Hawaii Bar Journal - February

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INTRODUCTION

Intellectual property is an invisible, intangible, and indispensable part of moder n life for attor neys Most attor neys make their living by creating intellectual property because almost everything attor neys write is copyrightable subject matter Further, attor neys cannot draft documents, file documents in court, review document productions, or perfor m a myriad of other tasks necessary to practice law, without using a computer (a prog rammable general purpose infor mation machine) that is enabled to perfor m specific tasks by software that is protected by intellectual property rights (the software prog rams the general pur pose infor mation machine into a special pur pose infor mation machine) Further more, intellectual property law intersects with all other areas of law. Outside of legal work, attor neys (and everyone else) need a smart phone to live their personal lives.

Intellectual Property Law in Current Contexts: A Less Boring Primer

countries but are not recognized in the United States (such as design registrations, utility models, and appellations of origin), or are recognized in the United States to a much smaller extent than in most other countries (such as perfor mance rights and moral rights) Except for copyright, intellectual property laws are recognized and enforced on a country by country basis, so that intellectual property rights in one country are not recognized in any other country. However, a judgment for intellectual property infringement in a foreign country may be enforceable against a United States (U S ) entity in a U S court against U S assets under the Unifor m Foreign-Country Money Judgments Recognition Act de Fontbr une v Wofsy, 39 F.4th 1214 (2022)(2,000,000 Euros French copyright astreinte default judgment enforceable in a U S court)

by Martin E Hsia

“Intellectual Property” is a convenient shorthand ter m for the multiple species of laws that protect creations of the human intellect (intellectual creations) against being copied, adapted, or otherwise used by others, without per mission The major species of intellectual property laws are patents, trademarks, copyrights, trade secrets, and right of publicity laws (patent and trademark laws are sometimes referred to as industrial property laws, and copyright and closely related laws are sometimes referred to as literary and artistic property laws) These species of laws g rant “property” rights, because they g rant the rights to exclude others from copying, adapting, or otherwise using intellectual creations Intellectual property laws are universal and exist in all countries of the world

There are several major treaties that presently gover n intellectual property laws world wide, to which most countries are signatories There are also types of intellectual property laws that are recognized in many foreign

Hawaii has adopted this same act. 658F1, Haw Rev Stat , et seq ; cf Resorts World at Sentosa Pte Ltd., v. Chan, 2016 WL 5660398 (D Hawaii 2016)(Singapore default judgment for gambling debts amounting to more than US$1,000,000 enforceable against Hawaii resident) Also, as of the writing of this article, the U S Supreme Court has ag reed to deter mine whether U S trademark owners can recover damages for sales in foreign countries. Abitron Austria GmbH v. Hetronic Inter national, Inc , 10 F 4th 1016 (Cir Fed 2021), cert g ranted 143 S Ct 398, (2022)

This primer will only address U S intellectual property laws Intellectual property laws in foreign countries are beyond the scope of the present article Although intellectual property laws are harmonized in many countries, each country has different laws, so it can never be assumed that intellectual property laws in one country are similar to intellectual property laws in another country, unless and only to the extent that both countries are signatory to a treaty that addresses that specific issue for that specific species of intellectual property. This primer also will not address the technical and procedural

aspects of obtaining patents, or registering trademarks, copyrights, or rights of publicity; nor the contract or other laws relating to requirements for legally effective assignments, licenses, and other ag reements for transfer or exploitation of intellectual property; nor the preexisting infrastructure and practices of licensing of various types of intellectual property; nor transfer pricing or other tax or accounting issues. Note, however, that only a patent attor ney (or patent agent) registered with the U S Patent and Trademark Office can file and prosecute U S patent applications, and only attorneys licensed to practice law by the highest court of a state or territory can file federal trademark applications for others. This primer also will not address criminal or antitrust laws relating to intellectual property, bankruptcy issues for software licenses, or privacy rights to personal data

CONSTITUTIONAL AND STATUTORY BASES

Without intellectual property laws, if someone (an “innovator”) conceived of an intellectual creation, others would freely copy, adapt, and otherwise use that intellectual creation, and the innovator would receive no benefit from creating the intellectual creation Inno- vators therefore would keep their intellectual creations secret, so that society would l o s e t h e b e n e f i t o f t h o s e i n t e l l e c t u a l c re at i o n s, a n d o t h e r s c o u l d n o t bu i l d u p o n t h e m

To encourage innovators to disclose their intellectual creations, for the benefit of society as a whole, the U S Constitution specifically and explicitly empowered Cong ress to enact laws relating to patents and copyrights in Article I, Section 8, Clause 8: “To promote the Prog ress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries

” Congress has also enacted trademark

and trade secret laws under the power of Cong ress in Article I, Section 8, Clause 3: “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes ” State legislatures have also enacted their own State-specific trademark, trade secret and right of publicity laws

Patent laws (35 U.S.C. §§ 1, et. seq) and copyright laws (17 U S C §§ 101, et seq) are almost exclusively federal laws, while trademark laws (15 U S C §§ 1051, et seq ; Haw Rev Stat §§ 482-1, et seq.) and trade secret laws (18 U.S.C. §§ 1836, et seq ; Haw Rev Stat §§482B-1, et seq.) are both federal and state laws. Right of publicity laws (Haw Rev Stat § 482P-1) are mostly state laws

PATENTS - APPLE v SAMSUNG

Consider the smart phone. When A pple first introduced the iPhone, Samsung (and others) needed to compete with this unique invention. A pple had obtained utility patents on certain functions of the iPhone, and a design patent on the appearance of the iPhone’s screen and case A pple sued Samsung for infringement of the utility patents and design patent, and the lawsuit was ultimately appealed to the U S Supreme Court, which overtur ned a $400 million verdict for infringement of utility patents and design patents, and remanded the case to the Court of A ppeals for the Federal Circuit to deter mine what an “article of manufacture” is under design patent law Iterations of the screen and case on Samsung’s smart phone had become prog ressively closer in appearance to the screen and case of A pple’s iPhone, and a large portion of the judgment was for damages for infringement on the design patent for the screen and case, based on the value of the entire smart phone, not just on the value of the screen and case components

U S district courts have exclusive original jurisdiction over patent matters. 28 U S C § 1338(a) With rare exceptions,

the Court of A ppeals for the Federal Circuit has exclusive jurisdiction over appeals relating to patents from U S district courts throughout the entire country, Holmes Group, Inc v Vor nado Air Circulation Systems, Inc., 535 U.S. 826 (2002); Gunn v Minton, 568 U S 251 (2013) Accordingly, the Court of A ppeals for the Federal Circuit is truly the nationwide patent appeals court, except for those rare cases in which the U.S. Supreme Court takes jurisdiction over an appeal from the Federal Circuit

A design patent is a right g ranted by the federal gover nment for 15 years to exclude others from making, using or selling, offering to sell, or importing, a new original and or namental design for an article of manufacture. 35 U.S.C. § 171(a)

Put simply, a design patent protects how a manufactured article looks The drawings of the design patent ARE the design patent, because the design patent only protects what is shown in the drawings

The standard for infringement of a design patent is “the accused design could not reasonably be viewed as so similar to the claimed design that a purchaser familiar with the prior art would be deceived by the similarity between the claimed and accused designs, ‘inducing him to purchase one supposing it to be the other ’” Eg yptian Goddess, Inc v Swisa, Inc , 543 F 3d 665, 683 (Cir Fed 2008)

In Samsung Electronics Co , Ltd v A pple Inc., 580 U.S. 53, 137 S.Ct. 436 (2016), the issue for the Supreme Court was whether the damages for infringement of a design patent are to be based on the value of the entire phone, or could be based on the value of components of the phone, such as the case and the screen, even though consumers could not purchase those components separately from the phone The Supreme Court held that “the ter m ‘article of manufacture’ is broad enough to embrace both a product

sold to a consumer and a component of that product, whether sold separately or not ” 580 US at , 137 S Ct at 436

A utility patent is a right g ranted by the federal gover nment for 20 years from the date of application (subject to payment of maintenance fees every four years) to exclude others from making, using, selling, offering to sell, or importing, inventions that fall within the claims of the patent. 35 U.S.C. § 154.

A n i nve n t i o n i s a d e v i c e, p ro c e s s, article of manufacture or composition of matter, or a new and useful improvement thereof 35 U S C § 101 However, there are certain judicial exceptions as to what constitutes patent-eligible subject matter: abstract ideas (including mental processes and business methods), laws of nature, and natural phenomena Although computer-implemented processes may be patentable, computer software, in and of itself, usually would not constitute patent-eligible subject matter In a current context, many blockchain technologies (such as cybercurrencies and non-fungible tokens) would be considered to be unpatentable business methods, but some blockchain technologies might be patentable if they improve existing computer technologies (that are not merely business methods) See Weisner v Google LLC, 51 F 4th 1073, (Cir. Fed 2022).

