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Law360 Q&A With Early Sullivan’s Devin McRae
Category: News | Monday, September 19th, 2011 | Comments Off on Law360 Q&A With Early Sullivan’s Devin McRae
Law360, New York (September 19, 2011, 10:17 AM ET) — Devin A. McRae is a founding partner of Early Sullivan Wright Gizer & McRae LLP. His practice focuses on copyright and trademark infringement, and entertainment and employment disputes. He represents individual and institutional clients in entertainment and business disputes, and insurers and reinsurers in coverage, bad faith, and subrogation actions. His clients include producers, celebrities, a major television network and members of a foreign legislature.
Among other cases, he is presently defending American Broadcasting Companies Inc. and Endemol USA Inc. in a copyright action pertaining to the prime-time show “Wipeout,” defending Fidelity National Financial Inc. against a discrimination and wrongful termination lawsuit and representing a South Pacific insurance company in a multimillion-dollar subrogation action against the American Samoa government.
Q: What is the most challenging case you have worked on and what made it challenging?
A: An immigration appeal I handled pro bono before the Ninth Circuit Court of Appeals. I represented a Haitian-born individual ordered to return to Haiti based on a criminal conviction after decades as a permanent United States resident, service in the United States Army during the foreign conflict in Vietnam and raising two American-born adult sons (one who likewise has served in the United States armed forces).
The matter required me to quickly learn immigration law and procedure, and all applicable criminal law and procedure. The challenge presented was being responsible for a matter that would have a long- term impact on another person’s future, while having very little background in criminal and immigration law. I am pleased to report that I obtained a reversal of the removal order. See Desire v. Gonzales, 245 Fed. Appx. 627 (9th Cir. 2007).
Q: What aspects of your practice area are in need of reform and why?
A: A plaintiff must establish that its work and the defendant’s work are “substantially similar” to prove copyright infringement in the Ninth Circuit. The “extrinsic test” is one of two tests used to establish this similarity. Under this test, the courts conduct an “analytic dissection” and comparison of the works at hand to assess whether a defendant’s work is so “substantially similar” to a plaintiff’s work as to support a finding of illicit copying. In this extrinsic test, the courts take care to separate what is protectable in the plaintiff’s work from what is not, and the nonprotected elements may not contribute to a finding of substantial similarity.
Examples of nonprotected elements are: the basic idea for a story; standard treatments that flow from that basic plot idea and/or stock elements in a particular genre; and acts, scenes, characters, themes or other elements borrowed from another author, from the public domain or which are otherwise not the plaintiff’s “original expression.” The so-called “inverse ratio rule” ostensibly lessens the level of proof required to show “substantial similarity” when the plaintiff can show that the defendant had a “high degree of access” to its work.
The Ninth Circuit could make it clearer (although this is the existing law) that the inverse ratio rule does not impact whether elements are (or may be) protected or nonprotected, and is relevant only to the amount of “similarity” in protected expression there must be to rise to the level of “substantial similarity.” This would curtail spurious copyright claims that rest on inevitable access (for example, because the plaintiff’s show was broadcast and the defendant saw it) and similarity in nonprotected content alone. Classes of content are deemed nonprotected because that content is said to rightfully belong to the public for anyone to use and not to be monopolized by any person.
Q: What is an important case or issue relevant to your practice area and why?
A: On March 8, 2011, the Ninth Circuit published its opinion in Network Automation Inc. v. Advanced Systems Concepts Inc., 638 F.3d 1137 (9th Cir. 2011), which settled the question in this circuit whether bidding on a competitor’s mark to trigger ad placement on the results page of a Web search engine is, in and of itself, an infringement of that mark. The court of appeals held that keyword advertising may in fact be a legitimate form of comparative and contextual advertising.
The court found no reason to believe on the “sparse record” before it that consumers would be deceived by the mere presence of keyword ads. This led to the reversal of a preliminary injunction forbidding a party from buying keyword advertising to be displayed when Internet users entered the trademark of its competitor.
