Dallas Bar Association
HEADNOTES |
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Focus | Entertainment, Art & Sports Law
March 2021 Volume 46 Number 3
DBA Living Legends Program Interview series will highlight Dallas female attorneys BY CHALON CLARK
Left to Right: Rob Crain, Quentin Brogdon, Sarah Rogers, and John Spillane
Crain Brogdon Rogers LLP Contributes to a Record EAJ Campaign BY MICHELLE ALDEN
In this challenging time, during the last few weeks of the 2021 Equal Access to Justice Campaign, the Dallas Volunteer Attorney Program (DVAP) was fortunate to receive the support of Crain Brogdon Rogers LLP, who came in with a $25,000 donation. This makes an impressive grand total of $257,605 from Rob Crain and his previous and current firms, along with a $50,000 pledge to the DVAP Endowment, also known as the Justice Forever Fund. Crain Brogdon Rogers, LLP is a team of lawyers and professionals focusing on serious personal injury and wrongful death cases of all types. Though their practice is concentrated in North Texas, the firm handles cases throughout the country. Why do the accomplished attorneys of Crain Brogdon Rogers support equal access to justice? “DVAP is a one-of-a-kind program that allows Dallas lawyers to make a real difference for real people. I can’t think of a program that’s more worthy of our firm’s support. Now, more than ever, DVAP needs all of us to help it continue its mission,” said Quentin Brogdon. The justice gap in Dallas County remains daunting. In a country based on justice for all and access to our court system, over 25 percent of Dallas County residents live near the poverty level, and 42 percent have slim hope of being able to afford an attorney. With annual poverty incomes of $33,125 for a family of four, justice is a luxury for lowand moderate-income families. As with every other business and nonprofit around, 2020 was an unprecedented year for DVAP. Unable to hold its usual intake clinics around Dallas County due to the pandemic, DVAP launched virtual clinics in April, and
has held general intake clinics virtually on a weekly basis since then, along with periodic specialized wills, driver’s license restoration, and veterans clinics. DVAP has seen a variety of people seeking help with legal issues tied to COVID-19, including employment issues, Chapter 7 bankruptcies, visitation disputes due to the changes brought about by remote learning for children, and landlord-tenant issues. One such case involved “Anna,” who was furloughed due to the pandemic. As a result, she was unable to pay her rent and her landlord moved forward with an eviction. Aaron Chibli, of Foley & Lardner LLP, volunteered to take her case and filed an emergency motion to abate the trial pursuant to the CDC’s nationwide eviction moratorium and the Texas Supreme Court’s Emergency Order applying the same. “The court granted the motion to abate, which ultimately allowed Anna more time to stay in the house, along with giving Foley enough time to negotiate a favorable settlement on her behalf. It truly was a rewarding experience,” Aaron explained. Anna faces a brighter future thanks to Aaron, Foley, and DVAP. Each case placed with a volunteer attorney by DVAP can lead to one more parent with access to their children, one more veteran with access to benefits earned, one more grandparent able to adopt a child whose parents are absent, or one more person who is able to finally secure employment due to an old criminal charge being expunged. Last year, DVAP placed 830 cases with volunteer attorneys for full representation. This number does not include all those who received advice and brief services through DVAP continued on page 22
On January 20, 2021, I sat in my living room teary-eyed as I watched Kamala Harris take her oath of office as Vice President. I recalled when I was a little girl, and I proudly announced that I wanted to be the President of the United States. My grandmother, born in 1919 in rural Texas and the granddaughter of a slave, responded in her matter-of-fact tone, “Ain’t no black and ain’t no woman ev-ah gon’ be President of America. You best find somethin’ else to do.” She did not intend to discourage me, but instead, to prepare me for the reality of life as an AfricanAmerican woman. She could not have imagined how close America would get to changing that reality on Inauguration Day as Kamala Harris shattered glass ceilings of race and gender. This year, Dallas Bar Association President, Aaron Tobin, has a plan to uncover the stories of many Dallas women who shattered glass ceilings through his brainchild program, Living Legends. The Living Legends interview series will explore the untold stories of Dallas female attorneys. Current members and alumnae of the DBA Women Empowered to Lead Class (WE LEAD) will conduct the interviews. For now, the interviews will be conducted and recorded via Zoom. The interviews will then be broadcast for Dallas Bar Association members and posted online for members to access later. Mr. Tobin thought the program would be a wonderful way to get the WE LEAD classes, consisting of up-and-coming female attorneys, involved in honoring these unsung heroes. Often, women have been overlooked in the legal profession, and Mr. Tobin wants to bring their stories to a greater audience. He describes a Living Legend as, “a person who has, for a sustained period of time, navigated through the legal profession in a collegial and professional manner, and someone who has the ability to make others around them better—to lead, influence, and impact the lives and careers of others.” In other words, the Living Legends are total pro-
fessionals—attorneys that do more than simply sit at their desks and bill hours, but instead, meaningfully contribute to the profession. Living Legends will kick off just in time for Women’s History Month, a time to celebrate the contributions women have made to the United States and recognize the specific achievements women have made, in various fields, over the course of American history. Mr. Tobin will launch the program by interviewing Judge Mary Murphy, a retired justice of the Fifth District Court of Appeals of Texas, former judge of the 14th Civil District Court, and former civil court master for the Dallas County district courts. Next, WE LEAD alumnae, Kandace Walter and Marifer Aceves will interview Judge Maricela Moore, presiding judge of the 162nd Judicial District Court. The goal of the program is to conduct one interview each month. Mr. Tobin says the Living Legend list is still being compiled, and he has just scratched the surface of the potential interviewees list. He hopes Living Legends will be a standing DBA program and even imagines it could honor women lawyers posthumously by interviewing people with firsthand accounts of their journeys. The program’s purpose is for younger lawyers to learn the true stories—the good and bad—behind these accomplished women in the legal field. However, Mr. Tobin reveals that even if no one watches the interviews, but, just one interviewer develops a mentorship relationship with a Living Legend, to him, “that would be worth it.” As an alumna of the inaugural WE LEAD class, I have the privilege of interviewing former Chief Justice Carolyn Wright, the first African American to become chief justice of any intermediate appellate court in Texas. If my grandmother could listen in on the Living Legends interviews, I know she would be proud to learn that women, particularly women of color, did indeed leap over seemingly insurmountable obstacles to become lawyers, judges, a vice president, and a plethora of other firsts. Lastly, I know she would be proud that her little granddaughter is breaking some glass ceilings of her own. HN Chalon Clark is a Partner at Husch Blackwell and may be reached at chalon.clark@huschblackwell.com.
