Mattel finally learns how to “chill”

by Jason Fischer

One of the chores inherent in the practice of law is that one has to read a lot of really REALLY dry court opinions. It’s always nice when you find judges out there who recognize this, and make some effort to keep it interesting. One of my favorites from law school has always been Mattel, Inc. v. MCA Records, Inc., 296 F.3d 894 (9th Cir. 2002). Well, this week saw an interesting footnote added to that opinion.

The Back Story

Most will probably remember that there was an annoying pop song, which was recorded back in the 90′s, called “Barbie Girl.” The group Aqua‘s single claim to fame was a huge success, despite being about as appealing to listen to as nails on a chalkboard — don’t let the number of stars assigned to this YouTube clip fool you.

If anything, I have to admit that I find the song amusing, and unlike 2 Live Crew’s “Pretty Woman,” I can believe that Aqua actually created the song to poke fun at the materialistic nature of Mattel’s Barbie franchise, instead of coming up with that justification after a lawsuit has been filed. True to form in those days, Mattel was not amused with Aqua’s parody, and decided to do what it always did back then… file an infringement lawsuit. While the case was pending, a Mattel spokesperson went on record, criticizing the defendants for not respecting their intellectual property rights, which of course spurred a defamation counterclaim.

The trial court made short work of both sides’ allegations, dismissing all with a summary judgment. The court determined that the Aqua song incorporated Mattel’s trademark as a means of identifying Mattel, not to unfairly compete with the toy company. That’s fair use.

Everyone appeals, hilarity ensues

Hon. Alex Kozinski (who is probably better known for more recent events) sets the tone for his now-famous opinion in the first line: “If this were a sci-fi melodrama, it might be called Speech-Zilla meets Trademark Kong.” From there, he explores a brief history of the Barbie doll’s origins as an adult toy, modeled after a German hooker — something I’m sure that Mattel would rather not have reported on. Moving on to an expert legal analysis of the balance between the First Amendment and intellectual property rights, Kozinski concludes by boiling down the defamation claim as unsustainable:

MCA filed a counterclaim for defamation based on the Mattel representative’s use of the words “bank robber,” “heist,” “crime” and “theft.” But all of these are variants of the invective most often hurled at accused infringers, namely “piracy.” No one hearing this accusation understands intellectual property owners to be saying that infringers are nautical cutthroats with eyepatches and peg legs who board galleons to plunder cargo. In context, all these terms are nonactionable “rhetorical hyperbole,” Gilbrook v. City of Westminster, 177 F.3d 839, 863 (9th Cir. 1999). The parties are advised to chill.

Mattel slunk away, licking the wounds of its latest intellectual property litigation defeat. For the next several years, it appeared as if they had not learned their lesson (see, e.g., here, here, here, and here). However, yesterday morning, the doll maker launched an ad campaign that demonstrates that they may have finally hired a decent attorney who gives better advice grown up. (source)

New commercial with altered lyrics

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This story was originally published on GaneshaFish.com

Is the Recession Over?

This seems to suggest that it might be… but what the hell do I know?

Gov. Schwarzenegger tells the California legislature how he really feels

The Governator sent, along with some unsigned bills, the following letter to California lawmakers.

Check out the first letter of each line

(source)

Scientology is a Fraud? No ham for me! Pass the Jesus, please. Nom nom nom

The French decided to indict the Church of Scientology for fraud.

If found guilty, the church could be forced to shut down in France, though appeals could see the case continue for years.

“This is a process in heresy,” Daniele Gounord, the spokeswoman for Scientology in France, told reporters.

The two plaintiffs, both women, say they were defrauded by the organization, which is classified as a sect in France.

Their complaints focus on the use of a device that Scientologists say measures spiritual well-being. Members use the electropsychometer, or E-Meter, to “locate areas of spiritual duress or travail so they can be addressed and handled,” according to Scientology’s Web site. (source)

So lemme get this straight: Scientology is a “fraud,” because they believe in aliens and e-meters.

Don't nom nom nom the magic space zombie jew guy! Nom nom nom meeeee!

