News and Updates from Mestaz Law
We have several exciting things to share with you in this newsletter. First, a highly-skilled litigator in appellate and copyright matters has joined our firm. His name his Matt Hersh, and you can read more about him and his background below.
We also have interesting articles, including a unique take on mindfulness and litigation, and recent developments in copyright laws you should be aware of.
Mestaz Law Welcomes Matt Hersh: A Skilled Litigator in Appellate and Copyright Matters
Matt is a skilled litigator, experienced in both the trial and appellate level, with a long track record of representing copyright owners, telecommunications companies, and other corporate entities.
For more than a decade, Matt has stood up for the rights of record companies and other artists and content creators. He helped formulate the music industry’s very first strategy to combat music piracy and online copyright infringement, which led the way for the licensed online music services we use today.
Matt is also well versed in appellate litigation, including numerous federal circuit and state court cases, and half a dozen U.S. Supreme Court cases – among them landmark cases involving copyright law, the laws of war, and civil liberties.
As Daniel Mestaz has done, Matt resigned his BigLaw position in order to provide legal services in a more diverse array of settings. He speaks Spanish fluently, writes a daily column for an intellectual property trade publication, and is committed to continuing his public interest and pro bono work throughout his legal career. Mestaz Law is proud to have Matt Hersh in an of counsel role.
Matt is admitted in Washington DC. His practice in Arizona is temporarily authorized pending admission under Rule 39(b), under the supervision of Daniel Mestaz.
Three Features of Mindful Litigation
Much is instructed about litigation practice. One should write well, examine witnesses well, and tell a great story… but I have known or practiced with a handful of truly great trial lawyers over the years, and they have something more that sets them apart. They practice mindfully, even though that word may have never crossed their minds. They are present. They are authentic and likeable. And they have the right tools to ensure their mastery of the evidence – the currency of any lawsuit – which frees them to be the best versions of themselves. Thus, mindful litigation comes down to three things:
Forever is composed of nows. – Emily Dickinson
Life is constant change and distraction – family, career, and big moments of loss or triumph. Meanwhile, it is human nature to get lost in thought and create narratives in your own mind – e.g., stories about what might go wrong or what others think of you. Who hasn’t lied awake at 3am wondering if you screwed something up or speculating about a disaster that might unfold? Yet, deep down, we know these stories are unhelpful. Worrying does not make it better. As one of my teachers liked to say: “The only story that matters is the one you tell yourself.”
That brings to mind a study, or survey, I read about a while ago. Researchers asked a group of elderly people about their life’s biggest regret. The most common response, by far, was that they worried too much. I found that telling. It was not that they worked too much, or did not spend enough time with their family. It was that, when they did, say, spend time with loved ones, they were not sufficiently present, because their worries took them elsewhere. The basic solution – be present – is easy enough to prescribe. When you are with your child at the park, be there. When you are eating dinner alone or with another, be there.
Easier said than done, right? Litigation, particularly trial work, exemplifies these difficulties. Trial moves fast. The lawyer listens to witness testimony in real time. Meanwhile, the only certainty is that something unexpected will occur. Witnesses—living, breathing curve-balls— surprise you. Judges make unanticipated rulings. Your client drops a bomb of the
“if-only-I’d-known-that-sooner” variety. As a young lawyer, I often found myself in the past or the future—lamenting a mistake or thinking ahead to the next witness examination—and missed what the current witness was saying, or missed a hearsay objection I could have made. I was not always present, to the detriment of my client’s case.
Fortunately, I have learned to be more present. But like anything, mindfulness—the mental state achieved by one’s awareness of the present moment—takes practice. Meditation, such as by focusing on the in and out of one’s breath, is a typical mindfulness practice. When you find yourself attaching to thoughts or telling yourself a story, you come back to the breath, like a buoy of peace in a storm of distraction. Although prayer and yoga are also great mindfulness practices, other, non-spiritual activities—walking, chopping wood, washing dishes, gardening—can also be meditative. The point is to fully experience each moment, such as each and every step of the walk. Eventually, the practice morphs into a habit and gradually bleeds into the rest of your life. You become more effective at whatever you do, because, in each situation, you are here for it now.