Inside 6 Equality Committee Presents Firm Diversity Report 9 Inaugural of Aaron Tobin 14 Stairway to Heaven: The Demise of the Inverse Ratio Rule 18 Meet the DBA We Lead Class of 2021 23 Show Me the Money! Incentives for the Entertainment Industry
DBA MEMBER REMINDER: All members who have not yet renewed for 2021 will be dropped on March 19, 2021. Renew TODAY in order to continue receiving all your member benefits. Thank you for your support of the Dallas Bar Association!
2 He a d n o t e s l D a l l a s B a r A s s o ciation
March 2021
All programs are presented virtually. Check the DBA Online Calendar (www.dallasbar.org) for webinar links and the most up-to-date information.
Calendar March Events
Visit www.dallasbar.org for updates on Friday Clinics and other CLEs. Hon. Dale Tillery, Jeff Tillotson, Will Snyder, Moderator. (MCLE 1.00)*
MARCH IS WOMEN’S HISTORY MONTH
For additional resources on Women’s History Month, visit the ABA’s website at https://bit.ly/2Yf9pbJ. To find out more about the Dallas Women Lawyers Association, go to dallaswomenlawyers.org/. For more on the DBA’s Diversity Initiatives, log on to www.dallasbar.org.
MARCH 5 Noon
FRIDAY CLINICS
“One Year Later-Mediators’ Top Tips for Counsel in Online Mediations,” John DeGroote, Chris Nolland, John Shipp, and Ross Stoddard. (MCLE 1.00)* “The Impact of COVID 19 On an Attorney’s Practice, Clients and Well Being, Part II,” Al Ellis, Richard Cheng, and Kelly Rentzel. (Ethics 1.00) Co-sponsored by the CLE and Peer Assistance Committees.
MONDAY, MARCH 1 Noon
Tax Law Section “Nuts & Bolts of Cancellation of Indebtedness for Businesses & Financial Institutions,” Anthony Hunt, Roberta Mann, Kate Roth, and Carol Wang. (MCLE 1.00)*
TUESDAY, MARCH 2 Noon
Corporate Counsel Section “What’s Happening on the Hill,” Chris McCannell. (MCLE 1.00)* Tort & Insurance Practice Section “Mediating Insurance Coverage Disputes,” Tamara Bruno, Beverly Godbey, Catherine Hanna, Daisy Khambattta, Peter Laun, Sara Saltmarsh, Jill Schaar, Steve Schulwolf, Paul J. Van Osselaer. (MCLE 1.00)*
WEDNESDAY, MARCH 3 Noon
Employee Benefits & Executive Compensation Law Section “Large Employer Health Strategies for 2021 and Beyond,” Debbie Harris. (MCLE 1.00)*
Solo & Small Firm Section “Help, My Investments Have Fallen and They Can’t Get Up!” Richard Lewins. (MCLE 1.00)*
Public Forum/Media Relations Committee
4:00 p.m. LegalLine E-Clinic. Volunteers needed. Contact sbush@dallasbar.org. 4:30 p.m. Equality Committee
THURSDAY, MARCH 4 Noon
Diversity Program “Why it Matters: Innovations in Diversity, Equity, Inclusion & Belonging, Part I,” Chasity Henry, Hon. Maricela Moore, Amber Rogers, Robert Walters, and moderated by Phil Kim and Courtney Barksdale Perez. (MCLE 1.00)*
FRIDAY, MARCH 5 Noon
Immigration Law Section Topic Not Yet Available
Home Project Committee
Legal Ethics Committee
WEDNESDAY, MARCH 10
MARCH 19 Noon
Friday Clinic “One Year Later-Mediators’ Top Tips for Counsel in Online Mediations,” John DeGroote, Chris Nolland, John Shipp, and Ross Stoddard. (MCLE 1.00)*
Noon
Family Law Section Topic Not Yet Available
Franchise & Distribution Law Section Topic Not Yet Available
Bench Bar Conference Committee
Bankruptcy & Commercial Law Section Topic Not Yet Available
Noon
Friday Clinic “The Impact of COVID 19 On an Attorney’s Practice, Clients and Well Being, Part II,” Al Ellis, Richard Cheng, and Kelly Rentzel. (Ethics 1.00) Co-sponsored by the CLE and Peer Assistance Committees. Co-sponsored by the CLE and Peer Assistance Committees.