Every utility patent must contain claims “particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention . . . . ” 35 U.S.C. § 112(b) The claims are the numbered parag raphs at the end of every utility patent or utility patent application Each claim must be a single sentence and be the object of a sentence that begins “I claim” or “What is claimed is ” Each claim is a separate checklist of features that must be present in an accused product or process in order to infringe on that claim. If an accused product or process does not meet every word, at

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least literally or equivalently (see below), of at least one claim in an issued utility patent, then there is no infringement of that patent. Thus, failing to meet even one word of a claim avoids literal infringement of that claim.

However, if an element of an accused product or process fails to meet a word in a claim literally, but that element perfor ms substantially the same function in substantially the same way to achieve substantially the same result, so that there is an “insubstantial difference” between the accused product or process and the patented product or process, there may be infringement under the “doctrine of equivalents ” See War nerJenkinson Co , Inc v Hilton Davis Chemical Co., 520 U.S. 17 (1997).

If patent claims have been amended during prosecution (processing) of the patent application, then the reasons for the amendments must be evaluated by the court to deter mine whether a prosecution history estoppel is created that precludes applying the doctrine of equivalents, and if the patentee is unable to establish that the amendment was for pur poses unrelated to patentability, then prosecution history estoppel is presumed Id 520 U S at 41 If prosecution history estoppel applies to a claim element, then the doctrine of equivalents cannot be used to expand the scope of that claim element Festo Corp v Shoketsu Kinzoku Kog yo Kabushiki Co , Ltd , 234 F 3d 558 (Cir Fed 2000)

Put simply, a utility patent protects how an invention works. The claims of a utility patent ARE the utility patent, because the utility patent only protects what is covered by the claims The text (called the specification) and the drawings of a utility patent are used to interpret what the patent claims mean, to teach how to practice the invention, and to prove that the inventor actually invented the subject matter covered by the claims.

Inter preting the coverage of patent

claims is purely a matter of law for the judge, Markman v Westvie w Instr uments, Inc , 517 U S 370 (1996), but deter mining what constitutes infringement under the doctrine of equivalents is a matter of fact for the jury (if there is one). Hilton Davis Chemical Co v War ner-Jenkinson Co , Inc , 62 F 3d 1512 (Cir Fed 1995), reversed on other g rounds, War ner-Jenkinson Co., Inc. v. Hilton Davis Chemical Co , 520 U S 17 (1997).

An invention qualifies for a patent by meeting four basic statutory requirements. The invention must be eligible subject matter for a patent and be useful 35 U.S.C. § 101. The invention must be novel 35 U S C § 102 The invention must be non-obvious 35 U S C § 103 The text of the patent must provide a written description of the invention that proves the inventor invented the claimed subject matter, teaches how to make and use the invention, and discloses the best mode of practicing the invention. 35 U S C § 112 As of the writing of this article, the U S Supreme Court has ag reed to review whether the specification (text) of a patent must teach skilled artisans to “reach the full scope ” of an invention “without undue experimentation,” or only to ”make and use ” the invention Amgen Inc v Sanofi Aventisub LLC, 987 F 3d 1080 (Cir Fed 2021), cert g ranted 143 S.Ct.399 (2022). The requirements for patentability are described in more detail below Whether an invention meets these requirements is deter mined by examining the claims of a patent application.

The claimed invention must be novel as of the filing date of the patent application; that is, the claimed invention must meet the requirements of novelty in 35 U.S.C. § 102. To be novel, an invention must be different from the state of the art in the field of the invention The state of the art is identified by deter mining the relevant items that were in the state of the art before the earliest filing date of the original patent application for the

invention. These items are collectively referred to as the “prior art ”

The federal statute in 35 U S C § 102(a)(1) defines the “prior art” against which the invention must be compared to deter mine novelty: “patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention ” Thus, 35 U.S.C. § 102(a)(1) defines various publicly available infor mation as “prior art” However, 35 U S C § 102(a)(2) also makes pending applications filed before the application into “prior art ” Because U.S. and inter national patent applications are not published until 18 months after filing, this means that 35 U S C § 102(a)(2) defines a category of secret “prior art” that is not publicly available as of the filing date, but can still be cited as “prior art ”

Even if an invention is “novel,” that is not enough for a patent. A patent is not g ranted only because an invention is “novel ” To be patentable, an invention also must be non-obvious from the prior art, as stated in 35 U S C § 103: “the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains ”

This issue of non-obviousness is often the center piece of the deter mination as to whether a particular invention is entitled to a patent. Oversimplifying, if an invention provides unpredictably better results than would be expected from the combination of its components, then it may be non-obvious See KSR Inter n Co. v. Teleflex Inc., 550 US 398 (2007) and “Examination Guidelines Update: Developments in the Obviousness Inquiry

After KSR v Telef lex”, 75 Federal Register 53643 (Sept 1, 2010) This is because of the fundamental pur pose of patents

“To promote the Progress of

useful Arts” by encouraging inventors to disclose their inventions to the public by g ranting a legal monopoly in exchange for such disclosure. If a supposed invention is already known, or would be known merely by applying the skill of a person having ordinary skill in that art, then nothing would be added to the storehouse of human knowledge, so no patent should be g ranted

After issuance, a patent is presumed to be valid 35 U S C § 282(a) This means that clear and convincing evidence must be presented in order to invalidate a patent Patents can be invalidated by a court, or in various administrative proceedings at the U S Patent and Trademark Office, the most common of which are ex parte reexamination and inter partes review The g rounds asserted for invalidation are usually a failure to meet one or more of the four statutory provisions discussed above.

Infringement of a utility patent consists of exercising one of the rights g ranted by the patent without the permission of the patent owner: “to exclude others from making, using, selling, offering to sell, or importing, inventions that fall within the claims of the patent ” 35 U S C § 154 The damages for infringing on a patent must be adequate to compensate for the infringement, but must be no less than a reasonable royalty, together with interest and costs 35 U S C § 284 Damages are usually calculated by weighing various factors, many of which are listed in Georgia-Pacific Corporation v United States Pl ywood, 318 F Supp 1116 (S D N Y 1970) Damages for lost profits also may include losses of “convoyed sales”, items nor mally sold with, and having a functional relationship to, the patented item, whose sale was lost due to the infringement RiteHite v Kelle y, 56 F 3d 1538 (Cir Fed 1995) A court may issue injunctions

accordance with the principles of equity. 35 U S C § 283 This means that a plaintiff seeking a per manent injunction against patent infringement must meet four factors: “A plaintiff must demonstrate: (1) that it has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a per manent injunction” eBay Inc v MercExchange, L L C , 547 U S 388 (2006). The context of the eBay decision was a threatened nationwide injunction shutting down a predecessor of the smart phone – the Blackberry personal digital assistant

A patent infringement action can only be brought where the defendant resides, or where it has committed acts of infringement and has a regular and established place of business 28 U S C § 1400(b) For pur poses of patent infringement, a U S cor poration only resides where it is incor porated TC Heartland LLC v. Kraft Foods Group Brands LLC, 581 U S 258, 137 S Ct 1514 (2017)

Aside from design patents and utility patents, the third type of federal patent is plant patents, which cover asexually reproduced distinct and new varieties of plants, except tubers 35 U S C 161 Plant patents are g ranted for ter ms of 20 years, and g rant the right to exclude others from asexually reproducing the plant, or using, offering to sell, or selling the plant, or importing the plant 35 U S C § 163 Plant patents are very rare, but have covered some very important types of plants, such as the seedless orange Plants that are sexually reproduced, and therefore ineligible for plant patents, can be protected under the Plant Variety Protection Act

As mentioned above, maintenance fees must be paid on utility patents every

four years, to keep them alive for their full 20-year ter ms However, no fees need to be paid to maintain design patents or plant patents in effect for their full ter ms 37 C F R § 1 362(b)

The initial owner of an invention is generally the inventor, who is the person who first had the conception for the invention, that is, “when the idea is so clearly defined in the inventor’s mind that only ordinary skill would be necessary to reduce the invention to practice, without extensive research or experimentation.” Bur roughs Wellcome Co. v. Bar r Labs , Inc , 40 F 3d 1223, 1228 (Fed Cir 1994). However, “[t]here are two exceptions to this rule: first, an employer owns an employee’s invention if the employee is a party to an express contract to that effect; second, where an employee is hired to invent something or solve a particular problem, the property of the invention related to this effort may belong to the employer.” Banks v. Unisys Corp., 228 F 3d 1357 (Cir Fed 2000) Also, an employee who used an employer’s time, facilities and materials to create an invention may have g ranted a “shop right” to the employer, that is, a royalty-free, non-transferable right to practice the employee’s invention U S v Dubilier Condenser Corporation, 289 U S 178 (1933) Artificial intelligence cannot be an inventor. T haler v. Vidal, 43 F.4th 1207 (Cir. Fed 2022)

