Archive for February, 2009

Famous Dave’s Not Grilled in Sign Dispute

February 28, 2009

This month federal judge Donovan Frank dismissed a copyright lawsuit brought by the guy who designed much of the decor and signs for the fairly famous Famous Dave’s restaurants that began in the Twin Cities and now are nationwide.  The lawsuit helps show how “intellectual property” such as copyrights are not your run-of-the-mill property, and the recent ruling is Exhibit A for why a creative person who is hired to create something for a business should retain a lawyer.

The creative person here, Allen Thomsen, was hired by Famous Dave himself (Dave Anderson) after Anderson showed Allen the concept for his first restaurant.  This was in 1995.  The restaurant was to be in the Linden Hills neighborhood of Minneapolis.   The concept, now familiar to pretty much every Minnesotan, featured an interior with the look and feel of a “typical roadside BBQ shack” with “collectible Americana antiques.”  Thompsen prepared initial drawings and then designed the decor and signage for the “shack” theme, and Anderson hired him — not necessarily for his design work, but to paint signs for the Linden Hills restaurant.

By October 2001, Anderson had opened three dozen restaurants and Thomsen had pained signs for about 20 of them.  One thing led to another and Thomsen ended up claiming copyright ownership in lots of Famous Dave’s designs and signs.  Anderson and Thomsen settled the dispute by a document in which Thomsen agreed to “release” his design and sign work to Famous Dave’s, apparently for $15,000 plus attorney’s fees.

In this more recent lawsuit, Thomsen claimed that the “release” was not an “assignment.”  In other words, his argument was that although he agreed not to seek a copyright ownership interest in the designs and signs, he did not transfer ownership to Famous Dave’s.  Judge Frank disagreed and ruled that by signing the release, Thomsen abandoned his ownership interest, and Famous Dave’s owns it all.

This is a toughie.  As I explain in my Q&A on the left side of the page, “a copyright is a property right, similar to your right to own land, to sell a car, or to give your neighbor permission to use your lawn mower.”  So if I lend you my lawn mower and then agree not to seek an ownership interest in it, have I transferred it to you?  According to the law of “abandonment” that comes to us by way of Jolly Ol’ England, the answer is yes.  Under our common law, someone must own a lawnmower.  If it had been mine, and you have it, and I tell you I don’t want it, it’s yours.  Possession, as they say, really is nine-tenths of the law.

The trouble is, copyright law sometimes involves the other tenth because under the law someone need not own everything.  As I explain to the left, no one owns the visual depiction of the Mona Lisa.  It is in the public domain.  And under our copyright law, a creative person has the ability to “transfer” a work into the public domain for everyone to use and no one to own.

Interesting case …

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An Encouraging SLAPP

February 19, 2009

On Tuesday, the Minnesota Court of Appeals released a decision affirming that when someone speaks with an intention to change the way government operates, the law will try to protect the speech even if it borders on being defamatory.

The case arose in Marshall County in southwestern Minnesota where a resident whose land was “taken” by a governmental “Watershed District” sued but then settled the lawsuit.  The settlement required the landowner and the District to “endeavor to establish a positive and collaborative relationship” with each other.  A year later, the District sued the landowner alleging that he had breached the agreement by interfering with funding, making statements with intent to harm the project, and filing requests for public documents.

The landowner sought to have the lawsuit dismissed and wisely cited Minnesota’s “anti-SLAPP” statute, a little-known and little-used provision that requires courts to dismiss lawsuits involving “lawful conduct or speech that is genuinely aimed in whole or in part at procuring favorable government action.  SLAPP stands for “Strategic Lawsuits Against Public Participation.”  Anti-SLAPP statutes generally work to ensure that ideas freely flow when the ideas involve government.  California has led the way in fighting against lawsuits of this type, and in 1994 Minnesota’s anti-SLAPP statute took effect.

But barely anyone knows the law is on the books.

In Marshall County, the trial court let the lawsuit go forward, but on Tuesday the Minnesota Court of Appeals held that the trial court had to dismiss the case unless the District could demonstrate by “clear and convincing evidence” that the anti-SLAPP provision did not apply.

It remains to be seen whether the governmental entity can and will be able to do that.  In the meantime, though, the Court of Appeals has provided an important reminder that when one speaks out against government, the law should — and will — offer protection.