Protect Your Brand Or Else

By John Moore, Henn, Etzel and Moore
A semi-monthly feature, exclusive to NCRA News, from NCRA general counsel and board member John Moore, concerning recent legal decisions relating in some manner to Zero Waste.

Attendees at RU19 witnessed the passion of Gary Liss in protecting the “Zero Waste” brand from corruption. Many NCRA members brand their own businesses and programs – i.e., Giagiantic Ideas Studio, Rethink Waste, SF Environment, Urban Ore… Protecting one’s brand protects the purity of the vision as well as the economic benefits. Failing to protect one’s brand, at least in one case, can lead to millions of people calling for your murder.

The saga of Cindy Lee Garcia was stated succinctly in a recent case from the Ninth Circuit Court of Appeals:
“While answering a casting call for a low-budget amateur film doesn’t often lead to stardom, it also rarely turns an aspiring actress into the subject of a fatwa. But that’s exactly what happened to Cindy Lee Garcia when she agreed to act in a film with the working title “Desert Warrior”.

The film’s writer and producer, Mark Basseley Youssef – who also goes by the names Nakoula Basseley Nakoula and Sam Bacile – cast Garcia in a minor role. Garcia was given the four pages of the script in which her character appeared and paid approximately $500 for three and a half days of filming. “Desert Warrior” never materialized. Instead, Garcia’s scene was used in an anti-Islamic film titled “Innocence of Muslims.”

Garcia first saw “Innocence of Muslims” after it was uploaded to YouTube.com and she discovered that her brief performance had been partially dubbed over so that she appeared to be asking, “Is your Mohammed a child molester?” These, of course, are fighting words to many faithful Muslims and, after the film aired on Egyptian television, there were protests that generated worldwide news coverage. An Egyptian cleric issued a fatwa, calling for the killing of everyone involved with the film, and Garcia soon began receiving death threats. She responded by taking a number of security precautions and asking that Google remove the video from YouTube.”

That Ms. Garcia faced death threats because of the use of her likeness in a manner to which she did not consent, mattered not to YouTube, or its parent, Google. Nor did it matter to the US District Court judge in Los Angeles, who denied her motion for a preliminary injunction to require YouTube to remove the video. That judge ruled that Garcia “had delayed in bringing the action, had failed to demonstrate ‘that the requested preliminary relief would prevent any alleged harm’ and was unlikely to succeed on the merits because she’d granted Youssef an implied license to use her performance in the film.”

Nor, of course, is there any way to get the genie of a video back in the bottle once it is posted on the internet.

Garcia was now at the mercy of legal time. She filed her lawsuit on September 26, 2012. Her request for an injunction was denied November 30, 2012. She appealed to the Ninth Circuit on December 21, 2012. The Ninth Circuit’s order requiring YouTube to remove the video was filed February 28, 2014. For over 18 months Garcia has lived under fatwa. As of this writing, the video is still available on YouTube.

Ultimately Garcia prevailed in the Ninth Circuit by the slimmest of margins; only 2 of the 3 judges on the panel agreed that she needed protection – and those 2 are among the most politically conservative on the Court.

The 2-1 split on the Court reveals diverging views on the interpretation of copyright law and the procedure for obtaining preliminary injunctions. One could argue that the majority fashioned a “result-oriented” decision that is light on respecting past precedent. But one can’t argue that Ms. Garcia might have improved her legal position with firmer bargaining with the film producer before she allowed her likeness- her brand so to speak – to be used.

A brand may be a name, or a stylized name such as a logo. A name or brand used across state lines may be eligible for trademark protection. A name or brand used only in California may be eligible for a California trademark.

Original works of authorship in a tangible medium of expression, such as books, pictures, music, and computer code, may be eligible for copyright protection. Protection is given to both published and unpublished works, although registration with the US Copyright Office is a pre-condition to suing someone for infringing the copyright. Joint efforts to create works of authorship creates ownership rights in all of the contributors. Contracts are useful to clarify the ownership rights in a joint effort or a derivative work where one original work is used in a later, different one.

