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In Episode 3, I am joined by Jim Cushing. Jim is a lawyer at The Law Office of Faye Riva Cohen, P.C. , focusing on family, real estate, and unemployment law.
Jim is a big fan of the band Yes and discussed a copyright infringement case that a frequent artist for the band filed against James Cameron, the film director, over the scenery in “Avatar.” You can read Jim’s blog here.
Through this episode, I discuss the requirements for filing a copyright infringement lawsuit and what materials in visual works are protected under copyright law and what is not protected under copyright law.
Here is a lightly-edited transcript of the podcast episode:
Episode 3:
Anthony Verna:
Welcome to the Law and Business podcast. I’m with James Cushing. James, you can say hello.
Jim Cushing:
Hello. How are you doing?
Anthony Verna:
I’m well, thanks. Thanks for calling in. Jim, tell us about your practice. We’ll start there.
Jim Cushing:
Thanks. You know, I met Anthony way back in college through a mutual friend, Steve. Do you remember?
Anthony Verna:
There’s only one mutual friend?
Jim Cushing:
Well, I think we developed many mutual friends through that, I guess. I the people there and I’ve been in practice in Philadelphia since 2002. My practice and my office Faye Riva Cohen’s sort of claim to fame as a labor employment side practice, civil rights type of stuff. But I am sort of been relegated to a lot of a domestic, family divorce, custody support, unemployment comp, small claims sort of thing. I do a lot of landlord-tenant and contracts up to sort of the garden variety every day, a real person type stuff. Usually plaintiff’s side.
Anthony Verna:
So, you’re claiming I’m not every day or a real person?
Jim Cushing:
I guess not everyone’s patenting things every day, but yeah. So, I’ve been doing that since about 2002 for the same law practice, which sounds crazy to me. Actually, just yesterday was my 12 year anniversary at this office.
Anthony Verna:
Congratulations.
Jim Cushing:
Thank you. And my 15th anniversary practicing law. What’s that?
Anthony Verna:
Do you get a pin? Do you get a framed certificate?
Jim Cushing:
I wish I got a gold watch or something, but it was just more of a, Hey, good, nice, go on. Thanks for not asking for more money. Something like that. And I’ve been, you know, I’ve been maintaining a blog, which is I think what sort of inspired this cast, but it’s judicialsupport.wordpress.com where I’ve been writing about some copyright infringement issues, which I guess you’ll get to, Anthony.
Anthony Verna:
Yeah, absolutely. I can break those down for you. I’ve got all the paperwork up here and what you’ve been talking about is a case called William Roger Dean Against James Cameron, 20th Century Fox, student entertainment, blah, blah, blah, blah, blah. And lots of other people who put money behind movies. Who is William Roger Dean?
Jim Cushing:
Roger Dean. He’s not usually known as Roger Dean. In fact, it wasn’t until I, I’ve been a big fan of his for years and it wasn’t until I saw this lawsuit that I knew his name was William. But, Roger Dean…
Anthony Verna:
Stage names, aren’t they wonderful?
Jim Cushing:
What’s that?
Anthony Verna:
I said stage names, they’re wonderful.
Jim Cushing:
Right? Yeah. He goes by his middle name. So, Roger Dean. He’s been around as an artist, as a surrealist artist for I would say 45 years. His claim to fame is doing art for album covers mainly, although he’s done some other things on television, movies, and architecture, but his main art avenue is going to be album covers for rock bands. So, he’s been the primary artist for the band Yes, the progressive rock band. Yes. He’s done their logo and many, many album covers for them and their stage set design.
Anthony Verna:
I was going to say you’re a big Yes fan.
Jim Cushing:
I’m a huge Yes fan.
Anthony Verna:
You’re allowed to admit this here.
Jim Cushing:
And I was going to say that nowadays in 2014 there’s, there’s very few small Yes fans anymore. It’s people who have been carrying the flame for a long time. And yeah, I’ve been sort of obsessive about them for a long, long time. Much to my wife’s chagrin, I’ve seen them 20 times. No, I met some of the guys and gone to festivals and stuff. Nowadays, Yes fans, it’s sort of like Star Trek fans where we have our own conventions and festivals and we all know each other.
Anthony Verna:
It’s kind of like Bruce Springsteen fans. Bruce Springsteen fans can recite the 38 times that they’ve seen Bruce Springsteen to the day, set lists.
