You can almost feel it, like a power-line buzz in the air. If 2014 was the year that consumers and legislators woke up to the real threat to privacy and information security, 2015 may be the year that sees a shift in both enforcement and penalties.
On February 5, Anthem, Inc., the country’s second-largest health insurer by market value announced a security breach resulting in unauthorized access to tens of millions of current and former customer and employee accounts, Bloomberg reports.
Of particular concern is that the compromised data included social security numbers and birth dates, etc. Very different than having a credit card number stolen.
Last week, a group of 10 state attorneys general (AGs) sent a letter chastising Anthem for the length of time it took to notify the public of the breach. The letter was written on behalf of Arkansas, Connecticut, Illinois, Kentucky, Maine, Mississippi, Nebraska, Nevada, Pennsylvania and Rhode Island.
Some observers have commented that current encryption technology can limit the amount of data that even “authorized users” can view at one time, making it more difficult to compromise massive amounts of data.
In this situation, the breach occurred through misuse of an authorized user’s credentials, so encryption alone would not have worked. While most companies give universal access to data to some employees (senior level or IT), for the encryption approach to work, no one person or set of credentials should allow access to all data.
In the end, the new “best practices” approach may be a combination of encryption plus controls to limit the amount of data that any one set of credentials can access.
When it comes to addressing data privacy risks, it is often difficult to determine whether you should slow down, change course, signal for help, or simply muddle through. Often, teams tasked with managing privacy need to quickly identify potential issues, assess the risk, and implement controls to steer clear of unneeded exposure. The privacy professionals at the Adler Law Group can help you adopt Privacy Impact Assessments – or similar tools – and standardize a methodology for approaching these challenges by setting objectives, determining scope, allocating resources, and developing practices that will efficiently and effective manage privacy, while keeping pace with the business. For a free consultation, call us at (866) 734-2568, send and email to firstname.lastname@example.org or visit our web site www.adler-law.com.
One of the most important functions of a contract is to reduce uncertainties and mitigate risks. That is why almost all professional or personal services contracts contain “limitations of liability” provisions. Although they may seem like densely-worded, “boilerplate” provisions, and often overlooked, these provisions broadly affect a party’s ability to bring a claim, show liability, and prove damages that can be recovered.
A limitation of liability clause is a provision in a contract that limits the amount of exposure a company faces in the event a lawsuit is filed or another claim is made. As a preliminary observation, it is important to note that enforcement of limitation of liability provisions vary from state to state. The general rule in contract law is that in the commercial context, many states have found these clauses to be a mere shifting of the risk and enforce them as written.
Limitations of Liability generally address two areas of concern. First, the types of claims that may be barred. Second, the amount or scope of liability for claims that are not barred.
Limiting The Type Of Claim
A typical limitation of liability clause may look something like this:
“IN NO EVENT SHALL A PARTY OR ITS DIRECTORS, OFFICERS, EMPLOYEES, OR AGENTS, BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY, OR INDIRECT DAMAGES, INCLUDING BUT NOT LIMITED TO ANY DAMAGES FOR LOST PROFITS. IN NO EVENT SHALL THE TOTAL LIABILITY OF A PARTY EXCEED THE AMOUNTS PAID BY CLIENT, IF ANY, FOR THE SERVICES.”
This clause limits the types of damages that may be claimed, prohibiting claims for:
Consequential damages (damages resulting naturally, but not necessarily, from the defendant’s wrongful conduct, BUT they must be foreseeable and directly traceable to the breach)
Incidental damages (includes costs incurred in a reasonable effort, whether successful or not, to avoid loss, or in arranging or attempting to arrange a substitute transaction)
Specialdamages (often treated the same as “consequential” by courts, “special” damages have been defined as those that arise from special circumstances known by the parties at the time the contract was made)
Punitivedamages (damages that may be awarded which compensate a party for the exceptional losses suffered due to egregious conduct; a way of punishing the wrongful conduct and/or preventing future, similar conduct)
Exemplary damages (See “Punitive damages”)
Indirectdamages (See “Consequential damages”)
Lost Profits (Cases in New York (and elsewhere) have a held that a clause excluding “consequential damages” may no longer be enough to bar “lost profits” claims; therefore, consider including more specific provisions in contracts- if parties want to exclude lost profits for breach of contract, a clause specifically excluding “lost profits” should be included.)