Patent law preempts any state laws that conf lict with the federal patent scheme, which “depends upon substantially free trade in publicly known, unpatented design and utilitarian conceptions ” Bonito Boats, Inc v T hunder Craft Boats, Inc , 489 U S 141, 156 (1989)

COPYRIGHT - ANDROID, ANTENNAE, GRAFFITI, AND HORROR MOVIES

Another aspect of the smart phone is the operating system In creating the operating system for Android smart p h o n e s, G o o g l e a d m i t t e d t h at , a f t e r

unsuccessfully seeking a license from Sun Microsystems to use Sun’s Java virtual machine software platfor m, Google nevertheless copied 27 libraries of “declaring code,” verbatim, from the Java platfor m ’ s application prog ramming interface, so that prog rammers already familiar with the “task calling” system of Java code would easily be able to write code for Android phones that would call the same tasks. This avoided requiring prog rammers to lear n a different “task calling” system to implement the same tasks. The “declaring code” (a) linked Android method calls, through Java’s task calling system, to implementing code for those tasks that was written by Google (not Sun), and (b) followed Java’s organizational structure of functions, or “structure, sequence and organization ” The copied “declaring code” did not itself implement any functions Oracle acquired Sun, then sued Google for copyright infringement. Google LLC v.

Oracle America, Inc , 593 US , 141 S.Ct. 1183 (2021). The Supreme Court held that Google’s copying was not copyright infringement because it constituted fair use

On and after January 1, 1978, copyright protection subsists in “original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device ” 17

U S C § 102 Copyright rights for works first fixed in a tangible medium of expression before January 1, 1978, are covered by completely different laws that are beyond the scope of this article

Copyright ownership vests initially in the author of a copyrighted work, and the author of a “work made for hire” is considered to be the employer or other person for whom the work was prepared 17 U S C § 201 However, a “work made for hire” must be either (1) prepared by an employee within the scope of his or her employment; or (2) one of nine special categories of work, where a written ag reement has been signed indicating that the work is a “work made for hire ” 17 U S C § 101 These nine categories are (1) a collective work, (2) an audiovisual work, (3) a translation, (4) a supplementary work, (5) a compilation, (6) an instructional text, (7) a test, (8) answer material for a test, or (9) an atlas

A n i n d e p e n d e n t c o n t r a c t o r i s n o t a n

employee for deter mining “work made for hire” status. Community for Creative Non-Violence v Reid, 490 U S 730 (1989) A monkey that took its own “selfie” did not have standing to sue for copyright infringement because it was not an author under copyright law. Nar uto v. Slater, 888 F 3d 418 (9th Cir 2018), rehearing en banc denied, 916 F 3d 1148 The Copyright Review Board ruled that artificial intelligence cannot be an author, and this ruling is presently being appealed in T haler v Perlmutter, (1:22-cv-01564 D C Dist Ct , June 2, 2022)

Note that assignments and exclusive licenses of copyright rights must be in writing and signed. 17 U.S.C. § 204.

Further, transfer of ownership of a material object, including the original, does not of itself transfer any copyright rights in a copyrightable work embodied in that material object. 17 U.S.C. § 202. This makes intuitive sense – buying a physical book does not transfer any copyright rights in the book. Yet, estate planning attor neys often use assignment documents that state “books and recordings” are transferred to revocable living trusts Such language would not of itself assign the copyright rights to those books and recordings to the trust The assignment documents should specifically state that the copyright rights are being assigned

Under 17 U.S.C. § 203, for works created on or after January 1, 1978, the author and certain heirs can ter minate

or cancel transfers or licenses 35 years after execution. This right is not waivable In Hor ror Inc v Miller, 15 F 4th 232 (2nd Cir 2021), the author of the screenplay for “Friday the 13th” ter minated the transfer of the copyright rights to the screenplay and reclaimed the copyright rights

Copyright for works created on or after January 1, 1978, lasts for 70 years after the life of the author, or (for works made for hire, pseudonymous works, and anonymous works) for 95 years from first publication or 120 years from creation 17 U.S.C. § 302.

Under 17 U S C § 106, copyright protection g rants “the exclusive rights to do and to authorize any of the following:

(1) to re produce the copyrighted work in copies or phonorecords;

(2) to pre pare derivative works based upon the copyrighted work;

(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;

(4) in the case of literary, musical, dramatic, and choreog raphic works, pantomimes, and motion pictures and other audiovisual works, to perfor m the copyrighted work publicl y;

(5) in the case of literary, musical, dram a t i c , a n d c h o r e o g r a p h i c w o r k s ,

pantomimes, and pictorial, g raphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicl y; and

(6) in the case of sound recordings, to perfor m the copyrighted work publicl y by means of a digital audio transmission. ”

Also, in a current context of Internet streaming (which is encompassed within the right to publicly perfor m a copyrighted work), the owner of a copyrighted work has the exclusive right to transmit perfor mances of that work, which transmission right was infringed by Inter net streaming of broadcast television prog ramming received by individualized antennas for each user American Broadcasting Companies, Inc. v. Aereo, Inc., 573 U S 431 (2014)

Copyright rights also include “moral

rights”, which in the US include the right of attribution (the right to be recognized as the author) and the right of integ rity (the right to prevent defor ming or mutilating changes that would be prejudicial or damage the artist’s reputation), but only for “works of the visual arts”, defined under 17 U S C § 101 These moral rights are nontransferable (although waivable), and are protected under the Visual Artists Rights Act (“VARA”), for the life of the author, against destruction or mutilation per 17 U.S.C. § 106A. In another current context of street art, in Castillo v G&M Realty L.P., 950 F.3d 155 ( 2nd Cir. 2019), cert denied, US , 141 S Ct 363 (2020), the Court of A ppeals for the Second Circuit affir med an award of statutory damages of $6 75 million to g raffiti artists whose artwork on dilapidated warehouse buildings was willfully destroyed by whitewashing

The definition of copyright infringement is set forth in 17 U S C § 501: “Anyone who violates any of the exclusive rights of the copyright owner as provided by sections 106 through 122 or of the author as provided in section 106A(a), or who imports copies or phonorecords into the United States in violation of section 602, is an infringer of the copyright or right of the author, as the case may be.”

The remedies for copyright infringement depend on whether the copyright was registered before an infringement commenced If the copyright rights were registered prior to infringement, then for claims of copyright infringement, the copyright owner can elect between actual damages (and any additional profits) and “statutory damages. ” 17 U.S.C. § 504(a). In proving profits, the copyright owner “is required to present proof only of the infringer’s

g ross revenue. ” 17 U.S.C. § 504(b). “Statutory damages” are deter mined by the court between $750 and $30,000, as the court deems just. 17 U.S.C. § 504(c). If the infringement was willful, the statutory damages can be increased to $150,000 If there is a jury, the jury deter mines the amount of “statutory damages. ” Feltner v. Columbia Pictures Television, Inc , 523 U S 340 (1998) The court may also issue an injunction. 17 U.S.C. § 502

If the copyright to an infringed work was already registered at the time an infringement commenced, then the copyright owner is entitled to recover reasonable attor neys ’ fees 17 U S C § 505 However, a prevailing defendant is also entitled to recover reasonable attorneys ’ fees Kirtsaeng v John Wile y & Sons, Inc., 579 U.S. 197 (2016).

A U S entity must have a copyright registration before it can file a lawsuit for copyright infringement. Fourth Estate Public Benefit Corporation v Wall-Street com, LLC, U S , 139 S Ct 881 (2019)

Except for VARA and certain other claims, if the copyright was not registered before infringement commenced, then the copyright owner cannot recover statutory damages or attor neys ’ fees 17 U S C § 412

In addition, under the Digital Millennium Copyright Act, an Inter net service provider is not liable for monetary remedies for posting copyright infringing material online, as long as the provider follows procedures for immediately taking down the infringing material upon receipt of proper notice 17 U S C § 512(c)

Copyright protects artistic and literary expression of ideas, but not infor mation or ideas themselves. Copyright also does not protect methods of operation, 17 U S C § 102(b), or works of the U S gover nment 17 U S C § 105

However, the exclusive rights g ranted by copyright law are limited by the doctrine of “fair use, ” which requires

the balancing of four factors:

“(1) the pur pose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational pur poses;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.”