The Network Automation decision established four factors that are “most relevant” for determining whether consumers would likely be confused in the keyword advertising context: (1) the strength of the mark; (2) the evidence of actual confusion; (3) the type of goods and degree of care likely to be exercised; and (4) the labeling and appearance of the advertisements and the surrounding context on the screen displaying the results page. I was defending a broadcast network against Lanham Act and unfair competition claims when the Network Automation decision was published.
The claims alleged that my client had infringed three of the plaintiff’s trademarks by using them as search engine keywords (amongst thousands of other keywords) to trigger clearly labeled ads for the premiere of its new show. The decision was published three days prior to the plaintiff’s “consumer confusion” expert deposition.
At the time of the deposition, neither the plaintiff nor its “consumer confusion” expert seemed to be aware of the Network Automation case or the newly established four “most relevant” factors. When I examined the expert at his deposition, he gave away three of the four factors (stating he had no opinion on them) and admitted he was speculating on the fourth factor because the plaintiff or its lawyers had failed to commission a consumer confusion survey. I had prepared a draft summary judgment motion on those claims, and never had to use it because the plaintiff soon voluntarily dismissed the claims based on its lack of proof under the new test.
Q: Outside your own firm, name an attorney in your field who has impressed you and explain why.
A: I’ve worked with many lawyers with impressive attributes, including Dean Hansell (Dewey & LeBoeuf) and his effective negotiation style, which is seemingly nonconfrontational and delivered with the most pleasant tone but highly aggressive in position; Jack Hursh (Dorsey & Whitney) and his practical, cost- effective approach to litigation, and his conversational, clear and concise oral argument style; and Patty Glaser (Glaser Weil) and her intense, commanding interpersonal presence.
Q: What is a mistake you made early in your career and what did you learn from it?
A: Being drawn into unproductive, costly discovery disputes with the opposing side. To circumvent this, I counsel my clients to avoid taking untenable positions in discovery, and I eliminate needless posturing in the “meet and confer” process and keep the letter-writing to a minimum.
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Early Sullivan Celebrates First Anniversary By Adding Transactional Practice
Category: News | Tuesday, July 26th, 2011 | Comments Off on Early Sullivan Celebrates First Anniversary By Adding Transactional Practice
Los Angeles, CA – July 26, 2011 – Early Sullivan Wright Gizer & McRae LLP (“Early Sullivan”), thriving one year after its split from Glaser, Weil, Fink, Jacobs, Howard, Avchen & Shapiro LLP (“Glaser Weil”), has added a transactional practice in response to growing client demand. Early Sullivan’s success comes from its passion for the practice of law and relentless pursuit of client interests.
Adam Thorpe and Michael Smarinsky are the key players in the firm’s transactional practice. Thorpe, a General Corporate and Real Estate dealmaker, previously practiced at Glaser Weil and Van Etten, Suzumoto & Becket LLP.
Smarinsky was previously the lead attorney in negotiating significant real estate transactions, and responsible for content protection, as Executive Vice President at MGM. He played a major role in the drafting, introduction and passage of the 2005 Family Entertainment and Copyright Act, and participated in many of the Motion Picture Association of America’s activities to establish technology standards for digital media.
“I’ve been around many smart lawyers throughout my career, and this firm employs the brightest lawyers adapting to drastic changes in the legal climate. They are adhering to a leaner, more flexible model without compromising legal acumen. I’m proud to be at Early Sullivan,” says Smarinsky.
Thorpe adds, “We have heard so many clients complain about other firms billing excessive amounts for legal work that should have taken far less time to do. When a client signs up with us, we talk to them about billing structure, and we are open to a creative approach.”
Managing Partner Eric Early knows that corporations and individuals want big firm experience along with a commitment to control spiraling legal costs. “Michael Smarinsky and Adam Thorpe add experience and depth to our firm, and expand the range of services we provide. We further stand behind our unwavering belief that our clients deserve the best possible representation, along with controlled and efficient billing practices.”
Early Sullivan, a business and entertainment law firm, represents a wide variety of clients in litigation and transactions, including Fidelity National Financial, First American Title Insurance Company, Sun West Mortgage, American Broadcasting Company (ABC), EHR Aviation and Endemol USA, Inc.
