SXSW panelists discuss intellectual property in media

If you’re a filmmaker wondering if you will be sued, ask yourself: “Have I created a very popular film?”

That message came off loud and clear during the “Intellectual Property in Film and Interactive Media” CLE at SXSW. During the panel, Akin Gump attorneys Kellie Marie Johnson and Charles Everingham discussed trademark and copyright issues, including the increasingly sophisticated use of marketing and product placement in media. Some brands, including Chipotle and Lexus, are even creating their own content to distribute, they noted.

But with every integrated ad comes a host of legal issues. Brands want exposure, producers want to protect content quality, and talent wants to protect its image. To that end, Johnson and Everingham broke down some of the things parties should keep in mind when making marketing deals:

-Be aware of a brand’s permissions and rights

-Ask for a script to see if the details make sense for your brand

-Be as involved in the process as possible

-Negotiate for minimum guaranteed integration

-Negotiate for category exclusivity

-Establish provisions for talent back out

Still, even perfectly crafted contracts can have holes or lead to unforeseen issues. Consider the following cases highlighted during the CLE session:

Luxury brand Louis Vuitton was not laughing during The Hangover: Part II. In an airport scene, the character Alan (played by Zach Galifianakis) warns fellow traveler Teddy to watch out for his luggage, letting out a cold, “Careful, that is a … that is a Lew-is Vuitton.” Following the film’s debut, Vuitton sent a cease-and-desist letter to producers Warner Brothers, claiming that the appearance of the shoulder bag (which was a knock-off) and his dialogue infringed on its trademark and caused dilution. When Warner Bros. declined to remove the scene, Vuitton filed suit, claiming false designation of origin and unfair competition in violation of the federal Lanham Act, among other things. Ultimately, a New York judge granted a motion to dismiss the trademark complaint.

Then there was the time a New Jersey woman sued Disney, alleging that the film Frozen includes elements from her autobiography. The case was dismissed.

And Natrol Inc. was not too pleased with product placement firm Brand-in Entertainment last year when Reese Witherspoon backed out of a film. The vitamin company had placed $180,000 in the movie with the expectation that Witherspoon’s character would discuss their product. Natrol claims they are still owed a refund as part of their contract. The case is still ongoing.

At the end of the panel, the bottom line was that brands and the entertainment industry can work well together, so long as all parties understand their legal rights.

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SXSW Interactive Wrap-up: With Lightning Speed

South by Southwest has a tradition of encouraging innovators to push the tech envelope. But with new developments come new legal questions, and technology often moves faster than the legislative process.

During the opening days of SXSW Interactive, tech and law experts converged to discuss some of the legal issues currently at play regarding tech development. From patent control to protecting personal information, the topics were hot—and the opinions surrounding them were just as heated.

A session dubbed “Clubbing the Patent Trolls: How We Can Fight Back” featured U.S. Representatives Hakeem Jeffries (New York) and Blake Farenthold (Texas); Alan Schoenbaum, of counsel to Rackspace Hosting in San Antonio; Michael Petricone, senior vice president of government affairs for the Consumer Electronics Association; and Julie Samuels, staff attorney and the Mark Cuban Chair to Eliminate Stupid Patents at the Electronic Frontier Foundation. Panelists took the stage to address the alleged overuse of patents as legal weapons and explained that both big and small businesses can be targets of patent trolls—groups that threaten litigation against companies they argue are infringing on their protected patents, though the patents are arguably broad and commonsense, such as public wi-fi, and not always the claimant’s original creation. In turn, companies threatened with litigation might pay the “trolls” to go away instead of facing expensive court costs to fight the accusations, which are reportedly usually erroneous.

While the issue is currently being discussed in courts across the nation, panelists say the process is moving too slow and stressed the importance of a push for reform, encouraging grassroots efforts and legislative action. They also suggested that in the meantime, pro bono attorneys could assist small businesses that have limited funds to combat litigation.

But some audience members responded with concerns that stricter limitations on patent lawsuits could jeopardize honest businesses and universities that have legitimate patents on products they worked hard to develop.

Slower-than-lightning-speed lawmaking is also an issue when it comes to app development and security. According to panelists in “Mobile Security & the Future of the App Economy,” U.S. lawmakers are struggling to keep up with monitoring and protecting user rights within the ever-changing mobile development sector. Panelist Jaclyn Louis, legislative director and counsel to congressman Tom Marino of Pennsylvania. pointed out a study that showed 95 percent of the top 200 free apps exhibit risky behaviors, further explaining that major threats to consumers include premium-service abuse, data theft, and adware.

Yet many Washington leaders want to avoid stifling development, which could potentially be an effect of stricter requirements on app producers. Louis noted that the idea of a voluntary badge for apps (think Energy Star) could be an effective method of vetting apps for consumers without too much government oversight. To follow updates from other law-related sessions at SXSW, look for #SXSBOT on Twitter. Follow us @statebaroftexas, @lowellmbrown, @hkid, and @LSMader.