I’ve learned that people will forget what you said, people will forget what you did, but people will never forget how you made them feel. – Maya Angelou
The best trial lawyers are extremely likeable, but in different ways. Some are charismatic and eloquent. Others are funny and self-deprecating, or folksy and charming. The recent Johnny Depp vs Amber Heard defamation trial is a good example of this. One could chalk it up to non-verbal communication skills—after all, studies show that it is not really the words but confidence, tone, and body language that persuade. But likeability need not be so granular and studied. One can just be a real human being who authentically exudes warmth toward others.
Consider those you met and liked. Were they aloof? Talked mostly about themselves? Probably not. Rather, they probably looked you in the eye. They asked you questions about yourself. They seemed genuinely interested in what you had to say. They were authentic, real, and even flawed. You could sense or feel that this real, relatable person seemed to like you. So you liked them too. It is human nature.
But that is not easy to do for just anyone. It is easy to love your child. You like your friends. But what about the noisy neighbor with contrary political beliefs? The rude, grumpy cashier? Whether through religion, a meditation practice, or something else—or whether you call it warmth, love, or just good vibes—cultivating the ability to exude warmth and humanity toward anyone will make you more likeable to everyone.
That ability is quite beneficial to litigation and trial work. The legal system is composed of human beings—judge, jury, witnesses, client, court personnel—with personalities and political beliefs across the full spectrum. All of them matter to your case. If you can only exude warmth and humanity to some people and not others, can you suddenly “turn it on” for anyone when you need to? Maybe, to some degree, you can. But people sense, often unconsciously when you are acting. There is a vague whiff of phoniness. So there is no substitute for making it a practice, which, eventually, becomes more of a habit and feature of your personality. It makes you more likeable, and, therefore, more likely that the judge or jury—just human beings after all—will find in your favor.
Any attorney who goes into court thinking he’s going to flim-flam a jury is nuts. – Joe Jamail, legendary Texas trial lawyer.
In litigation and trial, evidence is king. The jury is instructed to base their decisions on the evidence. And they take their oath to do that quite seriously. I have seen brilliant trial lawyers lose, rightfully, because the evidence did not support their case. They could not flim-flam the jury. Hence, there must be a laser focus on organizing the evidence in a way that, when the time comes, the lawyer can display it to the judge or jury without delay. The confidence in the ability to do that has another extremely important effect: It gives the lawyer the mental space to be present, warm, and likeable—to be the best version of themselves—because they are not worried about where to find things or what to do next. But being master of the evidence requires the right tools.
There are excellent trial presentation software programs. They allow lawyers to load trial exhibits into the program so they can be electronically displayed to the jury. But that technology is under-utilized. Typically, lawyers wait until the eve of trial to decide what trial exhibits to use. Then they load those exhibits into the software.
I use custom technology called The Chron. It has an advantage over other tools because it allows me to use the trial presentation software from day one of the case. All discovery and evidence is numbered and loaded into the trial presentation program upon receipt. That evidence is identified by date, description, and numbered bar code, in a separate document—a chronology. Then I can use a keystroke or bar code reader to instantly display any piece of evidence from the trial presentation program. The Chron is an evolving, organic document, that I use for everything, including client and witness interviews, depositions, hearings, and trial. It is the evidentiary backbone of the case. By the time of trial, I know the evidence like the back of my hand – it is at my fingertips, and I can display any of it in just seconds.
Hence, The Chron helps me litigate mindfully. I know that I can tell a well-paced story, handle any surprises, and adapt in real time to the flow of a witness examination. I exude confidence because I know that I can always find what I need when I need it. It is a buoy of peace and calm in the storm of distractions and surprises. Thus, it helps me stay worry-free and present, so I can focus on the now.
Client Success Story
“He masterfully ran a proper legal case. It was very, very masterful – his legal methodology process and how he went through from A to Z to reach the conclusion. There was no trickery – nothing like that. I like the fact that Daniel was clean and clear. I think that Daniel came out very well on this as a person who can run a proper case and the client is not going to feel shortchanged or sold out. He was the man!”