Meanwhile, Jews and Muslims think that there is a supreme being that gives a shit if they eat ham, and who demands that they cut a little piece of their dick off.

Christians believe in a magic space zombie, who happens to be a Jew, and who Muslims think is a prophet, but only christians eat a little cracker that is made of magic space zombie jewness. Muslims take a month off from eating for a guy they can’t even see pictures of, let alone see the real guy. Mormons believe that a guy who couldn’t find a job found these magic tablets that nobody else could see, and found out that the magic space zombie jew guy didn’t die, but he moved to Utah and turned bad people different colors. Hindus and their octopus people who shit fire? Are you kidding me? And an e-meter is bullshit??? If ONLY the worst thing a “religion” ever did was sell you shit that didn’t work! You know what? Sea monkeys don’t really look like the picture in the comic books either! Big shocker!

Scientology sounds like bullshit, but compared to “mainstream” religions, it sounds downright sensible, and nobody who believes in saying “nom nom nom, I just ate God,” has any business calling Scientology a “fraud.”

If the French are gonna indict Scientology, I hope they’re lining up all the frauds and scam artists.

Line up the priests, the rabbis, and the imams and indict the lot of them!!!

Hiring a Legal Asistant 101

"Do you really think that I'm perfect for the job?"

Helpful hints for finding and hiring a legal assistant:

• Make sure you use an online listing service.  Craigslist is always a good one.
• Always do a good job of describing what you’re looking for.  Use explicit language, whenever possible.  For example, stating that you are seeking an “energetic woman” for “general secretarial work, some paralegal work and additional duties for two lawyers” seems to be a winner.
• Next, in addition to a resume, be sure to ask for some personal information, such as photographs and “a description of your physical features, including measurements.”
• When you receive applications, always follow up with an email, including more information about what the position entails.  Here’s a great example of the kind of thing you should write:
  

  In addition to the legal work, you would be required to have sexual interaction with me and my partner, sometimes together sometimes separate.  This part of the job would require sexy dressing and flirtatious interaction with me and my partner, as well as sexual interaction.

• To be sure that everyone understands what is expected, you will want to make performing sexually a part of the interview process.

(source)

H/T Becky

…and after you’ve hired your dream assistant, here‘s some advice on keeping her.

Eat Your Dog

Looks like one of the least eco-friendly things you can do is … have a dog.

Of course, SUV hating hippies all have dogs. So, what’s a hippie to do?

Happy Monday

Constantin Film Produktion GmbH makes movie about Hitler and then turns into a bunch of Nazis

If you haven’t seen a Downfall spoof, or you don’t know what I am talking about, you are not meme-educated enough to keep reading. Go to YouTube, and search for “Hitler” and “Downfall.” Watch a few videos and come back.

For the rest of you, come over this way… I got the greatest Downfall video ever. Yeah, right here!

It seems that the producers of Downfall, Constantin Film Produktion GmbH., have been sending DMCA notices to YouTube to get them taken down. SIE SIND ASSHATTEN!!!

These notices should be responded to with a 512(f) suit, as these videos are fair use (and even a moron in a hurry would know that). Not only that, they are great marketing for the original film… as Mr. Hitler seems to have figured out….

Of course, here is one where Hitler is actually sending out the DMCA Notices. Maybe this one is the most awesome one ever.

Thilo, if you’re reading, will you write something to the producers in German in terms they can understand? Seriously, Constantin Film Produktion GmbH. has been getting every Downfall spoof taken off of Youtube. WTF is with you people?

H/T Coleman

Oh, and for the record, “Hitler finds out that Santa isn’t real” is the funniest Downfall spoof ever.

AutoAdmit Case Euthanized

Article in the Yale Daily Journal does a good job of covering it.

I’d rather be in prison than with my wife

Not me… but this guy.

Bill Caudle

Bill Caudle is the biggest bad ass ever. He enlisted in the army at age 39 because it was the only way he could get his wife covered for her cancer treatment.

Bill Caudle, I may never meet you. But if I do, you don’t pay for your own beer — ever.