In Othello, when Iago says, “I am not what I am” he is concealing his true nature and plan, with fatal consequences. When Cindy Lee Garcia’s producer concealed his true intentions to use her likeness, it potentially had fatal consequences. Failing to protect one’s brand may have consequences fatal to the economic benefits and vision of the brand. Like Desdemona and Ms. Garcia, the brand is worth protecting.

Gil Friend Named as Palo Alto Chief Sustainability Officer

Gil Philip Friend Named as Palo Alto Chief Sustainability Officer
12/9/13, City of Palo Alto News Blog

City Manager James Keene announced today that he has selected Gil Philip Friend to serve as the City’s first Chief Sustainability Officer. Friend is founder and CEO of Natural Logic, Inc., a leading strategy firm helping companies build value at the intersection of business and sustainability.

Friend will begin in his new position on December 9. The selection was made following a national search and recruitment process that included extensive input from community, business and environmental stakeholders, as well as interviews with panels representing a broad section of the community.

Gil is a pioneer in the field of sustainability, and has extensive experience leading and developing strategic sustainability practices for cities and companies across the globe,” said City Manager James Keene. “His thought leadership has inspired many, and he has instituted some of the most innovative programs in the field, including the first sustainability business dashboards nearly 20 years ago. Gil’s deep experience and connections will be instrumental in making Palo Alto not only the greenest city in America, but also a major contributor to advancing world-class sustainability strategies that link to the San Francisco Bay region and beyond.”

Click here to view the full press release.

Nature of Materials 2

Nature of Materials – Part Two: Reuse, Textiles, Ceramics, Chemicals, and Soils

Tuesday, November 19, 2013, at USEPA, San Francisco 9am – 4:45pm, 75 Hawthorne Street. Stay tuned for online registration.

MoveOn Petition To Safeway

MoveOn Petition To Safeway:  Stop The Closure Of SF Supermarket-Based Recycling Centers!

San Franciscans have a right to redeem their bottles and cans for the California Redemption Value they pay at the store. Without the recycling centers that Safeway hosts, San Franciscans will lose a convenient way to get their money back. Click here to sign petition: MoveOn

CalRecycle/SWANA Workshop, 10/9

CalRecycle/SWANA High Diversion & Compensation Workshop, 10/9

The SWANA Gold Rush Chapter is co-sponsoring CalRecycle “High Diversion & Compensation” workshop on October 9th in Oakland. This FREE workshop is designed to help you avoid the rate “death spiral” by understanding the relationship between changes in customer subscription levels, collection and processing costs, agency fees and customer rates. You will hear case studies from other communities and get practical information that you can use in rate setting and in managing your solid waste programs and contracts. SWANA Continuing Education Units will be available for participants in the workshop. To register, email Kim Erwin at kerwin@hfh-consultants.com.

October 9, 2013 – 9 am to 1pm    Flyer
Elihu M. Harris Building, Room 2
1515 Clay Street, Oakland, CA 94612

From the CalRecycle website: To achieve AB 341’s 75% goal, new models for local funding of materials management activities (such as recycling and composting) will likely be necessary to sustain these activities into the future, independent of landfill disposal fees. CalRecycle is exploring new models of funding mechanism(s) for such activities and will co-sponsor three FREE workshops by HF&H Consultants. These workshops will focus on funding interactions at the collection and post-collection levels and how different approaches might impact service providers (public and private) and various regulatory agencies (State, County, City/District). They are designed to provide City and County official/staff with information about managing rates related to collection, processing, and disposal of discarded material, and insights into managing solid waste and recycling rates in the face of evolving programs and ever-increasing diversion goals. The workshops will include dynamic presentations, interactive rate models and tools, and real world case studies. MSW and Recycling Coordinator, City Manager, County Administrator, Finance Director, and/or Public Works Director who manages a rate structure/increase are highly encouraged to attend this workshop.