Recent Developments in Copyright Law
Mestaz Law’s new counsel, Matthew Hersh, is an experienced copyright litigator and also a contributing writer for the Intellectual Property Law Daily, a leading trade journal that covers developments in copyright, trademark, and patent law. He’s starting a regular blog on copyright law that will be of interest to copyright litigators in Arizona and beyond. Matt is licensed in Washington, DC – his hometown – and his practice in Arizona is temporarily authorized pending admission under Rule 39(b), with supervision by Daniel Mestaz. He also wants you to know that he still believes The Clash is the only band that matters, although apparently Dan would quibble with this.
Hi – Matthew Hersh here! I picked quite a month to move out to the Valley of the Sun! I’m really not sure how you folks handle it. Fortunately, Dan’s office has plenty of AC, sunscreen, and cold compresses.
Arizona tends to be underrated as an intellectual property state. Sure, the District Court here isn’t as active on copyright and other IP issues as those big coastal courts in California and New York (or Nashville, a surprisingly popular copyright venue for reasons you can probably guess). But there’s a tremendous amount of creative activity in the Grand Canyon State. ASU is in the top ten for patents among universities, just behind ‘that school’ in Cambridge. The artist community here in Arizona is robust and thriving, as anyone wandering a First Friday on The Row can attest.
And if you’re a fan of the Gin Blossoms, Alice Cooper, Dierks Bentley, Jordin Sparks, or my lifelong crush, Stevie Nicks, you know the caliber of music that comes out of here. There’s plenty of original content here to protect!
So, what does a copyright lawyer in Arizona want to keep an eye on? The following isn’t a complete listing, but rather a few snapshots of developments in 2022 that may be interesting:
Warhol v. Goldsmith: I’d say this is the headline of the year so far. Short story: In 1984, a photographer named Lynn Goldsmith took a picture of a young rising artist named Prince. She licensed it to Vanity Fair, which turned around and gave it to Andy Warhol to stylize in his classic manner. So far, so good. But it turned out that Warhol made 16 more prints of the same photo without telling her, some of which he licensed out again without sharing the profits. Warhol’s foundation claimed this was a “fair use”, because he imbued the work with (in the words of an earlier Supreme Court decision) “a further purpose or different character, altering the first with new expression, meaning, or message.” The Second Circuit disagreed, and in late March, the Supreme Court announced it would hear the case. The related briefing will occur over the summer, and it will likely be argued in the fall. This is certainly one to watch!
Gray v. Hudson (Mar 10): Here’s one for the Katy Perry fans! The pop songstress was sued by Christian hip-hop artist Flame for allegedly purloining (stealing) a repeating 8-note instrumental figure – in musical terms, an ostinato (which is a continually repeated musical phrase or rhythm) – in the song “Dark Horse”. A jury found Perry and her record company liable for copyright infringement and awarded $2.8 million in damages. The district court vacated the jury award, and the Ninth Circuit said that was the right move. The ostinato allegedly taken was essentially commonplace, so it couldn’t be protected by copyright. (I wrote about the case here.)
Kihn v. Graham (Jan 3): A change of musical themes here. If you were a fan of the Grateful Dead, you’ll remember Bill Graham, the legendary music promoter who brought the Dead – as well as Bay Area acts like Jefferson Airplane and Santana – to the public eye. After his death in 1991, his collection of music memorabilia was snapped up by a website called Wolfgang’s Vault. (Lots of cool stuff there; you should check it out.) Some of that memorabilia included tapes of live performances of acts from the 1970s and 1980s. Well, some of those acts didn’t like that, so they sued. The district court granted the artists class certification, but the Ninth Circuit reversed. The case settled shortly thereafter. (I wrote about the case here).