Lost profits that do not directly flow from a breach are consequential damages, and thus typically excluded by a limitation of liability clause like that above. But lost profits can be considered general damages (and thus recoverable) where the non-breaching party bargained for those profits, and where the profits are a direct and probable result of the breach.
Limiting The Amount Of The Claim
If found to be enforceable, a limitation of liability clause can “cap” the amount of potential damages to which a party is exposed. The limit may apply to all claims arising during the course of the contract, or it may apply only to certain types of claims. Limitation of liability clauses typically limit the liability to one of the following amounts: (i) the compensation and fees paid under the contract; (ii) an sum of money agreed in advance; (iii) available insurance coverage; or (iv) a combination of the above.
Parties can and typically do agree in their contract that liability is capped at some dollar amount. If liability exists and if damages can be proved, then the aggrieved party recovers those damages, but only up to the agreed cap. Sometimes these are mutual; other times they are one-sided. Sometimes the cap is a fixed sum (e.g., “the amounts paid for the services” or “$100,000”). Other times, the parties may choose to tie the cap to the type of harm, (e.g. personal injury, property damage, violations of confidentiality obligations).
However, sometimes that parties may agree that certain types of harm should not be limited. These “exceptions” put the parties in the same position they would have occupied if there was no limitation of liability provision in effect. For example:
exposure for violations of intellectual property (copyright, trademark, trade secret, patent) or proprietary rights (right of publicity, right of privacy, contractually-defined proprietary information)
in the event of an obligation to indemnity and defend for 1) breach of intellectual property representations, and/or 2) third party intellectual property or proprietary rights
in the event of an obligation to indemnify because a party didn’t have the right to provide data or information
in the event of an obligation to indemnify and defend for non-compliance with data security standards
exposure for violations of confidentiality obligations
personal injury or property damage due to negligent acts or omissions
Businesses that rely upon limitation of liability clauses should periodically reexamine those clauses. Questions that you should be asking include: “what’s my maximum recovery if the other party breaches,” and “what’s my maximum liability if I breach?”
These are only effective if enforceable, that’s why drafting is key. According to many courts, following certain drafting guidelines will help reduce the likelihood that a limitation of liability clause will not be enforced. Such guidelines include:
Make the clause conspicuous: set the clause in bold face print or underline or otherwise place the clause apart from the rest of the text on the page on which it appears so that the other party is aware of its existence.
Make the language clear and concise: make sure that the clause is concise and unambiguous as it relates to the contract as a whole.
Identify specific risks: be specific in identifying the types of damages you think should be excluded.
Negotiate the clause: discuss the clause with the party that is signing the agreement and negotiate if there is a discrepancy.
Retain drafts of revisions: keep drafts of any revisions made to the limitation of liability clause so that you have proof that the clause was negotiated.
Add language stating that these damages are not recoverable even if they were, or should have been, foreseeable or known by the breaching party.
Recite that the limitation of liability clause is an agreed benefit of the bargain, and that it remains in effect even if any remedy under the contract fails of its essential purpose.
Consider including a liquidated damages clause for specific breaches, which would replace a damages claim.
DISCLAIMER: THIS IS NOT LEGAL ADVICE. Please consult qualified attorney to discuss your specific situation.
If you are concerned about how to tighten your contracts, we may be able to help. We can review your contracts, your business practices, and advise on whether there is room for improvement.
Please contact us for a no-fee, no-obligation consultation. (866) 734-2568 David [at] adler-law.com
One of the most important tools to protect your business – your ideas, customer relationships and talent pool – is your written contract. A solid contract is the foundation for a reliable relationship for you, your customers and your employees. More importantly, it helps to prevent misunderstandings and false expectations that can lead to a breakdown in your customer relationship, jeopardize the project and result in litigation.
Many companies start with a model or “form” contract adapted from forms available online or drafted when the business first started. As businesses develop over time, you may have revised your contracts, adding a little here, removing a little there. Maybe you read an article about an important case in your industry and decided to add some text from the contract discussed in the court’s legal opinion. In many cases, over time, the agreements become “Franken-contracts” an odd amalgamation of trade lingo, inconsistent terms and even contradictory conditions. At best these are ambiguous and confusing to read. At worst, they become unenforceable.
At some point, you should review, revise and generally “tighten” existing contracts. You should have your lawyer review them to make sure that there are no mistakes, ambiguities or omissions that could cost you or your customers. I urge clients to have their contract forms reviewed on an annual basis. Depending on changes in the law, changes in the industry or changes in your own business, this process should only take a few hours.