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Is ABC’s Wipeout a Rip-Off? (Analysis)
Category: News | Monday, May 30th, 2011 | Comments Off on Is ABC’s Wipeout a Rip-Off? (Analysis)
After Mediation Fails, a Copyright Case — in Which the Wacky Obstacle-Course Competition Series is Accused of Copying Original Elements of Six Japanese Shows, Including “Takeshi’s Castle” and “Most Extreme Elimination Challenge” — is Headed to a Key Hearing.
In 1996’s Swingers, Vince Vaughn, Jon Favreau and their fellow wannabe actors debate whether Quentin Tarantino ripped off a slow-motion sequence in Reservoir Dogs from Martin Scorsese. “Everybody steals from everybody,” Vaughn’s character announces. “That’s Hollywood.”
The Swingers maxim is true throughout showbiz, but perhaps it most accurately describes one particular segment of Hollywood: Reality TV. Since Survivor kicked off the U.S. boom in unscripted, narrative programming 11 years ago, the niche has been littered with more copycat shows and derivative concepts than hit original formats. American Idol, the official U.S. version of Britain’s Pop Idol, spawned countless singing elimination shows. History’s Pawn Stars begat Hard Core Pawn, Pawn Queens and the rest. Producers of ABC’s Wife Swap once sued the makers of Fox’s similar family switcheroo series Trading Spouses.
Owing to what might be a knee-jerk reaction against protecting the creativity in a genre dubbed “reality,” as well as a lack of clarity in copyright law, many producers believe there is a Wild West mentality in the unscripted world that has given rise to a culture of rampant, unlicensed borrowing. Not helping matters was a leaked 2008 memo from ABC executive vp Howard Davine, urging execs and showrunners to “carefully scrutinize” whether licensing foreign formats was “necessary or appropriate” before going forward with similar shows, especially when they might only be interested in the “general, underlying premise.” The memo didn’t specifically target reality shows, but it drew the ire of the Format Recognition and Protection Association, an international group pushing for intellectual property rights for unscripted TV formats. FRAPA suggested that producers consider helping themselves to the “underlying premise” of Disney’s Hannah Montana and Mickey Mouse.
Against that backdrop, a lawsuit coming to a head in U.S. District Court in Los Angeles might determine where a court will draw the line on copyright infringement in reality TV. The case, filed in 2008 against ABC by Japan’s Tokyo Broadcasting System (TBS), claims that ABC’s wacky obstacle-course competition Wipeout copied original elements of six TBS shows, including Takeshi’s Castle, Most Extreme Elimination Challenge (MXC), Sasuke and Ninja Warrior. The suit alleges that ABC and Wipeout producer Endemol set out to replicate the TBS shows, lifted popular components and even sought to manipulate Google into sending traffic for search terms “Takeshi’s Castle” and “Ninja Warrior” to a Wipeout-sponsored link. The case, which is being litigated by showbiz powerhouses Stanton “Larry” Stein (for TBS) and Patty Glaser, with former partner Devin McRae (for ABC), has a key summary judgment hearing this summer after a May 12 mediation failed to produce a settlement.
Crucial to the case is which elements of the TBS shows are unique enough to warrant copyright protection (what lawyers call the “protectable” vs. “nonprotectable” elements). In court papers, ABC argues that TBS “remarkably claims copyright protection in obstacles and obstacle concepts ubiquitous in the public domain, such as ‘rope swings,’ ‘mechanical bulls’ and ‘pole vaults.’ ” The network points out TV’s history of obstacle-course competitions, from the BBC’s It’s a Knockout in the ’60s to ABC’s Battle of the Network Stars in the ’70s to Fear Factor, the 2001-06 NBC series from Endemol, produced by Wipeout co-creators Matt Kunitz and Scott Larsen. Wipeout, ABC argues, uses only general scenes a faire, rather than any unique, and thus copyrightable, expression.
Considering the limited number of reality-TV tropes available to producers, ABC makes a compelling argument. Still, when Judge Margaret Nagle sits down to watch Wipeout and the six TBS shows (a good reason to give federal jurists raises), she will likely notice alarming similarities. Wipeout‘s “Cookie Cutter” contraption appears nearly identical to MXC‘s “Rotating Surfboard of Death,” as do the wisecracking hosts. Ditto Wipeout‘s “Hopping Blocks” and Sasuke‘s “Six Jumps.” And so on. How many similarities are too many?