MONDAY, MARCH 22
THURSDAY, MARCH 11
Golf Tournament Committee
Noon
Government Law Section “Cyber Threats Directed at Governments During the COVID-19 Work from Home Environment,” Peter S. Vogel. (MCLE 1.00, Ethics 0.50)*
Criminal Justice Committee
Publications Committee
Criminal Law Section Topic Not Yet Available
Noon
Real Property Law Section “Bankruptcy Traps for the Weary Real Estate Practitioner,” Liz Boydston and Katherine Clark. (MCLE 1.00)*
Living Legends Program “Living Legends Kickoff Program: Hon. Mary Murphy, interviewed by DBA President Aaron Tobin.” Prerecorded program. (MCLE 1.00)*
Trial Skills Section Topic Not Yet Available
Bankruptcy Tips Series Kickoff
FRIDAY, MARCH 19
Securities Section Topic Not Yet Available
Business Litigation Section “Panel Discussion: How Judges and Trial Lawyers Can Work Together to Dig out of the COVID Hole,” Hon. Melissa Bellan, Krisi Kastl, Hon. Emily Miskel,
Minority Participation Committee
2:00 p.m. CLE Committee
Noon
4:00 p.m. LegalLine E-Clinic. Volunteers needed. Contact sbush@dallasbar.org.
Alternative Dispute Resolution Section Topic Not Yet Available
TUESDAY, MARCH 9
Appellate Law Section Topic Not Yet Available
Science & Technology Law Section “Emojis and the Law,” Prof. Eric Goldman. (MCLE 1.00)*
Noon
Peer Assistance Committee
Noon
Noon
MONDAY, MARCH 8
THURSDAY, MARCH 18
FRIDAY, MARCH 12
MONDAY, MARCH 15 Noon
Labor & Employment Law Section “Cannabis Laws and How It’s Impacting the Workforce,” Richard Cheng and Kyla Cole. (MCLE 1.00)*
TUESDAY, MARCH 16 Noon
Antitrust & Trade Regulation Section Topic Not Yet Available
International Law Section “The Impact of Brexit and What This Means in Terms of the Law in the UK,” Gill Austin. (MCLE 1.00)*
Entertainment Committee
WEDNESDAY, MARCH 17 Noon
Energy Law Section “Suspending Royalty Payments after ConocoPhillips Co. v. Koopman,” Katy Wehmeyer. (Ethics 1.00)*
Health Law Section “Keeping Your Deal Healthy: Representations and Warranties Insurance in Healthcare Transactions,” Lisa Atlas Genecov and Vipul Patel. (MCLE 1.00)*
Law in the School & Community Committee
Pro Bono Activities Committee
TUESDAY, MARCH 23 Noon
Fireside Chat with Dallas Police Chief Eddie Garcia Moderated by Koi Lomas Spurlock. Sponsored by the Public Forum/Media Relations Committee.
Probate, Trusts & Estates Law Section “Legal Issues for Parents of Special Children,” Lisa H. Jamieson. (MCLE 1.00)*
WEDNESDAY, MARCH 24 Noon
Diversity Program “Why it Matters: Innovations in Diversity, Equity, Inclusion & Belonging, Part II.”
Collaborative Law Section Topic Not Yet Available
Entertainment, Art & Sports Law Section “The CASE Act: Small-Claims Copyright Court for Creators,” Thomas Maddrey. (MCLE 1.00*
Judiciary Committee
THURSDAY, MARCH 25 Noon
Environmental Law Section Topic Not Yet Available
Intellectual Property Law Section “Federal Circuit Update: Notable Cases and Topics 2020-2021,” Natalie Bennett, Pauline Pelletier, and Deirdre Wells. (MCLE 1.00)*
3:30 p.m. DBA Board of Directors Meeting
FRIDAY, MARCH 26 Noon
No Events Yet Scheduled
MONDAY, MARCH 29 Noon
No Events Yet Scheduled
TUESDAY, MARCH 30 Noon
No Events Yet Scheduled
WEDNESDAY, MARCH 31 Noon
No Events Yet Scheduled
4:00 p.m. LegalLine E-Clinic. Volunteers needed. Contact sbush@dallasbar.org.
Spanish forfor Spanish Lawyers Lawyers
2021 Summer Session: 2021 Summer Session: March 23-May 26 March 23-May 26
Held online via
Held online via
Google Meet/Video conference.
Google Meet/Video conference.
Learn how to read, write, and speak Spanish
On January 29, the DBA hosted the first in a series of programming on the topic of “Bankruptcy Tips for the Non-Bankruptcy Practitioner,” with panelists (left to right) Hon. Stacey Jernigan, Laura Smith, Hon. Harlin Hale, Hon. Michelle Larson, DBA President Aaron Tobin, and Jason Kathman. Join us Friday, April 23, for the next installment of the series.
Learn how to read, write, and speak Spanish
education level, at an adultatcontinuing an adult continuing education level,
with emphasis on legal terminology at the at the with emphasis on legal terminology intermediate and advanced levels. levels. intermediate and advanced
RegisterRegister online at online at www.dallasbar.org/spanishforlawyers www.dallasbar.org/spanishforlawyers
If special arrangements are required for a person with disabilities to attend a particular seminar, please contact Alicia Hernandez at (214) 220-7401 as soon as possible and no later than two business days before the seminar. All Continuing Legal Education Programs Co-Sponsored by the DALLAS BAR FOUNDATION. *For confirmation of State Bar of Texas MCLE approval, please call the DBA office at (214) 220-7447. **For information on the location of this month’s North Dallas Friday Clinic, contact yhinojos@dallasbar.org.