The following are six things to consider as you review your existing contract forms and business practices.
First, are you using a written contract? Simply having a written agreement in place will help prevent the often difficult, time-consuming and expensive dispute that comes down to a “he said / she said” situation.
Second, make sure that the key terms of your contract are consistent and understandable. Pricing and payment terms, clear descriptions of the services to be performed or the goods to be delivered, as well as due dates and acceptance criteria will go a long way toward preventing breach of contract claims. More importantly, ambiguous and internally-contradictory terms may expose you to fraud claims or claims under an unfair business practices act. These types of claims are typically much more difficult and more expensive to defend against.
Third, create a mechanism for changes in your contract. Circumstances change. When they do, make sure that you document them and that your customer initials and dates any additions or changes to the contract after it is signed.
Fourth, don’t overlook intellectual property (“IP”) rights, Many business relationships involve collaborative sharing or development of knowledge, skills and protectable IP assets such as copyrights, trademarks, patents and trade secrets. Intangible assets are often the most important drivers of revenue creation and value. Overlooking creation, ownership and control of IP rights may result in the loss of these assets.
Fifth, ensure that your contracts are up-to-date with respect to local laws and industry regulations. Recent developments in technology, e.g., BYOD, Social Media, Mobile commerce, and online privacy had produced a raft of state, federal and industry specific laws, rules and regulations. Do you regularly update your forms to make sure they comply with changes to local laws?
Sixth, understand your “escape” options. Not every relationship is meant to last forever. Your contracts should have clear and concise terms for ending the relationship such as failure to perform, failure to pay or adverse business conditions.
To find out more about how the Adler Law Group can help you tighten your contracts, or even draft new ones, contact us for a free, no-obligation consultation.
One of the key issues that must be examined when negotiating or drafting any contract is how the parties may get out of, or “terminate,” that contract. While many attorneys will rest on standard “termination for breach with notice and cure” language, the recent case of Powertech Tech. v. Tessera, Inc. demonstrates how artful drafting can put limitations on a party’s right to terminate. The Opinion in U.S. District Court for the Northern District of California case No. C 11-6121 can be found here.
Powertech and Tessera were parties to a patent license agreement, although the court’s reasoning does not seem limited to only those types of agreements. The license agreement allowed Powertech to use Tessera’s patents in exchange for payment of license fees.
The contract contained the following clause regarding termination for breach:
“Termination for Breach. Either party may terminate this Agreement due to the other party’s breach of this Agreement, such as failure to perform its duties, obligations, or responsibilities herein (including, without limitation, failure to pay royalties and provide reports as set forth herein). The parties agree that such breach will cause substantial damages to the party not in breach. Therefore, the parties agree to work together to mitigate the effect of any such breach; however, the non-breaching party may terminate this Agreement if such breach is not cured or sufficiently mitigated (to the non-breaching party’s satisfaction) within sixty (60) days of notice thereof.”
The court held that Powertech was not permitted to terminate a license agreement with Tessera for Tessera’s breach because Powertech itself was in breach of the agreement by its failure to pay royalties to Tessera.
Acknowledging Powertech’s argument that Tessera was itself in breach, that in and of itself did not give Powertech the right to terminate the contract. Only a “non-breaching” party may terminate the agreement. Said the court “[a]lthough the first sentence of the termination clause is broad – ‘Either party may terminate this Agreement due to the other party’s breach’ — the language of the clause as a whole makes clear that only a non-breaching party may terminate. Reading the clause as a whole, the court concluded “[t]he termination clause refers to a “breaching party” and a “non-breaching party” in every sentence after the first… [therefore]…the clause requires the party seeking to terminate for the other party’s purported breach to be substantially in compliance with its own obligations first.
The Powertech agreement’s termination clause is useful because it put conditions on a party’s ability to terminate the agreement even when the other party was in breach.
Although courts have called the Internet “one large catalyst for rumor, innuendo, and misinformation,” nevertheless, it provides large amounts of evidence that may be relevant to litigation matters. Increasingly, courts are facing presentation of, and challenges to, data preserved from various websites. According to a survey conducted by the X1ediscovery blog, there are over 320 published cases involving social media/web data in the first half of 2012.