Therein lies the larger question beyond the minutia of the Wipeout case: What aspects of any reality show are subject to legal protection? In a genre where the traditional plot and character aspects of scripted works have been replaced by unique formats, the law might need to evolve to protect the creativity that informs this powerful segment of the TV world.
Source: Matthew Belloni, The Hollywood Reporter
Biederman Institute Appoints Eric P. Early to Executive Board
Category: News | Wednesday, March 2nd, 2011 | Comments Off on Biederman Institute Appoints Eric P. Early to Executive Board
Los Angeles, CA – September 27, 2010 – The Donald E. Biederman Entertainment and Media Law Institute at Southwestern Law School (“Biederman Institute”) has appointed Early Sullivan Managing Partner Eric P. Early to its Executive Board.
The Biederman Institute’s Executive Board includes prominent film studio attorneys and top entertainment lawyers, and maintains a direct connection to the entertainment and media industries through its alumni network and highly experienced faculty, comprised of current and former practitioners in media, sports and entertainment law.
The Biederman Institute, established in 2000, enables students to earn credit while working for leading companies and organizations, such as the Academy of Motion Pictures Arts & Sciences, Lions Gate Entertainment, Virgin Records and the Writers Guild of America. It features a rich spectrum of media and entertainment law courses on subjects ranging from music publishing and motion picture production law to technology agreements and information privacy law.
“It is a privilege and honor to serve on this distinguished board. I plan on working with other board members to bolster the already rich Biederman network and raise awareness for the Institute,” says Eric P. Early.
Early Sullivan, a business and entertainment law firm, represents a wide variety of clients in litigation and transactions, including American Broadcasting Company (ABC) and Endemol USA, Inc.
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Early Sullivan to Serve as General Counsel for Project Kindle and Kindle Ranch (Pro Bono)
Category: News | Friday, November 5th, 2010 | Comments Off on Early Sullivan to Serve as General Counsel for Project Kindle and Kindle Ranch (Pro Bono)
For Immediate Release
November 5, 2010
Contact: Eva Payne, 661-257-1901, eva@kindleranch.org
Project Kindle and Kindle Ranch Receive New Legal Representation
Santa Clarita, Calif. – Project Kindle, a nonprofit organization dedicated to improving the quality of life for children, young adults and families through cost-free recreational experiences, education programs and support services, has announced it will receive pro-bono legal representation from Early Sullivan Wright Gizer & McRae LLP.
Project Kindle has launched a new program, Kindle Ranch. This expansive new complex, once built, will be dedicated to providing many nonprofit organizations serving those with various life challenges, a permanent place to host their camp programs. This will be the only facility in the Western United States, able to meet the various participants’ medical, emotional and physical needs. As Project Kindle has continued to grow, the need for a firm such as Early Sullivan Wright Gizer & McRae has increased as well.
“I am grateful for Scott Gizer’s willingness to volunteer as our legal counsel,” said Eva Payne, Executive Director of Project Kindle and Kindle Ranch. “The firm’s efforts to support us prove their commitment to the greater community of those with special needs and disadvantaged backgrounds.”
“The growth of Project Kindle over the years is nothing short of extraordinary and I am truly looking forward to this opportunity,” said Scott Gizer, Partner at Early Sullivan Wright Gizer & McRae.
For more information on Project Kindle or Kindle Ranch, visit www.projectkindle.org or www.kindleranch.org. To learn more about Early Sullivan Wright Gizer & McRae, visit www.earlysullivan.com.
ABOUT PROJECT KINDLE
Founded in 1998, Project Kindle is a non-profit organization dedicated to providing cost-free camping programs, year-round support, and advocacy for children, young adults and families infected with or affected by HIV/AIDS, and offer innovative peer-based HIV/AIDS education for young people ages 12-24. Recently, Project Kindle has expanded its services to Kindle Ranch, which will serve those facing various life challenges by partnering with other nonprofit organizations to provide a camp facility where they can better serve their clients.
