Wednesday, June 4, 2014

The final exam question for my Entertainment Law class

As I've mentioned in this space, I teach Entertainment Law at the University of Washington every Spring. This year's final exam question is below the jump. Over the next few posts I'll put up some aspects of the answer that I think might be of interest to those of you who are interested in that kind of thing...

NOTE: This exam question is based on a true story.

It’s Wednesday morning and for some reason you have a feeling of foreboding. You’ve heard from the person who had this office last year that every year in the end of May, one of the partners in the firm always comes in with some completely random question that knocks you off whatever you were doing for a full day and you wonder where on earth these things come from. Thankfully today doesn’t look like it’s going to be that kind of day.

You should have known better.

At 9:01, in walks Don, a partner at your firm. This doesn’t bode well for your day. He’s the guy your predecessor warned you about.

“I have a problem,” he says, which is clearly obvious. He takes you to a conference room where a client is sitting. “This is Mike Monahan, a client of the firm.”

Mike turns a laptop computer to you. On the screen is a web browser showing a web comic: The comic appears to be about the activities of a space pirate called Tamir Lenk inside an online video game called Internet Spaceships.

“Tamir Lenk is my character in Internet Spaceships,” Mike explains. “I’ve spent about 5 years playing that game and I’m pretty well-known in it. I got a good enough reputation in the game that the company that owns it, Sugarcubes LLC, actually hired me to work for them. I don’t play the game for a living, I work in customer service, but it’s still how I got my job. Now some guy named Alex Turk has written a comic about Tamir Lenk. Tamir is the star of the comic but I’ve never heard of Alex Turk. I sent him a DMCA notice and he said he got a license from Sugarcubes so he doesn’t have to take it down. Thankfully the whole thing is up on Google Books which is good because that way at least I didn’t have to buy a copy to show you this monstrosity.

You look at the website. Sure enough, Google Books has the whole comic. Mike continues, “What’s worse is that Turk is making up dialog, pretending my character said it, and the dialog makes me look like a jerk!”

“You are a jerk,” Don interjects.

“Well yeah,” says Mike, “But no one other than my friends knows that! I never said those things though and he’s not allowed to say that I did.”

You don’t really know what to say at this point. Don has been pecking away at his computer over on the side for a bit. He looks up and says “There’s a Tamir Lenk video on this game video site called NerdWatcher. What’s up with that?”

Mike smiles. “Now this part is good news. I’ve worked out a deal with the people who own NerdWatcher. NerdWatcher said they’d host any video I give them about Internet Spaceships. I’ve given them one already – an in-game video showing one of the many adventures of Tamir Lenk. NerdWatcher can’t promote it actively because they’re concerned that Sugarcubes would sue them because apparently Sugarcubes thinks videos like this are copyright infringement. But my boss at Sugarcubes knows I’m giving NerdWatcher these videos and she’s totally fine with it. And my account rep at NerdWatcher said it’s a great way for them to get viewers to the site so they think this is totally cool. They’re even letting me use my new Tamir Lenk logo.”

You see that the logo is the head of the Tamir Lenk character from the comic book. Realizing what you’re looking at, Mike says “Yep, I just took the head of the character from the book. I figure it’s mine anyway, it’s the same face as on my character in the Internet Spaceships game, so it’s not like I need permission from some comic book artist to use my own character’s face.”

“Wait a second,” Don says, “Why would anyone want to watch these videos? Tell my colleague here about what kind of character Tamir Lenk is.”

Mike leans back in his chair. “Well, Tamir is a foulmouthed liar and steals in-game money from people who don’t know better. One state actually passed a law to say that kids weren’t allowed to play Internet Spaceships because otherwise they would be exposed to people like me who would swear at them and steal their money. I’m actually kind of proud of that. And Sugarcubes tried to ban my character at first, but then when they realized what a celebrity I am in that environment that’s why they hired me like I said.”

Don looks up from his screen. “The EULA for the game says that Sugarcubes owns all rights to everything you do in the game and all derivative works and that you don’t own anything about Tamir Lenk.”

Mike gets a pretty angry expression on his face. He starts stabbing the table with a pen. “That thing can say whatever it wants! They’re wrong because I’m the one who created the character. I wrote all the words my character Tamir says in the game. So it’s my copyright, Sugarcubes doesn’t own anything, and my being their employee doesn’t change that; I created the character before I started working at Sugarcubes and I work in the customer support department so being Tamir Lenk isn’t part of my job. But Sugarcubes says that since they own the game they can authorize Turk to make the comic and put Tamir Lenk into it and they even said Turk can take Tamir Lenk and change what he said in the game to put new dialog in the comic book. I got in a big fight with the Legal department over this and that’s why I’m here.”

You’re a bit confused. Clearly, so is Don. “Wait a minute,” Don says, “Go back to the part about him changing the dialog.”

“Fine,” Mike says, “They made Tamir Lenk seem like a completely different kind of character than I really am. They made me boring, not funny. That can’t be right though because I created Tamir Lenk so I own the IP and I get to be the one who decides what he says and how he’s presented to the world. I want him to be this mean character who is also funny, not some narcissistic loser, although for some reason in the comic they keep spelling it narcist. Maybe they spelled it that way to put it on the t-shirts.”

“What do you mean, the t-shirts?” Don asks.

“It gets worse,” Mike says, because you knew he would. “Turk isn’t just selling comics. He’s also got a line of t-shirts and other merchandise based on this character called Tamir Lenk the Narcist. I mean, if he’s going to create this whole mythology around Tamir Lenk, I should be the one who gets to make the t-shirts and make the money! I had made a bunch of shirts about my character – check out one of them at – but now no one will buy them because they’re all buying his. On his website he says that Sugarcubes gave him the exclusive license to make t-shirts, which shouldn’t matter.”

Mike looks over at you. “I can see your colleague is curious about why I think anyone would buy t-shirts about Tamir Lenk. Well, this is part of my viral marketing campaign for the movie rights for a Tamir Lenk movie. I’ve been talking with NerdWatcher and they’re willing to pay me 5% of the net profits from any movie they make about Tamir. They said they’d pay me an extra 5% if I wrote the screenplay which is awesome because since I’m Tamir they have to accept whatever I write. Best part: I’m just going to adapt Turk’s comic into a screenplay. I signed an option agreement with NerdWatcher where they gave me $100,000 already, so even if I never finish the screenplay this thing is already making me rich.”

Mike jumps up from his chair, as somehow you knew he would. “I’ve got a meeting tomorrow with NerdWatcher at 9:00 am sharp. We’re signing the deal then. So if there’s anything I need to know, you had better tell me before that!” He walks out the door not waiting for you to respond.

After Mike leaves, Don drops the bomb. “Unfortunately I’m leaving for Japan this afternoon for another client, so I need you to handle this. Please write me a memo about this situation so that I can give it to Mike and let him know if there’s anything he needs to know.”

You’ve been wondering for a while where Don finds these people. But clearly you have no time to wonder that any longer. Because for reasons unbeknownst to you, you have to unravel this situation, and the clock is ticking…

Question 1: Address a memo to Don containing an analysis of all legal issues in the above text.

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