17 U S C § 107

Retur ning to Google LLC v. Oracle America, Inc , 593 US , 141 S Ct 1183 (2021), the U.S. Supreme Court determined that Google’s verbatim copying of 27 libraries from the application prog ramming interface (“API”) was “fair use, ” by analyzing the four fair use factors The nature of the copyrighted work was found to weigh in favor of fair use because the API was different from most software, as the value of the API was in being already known to Java prog rammers (who were not copyright owners) The pur pose and character of the use was found to weigh in favor of fair use because Google tried to expand Java beyond its original use for computers and laptops, into smart phones, which was arguably “transfor mative” because it adds something new and important –Google reimplemented Sun’s computer API on smart phones The amount and substantiality of the portion used was found to weigh in favor of fair use because the use was for a valid and transfor mative pur pose. The effect of the use upon the potential market for or value of the copyrighted work was found to weigh in favor of fair use because it was uncertain whether Sun could compete in the Android phone’s marketplace, the revenue loss would be from third parties’

investment in lear ning to operate Java (not from lost profits from lost sales of copies of Java), and if fair use were not found, there was a risk of fewer creative works being created for the public

As of the writing of this article, the U S Supreme Court is deciding whether Andy Warhol’s creation of a series of paintings based on a photog raph of Prince constitutes a “transfor mative” use so that there would be no copyright infringement under fair use

Federal copyright law preempts any state law that g rants equivalent rights. 17 U S C § 301

TRADEMARKS - BOOKING COM AND DISPARAGING, IMMORAL, AND SCANDALOUS MARKS

A smart phone or computer can be used to do many things, including booking a hotel reservation at booking com However, the U S Patent and Trademark Office refused to g rant Booking com a federal trademark registration for “BOOKING COM ”

In a current context of Inter net domain names, in United States Patent and Trademark Of fice v. Booking.com B. V., US , 140 S Ct 2298 (2020), the U S Supreme Court said that “A trademark distinguishes one producer’s goods or services from another’s ” Id at 2302

The court went on to say “Prime among the conditions for registration, the mark must be one ‘by which the goods of the applicant may be distinguished from the goods of others ’ [15 USC] § 1052; see § 1091(a) (supplemental register contains ‘marks capable of distinguishing goods or services’) Distinctiveness is often expressed on an increasing scale: Word marks “ may be (1) generic; (2) descriptive; (3) suggestive; (4) arbitrary; or (5) fanciful ’” The court said, “At the lowest end of the distinctiveness scale is ‘the generic name for the goods or services ’ The name of the good itself (e g , ‘wine’) is incapable of ‘distinguish[ing] [one producer’s goods] from the goods

of others’ and is therefore ineligible for registration ” Id at 2304 (citations omitted) The U S Patent and Trademark Office had asserted that any domain name that consists of a generic ter m and “ .com ” was itself generic and therefore unregistrable The Supreme Court ultimately held that “Whether any given ‘generic.com’ ter m is generic, we hold, depends on whether consumers in fact perceive that ter m as the name of a class or, instead, as a ter m capable of distinguishing among members of the class ” Id. at 2307 (footnote omitted).

This evaluation of trademarks along this distinctiveness scale also applies under Hawaii law Car rington v Sears, Roebuck & Co , 5 Haw A pp 194 (1984)

Trademark rights protect against a likelihood of confusion 15 U S C § 1114; 15 U.S.C. § 1125; Haw. Rev. Stat. §482-4, § 482-31 Further, famous trademarks are protected against dilution, which is a reduction in uniqueness of a trademark, either by tar nishment or by blurring 15 U S C § 1125(c); Haw Rev Stat § 482-32

Trademarks that are used in interstate commerce can be registered at the U S Patent and Trademark Office Trademarks can also be registered at the Business Registration Division of the Hawaii Department of Commerce and Consumer Affairs and the Secretary of State and other offices in other states However, Hawaii trademark registrations do not have any effect outside Hawaii Trade names, that is, the names of businesses, can also be registered at the Business Registration Division, but cannot be registered at the U S Patent and Trademark Office Trade names are protected under the same principles as trademarks. See Stout v. Laws, 37 Haw. 382 (1946) Trademark rights are acquired by actual use before the public, not by registration

According to 15 U S C § 1052(a), immoral, deceptive, or scandalous matter, or matter that may disparage or

falsely suggest a connection with persons (living or dead), institutions, beliefs or national symbols (or bring them into contempt or disrepute), is not registrable as a trademark However, the U S Supreme Court decided in the case of Matal v Tam, U S , 137 S Ct 1744 (2017) that the disparaging ter m “The Slants” could be registered as a trademark Subsequently, in Iancu v Br unetti, U.S. ,139 S.Ct. 2294 (2019) decided that the ter m “FUCT” could be registered as a trademark, because the federal trademark law’s prohibition on registering “immoral” or “scandalous” trademarks violated the First Amendment

Note that trademark rights cannot be registered immediately for ter ms that are merely descriptive, geog raphically descriptive, a sur name, or functional. 15 U S C § 1052(e) Such ter ms, if used in interstate commerce, can instead be registered on the Supplemental Register,

which is a “waiting list” for ter ms that are capable of becoming trademarks, but have not yet become trademarks that can distinguish one producer’s goods or services from another’s If, however, a descriptive ter m, a geog raphically descriptive ter m, or a sur name, becomes recognized in the market as not just a ter m in the English language, but also as a trademark, that market recognition (called “acquired distinctiveness” or “secondary meaning”), if proven, may allow the ter m to be registered on the Principal Register (where trademarks are registered), if the ter m is not deceptive 15 U S C § 1052(f) Indeed, the trademark “Califor nia Pizza Kitchen” for restaurants was initially refused registration for descriptiveness. In re Califor nia Pizza Kitchen, Inc , 10 USPQ2d 1704 (TTAB 1988) However, after a “ secondary meaning” had been acquired, a new registration was g ranted on the Principal Register.

Because trademark rights cannot take words out of the English language, trademarks that have a descriptive significance (when applied to their goods or services) are subject to “classic fair use, ” so that competitors can use those descriptive ter ms to fairly describe the competitors’ own goods or services

Further, others can use trademarks to refer to the goods or services of the trademark o wner under “nominative fair use, ” where “First, the product or service in question must be one not readily identifiable without use of the trademark; second, only so much of the mark or marks may be used as is reasonably necessary to identify the product or service; and third, the user must do nothing that would, in conjunction with the m a rk , s u g g e s t s p o n s o r s h i p o r e n d o r s em e n t by t h e t r a d e m a rk h o l d e r. ” N e w K i d s o n t h e B l o ck v N e w s A m e r i c a P u b , I n c , 9 7 1 F 2 d 3 0 2 ( 9 t h C i r 1 9 9 2 ) ( fo o t n o t e o m i t t e d ) .

In a more moder n context, use of trademarks in metatags can constitute trademark infringement, Playboy Enterprises, Inc v Welles, 279 F 3d 796 (9th Cir 2002), and use of trademarks in domain names is actionable as cyber piracy or cybersquatting. 15 U.S.C. § 1125(d); Haw. Rev Stat § 481B-22

Federal trademark registrations are issued for an initial ter m of ten years and are indefinitely renewable for renewal ter ms of ten years each, as long as the registered mark is still being used, but a swor n declaration of continuing use must be filed between the fifth and sixth anniversary of issuance, and (with the renewal application) during the year prior to every tenth anniversary of issuance Hawaii trademark (including service mark) and trade name registrations are issued for ter ms of five years, and also are indefinitely renewable for ter ms of five years each, but Hawaii trademark (and service mark) registrations can only be renewed if the mark is still being used

Mediation & Arbitration

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•Torts and Personal Injury, including Medical Malpractice, Business Disputes and Contracts; HR and Employment Claims

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TRADE SECRETS - THE PC REVOLUTION

Although it may be somewhat oxymoronic to say so, trade secrets are well known in moder n life Most software is protected by a combination of copyrights and trade secrets Coca-Cola and Smith Brothers cough drops are also protected by trade secrets.