ABOUT EARLY SULLIVAN WRIGHT GIZER & MCRAE LLP
Founded in 2010, Early Sullivan Wright Gizer & McRae LLP is a premiere boutique litigation firm that services a wide range of clients, from individual to start-up companies to the Fortune 500. Areas of expertise include entertainment, real estate, title insurance, constitutional law, media-related torts, copyright, trademark, antitrust, class actions and other complicated commercial litigation disputes.
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Source: Project Kindle
L.A.’s Glaser Weil Loses Attorneys to Another New Boutique
Category: News | Wednesday, June 30th, 2010 | Comments Off on L.A.’s Glaser Weil Loses Attorneys to Another New Boutique
Five lawyers from Los Angeles-based Glaser Weil Fink Jacobs Howard & Shapiro have left to form their own litigation boutique firm.
Eric Early, managing partner of the new firm, Early Sullivan Wright Gizer & McRae, said the timing was right to leave Glaser Weil, an entertainment litigation firm where he worked for 15 years.
“We just wanted to go out on our own and give it a shot,” he said. “It’s a bunch of really great lawyers — up-and-coming lawyers — and we thought now was the time to do it.”
He noted that several other lawyers recently have founded new firms in Los Angeles, including Cypress LLP. That firm was created by former attorneys at Glaser Weil.
Patricia Glaser, chairwoman of the litigation department at Glaser Weil, said the split was amicable and that she expected to send work to Early Sullivan, as the firm does to Cypress.
Asked to explain the recent departures, she replied: “We breed entrepreneurial people.”
In addition to Early, the new firm, which opened its doors this week, was co-founded by Bryan Sullivan, William “Billy” Wright, and Scott Gizer, who were partners at Glaser Weil; and Devin McRae, who was an associate.
All five are business litigators. Their clients include Fidelity National Financial Inc.; EHR Aviation Inc., which is a subsidiary of EHR Investments Inc.; and Progressive Insurance Co. (Pago Pago) Ltd. in America Samoa. Entertainment clients include The Magnet Agency and actor Wayne Brady, who has hosted “Let’s Make a Deal.”
The departure comes two years after Glaser Weil changed its name from Christensen, Glaser, Fink, Jacobs, Weil & Shapiro following the conviction of its managing partner, Terry Christensen, on wiretapping charges. Federal prosecutors alleged that Christensen and Hollywood private eye Anthony Pellicano recorded the phone conversations of Lisa Bonder Kerkorian, the ex-wife of MGM Studios Inc. mogul Kirk Kerkorian, during a high-profile paternity dispute in 2002.
Christensen, who was sentenced to three years in federal prison, has appealed his conviction.
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Source: The National Law Journal
Glaser Weil Partners Start Boutique
Category: News | Thursday, June 24th, 2010 | Comments Off on Glaser Weil Partners Start Boutique
Four partners and one associate from the West Los Angeles legal powerhouse Glaser, Weil, Fink, Jacobs, Howard & Shapiro have split off to start their own business litigation boutique, Early Sullivan Wright Gizer & McRae.
The five-person Early Sullivan opened its doors in the mid-city area on Monday. The firm, comprised of former Glaser Weil partners Eric P. Early, Brian Sullivan, William “Billy” Wright, Scott Gizer and Devin McRae (a former senior associate at Glaser Weil), offers an array of litigation specialties including entertainment, real property and title insurance.
Early, who headed the insurance litigation group at Glaser Weil, only would say that the decision to break off was based on seeing new opportunity in a smaller platform.
“This is just a group of terrific up and coming lawyers and we wanted to do it on our own,” Early said. “We’re excited, we’re already working hard.”
Early and partners Sullivan, Wright, Gizer and McRae were well-respected within their previous firm, according to sources with close knowledge of the situation, but it is unclear how deeply their departures will affect Glaser Weil.
Glaser Weil partner and litigation chair Patty Glaser said she wishes them well and that her firm will refer business to Early Sullivan.
“They’re entrepreneurial, which is what we are,” she said. “We’re wishing them the best.”
The two firms already share at least one large, national client, Fidelity National Financial Inc., which is expected to continue working with lawyers at both companies, Early said. Other clients the Early Sullivan lawyers will bring from Glaser Weil include Chicago Title Co., Bank of America and Plan A Productions, he said.
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Source: The Daily Journal Corporation