Tim Tebow has already found his name at the center of several hotly contested intellectual property disputes.  Before Tebow even received his new playbook from the New York Jets, a controversy erupted in federal court in Lower Manhattan between sports merchandise moguls Nike and Reebok over the right to sell Tebow Jets jerseys.  Not long after, three New Yorkers battled over the trademark rights to the phrase “Timsanity,” a play on the viral phrase “Linsanity” inspired by Knicks sensation Jeremy Lin.  Most recently, Tebow has sent his own lawyer into the fray to challenge two of his fans for trademark rights to the term “Tebowing,” a pop-culture craze named after Tebow’s on-field, one-knee prayer stance.

Deserved or not, the Jets’ newly acquired backup quarterback is a media darling, an international sensation, and one of the biggest names in professional sports.  During the 2012 season, the only jersey that sold more than Tebow’s Denver Broncos shirt was that of league MVP Aaron Rodgers, marking the second straight season that sales of Tebow jerseys ranked in the top three.  Reebok International Ltd., who has been the exclusive licensor of NFL merchandise for the past ten seasons, was a big beneficiary of Tebow’s popularity.

Reebok’s deal, a 10-year, $300 million contract signed back in 2000, expired on March 31, 2012.  Nike immediately succeeded with a five-year contract, figured to be worth upwards of $150 million, for the exclusive supplying rights to uniforms, base layers, sideline gear, and fan apparel.  But when Tebow was traded to the Jets on March 21, Reebok attempted to swoop in for one last push by selling 6,000 Tebow-Jets jerseys and 25,000 T-shirts.

Nike immediately sued to enjoin Reebok from selling the merchandise, alleging that Reebok “misappropriated publicity rights, interfered with business relationships and unjustly enriched itself” by failing to get the quarterback’s permission for the product launch.  Further, Nike claimed that Reebok’s tactics were an impermissible attempt to capitalize on a “”unique and short-lived opportunity” that should belong to Nike.  Judge Kevin Castel of the S.D.N.Y. granted the injunction, criticizing Reebok’s midnight effort to sell apparel for players changing teams (he also cited the sale of jerseys of Tebow’s Denver replacement, Peyton Manning), and finding that Nike had shown a “probability of success” in its pursuit to permanently stop Reebok from selling Tebow-Jets jerseys.  The two sides eventually reached a “mutually agreeable resolution”, as Reebok removed all of its Tebow-Jets merchandise from stores.

The battle for Tebow is not confined to the corporate arena.  Three New Yorkers (all of whom, incidentally, are Giants fans) are vying for the trademark rights to the phrase “Timsanity.”  Daniel and Christian Perez, a pair of brothers from Brooklyn, filed their applications with the US Patent and Trademark Office one day after Frank DeGrim, a hedge fund manager from Manhattan.  The men all see an opportunity to make and sell Tebow merchandise in a very lucrative New York sports market.  Noting that the “typical test is sight, sound, and meaning,” trademark lawyer Kurt Anderson says that neither application may stand a chance due to the phrase’s obvious similarity to “Linsanity.”  Anderson notes that should Tebow challenge the trademarks, the one saving grace for the opportunistic New Yorkers may be the generic nature of the name “Tim.”

Today, how we read transforming.  E-readers and e-books are a fast booming industry with the assurance of making reading more convenient, and, more importantly, cheaper.  But it seems like the promise of affordable prices has not been kept.  While sales of iPads, Kindles and other e-readers have risen, so have prices of e-books for those devices.   Also, as the marketplace for e-books has evolved so have the conflicts between competitors, specifically accusations of collusion.

The results of the U.S Justice Department’s recent civil suit against Apple and five of the nations biggest publishers may settle these tensions, if it makes a decisive verdict regarding charges of colluding to raise e-book prices.  The justice department alleges that the CEOs of publishing companies had “secret meetings” in Manhattan’s high life restaurants to plot to work with Apple to raise the “wretched $9.99” price point set up by e-book pioneer Amazon.com.  While Hachette, HarperCollins, and Simon & Schuster have decided to settle their cases, Apple, Macmillian, and Pearson PLC’ Penguin Group have decided to charge on to trial.