Jim Cushing:
Yeah. It’s very similar, right? Yeah. And I would say Yes fans would also, the genre progressive rock is like that. It’s a very somewhat small community anymore. And so anyway, he did Yes covers. In the 80s, he did. Asia covers. The band, the supergroup Asia. some Uriah Heep, Gentle Giant, other groups. And so he has a very distinct style with the sort of floating islands and surrealist sort of architectures, art, you know, landscapes and so on. And I think his work has been done in movies before, but he, and he’s never really taken action on. I’m sure you’re familiar with the movie Galaxy Quest.
Anthony Verna:
Of course.
Jim Cushing:
Yeah. Right. There’s a scene in that movie where they all go into a star base that looks like a rock formation in the shape of like a teardrop. I don’t know if you remember that scene.
Anthony Verna:
Not that particular one, but that’s okay. Keep going.
Jim Cushing:
That there’s a picture. I think that picture is linked on my blog somewhere in one of those things about Virginia. But anyway, so that was a riff right off of a Yes Songs, which is a live album for Yes. But Roger Dean didn’t sue over that cause it was one minor scene. But I think when he saw James Cameron’s movie Avatar, he saw that movie and said, “Well this whole movie is my artwork.” And I think that inspired the lawsuit. Because I’ve met, as an aside, I’d met Roger Dean several times. He doesn’t know me, don’t get me wrong, but I’ve met him. Because, there used to be this thing called the Northeastern Heart Rock festival. That was an annual thing for about 12, 13 years in Lehigh county, Pennsylvania that I went to every single year practically. And he was almost always the artist in residence. So, , every year I come in with my truckload of stuff for him to sign and he graciously would. He sold me some artwork, which is now hanging in my law office.
Anthony Verna:
Right. Excellent. Your wife wouldn’t let you hang it at home, would she?
Jim Cushing:
What’s that?
Anthony Verna:
Your wife wouldn’t let you hang it at home, would she?
Jim Cushing:
No, no. So the spare artwork is sort of, you know, lodged somewhere in an attic somewhere. But the rest of it is here in my office. And so, I talked to him about his artwork being used in media and I think Avatar’s what he said that was just too much for him to take, I think.
Anthony Verna:
I hear you well. By the way, as an aside, did you know that Phil Hartman started as a record album cover designer?
Jim Cushing:
From Saturday Night Live?
Anthony Verna:
Yeah. Yeah. His probably most famous one is the Crosby, Stills and Nash cover with the Celtic knot.
Jim Cushing:
I had no idea. I’m in front of a computer, so I’m going to Google that to make sure.
Anthony Verna:
You’re allowed. You’re absolutely allowed. I’m in front of the computer too. So, Roger Dean’s sued James Cameron, 20th Century Fox, and basically all the companies that put money into Avatar and his basic theory or his lawyer’s basic theory… Cause let’s be honest, this isn’t his theory, right? Jim and I both know, we tell our clients what the legal theory is. The clients don’t make it up themselves. And by the way, I’m sure Jim understands that those who do make it up themselves are generally pretty wrong.
Jim Cushing: (
That’s exactly right. And there’s a reason why, we studied the law, right?
Anthony Verna:
In this particular case, what you said I think comes through in the complaint and in then the amended complaint. Roger Dean had to amend his complaint in this particular suit. And the overall theory is that he is suing because this planet in the movie Avatar looked a lot like his paintings. And that’s really what he was going at. That there were… I had it right up here. I’m trying to…Oh, I had it up and now I’ve lost it. But talking about floating islands, talking abou the mountains, the arches, what the trees look like and from that particular…
Jim Cushing:
Is the dragon in there too?
Anthony Verna:
Okay. And so the thinking is that, and there are pictures and I don’t know that we can… Maybe I can link to these pictures somehow when I post this, but…
Jim Cushing::
Yeah, Anthony, one of my blog posts, I think you’ve got it. I have a series of pictures of them comparing right next to each other. Of the movie and Dean’s stuff.
Anthony Verna:
I have it up because it’s in the final order of the case. So, I see a floating mountain and I see floating trees and I see a lot of that as well. And I see the dragons as well. And in this particular case, the theory is that I did floating mountains, I did dragons, I did trees. And I’m looking at this movie that says floating mountains, floating trees, dragons, and it has to be infringing upon my particular copyright. And I can certainly, from an artist’s standpoint, see that. The one thing that I thought that just popped into my mind, and it reminds me a little bit, but I’ll show you why it’s not quite analogous later on to the George Harrison suit. Are you familiar with the George Harrison copyright infringement suit from the 70s?