Hawaii has adopted the Unifor m Trade Secrets Act. Haw. Rev. Stat. § 482B-1 Also, the federal Defend Trade Secrets Act was signed into law in 2016 18 U.S.C. §§ 1836, et. seq. Both of these laws define trade secrets as infor mation that is the subject of reasonable efforts to maintain secrecy that derives independent economic value from not being generally known to, or readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use 18 U S C § 1839(3) and Haw Rev Stat § 482B-2 Both of these laws also only protect trade secrets against “misappropriation”, that is, acquisition of the infor mation by “improper means ”

18 U S C §1839(5); Haw Rev Stat § 482B-2(b) Trade secrets laws do not protect the secret information itself, but rather protect the infor mation against misappropriation

There is no registration system for trade secrets

Trade secrets can last forever, but are vulnerable to reverse engineering, that is, technical analysis of legitimately obtained products that contain the trade secrets

Thus, if trade secret infor mation can be ascertained by proper means, then there is no violation of trade secret laws. This is the basis for the entire personal computer revolution

Phoenix Technologies was able to reverse engineer the BIOS (Basic Input and Output System) chip for the IBM PC and sell chips to other computer manufacturers that would allow their computers to run the same PC-DOS operating system as IBM PCs This enabled the creation of IBM clones, the PC revolution, and ultimately the entire infor mation technolog y revolution

In a recent case, the Hawaii Supreme Court deter mined that an employer’s non-competition ag reement did not have a legitimate business interest, and therefore was not enforceable, because other employees and managers with similar or more access to allegedly confidential infor mation were not subject to non-competition ag reements, and the employer did not dispute that there was no trade secret violation. Pr udential Locations, LLC v Ga gnon, 151 Haw 136 (2022) Chief Justice Recktenwald and Justice Nakayama dissented with respect to whether the employer submitted sufficient evidence to raise a question of material fact as to whether the non-compete clause had the legitimate pur pose of preventing the use of confidential infor mation to unfairly compete

RIGHT OF PUBLICITY –COLLEGIATE ATHLETICS

The National Collegiate Athletic Association changed its policy effective July 1, 2021, so that student athletes could benefit from opportunities to license their name, image, and likeness, without jeopardizing their eligibility for participating in intercollegiate athletics. Impetus for this change came because college athletes’ names, images, and likenesses were being used in video games and other contexts, but the athletes could not receive any compensation without jeopardizing their eligibility to compete as amateur athletes

The law relating to the use of someone ’ s name, image, likeness, and other indicia of identity, is now called the right of publicity This law started as a branch of common law privacy in various states, evolved into a separately recognized right of publicity under common law in some states, and has now been recognized in certain states by the enactment of right of publicity statutes

Hawaii first addressed the unauthorized use of a person ’ s name or likeness as a branch of the common law right of privacy in Fergerstrom v Hawaiian Ocean

Vie w Estates, 50 Haw. 374 (Sup. Ct. 1968). In 1977, the United States Supreme Court recognized that the right of publicity was distinct from the right of privacy. Zacchini v. Scripps-Ho ward Broadcasting Co., 433 U.S. 562, 571–74, 97 S.Ct. 2849, 2855–56, 53 L.Ed.2d 965 (1977).

Each state has different statutory law and common law relating to the right of publicity. Hawaii’s Right of Publicity Act (“HPRA”) is codified at Haw. Rev. Stat. § 482P-1 and provides for a property right that can be registered and transferred, lasting for 70 years after a person ’ s life.

In N K Collins, LLC, v William Grant & Sons, Inc , 472 F Supp 3d 806 (D Haw 2020), the court deter mined that the HPRA is ambiguous, and noted that no Hawaii court has yet deter mined whether the common law right of privacy recognized by Fergerstrom survives death or is alienable Califor nia also has a statute that forbids use of a person ’ s name, voice, signature, and likeness without per mission, Califor nia Civil Code § 3344, and allows registration of a person ’ s right of publicity Califor nia Civil Code § 3344 1(f)(2)

However, the right of publicity is preempted by the federal copyright law when the name, likeness, or picture is used in copyrightable recordings Malone y v T3Media, Inc , 853 F 3d 1004 (9th Cir 2019)

Although the law gover ning the right of publicity varies from state to state, the estates of many deceased celebrities, including Albert Einstein, Marilyn Monroe, and Elvis Presley, are paid substantial amounts of money for the use of their names, images, and likenesses

OWNERSHIP, ASSIGNMENTS, AND LICENSES

Intellectual property rights have many of the same attributes as other species of property rights, such as real

property rights and tangible personal property rights. Thus, they are subject to the same kinds of property issues as in other areas of law. For example, intellectual property rights are assets of a marriage that are subject to equitable distribution in a divorce. Teller v. Teller, 99 Haw. 101 (2002). Intellectual property rights can also be assigned and licensed, just as real property and tangible personal property can be sold (or assigned) and leased (or licensed). Just as with land and cars, it would be strongly advisable to have assignments, financing statements, and other important transactions relating to intellectual property rights recorded in the U.S. Patent and Trademark Office, the Copyright Office, the Business Registration Division of the Department of Commerce and Consumer Affairs, and other applicable offices Just as with other for ms of property, it would also be strongly advisable to observe other applicable for malities as well For example, trust and estates attor neys must be sure that legal title to intellectual property rights is assigned to revocable living trusts (see above about copyright being distinct from material objects and about ter mination of transfers for copyright rights) and the assignments are appropriately recorded, and any counter parties to affected ag reements are appropriately notified For another example, litigation attor neys must be sure that record title to intellectual property rights has been properly assigned to the claimants and the rights are legally enforceable, in any infringement or other litigation For still another example, business attor neys must be sure that if any intellectual property assets are being assigned in a transaction, or security interests are being g ranted, these transactions do not constitute a default or violation of other ag reements, the assignments are signed as part of the closing, financing statements are recorded appropriately, and

any counter parties to any affected ag reements are appropriately notified.

Most importantly, patents and trademarks have maintenance requirements as described above, and copyrights have windows for ter minations of transfers, so attor neys who encounter these types of intellectual property rights must be absolutely certain that these maintenance requirements are timely met, or these ter mination rights are timely exercised, or else the rights will expire.

CONCLUSION

Intellectual property laws are important and relevant to all attor neys (and others). As previously discussed, intellectual property laws intersect with all other areas of law. However, this is only a primer and therefore does not, alone, provide sufficient infor mation to enable an attor ney to provide competent representation about intellectual property law issues to a client, as required by Rule 1 1 of the Hawai’i Rules of Professional Conduct But hopefully this primer will enable attor neys to recognize when intellectual property law issues are involved in a particular situation, and then to provide the required competent representation of clients, either through reasonable preparation or through consultation or association with an attor ney with expertise in intellectual property laws Id

Martin E Hsia is a re gistered patent attor ne y who practices patents, trademarks, cop yrights, trade secrets, right of publicity, computer, licensing, inter net, and entertainment law at Cades Schutte

CASE NOTES

Appeal Pointer

In circuit court agency appeals, the order disposing of the appeal is not appealable unless it is reduced to a separate judgment HRCP 72(k); Jenkins v Cades Schutte Fleming & Wright, 76 Hawai‘i 115, 869 P 2d 1334 (1994)

Supreme Court Civil Procedure

Makila Land Co., LLC v. Kapu, No. SCWC-17-0000358, November 28, 2022, (Wilson, J.). In this case, the Hawaii Supreme Court considered whether a letter from pro se litigant, Petitioner/Defendant-A ppellant Jonah Keeaumoku Kapu (Kapu), should have been liberally construed by the circuit court as a motion for reconsideration of the circuit court’s order g ranting summary judgment to Respondent/PlaintiffA ppellee, Makila Land Co , LLC (Makila), that resulted in Kapu and his family losing their only home The Hawaii Supreme Court ag reed with Kapu that his pro se letter should have been liberally construed as a motion for reconsideration pursuant to this court’s policy to afford pro se litigants equal access to justice. Consequently, the Hawaii Supreme Court also ag reed that the circuit court erred in failing to provide Kapu an opportunity to be heard on the merits of that motion

Intermediate Court of Appeals Tax

In the Matter of the Tax A ppeal of Jef fre y S Lindner and Moloaa Far ms, LLC, No CAAP-20-0000431, November 28,

(Continued on pa ge 25)

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H S B A H A P P E N I N G S

The HSBA Board took the following actions at its meetings in December:

• A pproved the following Diversity, Equity, and Inclusion statement for posting on the HSBA website and other purposes:

“The Hawaii State Bar Association considers diversity and inclusion critical elements of promoting equity and preventing discrimination Diversity should ref lect individuals from different identities, which include race, nationality, ethnicity, religion, sexual orientation, gender, ability, socioeconomic status, language, and age Equity means ensuring that resources and opportunities within a working environment are impartially and fairly available to all. Inclusion means that all people feel seen, heard, valued, and welcomed within a working or lear ning environment regardless of their identities.