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D al l as Bar A ssoci ati on l Headnotes 3
4 He a d n o t e s l D a l l a s B a r A s s o ciation
March 2021
President’s Column
Headnotes Published by: DALLAS BAR ASSOCIATION
Inaugural Address BY AARON TOBIN
Taken from Inaugural Address given on January 30, 2021
Gratitude
Thank you, Robert. Before you hang up your spurs, I want to thank you for the work you have done this past year. Your leadership in 2020 through this pandemic has been nothing short of remarkable. When unforeseen and adverse circumstances hit earlier in the year you acted swiftly, decisively and with great vision. And for me personally, you have been a trusted friend and mentor. When you finished your term, you encouraged me and told me that I am ready. I do not know if I am ready or not, but if I am it is because of the example you have set, my friend. To commemorate your unprecedented year of faithful leadership, on behalf of the Dallas Bar Association, I want to present you with a token of our sincere appreciation. I wish I had time to properly thank everyone in what has become a rather large village that has led to me standing here before you today, but if I did, we would be here well into next week. Hopefully, you all know who you are and how much you mean to me. I would like to recognize my family. My 4-year-old son is into superheroes right now, so in his honor I would like to acknowledge just a couple of the many superheroes in my life. The first being my mom, Chris Tobin. You see, at age 32, just a few years before this picture was taken with my sister, Lisa, and me, she found herself in a spot that she did not expect—newly divorced and on her own to care for two young children with no job and little to no education behind her. All she did from there was to work two jobs, and go to night school where she would earn 3 degrees including a masters in nursing. To be able to pay for her education she took a second job taking 12 hour shifts in the emergency room on the weekends. She would go on to become the first nurse practitioner in my hometown of Paris, Texas. Through all of this, she managed to miss very few basketball games, tennis matches or recitals for my sister all the while providing a loving home in which we were raised. Mom—you are a super mom, and always will be my hero.
The other superheroes in my life are my daughter Anna who loves music and dance and any Disney princess. She even ranks them. I learned this at Disneyland while after obtaining Cinderella’s autograph she turned to her and said with all sincerity, “Cinderella, I want you to know that you are my 4th favorite princess.” That was a bit of an uncomfortable moment. You can see my son Ashton who literally plays a different super-hero every night when I come home. Most importantly, my friend and wife of 16 years Jennifer Tobin, who herself is an accomplished property tax lawyer at Geary Porter and Donovan. She is a past president of the Junior League of Dallas as well as president and chair of many of other philanthropic causes. Anyone who knows us understands that Jennifer has forgotten more about leadership than I will ever know. But like my mother, her greatest superpower is the ability to juggle all of these responsibilities while being a tremendous mother to our two beautiful children. And she is pretty darn cute too.
3 Lessons
If you believe nothing else I say tonight, please believe me when I tell you how incredibly lucky I feel to be one of your colleagues practicing here in Dallas, Texas with you. In a sense you have acted as a very large law firm teaching me so many great lessons during my career. For the sake of brevity, I am only going to focus on three lessons I have learned from many of you. Lesson 1 came from my first teacher, a great lawyer named Dennis Sullivan. He taught me that if you are going to do this gig and do it well, you are going to have to put in a lot of time and effort and be committed. This is not a 9 to 5 job— nowhere near it. He taught that you cannot fake competence in this profession, and I have found all of that to be very true. Lesson 2: So, if it is a given that you are going to have to put a lot of time and effort in, then you might as well go through this journey surrounded by people that you like trust and respect, and whatever
you do be sure and have fun along the way. I think about Dennis and my other teachers Bill Holston and Bobby Kolenovsky who were great lawyers and who worked hard. But the thing that made a mark on me as a young lawyer is that they were able to accomplish a lot while having fun practicing law. I am so thankful for the examples they and you have set. It has led me to my current home, Condon Tobin Sladek Thornton and Nerenberg, where we have 25 strong lawyers and a highly competent support team that I like, trust, and respect and most importantly I am having a ball practicing with. My colleagues challenge me every day to contribute to the firm, the profession and to do the very best we can for our business clients. Lesson 3: You have taught me that if you consistently put the interests of others ahead of your own, then you will be rewarded. The lawyers at Sullivan & Holston were all great teachers at more than just the practice of law. They always encouraged me to serve the profession. Dennis in particular would preach if you just want a job sit at your desk and bill hours, but if you want to be a part of a rewarding profession then seek out opportunities to lead and do more. Now at first this was a daunting charge for this somewhat introverted kid from East Texas who knew virtually nobody in the Dallas legal community. Initially, I had this vision that the Dallas Bar was a massive and immovable institution filled with thousands of lawyers jockeying for position to try and get to the top as they fight and claw their way through an adversarial system. I still remember my first introduction to the DBA. One day very early in my practice (I am not even sure I was licensed yet) Dennis and the other lawyers at lunchtime came into my office and said, “You’re coming with us to the bar association.” This was before the mansion expansion and before we had inground parking, so we parked out behind the mansion and upon arriving were greeted by a distinguished looking gentleman who was walking into the mansion and he cried out “Sully, how you’ve been. Gig ‘em!” Now being a lifelong longhorn fan, I did not care much for the gig em part, but I did appreciate the welcoming atmosphere. I asked Dennis, “Who was that?” He replied, “That’s Mike Baggett, President of the Bar. I asked, “how do you know him?” He said I met him through volunteering at the bar association and our kids later went to college together. We’ve become good friends.” Then, we proceeded to walk into this beautiful mansion and within the first 10 minutes of being there my new colleagues and teachers were greeted warmly by many people who they obviously knew. They swapped stories and introduced me around. At that moment, it became clear that I was now a part of a united profession. Over the years, my early mentors and those that came along later continued to encourage me to stay involved with the bar. This helped me develop relationships that ultimately led to opportunities for my firm and for me. I have met a lot of great people along the way and expanded my network and