Best of the Blogs: Trivial Pursuits Edition

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Category: Intellectual Property Law, Popular Culture & Law, Sports & Law, Tort Law
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This week’s review of blog postings and news stories of note focuses on subjects that might seem trivial, but that interest me nonetheless.

1. Comic Books

My brother and I had an extensive collection of comic books when we were growing up.  We even owned two (two!) mint editions of Conan the Barbarian number 1.  If I still owned that collection today, it would easily pay for the first year of my daughter’s college tuition.

After reaching the age of puberty, I consigned my childhood love of comic books to the “trivial” category of youthful pursuits.  Perhaps that is why I was so delighted to read about the current exhibit at the Lillian Goldman Law Library at Yale University, entitled Superheroes in Court! Lawyers, Law and Comic BooksAs described by John Schwartz in the New York Times, this exhibit includes comic books with a legal setting, contracts and correspondence relating to legal disputes over the ownership of comic book characters, and reports submitted to Congress during the 1950s seeking federal legislation to address the alleged connection between comic books and juvenile delinquency.

Maybe I should start up my comic book collection again.  After all, the curator of the exhibit at the Yale Law Library claims that “[t]ons of lawyers are collectors.”  And it has been reported that President Obama is a big Conan the Barbarian fan. (Hat tip to Jaime and Mara)

2. Professional Football

I am well known among first year law students for my advice to maximize their study time by giving up trivial pursuits such as televised sports.  Professional football games, in particular, can eat up a lot of time that might be better devoted to the study of law.  For those students who refuse to give up their football, but who would like to pretend that watching the game advances their studies, Aurelia Schultz at The 1709 Blog has a good post on the copyright infringement case arising out of the original logo used on the Baltimore Ravens helmet.

It seems that Frederick Bouchat designed the logo for the expansion team-Ravens back in 1995, which originally consisted of the letter “B” with two flying wings attached.  The Ravens used the logo but paid Bouchat nothing.  After a first round of litigation resulted in a finding of copyright infringement by the Ravens, but concluded that Bouchart was not entitled to any damages, Bouchart and his lawyers embarked on a series of increasingly creative lawsuits filed against anyone and everyone who ever licensed or used the logo.  Meanwhile, the Ravens abandoned the original logo in favor of today’s depiction of a raven’s head with the letter “B” inside.

Finally, ten years after the original suit, Boachat’s serial litigation may be about to pay off.  It seems that the Ravens and the NFL assembled and offered for sale a highlight reel of Ravens football games that included footage of games where the team was wearing helmets with the old logo.  Bouchat sued for copyright infringement, and the United States Court of Appeals for the Fourth Circuit recently ruled in Bouchat’s favor.  The court rejected the Ravens’ argument that the highlight reel fell within the “fair use” exception to the copyright law, primarily because the sale of the  highlight reel had a commercial purpose and because the game footage used in the film depicted the entire copyrighted work in the context of its original purpose (identifying which players were on which team).  The court noted that the fair use doctrine might have applied if there had been an attempt to transform the copyrighted work for a different purpose (i.e., using the footage for a documentary on the topic of the legal dispute over the original logo).

Law students now have my permission to watch Baltimore Ravens games all season long in order to observe the practical application of the laws governing intellectual property.

3. Video Games

What could be more trivial than playing video games?  The news that a man sued the software manufacturer NCsoft over the game Lineage II, claiming that he became addicted to role playing video games, was met with derision by many observers.  Addiction of any kind is a serious matter, and should not be laughed off.  A thoughtful and sympathetic response to the lawsuit can be found on the blog In Third Person.  While doubting the legal merits of the plaintiff’s claim, the author of the post (a self-proclaimed “20 year gamer”) points out the important distinction between substance addiction and behavioral addiction.  This distinction is not trivial, and it may ultimately limit the legal liability of the software company.

A more significant aspect of the case may be its relevance to the interpretation of software licensing agreements.  The trial judge denied NCsoft’s motion to dismiss, where the defendant argued that the standard licensing agreement that game manufacturers make gamers sign should be interpreted to absolve the manufacturer from this type of liability.  Steve Roosa at the blog Freedom to Tinker argues that the trial judge was correct to rule that the contractual limitation of liability does not preclude tort lawsuits.  He puts the pretrial skirmishing in this case into a larger context:

 The case law governing software license agreements has evolved dramatically over the past 20 years as cataloged by Doug Phillips in his book The Software License Unveiled. One of the recent trends in this evolution, as correctly noted by Phillips, is that courts will often honor contractual limitations of liability which appear in these agreements, which seek to insulate the software company from various claims and categories of damages, notwithstanding the lack of bargaining power on the part of the user. The case law has been animated, in large part, by the normative economics of Judges associated with the University of Chicago. Certain courts, as a result, could be fairly criticized as being institutionally hostile to the user public at large. Phillips notes that a New York appellate court, in Moore v. Microsoft Corp., 741 N.Y.S.2d 91 (N.Y. App. Div. 2002), went so far as to hold that a contractual limitation of liability barred pursuit of claims for deceptive trade practices. Although the general rule is that deceit-based claims, as well as intentional torts, cannot be contractually waived in advance, there are various doctrines, exceptions, and findings that a court might use (or misuse) to sidestep the general rule. Such rulings are unsurprising at this point, because the user, as chronicled by Phillips, has been dying a slow death under the decisional law, with software license agreements routinely interpreted in favor of software companies on any number of issues.    

It seems that there is a broader game going on, over the proper way to interpret contracts.

4. “Name That Tort”

Besides video games, there is another type of trivial pursuit common among first year law students.  At some point in their legal studies, they begin to notice all of the torts, both real and potential, that are taking place all around them every day.  At this stage, every law student who is cut off by another driver in traffic or else jostled in a crowded bus seems compelled to share their observations about the various breaches of duties and intentional torts that have just occured with all of their non-law student friends and family who happen to be in the vicinity.  It is actually quite annoying.  Medical students do the same thing, and anyone who has known a doctor in training has been on the receiving end of multiple unsolicited diagnoses and treatment options.

The explosion of YouTube and cell phone video recorders makes it easier to play this game than ever before.  No longer are you limited to postulating the legal consequences of the various torts that you observe first hand.  Now everyone can cruise the internet and debate the theories of liability that flow from conduct captured for posterity on the internet.  For example, over at Sports Law Blog, Michael McCann of the Vermont Law School has posted the video of a brawl that erupted in the stands at the U.S. Open.  What follows is a discussion of the possible legal aftermath of what is depicted on the video.  It’s a fun way to waste a few minutes and work your brain cells at the same time.

5. Trivial Pursuit: The Game

Finally, a belated recognition of the passing this past June of Chris Haney, one of the co-creators of the game Trivial Pursuit.  As you can see from this obituary, the success of the game had the predictable result of leading to litigation over who came up with the idea.  One such lawsuit even gave rise to its own trivia question: “Which Trivial Pursuit question has an intentionally incorrect answer?”

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