquently summed up the case for “fair use” in the introduction to their recent motion to dismiss:

In 2011 Sony Classics distributed the motion picture Midnight in Paris, written and directed by Woody Allen. The film’s protagonist is on vacation in Paris with his fiancée and travels back in time to spend his evenings with great artists of the early 20th Century—F. Scott Fitzgerald, Ernest Hemingway, Gertrude Stein. When he tries to explain what is happening to his incredulous fiancée, the protagonist paraphrases a nine-word quote from William Faulkner, expressly attributed to Mr. Faulkner on-screen, and to great comic effect.

Plaintiff now claims the attributed paraphrase violates its copyright in Requiem for a Nun, a relatively obscure work by William Faulkner of some 220 pages originally published in 1954. Plaintiff also claims violations of the Lanham Act (claiming that consumers will somehow believe the late Mr. Faulkner commercially sponsored the film) and of Mississippi’s common law (claiming that the use of Mr. Faulkner’s name constitutes misappropriation).

As a matter of law, the use of a nine-word quotation from a full-length novel is a de minimis use and not copyright infringement at all. Moreover, the use at issue presents a classic case of “fair use,” a critical doctrine fostering creative and artistic expression, journalism, and scholarship. Plaintiff’s extreme—and absurd—position in this case is that it is unlawful to even minimally quote Mr. Faulkner’s work without its consent. Such a holding would be contrary to the very purpose of the Copyright Act, and other laws.

This is in fact a correct statement of law – a snippet from a novel cannot be protected under the copyright laws, whether used for commercial purposes or not. The purpose of the copyright laws is not to protect short utterances, but works as a whole. If, like me, you had initially supposed that Sony misappropriated one of Faulkner’s 898 word run-on sentences that continue for three pages and leave one gasping for breath at the end, well, you would be wrong. In the case at bar, Faulkner’s image not only won’t be tarnished by his association with Midnight in Paris, but the fact that he is mentioned at all in the movie (even misquoted) can only serve to prop up his flagging reputation and perhaps reinvigorate sales of his work.

If I were a jaded practitioner of the arts, I might be predisposed to suppose that this lawsuit is about notoriety rather than a vindication of Faulkner’s artistic rights. Now that the movie is last year’s news, why not prop up the Faulkner franchise by paying the lawyers to generate some news? Of course, I could be wrong, but as the saying goes, “there ain’t no such thing as bad publicity.”

[Wait, who said that? Is that copyright infringement?]


Trademarking Christmas

image 275x300 Trademarking ChristmasYou may be surprised to know that SANTA CLAUS is a trademark, but it is. Father Christmas Ltd., a British company and the proud owner of, also owns the rights to sell Santa Claus merchandise in the United States. Of course, it’s not an exclusive license, since Santa has been around since the days of jolly St. Nick, but one hardly expects a trademark to issue on a man who is such a public — nay, mythological — figure.

Santa Claus as we know him today is the end-product of neo-Darwinian evolution, a marriage of such disparate elements as Odin leading the fey on a wild hunt through the night sky at Yuletide, the unpredictable Dutch tyrant Sinterklaas enslaving boys or gifting them with ginger, and apocryphal tales of generosity by the Christian bishop Saint Nicholas. All of which is now seen through the distorted lens of time and Coca Cola’s advertising from the 1930s, when the company decided to turn Santa into a larger-than-life, red-and-white garbed sumo chortling his way down Main Street to FAO Schwartz.

Although Santa is in the public domain and thus hypothetically owned by all of us, the marketplace has little care for the commons, and the Patent and Trademark Office has issued a slew of Santa trademarks, some of which are shocking in their whismy, from Santa Claus Anonymous® (for Santas who drink too much), to Santa Claus Land® (Disney with real elves), to Santa Claus Productions®, which hosts the annual Santa Claus Special®, owns the Santa Claus Network®, and sponsors the Santa Claus World Tour® (consisting entirely of Christmas tunes)

Even our own supposedly disinterested government has gotten into the Santa game, as this week the Defense Department’s Branding and Trademark Licensing Office (“Yes, Virginia, there is a Pentagon trademark office”) registered a trademark for “NORAD Tracks Santa,” which capitalizes on the Santa tracker we all know and love by selling Santa tchotchkes at Apparently, the top seller so far is a customized letter from Santa, closely followed by a rockin’ red T-shirt that says “I tracked Santa 2012.”

