By Robert Scott Lawrence

I am a commercial litigator and intellectual property lawyer in Orange County. Although my practice encompasses a wide variety of business disputes, I have a particular fondness for, and am prone to wax philosophical on, the subjects of copyright and trademark infringement in music, literature, art, and film.

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?]

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].