Are e-books really overpriced?  The government claims e-books went up an average of $2 to $3 in a three-day period in 2010.  Is this part of Apple’s plan to join forces with publishers to sabotage Amazon?  The answer requires a bit of history in the evolution of e-books.  When books moved from hard book cover to an online medium the natural perception among consumers was that prices should be much cheaper considering there is no cost for warehousing, shipping, printing and binding e-books.  CNET writer Nathan Bransford, however, astutely points out an overlooked fact in the debate, “Paper doesn’t cost very much.”  E-books actually do not save publishers from their biggest expenses, namely compensating authors, designing and marketing the book, and other necessary overhead.

In fact, publishers are not saving much money.  Consumers, however, were paying less than half for books on average ($24.99 vs. $9.99).  When e-books first arrived on the market publishers sold the books on a “wholesale” model.  Publishers would sell for half of a “list price” they sell to vendors such as Amazon.  In exchange, vendors were allowed to sell to the market at their own price.  Amazon’s strategy at the time was to pay $12.50 per copy and then sell the e-book on the market for a loss at a discounted rate of $9.99.  This loss leader pricing strategy was instituted in hopes of selling more kindles and to establish a strong foothold early in the e-book marketplace.  Publishers, however, were troubled by the discounted pricing and preferred for more competition to increase prices and break Amazon’s tremendous leverage over the market.  Bransford also points out publishers became concerned that Amazon was devaluing consumers notion of what a book really should cost.  

The tequila industry group’s director, Francisco Soltero, claims the proposal would “protect producers granted with the appellations of origin against unfair competition. It also protects consumers against unfair publicity and deceptive information.” The Federal Competition Commission, however, argues that requiring distillers who use the term “agave” to describe their drinks to go through a certified process would harm small producers. Melvin Drozen, a food labeling and advertising lawyer also has problems with this proposal. “If it’s labeled agave and it’s made from the agave plant, it’s not false or misleading,” even if it’s unconventionally produced outside the traditional tequila region.

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Now that the technology is available and unveiled, this performance will likely not be the only one of its kind.  Dr. Dre and Snoop are reportedly considering taking the Tupac hologram out on tour.  There is also speculation about what other stars we will see in posthumous holographic performances.  According to AV Concepts President Nick Smith “You can take [celebrities’] likenesses and voice and . . . take people that haven’t done concerts before or perform music they haven’t sung and digitally recreate it.”  Raju Mudhar of The Toronto Star speculates that reanimating dead celebrities could be a real trend as it would likely result in a real “windfall for the estates of the deceased performers.”  Such possibilities raises questions about the protections against misuse of performers’ images for holographic performances.

Of course, any public performance of music, by living musicians or by holograms, requires permission of the copyright owner for the composition.  Typically, the American Society of Composers, Authors, and Publishers license out songs performed in concert.  For the Tupac performance, it is likely that the performance of “Hail Mary” and “2 of Amerikaz Most Wanted” was permitted by the copyright owner.

The holographic performance also implicates the Right of Publicity.  The Right of Publicity is the “inherent right of every human being to control the commercial use of his or her identity.” (McCarthy, The Rights of Publicity and Privacy 2d § 1:3.)  A state common law right, the Right of Publicity provides people with the right to control the commercial use of her name, image, likeness, or any other unquestionable aspects of her identity.  The right protects against the loss of the ability to control one’s persona, even if there is not necessarily any commercial harm.  (31 COA2d 121.) Most states recognize that the right is descendible though it varies as to the length of time one’s estate maintains the Right to Publicity, ranging from 20 to 100 years. (31 COA2d 121.)   In order to use the image of Tupac, Dr. Dre had to get consent from the executors of Tupac’s estate which is controlled by Afeni Shakur, who gave permission for the performance.

With the potential rise of holographic performances, stars should take care to protect themselves from appearing as holograms in ways not in their own interest.  The Right to Publicity, like many rights, is one which can be transferred.  (Haelan Laboratories, Inc. v. Topps Chewing Gum, Inc., 202 F.2d 866, 868 (2d Cir. 1953); McCarthy, The Rights of Publicity and Privacy 2d § 10:8). The Miami Entertainment Law Group warns that signing away this right “could potentially cut off your right to share in a very lucrative stream of income AND your ability to determine how you will be remembered.”