Personally, my favorite Santa trademark is Winston, Son of Santa Claus®, which is owned by a man named Winston who resides in Upernavik, Greenland. This Christmas day, as the fire leaps and crackles in the hearth, I imagine Winston in his Santa’s Elf® lederhosen relaxing with a pint of St. Nick’s® beer, throwing a Santa Claws® chew toy to his wolfhound, dreaming of reindeer and the endless forest at the end of time.

On Dancer, on Prancer, on Donner and Blitzen. On Comet . . . .


No News But Bad News

 No News But Bad NewsAmerica is a land that thrives on hourly updates and has no talent for remembering yesterday’s news. We find it perfectly normal to be told the sky is falling on Tuesday only to have the news anchor change his prognosis the following day, announcing with a wry grin that the experts got it wrong and the sky will remain in the firmament for the foreseeable future. In a way, this collective inability to recall the past is a blessing, as it serves to erase the memory of painful events and allows us to look forward as a nation our bright future. But it also makes us credulous, rushing home to tune in to the latest prediction by a 92-year old California prophet that Jesus’s return is at hand, teetering on the edge of our seats while the Mayan calendar winds down, quick to condemn a politician’s opinion and then forget he ever held it when the inevitable flip-flop occurs. (“Senator, I never said abortion was wrong, I said I was gravely concerned about it. And I am. Gravely concerned.”)

Part of this is due to the fact that we are inundated daily with gigabytes of news. This is not a land where, as once, we get our daily dose of world news and events while leisurely sipping coffee and lingering over bacon and eggs. We are a nation always on the go, our antennae always alert for the next morsel of current events, and from the moment we wake up information begins to accrete and expose itself to us like a malignant stalker. We are bombarded by talking heads on the drive to work, by scrolling news tickers in the elevator, and by our own choice to seek out the news. We mindlessly browse headlines at Starbucks, get breaking news delivered to our inbox, stop by the Drudge Report or CNN to stay informed while eating at our desks, and by the end of day are stuffed full of irrelevant information that serves very little purpose other than to occupy our day, cloud our minds, and offer us the illusion that we know what is going on in the world. Upon arriving home the first thing the vast majority of Americans do is turn on the soothing sounds of the television, to watch the news or some variety of America’s latest fetish — reality TV — which further crowds our overburdened minds with information we don’t need and won’t use, and which is quickly forgotten.

The idea of always trying to stay abreast of current events and, at the same time, knowing nothing, would be odd unless we took a historical perspective and realized that the news service really exists to do us a disservice, and pacifies or horrifies depending on what is calculated to best separate us from our hard-earned dollars. The news is not free, it is not a right, it is not a quest for truth — it is a commodity, and like any commodity someone makes a profit off of it at our expense. We would be well-served to read a book about William Randolph Hearst and “yellow journalism,” and those pressed for time should nonetheless pause to consider whether Hearst was an altruist, or whether the sensationalism and bold images that got us into the Spanish-American War were also what bought Hearst his castle. Selling a million newspapers a day is quite profitable, after all.

Today we only have to look as far as The Huffington Post to see the same kind of profiteering. Originally a free resource which the first generation of movers-and-shakers in the blogging world adopted as a pet forum, Arianna Huffingon sold it a few years ago for a staggering $315 million. Created off the backs of free labor, the news service’s business model is to scour the web for breaking stories and repurpose it with catchier headlines. Astonishingly, this actually works, and The Huffington Post often ranks higher in search ratings than the sites that first broke the news. The various contributors to the site’s success get nothing from the site’s success, of course, except the dubious honorific of being a writer for The Huffington Post.