training in a way that would not have been possible had I not become involved. Let me give you just one of many examples of how this has worked for me. In 2005 I was volunteering to help put together a panel of trial lawyers to talk about trial law to a group of solo and small firm lawyers. To show you how green I was, I was naïve enough to think I could secure our bar’s best trial lawyers’ participation on fairly short notice. Luckily for me both Barry Sorrels and Frank Branson said yes, and the seminar was big hit. After the seminar I went up to Mr. Sorrels and asked “Mr. Sorrels, I’m trying to be a trial lawyer. What does it take to be a great trial lawyer?” Looking back, I am sure he was not overly impressed. To his credit, without hesitation, he said “It takes a whole lot of courage. So why don’t you give me a call and we’ll talk about it.” I did and that was the start of a 15-year friendship. Over the years, Barry has offered wisdom. We have referred clients to each other and worked on cases together. He has been to my house many times and we have become great friends. Had I not been involved in the bar association and raised my hand, I might not have ever met Barry. He was a criminal defense lawyer, and I was an aspiring civil trial lawyer. Our paths may not have crossed. This story keeps repeating itself. I keep coming down to our home seeking to help and the end result is always time and time again that others end up helping me. Even as I am sitting here as the President, you would think I might finally be in a position to do some good. What has happened every day since I have been President, one of our past presidents has reached out to me and said, “What can I do to help you? Whatever you need, I’m there for you.” You see, my preconceived notion of what this bar was like could not have been more wrong. What years of service has taught me is that this association is simply a collection of stories of lawyers helping each other and helping those in our community. I quickly learned that it is not at all not about sharp elbows and jockeying for position but rather about propping each other up so that we can all find higher ground together. It’s stories of ordinary people linked by a common bond to help our friends in the community, our clients and most importantly each other. It is stories like: • Bob Thomas and a few others who paved the way to purchase the mansion so that we have a home to meet in where we can collaborate and educate. • The Honorable Merrill Hartmann starting a pro bono clinic continued on page 9
2101 Ross Avenue Dallas, Texas 75201 Phone: (214) 220-7400 Fax: (214) 220-7465 Website: www.dallasbar.org Established 1873 The DBA’s purpose is to serve and support the legal profession in Dallas and to promote good relations among lawyers, the judiciary, and the community. OFFICERS President: Aaron Z. Tobin President-Elect: Krisi Kastl First Vice President: Cheryl Camin Murray Second Vice President: Bill Mateja Secretary-Treasurer: Ebony Rivon Immediate Past President: Robert L. Tobey Directors: Vicki D. Blanton (Chair), Rob Cañas, Jonathan Childers (Vice Chair), Stephanie G. Culpepper, Whitney Keltch Green (President, Dallas Association of Young Lawyers), Marissa Hatchett (President, J.L. Turner Legal Association), Stacey Cho Hernandez (President, Dallas Asian American Bar Association), Hon. Martin Hoffman, Kate Kilanowski, Jennifer King (President, Dallas Women Lawyers Association), Hon. Audrey Moorehead, Javier Perez (President, Dallas Hispanic Bar Association), Hon. Monica Purdy, Lindsey Rames, Kelly Rentzel, Bill Richmond, Sarah Rogers, Mary Scott, Amy M. Stewart, and Mary Walters Advisory Directors: Ashlei Gradney (President-Elect, J.L. Turner Legal Association), Andy Jones (PresidentElect, Dallas Association of Young Lawyers), Jonathan Koh (President-Elect, Dallas Asian American Bar Association), Elsa Manzanares (President-Elect, Dallas Hispanic Bar Association), Derek Mergele-Rust (President, Dallas LGBT Bar Association), and Marisa O’Sullivan (President-Elect, Dallas Women Lawyers Association) Delegates, American Bar Association: Rhonda Hunter, Mark Sales Directors, State Bar of Texas: Chad Baruch, Rebekah Brooker, Rob Crain, Michael K. Hurst, Mary Scott HEADNOTES Executive Director/Executive Editor: Alicia Hernandez Communications/Media Director & Headnotes Editor: Jessica D. Smith In the News: Judi Smalling Display Advertising: Annette Planey, Jessica Smith PUBLICATIONS COMMITTEE Co-Chairs: James Deets and Beth Johnson Vice-Chairs: Elisaveta (Leiza) Dolghih and Joshua Smeltzer Members: Logan Adcock, Benjamin Agree, Dallas Andersen, Andrew Botts, David Brickman, Catherine Bright Haws, Ian Brown, Srinivasan Chakravarthi, Lindsay Drennan, Alexander Farr, Dawn Fowler, Candace Groth, Ted Huffman, Neil Issar, Alexandra Jones, Krisi Kastl, Katherine Kim, Brian King, Jared Knight, John Koetter, Margaret Lyle, Majed Nachawati, Keith Pillers, David Ritter, Carl Roberts, John Shipp, Jared Slade, Sarah Spires, Jay Spring, Sarah-Michelle Stearns, Scott Stolley, Robert Tarleton, Paul Tipton, Anastasia Triantafillis, Pryce Tucker, Kathleen Turton, Peter Vogel, Benton Williams, Jason Winford DBA & DBF STAFF Executive Director: Alicia Hernandez Accounting Assistant: Shawna Bush Communications/Media Director: Jessica D. Smith Controller: Sherri Evans Events Director: Rhonda Thornton Executive Assistant: Liz Hayden Executive Director, DBF: Elizabeth Philipp LRS Director: Biridiana Avina LRS Program Assistant: Marcela Mejia LRS Interviewer: Viridiana Rodriguez Law-Related Education & Programs Coordinator: Melissa Garcia Marketing Coordinator: Mary Ellen Johnson Membership Director: Kimberly Watson Director of Legal Education: Kathryn Zack Publications Coordinator: Judi Smalling Receptionist: Araceli Rodriguez Staff Assistant: Yedenia Hinojos DALLAS VOLUNTEER ATTORNEY PROGRAM Director: Michelle Alden Managing Attorney: Holly Griffin Mentor Attorneys: Kristen Salas, Katherine Saldana Paralegals: Whitney Breheny, Miriam Caporal, Star Cole, Tina Douglas, Carolyn Johnson, Andrew Musquiz, Alicia Perkins Community Engagement Coordinator: Marísela Martin Copyright Dallas Bar Association 2021. All rights reserved. No reproduction of any portion of this publication is allowed without written permission from publisher. Headnotes serves the membership of the DBA and, as such, editorial submissions from members are welcome. The Executive Editor, Editor, and Publications Committee reserve the right to select editorial content to be published. Please submit article text via e-mail to jsmith@dallasbar.org (Communications Director) at least 45 days in advance of publication. Feature articles should be no longer than 750 words. DISCLAIMER: All legal content appearing in Headnotes is for informational and educational purposes and is not intended as legal advice. Opinions expressed in articles are not necessarily those of the Dallas Bar Association. All advertising shall be placed in Dallas Bar Association Headnotes at the Dallas Bar Association’s sole discretion. Headnotes (ISSN 1057-0144) is published monthly by the Dallas Bar Association, 2101 Ross Ave., Dallas, TX 75201. Non-member subscription rate is $30 per year. Single copy price is $2.50, including handling. Periodicals postage paid at Dallas, Texas 75260. POSTMASTER: Send address changes to Headnotes, 2101 Ross Ave., Dallas, TX 75201.