Jim Cushing:
I don’t think so, but maybe. I just im’d you some photos on your Facebook, by the way.
Anthony Verna:
Perfect. Thank you. And George Harrison was sued by the copyright holder at the time of a song called “He So Fine”. And it was for “My Sweet Lord”. And at the time, George Harrison’s lawyers argued when… I mean this got to the Supreme Court. George Harrison’s lawyers argued, well, he grew up in the 50s, the song probably was on the radio when he grew up and I shouldn’t say grew up in the 50s but he was listening obviously to the radio in the 50s. He was performing in the 50s. The song, “He’s So Fine” was popular then and he probably heard it. And at that point, he didn’t know he was copying. And the Supreme Court basically said that your mental state is not really a reason to avoid copyright infringement. In this particular case, they lined up the chords, they lined up the structure, they lined up the melody and the music and musicologist after musicologists. Then, of course, expert witnesses are paid by each side to say what they are saying in court. So, there is always a little distrust of an expert witness, but still the expert witnesses lined everything up and said, look at how similar it is. It has to be because of the chord structure, because of the melody, because of the harmony. It’s so much like the original song that he copied.
Jim Cushing:
I’m sure the opposing experts said, “I don’t know what you’re talking about. These two things cannot be more dissimilar.”
Anthony Verna:
Of course. But here in this particular case, the Supreme Court said there’s no mental aspect of copyright law. You either copy it or you don’t. And whether or not you meant to copy something doesn’t excuse you from infringing upon somebody else’s copyright. And so, we have this amorphous idea in copyright law. And it’s something that a lot of people come up to me and ask me about, do you need 10%, do you need 5%? What point is there copyright infringement? And we have another series of cases that the Supreme Court kind of shrugged their shoulders and says, every case is different. It’s based upon facts. And I don’t know. And isn’t that lovely? The Supreme Court saying, I don’t know.
Jim Cushing:
Well, doesn’t give us a whole lot of guidance, I guess.
Anthony Verna:
No. And so, we don’t have a lot of guidance. There are times when an infinite amount of a use of a senior work is acceptable. And there are times when an infinitesimal, minimal amount of as senior work is not acceptable. So, it’s about the originality. It’s about if something else is used, it’s about mental state. And we kind of take all this when we put it in a blender.
Jim Cushing:
And their defense though, how do you put into words or quantify similarity in a piece of artwork, for example? How do you do that besides saying, “Well, I know when I see it.” to quote another famous Supreme Court phrase.
Anthony Verna:
Well since that particular phrase isn’t going to work its way in here, thankfully, but the idea in copyright law and the court’s final decision, cause the court dismissed this case, hits the nail on the head, which is that there are ideas and there are expressions of ideas. And the idea itself, and I think this is probably where the pleading really did lack, even in the amended pleading, the pleading really talks about things like the floating mountains, the floating trees, the dragons. And it really gave the court a lot of leeway to come out and say, well, floating mountains are not all that original. And it allowed the court to say a tree that’s growing up in the sky is not all that original. So, you’re able to take this idea. So, an idea itself is not protectable. And that we know. It’s the expression of the idea. And so, the question is, does the expression… Does this, as the court says, mise en scene of Avatar take from the original work.
Jim Cushing:
Maybe you could help explain the difference between idea and expression. So, if I were an artist and I came up with the idea of arches coming out of the ceiling or the floating in the sky, that’s my idea. So, with that, I can’t copyright that is what you’re saying.
Anthony Verna:
Well, exactly. When you have this particular idea, you can take it and put it on a medium. And I don’t care if the medium is a computer file, a canvas, a piece of paper, or your wall and there’s an expression that can fall under copyright law.
Jim Cushing::
Because I think most people would put more value on the idea[KR2] . Maybe that’s where the confusion lies. In all the responses I’ve seen on the Yes websites to this. It was his idea.