Evidentiary authentication of web-based data, whether it’s Internet site data available through browsers, or social media data derived from APIs or user credentials, presents challenges. Given the growing importance of social media posts and data, businesses should be prepared to offer foundational evidence to authenticate any posts that are vital to a case.
Authentication of social media and web data is a relatively novel issue for many courts. Courts have been extremely strict in applying foundation requirements due to the ease of creating a profile or posting while masquerading as someone else. Therefore it is important to go beyond the surface of a social media profile or a post to provide the foundation necessary to authenticate what he evidence for use in court.
Regardless of the type of data, it must be authenticated in all cases. The authentication standard is found in Federal Rule of Evidence 901(a), “The requirement of authentication … is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” United States v. Simpson, 152 F.3d 1241, 1249 (10th Cir. 1998).
The foundational requirement of authentication is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. See US v. Tank, 200 F. 3d 627, 630 (9th Circuit 2000) (citing Fed.R.Evid. 901(a)). This burden is met when “sufficient proof has been introduced so that a reasonable juror could find in favor of authenticity.” This burden was met where the producer of chat room web logs explained how he created the logs with his computer and stated that the printouts appeared to be accurate representations. Additionally, the government established the connection between the defendant and the chat room log printouts based on IP addresses.
Clearly, there is an emerging trend in the use of social media and web data as evidence. As the use of this type of evidence increases, so too will the consistency and predictability of the foundational matters required by courts. Thus, businesses are well advised to include web collection and social media support in the investigation process so they are prepared to offer the necessary foundational evidence to authenticate any social media posts that may be vital to a case.
Early in my law school career, one phrase stuck with me right away: “tough cases make bad law.” This, of course, begs the question, what makes a “tough” case. Usually it’s a unique fact pattern that has limited applicability to a broader spectrum of cases. In the nascent and growing area of Social Media law, there is no shortage of quirky cases.
My hat is off to Eric Goldman who recently blogged about a social media case that is “tough” because of the way that the lawyers framed the issue. On its face, the case of Christou v. Betaport is an unfair competition case between a night club owner and one of his former partners. The case, being tried in a federal court in Denver, Colorado, involves trade secret theft and antitrust allegations and alleged misuse of MySpace “friends.” Essentially, the complaint alleges that Roulier, a principle of Beatport and former associate of Christou, used a MySpace account to promote his club at the expense of Christou.
Goldman gets to the heart of why this case is tough: “the plaintiffs allege that they “secured the profiles through web profile login and passwords.” This is a garbled allegation.” Put another way, the lawyers whose job it is to supply the facts that frame the issues, probably meant to say something else. According to Goldman the plaintiffs probably meant that the defendants accessed an account impermissibly and in so doing accessed information they did not have a right to access. In terms of a claim for trade secret misappropriation, the harm came when defendants used that information.
I like Goldman’s article because he takes the time to break down both the confused framing of the issue, but also the court’s apparent confusion with how to address it. It’s a short article and definitely worth the few minutes it takes to read.
From my perspective the key take-away is a perspective on the trade secret implications of Social Media accounts. Business and their lawyers are constantly trying to evaluate the legal risks of Social Media and provide guidance on how best to mitigate those risks.
Protecting a Social Media account as a trade secret seems a tricky proposition. Ostensibly, the primary “value” of an account is the list of “followers.” A list that is publicly available is, therefore, not a secret. A better approach is to treat the login credentials themselves as the trade secret since this control’s ones ability to access the account and to communicate with those followers.
Please feel free to comment and follow me here: @adlerlaw
Here are five interesting articles to look at this weekend.
1. Copyright Fair Use Gets a Boost. Last Friday, the federal district court in Nevada held that the non-profit organization Center for Intercultural Organizing’s posting of a copyrighted news article was a non-infringing fair use. The well-reasoned opinion sets a powerful precedent for fair use and against copyright trolling. http://www.eff.org/deeplinks/2011/04/righthaven-v-cio-it-s-hard-out-here-troll
4. Is Your Web Site Eligible For Trade Dress Protection? While Copyright law protects certain original expression from unauthorized copying, Trade dress law protects commercial use of certain distinct features in connection with a product or service. When consumers associate such “look & feel” features with a product or service, trade dress protection exists. Protection has been extended to the packaging of a product, the décor of restaurant, the design of magazine covers, and even kiosk displays.