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D al l as Bar A ssoci ati on l Headnotes 5
6 H e a d n o t e s l D a l l a s B a r A s s o ciation
March 2021
Equality Committee Presents Firm Diversity Report STAFF REPORT
Last year, the DBA, along with J.L. Turner Legal Association, Dallas Association of Young Lawyers, Dallas Asian American Bar Association, Dallas Hispanic Bar Association, and Dallas LGBT Bar Association (Sister Bars), created the Allied Dallas Bars Equality Task Force, through which a Call to Action was created and adopted as a DBA Resolution. In early 2021, the Task Force became the Equality Committee (Committee). The Call to Action expressed the commitment by the DBA and Sister Bars to directly impact the legal community and the community at large through various action initiatives. One such initiative was to create an updated survey studying the diversity of attorneys working at major Dallas firms, a first for the DBA. This afforded a unique opportunity to impact not only the bar community and the legal community, but the Dallas community as a whole. In early 2021, the Firm Diversity Report was released. The purpose of the survey was to assess diversity efforts in firms operating in Dallas with the goal of determining
how the firms and the Committee can work together to improve diversity, equity, inclusion, and belonging in the legal community. This Report is offered to highlight successful outcomes achieved by and best practices appropriate to each firm’s existing culture and dynamics, to move beyond reporting only census data. The report was compiled by Kanarys, a Dallas-based SaaS company that helps organizations diagnose, measure, and optimize diversity, equity, and inclusion in the workplace using data and researchbased methods. “This 2020 Report is a critical component to what the Task Force drafted to become a formal DBA Resolution of a Call to Action,” said Vicki Blanton, Chair of the Firm Diversity Survey Task Force, and Assistant Vice President, Senior Legal Counsel of Tax/Benefits of AT&T Legal Department. “Providing a current snapshot of the diversity landscape of the largest law firms is key towards measuring the commitment to and the success of programs aimed at diversity, inclusion, equity, and belonging within the Dallas legal community.” The report establishes a benchmark
DBA 100 Club What is the DBA 100 Club? The DBA 100 Club is a special membership category that recognizes firms, agencies, law schools and organizations that give 100% membership support to the DBA! What is the cost to join the DBA 100 Club? It’s FREE! How do you join? Firms, government agencies, and law schools with two or more lawyers as well as corporate legal departments can qualify if all of their Dallas office attorneys are DBA members. To join the 2021 DBA 100 Club, please submit a list of all lawyers in your Dallas office to Kim Watson, kwatson@dallasbar.org. Once approved, we will add your organization to the 2021 DBA 100 Club member recognition list! What are the perks? Our 2021 DBA 100 Club members will be recognized in Headnotes, the 2022 DBA Pictorial Directory, and at our Annual Meeting in November.
J oi n today!
WHY IT MATTERS:
Innovations in Diversity, Equity, Inclusion & Belonging (Part 1) Thursday, March 4 Noon-1:00 PM via Zoom MCLE: 1.00 Register at DallasBar.org Panelists Include: Chasity W. Henry, CECO Environmental Corporation Hon. Maricela Moore, 162nd District Court Amber Rogers, Hunton Andrews Kurth LLP Robert Walters, Gibson, Dunn & Crutcher, LLP Moderated By: Phil Kim, Haynes and Boone, LLP Courtney Barksdale Perez, Carter Arnett PLLC SAVE THE DATE: Part II on March 24 at Noon Sponsored by the DBA Allied Bars Standing Committee on Equality
for demographic diversity between Dallas offices and U.S.-wide locations of the participating firms. The report also includes results on the firms’ efforts to recruit, retain, and promote minority attorneys. The Committee invited the top 50 law firms with the largest footprint in Dallas County to participate. Of those, 21 participated in the survey: Akin Gump, Baker Botts, Baker McKenzie, Carrington Coleman, Gibson Dunn, Husch Blackwell, Jackson Walker, Jones Day, Kane Russell Coleman Logan, Katten, Munck Wilson Mandala, Norton Rose Fulbright, Scheef & Stone, L.L.P., SettlePou, Shackelford, Sheppard Mullin, Thompson Coe, Thompson Knight, Vinson & Elkins LLP, and Weil. “This Survey sought to elicit how each firm successfully sought ways to advance diversity initiatives within its own firm culture and community. This allows for creative ideas leading to best practices that can be replicated by others,” said Blanton. “Although the numbers on a percentage basis may not have had as great a leap from the initial survey 15 years ago as one would hope, the important revelation was to recognize the diversity among the diverse—that
there is no one answer or one way to encourage, promote, and embrace diversity,” According to the Report, the legal profession has become more diverse and better in representing the country’s demographics. However, female attorneys, LGBT attorneys, attorneys of color, attorneys with disabilities, and veterans still remain largely underrepresented in the profession. So where do we go from here? “We continue to embrace diversity initiatives which also address inclusion, equity, and belonging,” said Blanton. “We continue to evolve in our efforts which will fully appreciate, use and embrace the talents, skills, and perspectives to make our society stronger. We continue to move forward.” The Task Force thanks AT&T for their sponsorship and underwriting of the Report; UT-Austin’s Division of Diversity and Community Engagement for their support and contributions; all of the law firms who participated in the survey; and Kanarys, the Dallas-based SaaS company who compiled the Report. To view the full Report, log on to www.dallasbar.org and view the Diversity tab. HN
LegalLine Volunteers Needed LegalLine is seeking volunteer attorneys for our LegalLine E-Clinics on Wednesdays. Calls may be made between 4-8 p.m. from the comfort of their own homes. Participating attorneys will be emailed contact information for those who have submitted a request for a call.