But what of the public, this vast beast we call America? Subjected to our daily dose of subterfuge, profiteering and influence-mongering, we huddle in whatever corner we’ve picked, cheering for whatever notion of truth, justice, and the American way that we have deluded ourselves into believing. If you doubt me, consider the spinmeisters hired by politicians to massage reality, the publicists and the marketeers that openly admit that their job is to manipulate reality so that we can be sold a bill of goods — whether it be a product or a politician. The real news rarely makes the papers, which is why the President gets a daily briefing from staff and why the big investors never seem to take a loss when the market goes mysteriously sideways. Think about it. Try to recollect. The jobs report said unemployment was down last week, then up this week, then there was a heated debate about the calculation of the data and whether it included those who are deemed no longer to be seeking work, and then the market waited on bated breath for the report, which was largely inconclusive, and we all breathed a huge sigh of relief, although even the least sophisticated of us knows (or should know) that all the data included in that report was suspect, and that someone made an arbitrary decision (buried in a footnote) about what being “unemployed” actually meant. Why are we concerned with made-up numbers that the media spinners insist are meaningful? Particularly when we know that, when someone whips out statistics to convince us they’re correct, 95% of the time they’re simply making them up. (“Wait, did I just make that up?”).

In light of the fact that the media can’t actually be trusted to report the truth, or know it when they see it, how can we be expected to have a real public debate about anything? The furor in the media about the recent school shootings does nothing to actually address the problem of gun control or suggest any real solution to why spree shootings occur, but capitalizes on yet another tragedy in the name of selling us “news.” This kind of news is not actually informative, but merely a catalogue of fires, natural disasters, tragedies, death, murder, rape and mayhem, all designed to momentarily capture our interest and satisfy our morbid curiosity. You, me, we — we are the public for which Rome designed the Coliseum, too sated by the parade of horribles to notice what is wrong with everything else around us.

In what I can only describe as the marriage of bad taste and insensitivity, one of the strangest stories to arise out of the unspeakable recent tragedy is the media coverage on the rise of glamour guns — i.e., guns designed as bling for the discriminating shooter. Those pink, gem-encrusted AK-47s or Soviet-era Kalashnikovs that were so ostentatiously displayed at gun clubs all over the country (as the kind of accessory every Real Housewife simply must own), have now been hastily relegated to closets as the many proud defenders of our 2nd Amendment finger their prayer beads and try to treat this tragedy with the dignity it deserves. Unfortunately, the urge to take aim and fire a sound bite into the huddled masses was apparently too tempting for some nameless drone to resist, and thus for the last week we have been subjected to cowboy metaphors and moralizing about good guys with guns vs. bad guys with guns, and no one in the country has had the decency to hold their tongue. Instead we’ve been bombarded with statistics about crime rates in concealed-carry states and wake up to cries of outrage from the parents of a 6-year old shot down by another disturbed teenager. What the public does not understand is that the debate is never about deciding who is right, never about finding a real solution. It is about the furor itself. Like Ouroboros eating his own tail at the end of the world, we consume ourselves in search of an answer that does not exist. If there were truth to be found, it would surely drown in all the noise.

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Who Is Product Placement The Unbearable Ubiquity of Product PlacementI remember back in 1991 I was reading American Psycho, the Bret Easton Ellis novel about the yuppie serial killer and sexual sadist who was also fixated on material luxury items – Hermes ties, Bruno Magli shoes, Corneliani suits, cashmere gloves and other fetishistic items – that served as a kind of shorthand for his psychoses. His obsessive fixations were at first distracting and then after a chapter or so became part of the rhythm of the novel so that I stopped noticing them and began to participate in the flow of the narrative. Days after reading it I remember automatically clocking off in my mind what kind of suits and shoes men were wearing, and wondering whether the guy walking around Hull House in beat up Levis and an old cashmere sweater had strapped on his Rolex to subtly impress the casual passersby.