It is unclear whether Tupac would have wanted to be remembered for this holographic performance.  However, at least his mother, who carefully controls the use of Tupac’s image, was pleased with the performance.

It is important to note that Mr. Pitt has previously tried covering his basis by filing a similar lawsuit.  In 2000, Brad Pitt presented his own custom design to an Italian jeweler named Silvia Damiani.  Damiani who created the famous Jennifer Aniston/Brad Pitt wedding rings, both engraved with the names Jen 2000 and Brad 2000.  Jennifer’s 18k white gold band featured twenty inset diamonds encircling each side of the ring.  Brad’s ring was simpler and featured a simple broader space of ten inset white diamonds.  The couple reportedly paid the jeweler £36 million for the wedding and engagement rings.  According to reports, soon thereafter, Brad Pitt and Jennifer Anniston filed a multi-million dollar lawsuit against Damiani for replicating Pitt’s custom design, alleging that Damiani “embarked upon an outrageous, fraudulent scheme to manufacture copies of Aniston’s engagement ring and the couple’s wedding rings.” The new Damiani rings were being sold online and featured the same 10/20 diamond design as Pitt’s prototype with diamonds costing $1000.00 a piece.  Eventually, the lawsuit was later settled in favor of Pitt and Aniston and Damiani was barred from using the design.

With this is mind, potential replicators should beware that Brad may come after them.  If exact copies of the rings do hit the market we won’t be surprised if, resurfacing like his role in Sleepers, Pitt brings the wrongdoer to court.

Ironically, high tech companies are looking through portfolios of antiquated tech companies in order to find patents that will position them in the forefront of the technological world.  One example is Microsoft, which recently purchased 800 AOL patents and negotiated licensing agreements on approximately 300 more.

This $1.06 billion dollar deal between Microsoft and AOL has obvious benefits for AOL, an online service that has spent the past decade attempting to reinvent its obsolete services.  The influx of cash and boost of stock prices has already paid off for AOL.  As a result of the transaction, AOL shares have risen to their highest level in the past year.  Its stock rose $7.83 (43%), to $26.25 in midday trading.  This transaction was paramount to AOL’s stockholders, including its largest shareholders, who have been asking for more return on their investment.  The loss of patents will probably not hurt AOL in the future because the company has made a clear shift in their focus towards media; they have recently acquired The Huffington Post and TechCrunch.

A Microsoft patent application.

However, at first glance the benefits for Microsoft are not as apparent.  The patents they acquired in the transaction appear to have little value. Among the patents that Microsoft bought are patents related to the antiquated browser from the 1990s, Netscape.  AOL purchased Netscape in 1999 for 4.2 billion in stock.  However, to AOL’s dismay, the browser was short-lived.  The obvious question here is then why did Microsoft want this archaic piece of technology?  Additionally, why did Microsoft want some of the other patents in the purchased bundle including Secure Socket Layers (SSL), cookies, and Javascript.

The best answer is that those technologies are at the core of the way the Web works.  While the particular product may not in itself be a goldmine, the patents purchased relate to particular functions of the web.

High tech products are particularly vulnerable to patent litigation because of their complexity.  For example, one smart phone could have hundreds of thousands of patents.  Consequently, Microsoft, like its competitors, may have attempted to accumulate as many of these patents as possible in order to prevent litigation.

However, given the current hostilities between the big tech companies, Microsoft may have had additional incentives for these patents.  Some argue that the sole purpose for Microsoft’s billion-dollar purchase was to attack Google.   Currently, Microsoft and Google are litigating over patent infringements related to Android.

Microsoft has already had run-ins with Android.  Threats of recent litigation have even resulted in getting licensing fees from many Android device makers.  Just to convey the magnitude of these litigations, it is notable to point out that last year, Microsoft was making more from its suits over patents concerning Android than from Windows Phone 7, their own product.  In fact, HTC Corp., makers of Android-compatible cell phones, paid about $5 for every devise sold that uses Android.