www.DallasBar.org/LegalLine
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D al l as Bar A ssoci ati on l Headnotes 7
8 He a d n o t e s l D a l l a s B a r A s s o ciation
Focus
March 2021
Entertainment, Art & Sports Law
Exploiting Government Works for Fun and Profit BY SALLY HELPPIE
What do the following have in common: A dissenting opinion by Ruth Bader Ginsburg, a photograph taken by the Hubble space telescope, and Chapter 38 of the Texas Civil Practice and Remedies Code? Thanks to the U.S. Copyright Act and the government edicts doctrine, no copyright protects these works. Each of us can freely copy, display, or even put the words or images to original music—and then sell our “new” creations. Normally, the author of an original work with a modicum of creativity that is in a tangible medium of expression owns a copyright in that work. But the U.S. Copyright Act specifically excludes from copyright protection all works “prepared by an officer or employee of the United States Government as part of that person’s official duties.” This is a decision made by Congress, which has determined that there is no “authorship” for most federally created works irrespective of the government employee’s position. It is a very broad copyright bar at the federal level.
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The government edicts doctrine, by comparison, is narrower and applies at both the federal and state levels. It developed through a series of cases in the 1800s, when the Supreme Court recognized that nobody could “own” the law. Since everyone is presumed to know the law, it followed that everyone should have access to the law. Accordingly, under the government edicts doctrine, it has been long-established that there is no copyright protection for the written law. Even a judge’s unique and creative decision, expressed in iambic pentameter, is owned by “we the people” and falls within the public domain. But what about dissenting opinions or annotations to statutes? They don’t carry the force of law so they wouldn’t necessarily be exempt from copyright under the government edicts doctrine. At the federal level, the U.S. Copyright Act stipulates an exemption, but the Copyright Act doesn’t apply to similar works created at the state level. In 2020, the U.S. Supreme Court revisited the government edicts doctrine in Georgia v. Public Research Org., Inc. in con-
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nection with the non-binding annotations to the Official Code of Georgia. The annotations were created by Matthew Bender & Company as a work for hire by Georgia’s Code Revision Commission, a state entity funded by the legislature and composed mostly of legislators. While the non-annotated Code was free to the public, Matthew Bender was granted the exclusive right to sell annotated versions of the Code. The annotations are undeniably original and creative works in a tangible medium of expression—thus meeting the normal elements for copyright protection. When the Public Research Organization, without permission, made copies of the annotations available to the public for free, Georgia (as the author at law) sued. In a 5-4 decision, the Supreme Court ruled that, “[u]nder the government edicts doctrine, judges—and, we now confirm, legislators—may not be considered the ‘authors’ of the works they produce in the course of their official duties as judges and legislators. That rule applies regardless of whether a given material carries the force of law.” The Court did acknowledge that, unlike at the federal level, states are free to claim
copyrights in expressive works created by non-lawmaking employees. These might include writings, photographs, and audio/ visual materials produced by libraries and tourism offices. When considering whether the government edicts doctrine eliminates copyright protection, it is now clear that we must focus on the legal author of a particular work. If the author is a judge or legislator and the work is produced in the course of official duties, it carries no copyright. As an entertainment lawyer, I spend a lot of time cautioning people about copyright infringement and the limits of fair use. So, I am delighted when I can give the green light to an imaginative client who wants to write and perform a rap song based on an RBG judicial opinion. And I am happy when a filmmaker implements my suggestion to substitute a photo taken by NASA and the Space Telescope Science Institute for one “ripped from the internet” in a key scene. I am now eagerly awaiting my first question about using a state legislative mandate regarding COVID-19 in a horror novel. HN Sally Helppie is an entertainment attorney and movie producer; she can be reached at shelppie@wslawpc.com orsally@advocatepictures.com.
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Bradford Patterson is a Senior Associate with Alston & Bird LLP. 1. How did you first get involved in pro bono? With some other attorneys in our office, I became involved in a clinic to assist military veterans in obtaining expunctions and orders of non-disclosure related to past criminal convictions. 2. Describe your most compelling pro bono case. It was actually through LegalLine, which does not establish an attorney-client relationship, but allows attorneys to offer practical solutions to problems. A mortgage borrower called who had been faithfully paying her mortgage except in specific instances where the lender (a relative) had waived certain payments. The lender sold the loan to a third party without communicating effectively with the borrower or the third party, and the new noteholder incorrectly believed that the borrower was significantly behind on payments. I had the opportunity to discuss with the borrower how she could lay out a clear history of payment and demonstrate her good-faith desire to remain current and reach and amicable solution, while not making payments she did not owe. 3. Why do you do pro bono? Over time, practicing law causes us to accumulate general legal skills without always realizing it. Pro bono work is a good way to use some of those skills in a new area of law to help meet legal needs. 4. What impact has pro bono service had on your career? In addition to making me well-rounded, it has enabled me to connect personally with clients in ways that are not always possible in everyday practice.