The HSBA promotes the aloha spirit and supports action for diversity, equity, inclusion, and belonging (collectively “DEI”), and pledges to: (1) continue to make our workplaces trusting places to have conversations about diversity and inclusion; (2) implement and expand unconscious bias education; and (3) share best practices and prog rams around diversity and inclusion ”

• A pproved a proposed banking resolution which authorizes the 2023 HSBA officers, the executive director, and the director of operations (in the absence of the executive director) to execute monetary transactions on behalf of the HSBA;

• Voted to make a prepayment on the

mortgage in an amount between $25,000 and $50,000;

• A pproved proposed amendments to the HSBA Board Policy Manual to allow for wider representation and g reater f lexibility in appointing members to the Strategic Planning Committee;

• A pproved the recommendation of the Nominating Committee to appoint the following individuals to the Hawaii Access to Justice Commission for a threeyear ter m beginning January 1, 2023: Derek Kobayashi and Jacky Mena; and

• A pproved the recommendation of the Nominating Committee to appoint the following individuals to the Hawaii State Bar Foundation Board for a threeyear ter m beginning January 1, 2023: Nelisa Asato, P Gregory Frey, Daniel Lam, Marissa Machida, and Matthew Winter

Member Benefits Spotlight

Jennifer Okamoto Fine Portraiture

Jennifer Okamoto Fine Portraiture creates photog raphic works of art of you and your loved ones that celebrate your life, tell your story and capture your spirit

HSBA members are eligible for a Headshot Portrait Session (nor mally $99) for $79, and for every two marketing license images purchased, will get a third one free (nor mally, the cost is per image with no free images) For more infor mation, please see the following page which has been created specifically for members. https://www.jenniferokamoto.com/member-benefits

Watanabe Floral

Watanabe F loral celebrates its 75th year of f loral service to Hawaii What started as a “ mom and pop ” business by Er nest and Shizue Watanabe in 1946 has transfor med into a multi-tiered company with 70 team members focused on sharing the Spirit of Aloha and keeping people first Watanabe F loral is Hawaii’s largest retail f lorist with 2 showrooms on Oahu

They provide a spectacular and unequaled variety of the freshest f lorals, g reens and fillers to the public in its ultra-cool refrigerated coolers. With well over 100 years in combined experience, the designers specialize in weddings, sympathy, prom, conventions, events and all other important occasions They were recognized as “Hawaii’s Best” F lorist every year since 2003. For all your f loral needs and occasions, the Watanabe F loral team can team can assist you Just present your HSBA card at your time of purchase in the store to receive your 5% discount on any product or service. For more information, please visit their website at https://watanabefloral com/

Cosmo Sweets

Cosmo Sweets’ tasty, beautiful and unique assortment of baked goods will help you celebrate any occasion Customize your order of cakes, cupcakes, macaroons, and sugar cookies Business logos and special messages may be incor porated in baked good decorations Perfect for holiday gifts to clients, family, and special friends All HSBA members will receive a discount of 10% off with a minimum order of $50 This discount is not included in delivery fees. To redeem the discount, members must state that they are an HSBA member in the ‘Other Notes’ category when submitting

an order for m. For more infor mation, visit their website at https://www cosmosweetshawaii com or on Instag ram at @cosmosweets for more infor mation

Island Club and Spa

HSBA members will receive a onemonth complimentary guest membership to Island Club and Spa, the signature health and rejuvenation destination in Honolulu Conveniently located in the beautiful Ko’olani complex and in the center of Waikiki at the Alohilani Resort Waikiki Beach

Included with your Island Club and Spa benefit:

• 30-day complimentary Guest Membership (first-time guests only)

• Enrollment fee of $99 (regularly $500)

• Cor porate monthly rate of $134 plus tax (regularly $185) with second family member add-on for $96 (12-month ag reement required)

• Receive 4 months free on prepaid memberships (total 16 months)

• Receive 2 personal training sessions complimentary with upon joining

To activate your complimentary membership, call Geri Lara Berger for an appointment at (808) 543-3900 or email info@islandclubandspa com or glaraberger@islandclubandspa.com.

Kumu Kahua T heatre

Kumu Kahua Theatre produces world-class theatre written by and about the people of Hawai i, perfor med in downtown Honolulu They are pleased to offer HSBA members a 25% discount on staged production tickets. Please call the theatre’s office at (808) 536-4441 to redeem your discount or use the code “HSBA” when ordering online

For more infor mation, visit Kumu Kahua Theatre’s website at https://www kumukahua org

Consolidated Movie Tickets

Stop by the HSBA office to purchase your Consolidated movie tickets today for $8 75 per ticket There is no limit to the number you can purchase. Tickets are accepted at the following Consolidated Theatre locations:

• Ward (Open daily)

• Pearlridge (Open Friday through Sunday)

• Mililani (Open Friday through Sunday)

• Olino (Open Friday through Sunday)

• Kaahumanu Mall on Maui (Open Friday through Sunday)

Consolidated Theatres is committed to meeting or exceeding all CDC, state, and local regulations as well as #CinemaSafe expert-backed suggestions

Please refer to www.consolidatedtheatres.com for more infor mation

To take advantage of this g reat member benefit, stop by the HSBA office and have your bar number ready for verification of HSBA membership Payment may be made by check or cash only Call the HSBA office at (808) 5371868 if you have any questions. Note that, as there are limitations to special screenings and premiering movies, be sure to read the ter ms and conditions behind the ticket.

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NPP members receive 20% off f lowers and gift baskets. Visit https://mynpp.com/association/hsba to enroll with NPP and start saving today

(Continued from pa ge 21)

2022, (Nakasone, J ) A ppellee-A ppellant County of Kauai (County), appealed from the (1) Order Granting Taxpayers-A ppellants’ (Taxpayers) Motion for Summary Judgment (MSJ) as to the Issue of Whether the Guinea Grass in Question Constitutes a Crop; and (2) Order Denying County of Kauai-A ppellee’s Motion for Summary Judgment as to the Issue of Whether the Guinea Grass in Question Constitutes a Crop (collectively, Orders), both filed and entered on May 29, 2020, by the Tax A ppeal Court. This appeal arose out of cross-motions for summary judgment filed by the parties over the County’s denial of Taxpayers’ application to have land used to g row guinea g rass that is baled and sold as hay for cattle feed qualify as “ ag ricultural use ” for tax purposes The parties disputed whether the guinea g rass was a “ crop ” qualifying as “ ag ricultural use, ” or whether it was a “forage crop ” excluded from qualifying as “ ag ricultural use ” The County raised a single point of error on appeal, that the Tax A ppeal Court erred when it held that: “And on that narrow basis [i e ‘that this g rass is being raised and cultivated to put into bales of hay for the pur pose of feeding cattle’], this Court concludes that the guinea g rass in question does constitute a crop and therefore is ag ricultural use within the framework of the issue of this case ” The County argued that the Tax A ppeal Court erred in concluding that the guinea g rass constituted a “ crop ” under K C C § 5A9.1(a)(1) because guinea g rass is an excluded “forage crop ” under the Ag ricultural Dedication Prog ram Rules (ADPR) Rule §RP-2-2 (2-2), and thus, did not qualify as “ ag ricultural use ” The County also argued that the Tax

A ppeal Court erred in concluding that “putting guinea g rass into bales of hay” for the pur pose of feeding livestock constituted the act of “feeding” to qualify as an “ ag ricultural use ” under subsection (a)(2) of K C C § 5A-9 1 The ICA held that the Tax A ppeal Court erred in g ranting Taxpayers’ MSJ and denying the County’s MSJ, where Taxpayers’

activity did not constitute “ ag ricultural use ” under K.C.C. § 5A-9.1 as a matter of law, because (1) the guinea g rass was an excluded “forage crop ” under ADPR Rule 2-2 and was not a “ crop ” under subsection (a)(1); and (2) there was no actual “feeding” of livestock occurring on Taxpayers’ land under subsection (a)(2)

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NOTICES OF DISCIPLINE

Robert E. Chapman

On December 6, 2022, the Hawai i Supreme Court accepted the resignation in lieu of discipline of Honolulu attorney Robert E. Chapman (“Chapman”). Arising from an ODC complaint received from a Deputy in the Attor ney General’s Civil Division, alleging that Chapman had wrongfully attempted to lay claim to over $2,000,000 00 in abandoned property held by the Hawaii Department of Budget and Finance The allegations were supported by the record in a lawsuit [Anita Mei Lee Hsu v Director of Finance, Civ No 19-1-0484-03 (1st Cir Haw )] filed in the Circuit Court

Following investigation by the ODC, Chapman was charged with

RICHARD W. POLLACK

multiple violations of the Hawaii Rules of Professional Conduct Rather than defend the charges, Chapman elected resignation in lieu of discipline under Rule 2.14 of the Rules of the Supreme Court of Hawaii (RSCH) Following review of the charges and Chapman’s admissions, the supreme court found “ eg regious violations of Rules 1.2(a) [failure to consult with client], 1 9(c)(1) [use of confidential for mer client information to detriment of client], 3 1 [bringing action without basis], 3.3(a)(1) [false statement material fact to tribunal], 3 3(a)(4) [offering false evidence], 3 4(b) [falsification of evidence], 8 4(a) [

c ) [ e n g a g i n g i n c o n d u c t i nvo l v i n g d i s h o ne s t y, f r a u d , d e c e i t a n d m i s re p re s e n t at i o n ] o f t h e H aw a

misconduct. RSCH Rule 2.12A.