Now, more than 20 years later, I find it odd that the kind of overt references included by Easton Ellis are the subject of somewhat spirited public debate as to whether the time has come for product placement in novels. We are all familiar with the concept of product placement in television – think Simon Cowell sipping from a gigantic Pepsi as a judge on American Idol – and the more subtle inclusion of products in movies. The homicide detective who throws his Marlboros on the counter, grabs coffee at Starbucks, secretly records conversations with an iPhone, and roars off in a Ford Shelby GT 500 – those are all grace notes that hopefully arise from the story line but are ultimately dictated by the bottom line. Because product placement pays big money, and is in fact one of the most effective forms of advertising a company can buy. When the hero of a $100 million thriller drinks Ketel One martinis with four Roquefort olives, shaken not stirred, a sudden spike in Ketel One martinis is seen in bars all across the world.

But why would one want to include product placement in novels? The spirit of novels has always been different than that of movies, with novels being primarily a private creative endeavor and movies generally falling along the crass edge of materialism. In an author’s first novel, lovingly polished for three or more years, you can be sure that the choice to have the protagonist smoke cigarettes has a reason behind it – it’s part of the story line, part of his background and biography, part of his character. He smokes Marlboro Reds because that’s what his dad smoked, and those were the cigarettes he stole from the house when he snuck off to smoke with his friends behind the tennis courts. He wears Levis because that’s what the cool kids wore when he was growing up. He wears Ray-Bans because they were always the epitome of cool, from classic Hollywood (before product placement) to Tom Cruise’s breakthrough role in Risky Business. People do things in books because of the backstory that the reader never sees, because of all the notebooks piled up in the author’s closet describing what [name of chief protagonist] is like.

Writers fixate on little things because they build up character by accretion – how the hero walks, how he talks, what he wears, what he drinks, his smile when he sees a pretty girl, etcetera. Movies, on the other hand, decide Jack Reacher (6’8”) can be played by Tom Cruise (5’7”) because it’s good for the box office. Who cares if the hero is supposed to be 35 years old? Who cares if he’s supposed to weigh 240 lbs? Who cares if the writer thinks the character has to be called Jack and not Billy Jack? Hollywood only cares about sales.

To my way of thinking, product placement in books is an idea that we should dispense with as not only unnecessary but essentially malign. The fight over intangible rights is already convoluted enough, when recording artists are paid by the movies for using snippets of their songs, but multinational conglomerates turn around and pay the movies to have their products prominently displayed. In one of the new television shows I discovered while recovering from surgery a few weeks ago – The Glades – I didn’t notice until about five episodes into Season One that everyone seemed to be driving a Kia. “How odd,” I thought, “I had no idea Kias were so popular with the Florida police department.”

Strangely enough, if you were a video game producer and you dared to show that same Kia during game play, Kia would be holding out its hand saying “Pay up, buddy, you need a license to show images of our awesome new Kia Sedona.” Which is precisely what happened in a case that has been garnering attention for the last year or so, when Electronic Arts got sued for using Bell helicopters in its popular game Battlefield 3. While I won’t bore you with all the details, the lawsuit arose out of failed negotiations between Electronics Arts and Bell over the terms of a license to use Bell’s helicopters in the video game. Perhaps emboldened by a favorable ruling in the Dillinger case – where a federal judge ruled that Electronic Arts could use the Dillinger Tommy Gun under a First Amendment analysis, because video games constituted “literary works” – Electronic Arts filed a declaratory relief action seeking a ruling that no license was necessary and that use of the Bell trademarks constituted nominative fair use (to the extent any defense was required at all).

The case is in stasis for the moment, though over the summer Judge Alsup of the United States Federal Court for the Northern District of California denied Electronic Art’s motion to dismiss the trademark infringement counterclaims, noting that:

It is plausible that consumers could think Textron provided expertise and knowledge to the game in order to create its realistic simulation of the actual workings of the Bell-manufactured helicopters. . . . Although consumers are unlikely to think Textron has entered the video-game business, Textron has alleged sufficient facts to support the inference that the game explicitly leads consumers to believe it is ‘somehow behind’ or ‘sponsors’ Battlefield 3.

Personally, I think it is a dubious proposition that a 14-year-old boy is going to be confused about whether Bell sponsors the latest edition of any Electronic Arts game, and I would be willing to bet that his distracted parents didn’t give a passing thought to the image of the Bell helicopter on the cover of the game — they just checked Battlefield 3 off their Christmas list and moved on to the logistics of where to buy Barbies in bulk.