Anthony Verna: (
Sure. It certainly was his idea to take a mountain and have it floating in there. However, the other issue is who else is making this? And this was something that the court also discusses. The court discusses works that are similar to Roger Dean’s work and that it’s really the ability to show that this floating island is similar to the plaintiff’s floating island for example. So you’d have to show that the color is the same and ultimately the court is saying that you have to plead this, that you have to plead that the colors are the same, that the angle’s the same, that the overall look is taken from the original work. And the court’s basically saying there are so many ideas of things like dinosaurs on a prehistoric island, far from the mainland. I mean, that’s nothing new and that can be found in many fantasy stories. So the court is breaking it down and showing the difference between, okay, you have a dragon and these guys have a dragon, but how can you say that this particular dragon design is taken from your design when we have dragon designs all throughout history.
Jim Cushing:
So what then becomes the value of the copyright? If it’s that specific design, then the copyright seems to be extremely narrow.
Anthony Verna:
Sometimes it is. And I think that’s part of, I would say the flexibility of copyright law. On one hand, we’re protecting art, so somebody creates a visual work and we’re able to protect it. And if somebody creates something new, like maybe a new robot or maybe there’s something special about a dragon… I don’t know what would be special about a dragon in today’s world also because we’ve seen dragons with wings, dragons without wings, dragons that fly, dragons that don’t, a three horned dragon. Is that going to be special enough? I don’t really know. I think we’ve seen a dragon that looks like Sean Connery in a terrible fantasy movie, but, it’s hard to say what’s going to make something special. Maybe it’s a special robot design. You know, there’s something that I think maybe we can be very flexible about because we’ve seen robots that look human, robots that don’t look human. We can talk about Rosie from the Jetsons. We can talk about your typical 50s sci-fi robot. We can talk about the terminator, and/or terminator two, we can talk about how you know something mechanical looks and what those particular differences are. So, from that standpoint, I think the look is the expression, whereas for settings in a fantasy world, we’re probably not looking at stuff that’s all that original in its expression.
And that’s really something like, for example, the court here says stone arches and most of the plaintiff’s artworks are relatively smooth and set in barren land or seascapes, you know. And so we’re looking at stuff that I think we’ve seen before but then it actually makes the comparison that stuff in Avatar is jagged, uneven overgrowth with trees and moss…
Jim Cushing:
You went in and out there a couple times there.
Anthony Verna:
Okay. Sorry about that. I’m just saying…
Jim Cushing:
The last bit, two minutes.
Anthony Verna:
Sure, sure. Not a problem, but really what I was saying is that the particular ideas themselves are not all that protectable unlike if we’re trying to look at robots. But then the court decides to drill down a little bit and say, all right, so all you did was you pleaded that your ideas are copied and not your particular expression. And then the court said, let me look at your expression. And when the court looked at the actual expression, the court found plenty of differences. For example, the stone arches and the plaintiff’s artworks are smooth, whereas in the movie Avatar, it’s jagged and uneven. And any of the trees found on a plaintiff’s artwork don’t look like the trees in Avatar. So, they took the drilling down at least one level to say, look, even if you’re to sit there and replead this again, the court didn’t see any way of showing that the expressions are similar. So, the key here, I think, in copyright law, is that the idea is again, not necessarily protectable, it’s about the expression. And then, if you’re going into court, you really need to sit there and in your pleadings discuss the expressions and how they’re similar.
Jim Cushing:
I saw on the reg in the first complaint, there were many more defendants and many more claims, but most of those sort of fell by the wayside when he amended it. I guess that the copyright was the strongest of the weak claims that he had.
Anthony Verna:
I think that’s an accurate statement. Absolutely. I think that’s accurate.
Jim Cushing:
Now, I don’t know if this is directly relevant, but you know, is there a time when you can protect an idea? I mean, is that a concept of intellectual property? You know, at some point you have an idea that this thing is my idea and I want to keep this. Sort of like a patent or something?
Anthony Verna:
Well, patents protect an invention. And while I know that we’ve probably read plenty of ridiculous stories about patents that have been granted, if you’re not able to make a prototype at the very least then a patent isn’t going to be protecting too much. Even though I haven’t touched patent law in many years, that certainly is still a key to patent law. You have to be able to show it’s an invention. So, you have to be able to make it. In this particular instance with your question, I would say the answer is no. Now I will say that contract law is probably going to help you here. So, if you have an idea like maybe a new business idea or a new process for creating something, if there’s something there that’s nebulous that doesn’t fit any other kind of intellectual property law, if you’re going to disclose it to other people, I’d say your best bet there is to get a nondisclosure agreement because that confidentiality is going to help you treat it as what we’d call a trade secret.