The petition for suspension was filed in August 2022 after Crowell failed to respond to numerous ODC inquiries and subpoenas. In response to the initial Order to Show Cause, Crowell responded to the supreme court and promised to cooperate with ODC. On September 16, 2022, the court stayed the Rule 2 12A proceedings for six months to allow time for her to demonstrate cooperation with ODC However, Crowell promptly stopped communicating, and on December 2, 2022, ODC infor med the court by filing of a status report that Crowell was again non-responsive. A suspension order promptly followed

Appellate Consulting Mediation &

Arbitration

Former Associate Justice, Hawai’i Supreme Court and Circuit Court Judge

Part-time Trial Court Judge, Republic of Palau

In Hawaii, resignation in lieu of discipline is a disbar ment for all pur poses RSCH Rule 2.14(d). Additionally, pursuant to a recent change in Hawaii law, the attor ney ’ s admission to the charges is no longer confidential or sealed, but “shall not be used in any other proceeding except upon order of the [Hawaii] supreme court ” RSCH Rule 2 14(c) Chapman’s disbar ment is effective 30 days after entry of the court’s December 6, 2022 order. Chapman was admitted to the Hawai i bar in 1980 and is a g raduate of the University of Maryland, College of Law

Case infor mation: ODC v. Robert E. Chapman, SCPR-22-00000714

Moanike‘ala Ruth Crowell

On December 15, 2022, the Hawai i Supreme Court immediately and indefinitely suspended from the practice of law, Honolulu attor ney Moanike’ala Ruth Crowell for her failure to cooperate with the ODC in the invest i

As this suspension is effective immediately, Crowell shall not accept any new or further retainers or engage as attorney for anyone in any new or ongoing case or legal matter of any nature Crowell is required to promptly notify all of her clients and any attor neys for any adverse party in any pending litigation, of her suspension and consequent inability to act as an attor ney She is also required to surrender to all clients all papers and property to which the clients are entitled and retur n any advance payments of fees that have not yet been ear ned. Crowell is further ordered to report to the court as to her compliance with these obligations as required by RSCH Rule 2 16 Reinstatement of attor neys suspended for failing to cooperate with disciplinary authorities are subject to RSCH Rule 2 12A(c) and (d) Crowell was admitted to the Hawai i bar in 2010 and is a g raduate of th e Wi l l i a m S. R i c h a r d s o n S c h o o l o f

Case infor mation: Disciplinar y Board v Moanike’ala Ruth Cro well, SCAD-220000486

CASE LAW UPDATE ON FAMILY LAW ISSUES

by Tom S Tanimoto

Hawai‘i Supreme Court

Crofford v. Adachi, SCWC-16-0000365, February 28, 2022

On certiorari review, the Supreme Court held that the parties’ marital agreement and addendum were contrary to public policy, since its terms pertaining to property division require a determination whether a party engaged in misconduct

This is in light of the fact that Hawaii is a no-fault state.

The opinion noted that Hawai‘i became a no-fault divorce state in 1972, thereby eliminating fault as a ground for divorce Haw Rev Stat § 580-41 is the nofault statute, which allows for a divorce upon only certain grounds, including an irretrievably broken marriage, but not for fault However, even prior to such legislation, the court previously determined many years earlier that conduct was not relevant to the issue of property division

Although the Husband did not contest whether he violated the terms of the marital agreement, the family court would need to determine fault

The court analyzed case law from various jurisdictions that are split with respect to the enforceability of marital agreements that punish misconduct. California and Iowa courts have invalidated conductbased marital agreements, alongside strong policies favoring no-fault divorces, which Hawaii has adopted

Accordingly, an agreement that bases property division on misconduct or fault is not enforceable as it is contrary to Hawaii’s no-fault divorce policy

Intermediate Court of Appeals

MD v. JR, No. CAAP-19-000003, ICA (unpublished memorandum opinion), July 29, 2022

A Mother appealed from a family court order that entered default against her and terminated the Father’s child support obligations to their adult child. She contended that the court erred by entering default, by conducting a proof hearing, and

subsequently granting relief beyond the four corners of the Father’s motion

The Father filed a Motion for Post-Decree Relief (seeking a $700.00 reduction in his child support payments) on May 22, 2018, which was scheduled for a contested hearing on November 16, 2018. The Mother filed a motion to continue the hearing, which the family court denied However, the court allowed the Mother to appear by phone to explain why she wanted a continuance Twenty minutes prior to hearing, The Father filed a document entitled, “[Father’s] Objection to Allow [Mother] to Appear by Telephone at November 16, 2018 Evidentiary Hearing on [Father’s] Motion for Post-Decree Relief Filed 5/22/2018[,] Motion for Default,” seeking a termination of child support. At the hearing, the Mother failed to appear in person or via telephone, and the court entered default against her, terminated the Father’s child support obligations, and accorded him a $700 credit per month from September 1, 2017 towards any child support arrearages

The ICA found that the Mother was not served with the Father’s request to terminate child support, said request being embodied in his Motion for Default, which was the motion filed 20 minutes prior to hearing. As a court cannot grant relief that is different or greater than that which was sought in the Father’s Post-Decree Motion, the default judgment was void.

The ICA also determined that because the Mother had filed an opposition and position statement as to the Father’s prior postdecree motions and attended an earlier hearing on this matter, it was an abuse of discretion to enter default against her. Thus, the default judgment was vacated

KS v. RS, CAAP Nos. 19-0000871 and 200000489, ICA, May 27, 2022

The primary issue on appeal centered on whether the family court may order joint legal custody with tie-breaking authority to a parent The ICA analyzed case law from other jurisdictions, as well as Hawai‘i statutory authority and determined that in the exercise of its discretion, a court is not precluded from ordering joint legal custody with tie-breaking authority, so long as it is in a child’s best interests

TF v. RD, CAAP no. 21-0000270, ICA, Summary Disposition Order, May 9, 2022

The Father appealed from a post-decree order that required both parties to consent in writing to any travel undertaken by the Father with the minor child The ICA affirmed.

The Father obtained an ex parte order allowing him to travel from March 28, 2019 to April 2, 2019 with the minor child to Alaska (from Maui) by claiming in the underlying motion that such travel was authorized by the parties’ divorce decree but inhibited by the Mother’s refusal to cooperate

After the Father’s travel with the minor child, the Mother filed a motion to modify certain custody orders that stated that the Father arranged for her to be served with the ex parte order under the pretense of effectuating visitation The Mother claimed that she was not allowed to speak to the minor child during the trip, and the child returned to Maui, emotionally and psychologically damaged, which diagnosis was confirmed by a licensed clinical social worker As a result, the child required therapy The social worker also reported that the child was fearful of being taken away again, and any off-island travel should be planned in advance

The family court, therefore, issued an order providing that it was in the child’s best interest to allow the Father to travel off-island, only if the parties’ mutually agreed to such, in writing

On appeal, the Father claimed the family court abused its discretion, violated his constitutional right to travel, and erroneously admitted evidence of his visitation history with the minor child

The ICA found that the family court’s order requiring travel by consent, was supported by the record, and was based on the statutory best interest factors. As for the other points of error claimed by the Father, the ICA noted that the Father failed to cite to the record or any legal authority in support of his position, and as such, those contentions were deemed waived

SC v. JC and TG and AG (intervenors), CAAP-20-0000618, ICA, April 14, 2022

The Father appealed from an order

C O U R T B R I E F S

Hawaii Supreme Court Holds Oral Argument at Lahainaluna High School

For the first time in three years, the Hawai‘i Supreme Court resumed in-person oral arguments at a high school for its Courts in the Community prog ram. Students from Lahainaluna High School, Kamehameha Schools Maui, King Kekaulike High School, Lana‘i High and Elementary School, and Molokai High School watched the oral argument in-person on December 6 A total of 315 students participated

Courts in the Community is designed to educate students about the Judiciary’s role in gover nment and its function in resolving disputes in a democratic society. Students prepared using a curriculum developed by the Kamehameha V Judiciary History Center and Students for Public Outreach and Civic Education at the University of Hawaii’s William S. Richardson School of Law Attor neys from the Maui County Bar Association and Hawaii State Bar Association volunteered time to discuss the case with students and facilitated a moot court activity

The court heard oral arguments in the case of Ho omoana Foundation v Land Use Commission, Pu uonoa Homeo wners Association, Inc , and Ross R Scott Oral argument was followed by two question-and-answer sessions for the students; one with the attor neys and another with the five justices

“It has been a pleasure for us to work with the Judiciary to provide our youth with this opportunity,” said Hawaii State Bar Association President Shannon S Sheldon “The volunteer attor neys were excited to engage with the teachers and students about the case And, as a Maui-based attor ney, I am especially pleased that the prog ram resumed in-person oral arguments here on our island at Lahainaluna ”

The Hawaii State Bar Association and the Hawaii State Bar Foundation provided the in-person participants with lunches and transportation for the King Keakaulike, Molokai, and Lana‘i students.