In Conference Archives v. Sound Images, 2010 WL 1626072 (W.D. Pa. Mar. 31, 2010), a federal district judge in the Western District of Pennsylvania suggested that under the concept of “look and feel,” trade dress law can reach beyond static elements on a website, such as photos, colors, borders, or frames, to include interactive elements and/or the overall mood, style, or impression of the site since a graphical user interface promotes the intuitive use of the website.” Conference Archives, 2010 WL 1626072 at *15.
David M. Adler, Esq. is an attorney, author, educator, entrepreneur and founder of a boutique intellectual property law firm based in Chicago, Illinois. With over fourteen years of legal experience, Mr. Adler created the firm with a specific mission in mind: to provide businesses with a competitive advantage by enabling them to leverage their intangible assets and creative content in a way that drives innovation and increases the overall value of the business. Learn more about me HERE and HERE
David M. Adler, Esq. & Assoc.: Safeguarding Ideas, Relationships & Talent®
While small businesses often need some legal advice, they can’t always find a professional with the right expertise at a budget the small business can afford. Since small businesses usually don’t need lawyers that often, when it comes time to review a contract, buy out a partner or protect their brand and trademark, they often don’t know where to start. The purpose of this article is to give executives a business owners a guide on how to ask a prospective lawyer the right questions to get the service one needs at a price that one can afford.
To get answers to questions about hiring a lawyer, please select one of the links below.
Lawyers are highly-trained professionals who counsel individuals and businesses in a full range of personal and corporate legal matters. Many business transactions have legal implications, so you should try to find a lawyer whom you can treat as a trusted advisor. These questions are designed to help you choose the right lawyer for your situation.
What can a lawyer do for me?
Lawyers provide legal guidance. This doesn’t mean that they can make your business decisions for you. A lawyer should identify legal issues of concern to you or your small business, tell you what the law says about these issues, and advise you on how to address them.
How can a lawyer help me in setting up a business?
A lawyer can:
Explain the advantages and disadvantages of a sole proprietorship, a partnership or a corporation;
draft a partnership agreement or incorporate your company;
review financial documents for your business such as a loan;
review leases of premises or equipment;
act for you in the purchase of property;
review franchise agreements;
draft standard form contracts for use in your business;
advise you how to best protect your ideas, trademarks, designs and know-how.
How can a lawyer help when my business is up and running?
A lawyer can:
help you negotiate contracts and put them in writing;
advise you on hiring and firing employees;
advise you about doing business in other provinces and countries;
help you collect unpaid bills;
defend any lawsuits against you;
advise you about taxes.
If I decide to get out of business, how can a lawyer help me?
A lawyer can:
help you sell your business;
help you sell you ownership interest if you are one of several owners;
arrange for the transfer of the business to your children;
dissolve a corporation or LLC.
When do you need a lawyer?
The recommended approach is to seek the advice of a lawyer whenever a legal issue arises that involves your business. Since it is not always clear when that happens, many problems are solved without resorting to lawyers. When an issue arises, you must first decide whether you need a lawyer at all. In order to know if you should solve your problem on your own, ask yourself the following questions:
What are the consequences if you are unsuccessful?
How complex is the law in your situation?
Do you have the time and energy?
If you are still unsure, some outside professionals, advisors or para-professionals may be useful:
Check with your Board of Directors or Board of Advisors; they can provide information about the steps they went through and the resources they used in solving their problems. Contact government and non-profit organizations for income tax, legal aid, consumer protection, employment standards, etc.
Check with other professionals: accountants, bank officers, insurance agents. For some routine matters, legal assistants, para-legals and notaries public are useful. While not allowed to give legal advice, they can provide added value in familiarity with standard corporate forms and filing requirements.
Also, don’t forget public libraries, legal aid services, student legal services, small claims courts, reading self-help books and other resources such as books, pamphlets and videos.
How do I contact a lawyer?
Give him a call. Most lawyers are happy to steer people in the right direction and calm fears about the legal process. There are several advantages to this approach. The main one is that a lawyer can quickly cut to the heart of your problem, distinguish between legal and non-legal problems. Another advantage is that you usually will not be charged for this phone call. Finally, a lawyer will not only keep your problem confidential, but has the ability to assess it from a less emotional perspective.
Please feel free to call us at (866) 734-2568 should you have any questions.
How do I find a lawyer?