Grounded and Hounded: a male’s tale

By Tatiana von Tauber

Satyriconista, Tatiana von Tauber

Society places a lot of pressure on men. Feminist pieces like one by Katherine M. Franke at Columbia Law School add to it. Franke analyzes a recent New York Times article Still on the Job by Making Only Half as Much by Louis Uchittele. In a nutshell, Bryan Lawlor was a captain and current economic times made him a co-pilot. Lawlor’s pay was cut in half and now his wife makes more money.  He takes care of the kids more often and had to give up the power marker of masculinity, a motorcycle he finally bought as a gift for himself. As a result, Lawlor feels he’s downgraded not only in pilot status but masculinity as well.  A guy works hard, has a family and achieves success and then the economy goes bust. Franke kicks him while he’s down.

Franke’s piece is completely insensitive to the fact that men have feelings and blatantly devalues the mere thought of masculinity with such a sarcastic tone, the reader is left baffled at Franke’s nerve:

He can’t walk through the airport wearing the captain’s hat anymore – it “made me feel in command, and capable and powerful.” It’s hard not to laugh out loud at the unwitting (really?) reference to the well-known trope of the “hat” as penis-fetish and hatless-ness as a sign of castration. But just in case you missed the subtle implications of Lawlor’s downgrade to his masculinity, Uchitele connects the dots for you: Lawlor underwent a vasectomy shortly after his “downgrade” because he could no longer afford his former potency.

Franke missed the humanist piece with a reality slant: a successful American Dream love story gone bust. Where’s Franke’s heart? Lawlor had a sense of accomplishment as a captain vs. a co-pilot, a personal self-empowerment boost each time he wore his uniform. What’s wrong with that? I get a self-empowerment boost each time I wear fantastic high heels and a dress. And the audacity to compare this to impotence is merely penis envy.

Lawlor and his marriage are stressed and in the ways that he felt empowered as a man, breadwinner, husband, father, son and co-worker were snatched away unexpectedly.  However, these roles are what define him.  He is a man and his masculinity and how he projects, interprets or feels about it is a personal realm of definition Franke blatantly attacked with total disregard to the emotional struggles such a downgrade brings and Uchitele’s attempt to author that.

I somehow thought we were beyond this kind of reporting, reporting that is really loosely-veiled melancholia for the loss of a never-realized ideal of a particular form of masculinity.

With a piece that clearly doesn’t get the full picture of masculinity, Franke has little to stand on to throw out such slashing judgment about a man who simply wants to provide well for his family and feels crushed he doesn’t feel as empowered by the things which helped define his manhood and drove him further for himself and his family.  As Marc Randazza adds:

Males are acutely aware of the fact that they are, biologically speaking, irrelevant after the orgasm. Men, on the other hand, believe that they have to take care of their family long thereafter. This guy places the weight of his wife, his kids, and his parents on his shoulders. And, he proudly carries them there. That’s what a man does. Should men push themselves like that? Maybe not. This particular man’s interpretation of his masculinity is being in charge, and taking care of his family, and having a few toys that remind him that he not only made it past the finish line, but he did it with a few paces to spare.

And why not?  Don’t men deserve it?  Mine does.  Mine works in a job he hates and one that’s considered a health hazard for his spinal injuries obtained while serving in the US military so that I can make the choice to stay at home with our children and give them a home, one neither one of us had because our mothers worked.  He gives me freedom to educate myself and to be better.  I do all the laundry and he pays all this bills.  I go crazy at home with kids all day and he goes crazy at work with government morons all day.  Our pains, struggles, and daily frustrations are equal in intensity.  Only our perception is different but difference often times is a strength in healthy relationships.

 The future of feminism transcends the troubled and worn stepping stones we still stand on, where the fem is the ego projecting her image of as good or better than.  Questions a feminist should ask are: Do I seek gender equality or do I seek empowerment by regaining that what I and my fellow sisters have lost?  Do I wish to truly project into the future or do I wish to keep fixing the past that cannot be undone?  Do I know what gender equality means, feels, looks or performs like?  When so, look at it again.  Gender equality has many sides.