Commission Chair Nadine Y Ando; State Senator Jarrett Keohokalole; and Gover nor David Y. Ige.

Kawashima will serve a ten-year ter m as Judge of the Circuit Court Montalbano will serve as Judge of the District Family Court, and Ho as Judge of the District Court for six years

Jenny Silbiger Honored by Hawaii Women Lawyers

State Law Librarian and Access to Justice Coordinator

Jenny Silbiger, was recently honored by the Hawaii Women Lawyers with its Distinguished Service Award. She and her fellow awardees were recognized at an evening event held at the Pacific Club on November 10

Kawashima, Montalbano, and Ho Sworn

In Chief Justice Mark Recktenwald cong ratulated Judge Timothy Ho, Judge James Kawashima, and Judge John Montalbano when the Supreme Court convened for their November 30 swearing-in ceremony While the in-person crowd was limited, many more family, friends, and colleagues watched the livestream.

Chief Justice Recktenwald presided over the ceremony Guest speakers were Hawaii State Bar Association President Shannon S Sheldon; Hawaii State Trial Judges Association President Judge Summer M M Kupau-Odo; Judicial Selection

The organization noted that Silbiger serves as co-chair of the Hawai i State Bar Association’s Committee on Delivery of Legal Services to the Public. She is currently serving as President of the Hawai i Library Association, and she is also a member of the American Association of Law Libraries, recently serving as Chair of the Gover nment Law Libraries-Special Interest Section As a member of the Self Represented Litigation Network – Law Librarians Working g roup, she is contributing to an analysis of law librarian participation with Access to Justice Commissions across the country

(Continued from pa ge 27)

denying his post-decree request to modify a Colorado court’s order granting maternal grandparents, visitation with the subject children for a period of one week during spring each year, one week for Christmas each year, and two weeks for summer each year. Specifically, the Father requested that maternal grandparents’ visitation occur only in Hawai‘i, where the children reside The children’s Mother had previously passed away

The record did not indicate that the Colorado order was ever appealed, and therefore, the family court deemed it valid and enforceable Earlier in the proceeding, the family courts in Hawai‘i and Colorado, conferred as to jurisdiction, resulting in the latter relinquishing the matter to the former, as it was the children’s home state.

The findings indicated that the Mother was the primary caregiver, and the maternal grandparents and other family from the Mother’s side of the family were the children’s only connection to their Mother. The maternal grandparents have a significant relationship with the children, and the children will suffer significant harm without visiting their maternal grandparents in Colorado where they lived with the Mother and were raised by her for a substantial time.

The harm to the child standard applied in this case where maternal grandparents overcame the presumption favoring the Father’s request to modify visitation, specifically, to limit their visitation within the State of Hawai‘i A parent has a fundamental right to raise their child in the face of a third party, nonparent’s request for visitation, so long as the parent’s decision to deny such visitation does not result in harm to the child

Tom S Tanimoto is the current Chair of the HSBA Family Law Section. He prepared a presentation for the 2022 Family Law Forum on October 21, 2022, and these aforementioned cases were discussed at that event.

O F F T H E R E C O R D

The law fir m of Cox Fricke LLP is proud to welcome Brian W. Tilker as a Partner specializing in civil litigation and dispute resolution, with an emphasis on commercial litigation. Tilker has over 18 years of litigation experience, representing businesses and individuals in a variety of commercial disputes in both state and federal court Prior to joining Cox Fricke LLP, he was a Director with the law fir m of Torkildson Katz, A Law Cor poration ”

Naoko Miyamoto opened her own law practice, the Law Office of Naoko C Miyamoto After g raduating from William S. Richardson Law School and clerking for Hawaii Supreme Court Justice Simeon R. Acoba, Jr., she practiced family law for over 20 years at Kleintop & Luria(f ka Kleintop, Luria & Medeiros and Stirling & Kleintop) She will continue to practice family law and her work on the division of retirement benefits.

Damon Key Leong Kupchak Hastert added three associates to the fir m: Jonathan N. Marchuk, Christopher H. Pang, and David Hardy K amakanika‘ilialoha Abitbol. Marchuk is an associate in the fir m ’ s Insurance, Land Use and Eminent Domain and Wills, and Trusts and Estates practice g roups. He g raduated from William & Mary Law School in Williamsburg, Virginia. Pang is an associate in the fir m ’ s Business and Commercial Law, Real Estate and Condominium and Community Association Law practice g roups. He g raduated, cum laude, from the University of Hawaii at Manoa, William S. Richardson School of Law Abitbol practices in the fir m ’ s Litigation and Dispute Resolution, Land Use and Eminent Domain, Construction Law, and A ppeals practice g roups Abitbol also serves as a faculty lecturer at the University of Hawaii at

Manoa’s Political Science Department, where he teaches Constitutional Law and ear ned his law deg ree, cum laude, from the William S. Richardson School of Law

Nicole H. Kim joined Star n O’Toole Marcus & Fisher as a Transactional Associate She concentrates her practice in the areas of real estate law, commercial transactions, and cor porate law She g raduated from William S Richardson School of Law

Levi Ho`okano was awarded the National Asian Pacific American Bar Association Military and Veteran Service Award The award recognizes individuals within the Asian American Pacific Islander (AAPI) legal community serving the U.S. Ar med Forces as unifor med personnel, civilians, or veterans who exhibit the highest integ rity, competency, and commitment to serving others, the AAPI community, and their country, and whose character and commitment ref lect the highest standards of the Ar med Forces

On November 30, the Law School celebrated Professor Eric Yamamoto’ s retirement Professor Yamamoto was the Fred T Korematsu Professor of Law and Social Justice at Richardson Law School. He is nationally and inter nationally recognized for his legal work and scholarship on civil procedure as well as national security and civil liberties, civil and human rights, and social justice, with an emphasis on reconciliation initiatives and reparations for historic injustice

Amanda Leonard and Kristin Yamamoto were honored at the 37th Annual TOP COP Hawaii Awards ceremony at the Ala Moana Hotel on October 14. Yamamoto received the 2022 TOP COP Hawaii award for her outstanding leadership as Captain of the Domestic Violence - Misdemeanors

Team at the Honolulu Prosecutor’s Office Leonard and her partner, Kalei Grant of the Attor ney General’s Office Missing Child Center Hawaii, were awarded the prestigious Judge C Nils Tavares Award, which is presented to “ an outstanding local, state or federal organization in the State of Hawaii that has tailored a prog ram to bring about measurable change in the law enforcement community.”

Lance D. Collins was awarded the Gintong Pamana Leadership award by the Maui Filipino Chamber of Commerce on July 13 for outstanding achievement in public life He spoke about language access and indigenous language revitalization in his acceptance speech.

News for “Off the Record”

Please send in infor mation about movement within the bar, about elections to various boards, awards, and other news to any one of the editors on the editorial board, Carol K Muranaka at <carol k muranaka@gmail com> or Cynthia M Johiro at <Cynthia M Johiro@hawaii gov>

Articles Wanted

If you are interested in writing either a short or long article of general interest to members of the bar, please send your submissions to Ed Kemper at edracers@aol.com; Cynthia M. Johiro at cynthia m johiro@hawaii gov; or Carol K. Muranaka at carol.k.muranaka@gmail com; or to any of the volunteer editors on the editorial board. All submitted articles should be of significance to and of interest or concer n to members of the Hawaii legal community A short article is approximately 500 to 1,500 words The Hawaii Bar Jour nal reserves the right to edit or not publish submitted material

Directory Errata

(Please make edits to your directories)

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Dept of Corporation Counsel

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JD5519 1991

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Honolulu, HI, 96821

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JD1573 1975

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