Optimistic Investments v. Kangaroo Manufacturing (Apr. 22): Judging from the title, you can tell this is going to be a fun one, right?! The lawsuit presented what Judge Liburdi of the federal bench in Phoenix described as “a gordian knot of facts twisted around a central question: who owns the subject copyrights, and other intellectual property rights, for certain products sold on Amazon”. On one side of the lawsuit was an Arizona-based marketer who claims to possess “visionary strategies for generating record-breaking sales on Amazon” which he shares through seminars, training, and mentorship programs. On the other side was a collection of small online retailers who market via Amazon a wide range of children’s toys, novelties, and (this being a pandemic…) KN95 masks. The retailers sought to enjoin the Arizona marketer from selling them over Amazon. The marketer responded by saying “Hey, these works are mine!”, but the court didn’t buy it. The marketer had entered into a web of assignment agreements with various third parties about the works – not enough to definitively prove that he had sold away the rights, but certainly enough to merit a preliminary injunction against his sales activities for now. (I wrote about the case here.)
Dunn v. Parker (May 17): Here’s one where an Arizona author came out on top! A New Jersey artist sued an Arizona drawing instructor, as well as his California-based publisher, for allegedly infringing his book… but he sued them in New Jersey, where he lived. Could the New Jersey court get personal jurisdiction over the two defendants? The court said yes as to the publisher, since that company had targeted the state for book sales. But not so for the Arizona author – he had no meaningful contacts with the state. If the artist wants to sue him, he’ll have to do it here in Arizona, or some other state where he has closer ties.
Small Claims Court:
Here’s an important new addition to the world of copyright jurisdiction. Until now, all copyright cases had to be brought in federal courts, with its high costs, extensive procedural requirements, and imposing formalities, especially for pro se plaintiffs. Pretty soon, there will be an opportunity for people with small dollar claims or no lawyers, a small claims court located within the Copyright Office. The court, known formally as the Copyright Claims Board (couldn’t they just have called it the “small claims court”?) was set to go into effect on December 31, but its launch has been extended to June 30. So, it should be coming soon! Watch this page maintained by the Copyright Office about the court. (I wrote about the last round of regulation-writing for the small claims court here.)
Some Other Interesting Copyright Cases Matt Hersh Has Written About In 2022
“Sendup of ‘misogynistic features’ of the musical ‘Grease’ is protected as parody” (Sketchworks v. Jacobs, 5/12/22)
“Maker of ‘The Escape Game’ wriggles free of attorney fees” (Keatley v. The Escape Game, 5/5/22)
“A happenstance signature on a document does not create a copyright termination right” (Acuti v. Authentic Brands, 5/4/22)
“An injunction targeting the operators of infringing websites may test the outer boundaries of judicial power” (United King Film Distribution v. Does, 4/26/22)
“Pop star John Waite, along with other recording artists of the past, seek to reclaim lost rights” (Waite v. UMG, 4/15/22)
“How long (has this been going on): Lawsuit contends Fortnite Battle Royale infringes well-known ‘How Long’ dance choreography” (Hanagami v. Epic Games, 3/29/22)
“No such thing as a ‘publisher infringement’ claim, a puzzled court finds” (Piccard v. Deedy, 3/21/22)
“No deposit, no returns: Failure to deposit a song with the Copyright Office precludes royalty lawsuit” (Parker v. Hinton, 3/9/22)
“A ‘House of Eternal Return’ pays only short-term dividends, an artist contends” (Oliver v. Meow Wolf, 3/7/22)
“Arise and bear witness: Notorious attorney, now disbarred from practice, can still provide testimony in support of former client” (Wolman Archives v. Complex Media, 2/22/22)
“Vampire Diaries (global edition): Sale of a ‘vampire bat’ mug on Amazon and other global platforms held sufficient to support claim of access in China” (Dellamorte v. The Michaels Companies, 1/27/22)
“Miami rapper draws the short stack over a meeting at the IHOP” (Elliott v. Cartagena, 1/5/22)
That’s it! Thanks for attending my TED talk. More in our next edition. (Oh, and for a full set of my writings, check out my personal page at www.matthewhersh.com.)
Mestaz Law is a commercial litigation firm serving businesses, business owners, business executives, and entrepreneurs.
- Category: Newsletter
- By Daniel Mestaz
- June 22, 2022
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