But what do you think the result should be here? Should Electronic Arts have to pay for placing images of real world goods in video games, for what amounts to trademark infringement in an imaginary realm? Or do you think it’s fair use?


Who Are Skulls1 Who Owns Your Facebook Account When You Die?It’s the first month of January 2013 and you’re driving through Malibu in the new Audi coupe your lovely wife bought you for Xmas when, out of nowhere, a truck comes barreling through the intersection right next to D’Amore’s Famous Pizza and the last thought you have is “What the . . . .”

Ten days later after the funeral your wife decides she wants to turn your Facebook page into a memorial page for all your friends to post pictures of you and tell intimate stories about what you were like when they knew you. Your parents are appalled and want your Facebook page shut down — along with all the rest of your social media accounts — so that you can rest in peace and they can move on. They fight with your wife, your Mom screaming “We already had a memorial for him!! I don’t want to keep getting updates from my dead son’s Facebook page!” and your wife retaliating “He’s my husband — I’m keeping his page up!!”

Your wife contacts Facebook to tell them she’s turning your page into the biggest memorial the world has ever seen, and your parents contact Facebook to tell them that if your page isn’t shut down in 24 hours Facebook will be facing another public relations nightmare as your Dad involves his golfing buddy — the Senator from Northern California — two Congressmen, and the most aggressive litigation shop west of the Rockies.

So who wins? Does your wife get to keep your page up? Do your parents get to take your page down? Do your teenage kids have a say? What about your cousins? Maybe Facebook will let people vote? (“30 Million FB’ers Say ‘Keep His Page  Up'”). Isn’t there a law that covers this?

Right now the answer to all of these questions is entirely up in the air, and you can bet your bottom dollar that the rules in the United States are going to be different than the rules in the EU (remember the Right to Be Forgotten?). The United States has no comprehensive privacy policy, and the piecemeal attempts by our Congress to regulate privacy on the web have ranged from the woefully inadequate to legislation that devalues privacy in an effort to suppress piracy. Even the legislation we already have on the books to protect children’s privacy is simply a sop to activist parents everywhere, and only last week a comprehensive study found that over 22% of all apps fail to take any measures to protect children’s privacy.

This should come as no surprise in an era when Facebook and Google are continually involved in scandals revolving around the unauthorized disclosure of personal information, and are in fact recidivist repeat offenders. Why should they care if the FTC slaps them with an $11 million fine in the face of corporate valuations in excess of $20 billion, especially in a market that is hungry for the next new app, the next new product rollout, the next new social sharing tweak? Our society has become so obsessed with “sharing” and “liking” that the first thing half the nation does in the morning is check Facebook on their iPhones while the coffee is brewing. We multitask by answering email at breakfast and shooting off texts in the car (at red lights only), and now that Dragon Naturally Speaking has finally worked out the bugs we can actually dictate email while commuting those 2-1/2 hours to LA. We share, we are productive, we are obsessed with the ever-changing now and the 140 character sound bite.

But what happens to all this when we die? As Lionel Barrymore famously said, “You can’t take it with you when you go.” And although he was talking about money rather than the ability to posthumously post status updates, the message — that ultimately one has to let it all go — applies equally well to one’s life in the social media sphere. The debate is eerily similar to those about living wills, or wills in general, and perhaps the answer to all this is to simply add a codicil to one’s will declaring what is to be done with one’s social media accounts in the event of your untimely demise. Just as some want monuments or an eternal flame, others prefer the finality of burial at sea or having their ashes scattered to the wind. While there is no right or wrong answer, as long as the question of who “owns” the posthumous rights to your social media accounts remains a grey area, we can anticipate a number of humiliating public battles in the future. Just wait for the next mega-celebrity death, and I guarantee you a dust up of epic proportions. If you thought the battle over the Beatles songbook was ugly when Michael Jackson died, well, think again, because you ain’t seen ugly yet.