So, you have to set up that confidentiality. But more importantly actually then setting up the confidentiality is setting up how it’s a secret. So, whether it’s something that’s password protected on one computer or it’s sitting in a safe or only two people know about it and there are high penalties for disclosing it if there’s an idea that can’t be substantiated otherwise, then I would say that’s how you have to do it. You really have to do it as a trade secret, but you start it by contract and making parties agree to behavior to not disclose the secret.
Jim Cushing:
Now, I saw in the judge’s opinion, I mean as I don’t practice copyright law, so I’m sort of reading it as a semi-intelligent person. But, I was looking at it that he made some comment about Roger Dean presenting evidence of people’s impressions of the movie as evidence that there was ideas stolen, but the judge didn’t seem to think that was particularly persuasive. Cause I will tell you that when the movie came out, when I was at prog rock festivals and the various websites like Peruse and Facebook pages I look at, I mean there was a car of Yes fans saying, “Oh, this is clearly ripping off Roger Dean. This is a huge injustice to the prog rock community.” or whatever and but the judge doesn’t seem to think that other people’s impressions of the work are that dispositive.
Anthony Verna:
Yeah. I’m not really surprised that the judge shrugged that off. From an evidentiary standpoint, it feels a little like hearsay to me. So, I don’t know that it would be necessarily admitted unless there was some kind of scientific poll of Yes fans that was taken. Does that make any sense to you?
Jim Cushing:
Yeah, I mean right. I mean you can’t just have random people’s opinions as evidence.
Anthony Verna:
Exactly. And so I think that’s one particular issue but, from another standpoint, if the judge is looking at the pleadings and then looks at the evidence and has already, made up his or her mind, I don’t know what necessarily your experience is but, my experience is that when it comes to intellectual property, a lot of judges have made up their minds pretty quickly and don’t really want to look at everything particularly. But I find with intellectual property law, not that not the cases are more simple cause I think the concepts are more foreign to people who don’t work in intellectual property all the time. But sometimes it’s maybe a wish to get a complex case out of here. If I can be a little cynical about going into the courtroom…
Jim Cushing:
I don’t think that’s all together on inaccurate. The judges often try to find the, the path of least resistance, right. In deciding a case.
Anthony Verna:
And I think here it’s really self-serving to have a bunch of fan say, “Well, of course it’s ripped off.” and, and I’m not surprised that a judge would just kind of ignore that. I probably would too, and I probably wouldn’t of have even mentioned it to be honest with you, but…
Jim Cushing:
take advice, right, I guess.
[KR3]
Anthony Verna:
Yeah, exactly. Exactly. But, I’ll tell you, I was in federal court earlier this year on a trademark infringement suit and sitting in mediation to hopefully settle the case. The magistrate judge says to me, “It’s not that I find your motion to dismiss frivolous, but I really don’t like it. And I don’t really think that you guys have a defense here.”
Jim Cushing:
At least he’s honest and straight forward, right?
Anthony Verna:
Very honest and straight forward. Exactly correct. Look, I’m in mediation to settle a case. And that’s why I agreed to mediation because I figured that settling the case and believe it or not, the plaintiff did not want to mediate and plaintiff wanted to keep plugging forward and I insisted, not a letter to the judge, but in a required pre-hearing filing that mediation would be proper and it would help settle the case and sitting in the in the first hearing, the judge says, “Mr. Verna, stand up.” “Yes, your honor.” “You look like a person who would like settle this case.” I said, “Yes, your honor. I would.” “Good, we’re going to have mediation.”
Jim Cushing:
What a coincidence.
Anthony Verna:
What’d you say?
Jim Cushing:
I said, “What a coincidence. That is exactly the kind of person I am.”
Anthony Verna:
Exactly. So, I, I’m not surprised, getting back to your question, that the judge kind of shoved it aside for various reasons, whether it’s legal or practical or cynical, you know?
Jim Cushing:
Right. I’m assuming that the judge was doing you something of a favor saying, I don’t know how far this will go in trial, let’s see if we can fix it. You know, avoid needless litigation by mediation. And sometimes the clients don’t necessarily appreciate that favor they’re doing it as opposed to just dismissing your client, calling them out. Right?
Anthony Verna:
Well, I wasn’t out to… How can I say this without without giving away anything that might be confidential. I wasn’t being a bulldog just to be a bulldog. I did it thinking that there would be a chance of having the plaintiff file new pleadings in this particular case. But ultimately, if it’s going to cost you x to settle the case and it’s going to cost you 20 x or 40 x to to take this all the way, well why wouldn’t you just pay x? And that’s kind of the thinking that I had was that I wanted to try to get into the mediation. That was really my goal from the beginning with that particular case. And so, we settled. But if we had to litigate, I was going to do it with the motion to dismiss.