Women have proven themselves and yet there are feminists who still obtain pleasure exposing the weakness of men and insult the very qualities that make a man.  Masculinity is sexy and vulnerability humanizing.  Franke’s snide remarks are a slap to any value a man may have, specifically one who tries. Franke clearly has no vision for the future of feminism.

If you’re going to publish a “sucks” site… it should actually criticize the subject

There is a new cybersquatter in town, and he goes by the name of Gu Bei. He registered the domain name . Normally, that would be the kind of thing that this blogger would stick up for, defend, and rail against the mark holder for trying to take down.

Not this time.

Mr. “Gu Bei” is a serial cybersquatter. He has a huge portfolio of domains that all correspond to the trademarks of famous businesses. One of his games is to create “sucks” sites, but have them refer to… you guessed it…. pay per click pages.

Radio Shack took him to task, filing a complaint with WIPO. Mr. Bei, not surprisingly, did not respond, and the panel correctly transferred the domain to Radio Shack. See TRS Quality v. Gu Bei, WIPO Case No. 2009-1077.

Somewhere, many men in short sleeved shirts and ties are rejoicing.

H/T to Spielman.

Yes We Cannabis!

Okay, I’ll back off of my criticism of the Obama administration as a do-nothing bunch of slackers. They did something. The department of justice pulled the stick from its ass and figured out that maybe the federal government shouldn’t waste its time or money chasing AIDS patients who smoke pot to relieve their symptoms.

The New York Times reports:

In a memorandum to federal prosecutors in the 14 states that make some allowance for the use of marijuana for medical purposes, the department said that it was committed to the “efficient and rational use” of its resources and that prosecuting patients and distributors who are in “clear and unambiguous compliance” with state laws did not meet that standard. (source)

And in a major about-face from the last dipshit laden administration:

“It will not be a priority to use federal resources to prosecute patients with serious illnesses or their caregivers who are complying with state laws on medical marijuana,” Attorney General Eric H. Holder Jr. said in a statement accompanying the memo, “but we will not tolerate drug traffickers who hide behind claims of compliance with state law to mask activities that are clearly illegal.” (source)

Okay, I can dig that.

But, this event does get us a recipient of the asshat award! Dumbass Representative Lamar Smith of Texas.

The federal government has decided to defer to the individual states on this issue. If a state is willing to tolerate medical marijuana, then the federal government isn’t going to impose its will on that state. You know what that is called? “STATES’ RIGHTS”

However, “conservatives” only like “states rights” when it has to do with carrying a gun or discriminating against gays and minorities. When you tell Mississippi that it has to give full human rights to negroes, then you’re imposing on states’ rights. When you might tell Flori-duh that the Constitution’s Equal Protection clause means… well, gays and lesbians are entitled to “equal” treatment, then you’re imposing on states’ rights.

Lamar Smith, a “conservative,” called the WAAAAMBULANCE….

“By directing federal law enforcement officers to ignore federal drug laws, the administration is tacitly condoning the use of marijuana in the United States,” said Mr. Smith, the senior Republican on the House Judiciary Committee. “If we want to win the war on drugs, federal prosecutors have a responsibility to investigate and prosecute all medical marijuana dispensaries and not just those that are merely fronts for illegal marijuana distribution.” (source)

I’m really not in the mood to be witty. I’ll just say that Lamar Smith — you’re the asshat of the day.

Creepy? Definitely. Proportionality? Not so much.

Ewww... you got your Key West all over my feet!

This is creepy. Creepy in an “only in Flori-duh” way. A guy makes friends with a family (at a Baptist Church). He starts getting a little weird, so they tell him that he can’t come over any more. He breaks into their house so that he can touch the kids’ feet while masturbating. See, I said it was creepy.

His sentence? 15 years.

Sure, if that was my kid, I’d probably have beaten the guy into a mess so bad that Beatrix Kiddo would have pitied him. Nevertheless, 15 years for whacking it while touching someone’s feet?