First, try to identify the areas of law in which your problems fall so that you can find a lawyer capable with dealing with all these areas. Some of the main areas of legal practice linked to business are:
Corporate/commercial/securities law (incorporation, buying/selling a business, drafting shareholders/partnership agreement)
Labor/employment law (negotiating and interpreting collective agreements, resolving disputes, explaining obligations, advising about restrictive covenants, dismissals)
Civil litigation law (suing, being sued, collecting debts, negotiating and settling)
Real Estate law (buying or selling land or property, negotiating a lease, solving landlord/tenant disputes, mortgaging property)
Wills and estates (drafting or challenging a will, probate)
What should I ask a prospective lawyer?
Some questions you should ask a prospective lawyer are:
How many years are you in practice?
How long have you been with your current firm?
What areas of law do you practice?
Are you a partner or an associate?
Time and accessibility
How quickly can I expect a resolution?
When can we meet?
How much can I expect top pay?
How do you charge for your services?
Do you provide your clients with a detailed written statement of fees?
Do you charge anything for the first meeting?
Do you communicate via telephone, cell phone, fax or email?
How can I help my lawyer?
Ways you can help your lawyer include:
Be honesty and open
Tell the lawyer all the facts, even the ones that you think are “bad”.
Keep your lawyer up to date on any events or any changes relating to your file.
Ask for advice in plain language and summarize how you understand it.
Ask to be directed to any reading that you could do to better understand.
Ask for a description of the steps your lawyer plans to take and think about the way you could help at each step.
Stay informed and keep track of what transpires on your file.
Take notes at all meetings and list tasks to be completed.
Ask for copies of all correspondence on file.
Have confidence in your lawyer’s advice and follow his/her instructions.
Do not harass your lawyer. If you need more attention, discuss way in which he/she can keep you informed.
Be prepared to accept both positive and negative advice.
Never do anything concerning your case without consulting your lawyer.
Provide information to your lawyer as soon as possible after he/she requests it.
Pay your bills on time and be available if your lawyer needs you.
How do lawyers calculate their fees?
Depending on the complexity of the issues, the services required, and the degree of experience of the lawyer, fees can be charged in different ways:
Billed hourly: charged a rate for the time they spend working for you (e.g. the time spent reading a letter or talking on the phone).
Flat Fee: charge a flat rate for a particular matter, usually when they can predict how long the work will take: incorporations, trademarks.
Contingency Fee: in some matters, the lawyer’s fee will be a stated percentage of the amount of money collected from the lawsuit.
Retainer: provide a range of specified services for a fixed monthly or annual fee.
In addition, lawyers will also bill for disbursements such as long distance phone calls, photocopies, document filling fees, experts’ reports and travel expenses.
Safeguarding Ideas, Relationships & Talent®
Executives face an often confusing and changing set of challenges trying to ensure that their business remains legally compliant. Yet few can afford the highly-qualified and versatile legal staff needed to deal with today’s complex and inconstant legal and regulatory environment. Adler & Franczyk is a boutique law firm created with a specific mission in mind: to provide businesses with a competitive advantage by enabling them to leverage their intangible assets and creative content in a way that drives innovation and increases the overall value of the business.
We approach our relationship with each client as a true partnership and we view our firm as an extension of their capabilities. Our primary value is our specialization on relevant and complex issues that maintain the leading edge for our clients. We invite you to learn more about the services we offer and how we differ.
We look forward to the opportunity to discuss any questions you may have regarding the range of business, technology and intellectual property services we offer. Please feel free to call us at (866) 734-2568 should you have any questions.
David M. Adler will be addressing the Chicago Bar Association’s Media & Entertainment Committee on May 27, 2010 at 12:15 P.M. on the topic of Advising Clients When Creative Content Does Not Equal Copyrighted Content – Transactional & Litigation Strategies and Brief Review of the UrineTown case.
David Adler represented the Chicago stage play team who created, produced, and directed a local run of UrineTown. In response to threatened lawsuit/s, the team filed suit against another team of producers who formerly staged the play in New York. (Mullen v. SSDC, et. al.)
One of the key issues addressed in the lawsuit dealt with whether or not creative endeavors such as stage directing and lighting design could be considered recognized works of authorship under the U.S. Copyright Act and defend its denial of copyright registration applications filed by the Broadway production team. Prior to settlement, the U.S. Register of Copyrights filed a motion to increase the time with which to enter into the case. There are numerous implications with respect to copyright protection and how to best serve your clients interests.