One case that my partner discovered in writing was that motion to dismiss was a case by a Judge Sweet, I believe was his name. And he still is sitting in the southern district of New York and at this point he’s in his eighties. So, he’s in that judicial part time program. And he talks about intellectual property, you really need to discuss the plaintiff’s intellectual property, the defendant’s intellectual property, the infringement, the similarities, and the harm. And you need to link it all together and you really need to be complete about it. And that’s going to be true regardless if you’re in a patent case, a trademark case, a copyright case or some other form of intellectual property, you really need to discuss yours, theirs, the copying, the harm, and the damages and you got to link it all together.
And I think in this particular case, getting back to the reason why we’re talking here, the pleadings don’t necessarily do that. And if you’re in a copyright infringement case, I really think you need to say, here’s the plaintiff’s work, here’s the defendant’s work, and here’s where the similarities lie. And another case that just popped into my head that I remember reading years ago, although I haven’t picked it up in a long time, is one that was filed against George Lucas but I forget if at the time it was Lucas Arts or Lucas film, and it was against the producers of the original Battlestar Galactica and talking about the similarities between Star Wars and Battlestar Galactica and the court in its final opinion, cause it went to federal appeals court. I think it was the Ninth Circuit in California. And in it, that’s exactly how the court wrote its opinion. Here are all the similarities and it went one, two, three, four and it just listed them all. And it got from the general to the specific. And so, I think in dealing with intellectual property lawsuits, that’s where the beginning has to lie, tie everything together and be as specific as you can in the complaint. For people who practice law, That might sound maybe a little too specific in your pleadings when you filed the complaint in the lawsuit. But I think that’s really good advice.
Jim Cushing:
Well I wonder in this case, presuming that Roger Dean, he’s a somewhat of a celebrity so I’m sure he can afford a decent lawyer and I wonder if they did the best they could with the material that they had. I mean you can’t turn a pleading into something that you don’t have. Right?
Anthony Verna:
I agree with you.
Jim Cushing: (35:26)
And what you’re saying, or at least it seems like you were saying is that even though the court did it, gave them the benefit of doubt and actually did look at the pictures and compared them for him and said, even if you were to amend this complaint, you could not amend it in such a way that would even lead to a cognizable case as it is.
Anthony Verna:
Absolutely.
Jim Cushing:
Cause I guess the other alternative oftentimes for motions to dismiss or summary judgment is that the court will say, you know, and I don’t know if it’s like this always in copyright, but it certainly in civil law where the court will sometimes say, you burn a pretty bad complaint here, but there’s nuggets of something in there you could turn into something. So, we’ll let you have an opportunity to amend it one more time, because you might be able to turn it into something. And the judge does seem to say in this case, you know, there’s no sense in that because no matter what you do, there’s still nothing here.
Anthony Verna:
I agree with you. Yeah, I agree with you. Yeah. I was just trying to think of getting to the bigger ideas here, but I do agree with you on that.
Jim Cushing:
Although yeah, it seems sort of accurate. It seems sort of obvious that part of the job of the attorney, is to connect dots. Right. The dots are out there. And I think, part of our job is to say, here’s how you get from point a, which is what I believe to be something that damaged me, to point b, which is this is how much it damaged me, to point c and now it’s this person’s fault or whatever it is. You know, it’s part of our job is to link those things together in a story that’s sensible and cognizable in some way, generally speaking. So, I think in this case you’re saying, the the complaint that Roger Dean filed was somewhat deficient in one of those ways. And perhaps he couldn’t have been, I don’t know if you could’ve done it better or not, but that’s the way it goes.
Anthony Verna:
Well, they already filed their amendment as well. So you get…
Jim Cushing:
You mean what they thought? I mean, after the motion to dismiss was done.
Anthony Verna:
Well, they filed a complaint and then they filed an amended complaint. Yeah. So, they already had their second chance. And, and I’m never in State Court and certainly you and I are licensed in radically different states, so I don’t ever sit in state courts, so I’m not too familiar with how it feels in state court, but in federal court I will tell you if you don’t get it right the second time you’re out the door.
Jim Cushing:
Yeah, I’m not sure in state courts. So at least in Pennsylvania it’s a little different. I mean it all depends on whether an answer was filed and whether some re-judgement was filed and so on. But you know, in Pennsylvania at least if someone files a complaint in the state court in descent, if I was preliminary objections, you know, you can file an amended complaint. I’ve done it several times and at some point, the defendant can simply file to request the final form of the complaint because you can’t do that. You can’t have that dance forever.
Anthony Verna:
Exactly. Exactly. I will never forget my first time in federal court here in the southern district of New York where Judge Berman looked at both sides and said, “This is America. Everybody gets a motion to dismiss, but if you’re going to be amending, this is your second time. So, if the motion to dismiss is granted, you’re out the door.” So, because the party was voluntarily amending, he basically said, when you file that amendment, that’s it. You’ve given up the right for them to complain. It’s already your second chance. If they’re still right, you’re out the door. So, it’s federal court. I will say what I’ve liked about my federal court practice is that it’s no nonsense, as opposed to what I hear from my New Jersey colleagues, my New York colleagues I think hear a lot of no nonsense, except for the people who do criminal law over all. I hear about his motions and filings and delays and, and all sorts of…
Jim Cushing:
Well, I do family work, so it’s all nonsense.
Anthony Verna:
Sorry.
Jim Cushing:
Motion practice and pleadings is the secondary to whether you can make someone cry, I guess.
Anthony Verna:
Yeah.
Jim Cushing:
You know, being an adult for one day though, adults cannot be adults.
Anthony Verna:
I’m gonna keep my mouth shut on that particular comment. Anyway, Jim, I hope that I was able to shed some light on this particular case and I know that you’ve got work to do. I’ve got work to do, so I don’t want to take up more of your time.
Jim Cushing:
I appreciate the opportunity to discuss it. It’s a Yes, so it’s always something I like to talk about. I’ve seen artists pretty close.
Anthony Verna:
I’ve noticed that.
Jim Cushing:
Yeah. So onwards and upwards and we’ll see.
Anthony Verna:
All Right Jim. Sounds good. You have a wonderful afternoon. And how can people get in touch with you if they want to.
Jim Cushing:
Oh, just so we know, Roger Dean has another 25 or whatever days to appeal this, so this might not be the end.
Anthony Verna:
Yeah, obviously that’s his choice. If, he would like to appeal or not. And I’m sure he has enough money to do that, so I wouldn’t be all that surprised. I’m not too sure that it would be all that successful. So maybe he won’t, I don’t know. But it doesn’t, to me, it doesn’t feel like it’s all that egregious of a decision to be honest with you.
Jim Cushing:
No. Right. But, you know, it’s like he’s there, he’s probably has enough money and retainer to file a notice and at least give it a go. Right.
Anthony Verna:
Absolutely. And, it certainly depends what circuit court you get to go to, and in this particular case you’re going from New York to the Second Circuit may influence that particular decision. The Second Circuit is a highly regarded circuit with judges that handle complex intellectual property all the time. I’m sure you’re familiar with the Christian Louboutin trademark case with the red soles and whether or not it’s an acceptable trademark or not. And it’s sitting in the Second Circuit and it’s something that my partner and I argue about often because I say it should be a valid trademark and she disagrees. But anyway, the Second Circuit is known for handling complex intellectual property. So maybe, the lawyers are saying, “Hey, let’s go for it.” So yeah, there’s still plenty of time to appeal.
Jim Cushing:
To answer your question, how to find me, as you said at the beginning, my name is James W. Cushing, although my friends call me Jim and you can email me at JWC@Fayerivacohen.com or find me at www.fayerivacohen.com. It’s f a y e r i v a c o h e n.com. And uh, of course I keep a blog where I talk about Roger Dean.
Anthony Verna:
I never would have guessed.
Jim Cushing:
That’s right. And that’s at judicialsupport.wordpress.com and the if he filed some appeal, that will be on my blog. So be on the lookout.
Anthony Verna:
Alrighty, sir, thanks very much for coming. And I know that everybody listening knows I’m Anthony Verna. I’m a partner at Kravitz and Verna, PLLC. And you can reach me either at Kravitzverna.com. Spell it like Lenny Kravitz Since we’re on the musical team, or you can reach me at vernalaw.com. Thanks very much.
Jim Cushing:
Thanks, Anthony.
Anthony Verna:
Talk to you later, Jim.