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D al l as Bar A ssoci ati on l Headnotes 9
The Inaugural of Aaron Z. Tobin 112TH PRESIDENT OF THE DBA
The Inaugural of Aaron Z. Tobin, DBA’s 112th President, was held virtually on January 30, 2021. In addition to a presentation by Mr. Tobin, the audience also enjoyed a virtual concert by Siren Songs (www.sirensongsmusic.com). Each year, the Inaugural is the culmination of the Campaign for Equal Access to Justice. This year, an amount of $1.3 million was raised for the Dallas Volunteer Attorney Program. Thank you to our EAJ Chairs Vicki Blanton, Rocio Cristina Garcia Espinoza, and Mey Ly-Ortiz. Congratulations to this year’s Ticket to Drive Raffle winner: Janet Kresslein, who will take home a 2021 Lexus NX 300, and runner up Natalie Fortenberry, winner of the vacation travel package.
Inaugural Address CONTINUED FROM PAGE 4
in East Dallas that later became the foundation for our Dallas Volunteer Attorney Program that aims to provide access to justice for all. • It’s Past President Al Ellis leading and saying everyone has a seat at the Dallas Bar’s table to include all of our sister bar associations. • In recent memory it’s friends like Michael Hurst and Shonn Brown creating DBA WE LEAD to foster the careers of our bar’s most talented and dynamic women lawyers. • Last year, it was our dear friend and Vice President of the bar association, Karen McCloud; while her body was fighting cancer, she chose to spend some of
her last moments at this very celebration to inspire us and be around her friends.
Encourage a Colleague
One of the questions I get most often is what keeps you up at night? It is a good question and for me the answer is maybe not what you would think. It’s not the pandemic. This bar association has only grown during the pandemic. With our online platform started under the leadership of President Tobey we are the largest provider of free CLE in the state and one of the largest in the country. And, it’s all free! Our attendance numbers are up during the pandemic. I am not sure at what point in the year we will get back into the building. We will open when it is safe to do so, and when we do,
you can be assured that we will be stronger than ever because we will not only facilitate opportunities for those that want to gather and collaborate in the Mansion and Pavilion, but we will also continue broadcasting virtually to those who cannot be present in person. So, what keeps me up at night, other than a 4-year-old superhero who is sometimes bedtime challenged, is the question, “Will we miss someone’s story? Will a lawyer miss the opportunity to engage in 2021 so that this bar association can do for them what it has done for me and so many others?” Let’s not let this happen. I would encourage all of us to channel our inner Sully and reach out and encourage other lawyers, especially young lawyers to not sit on the sidelines and to engage in 2021. Because I do not want to
miss a chance for someone to continue writing their story this year. I want to close with a quote. We just celebrated one of our Bar’s most important events—the MLK luncheon—so I think it is fitting to finish with a quote from Dr. King. He once said, “Life’s most persistent and urgent question is, what are you doing for others?” Let’s have a lot of fun tonight, raise some money for DVAP, enjoy the music and come Monday, let us strive to remember 3 lessons: 1) work hard, 2) be present and enjoy what you are doing and who you are doing it with, and most importantly 3) let’s do what lawyers in this bar do best—act with persistence and a sense of urgency to help others and to help each other. Aaron
10 H e a d n o t e s l D a l l a s B a r A s s ociation
Focus
March 2021
Entertainment, Art & Sports Law
Whose Copyright Is It? BY MICHAEL HEINLEN
The copyright statute defines copyrights as “original works of authorship fixed in any tangible medium of expression.” Originality is a low bar, requiring only a modicum of creativity. “Works of authorship” are defined by the statute and include, among other things, paintings, novels, songs, movies, choreography, and sound recordings. And a work of authorship is “fixed in a tangible medium of expression” when it is embodied in a material object from which it can be perceived. The copyright in a work is created immediately when the work is fixed in a tangible medium of expression. Ownership vests in the author at the same time. This might sound relatively straightforward, but things can get tricky when a “work of authorship” is performed by one person and “fixed in a tangible medium” by another.
Think, for example, of a musician playing an original, previously unrecorded tune in a subway station and the tune is recorded by someone waiting for a train. The tune, an original work of authorship, was fixed in a tangible medium, but who owns the copyright—the musician who created and performed it or the person who recorded it? Stated differently, who is the author of such a work? The author of a copyrighted work is the person who personally fixed it in a tangible medium of expression or who authorized someone else to do so. So, with respect to the tune in our example—the particular combination of notes and chords that the musician performed—copyright ownership depends on whether the musician authorized the recording. If the recording was authorized, the musician owns a copyright in the tune. But if the person recorded the performance without the musician’s permis-
sion, there was no author under copyright law. More to the point, if the recording was not authorized the tune is not copyrighted, even though it was fixed in a tangible medium. But that is not the end of the story. Because sound recordings are statutorily protected works of authorship, the recording itself may also have a copyright. In other words, recording the performance may have created two copyrights, one in the tune (if the recording was authorized) and the other in the recording. Although the musician owns a copyright in the tune, the question remains, who owns the copyright in the recording? The answer depends on three things: (i) whether the recording was rote or enhanced; (ii) whether the performance was of a copyrightable work; and (iii) whether the recording was authorized. As to the first, a person who merely fixes another’s expression through rote or mechanical transcription is not an author for copyright purposes, so a rote recording will not have a copyright (though if authorized, rote recording creates a copyright in the underlying work, which is solely owned by the performer). If, on the other hand, the recording involves sufficient creativity or technical enhancement, the recording will have a copyright, which the recorder will own. The performer, however, may jointly own the copyright with the recorder if the performance was of a copyrightable work and the recording was authorized. Not all
performances are copyrightable. A basketball player, for example, will not have a copyright in a three-point shot from half court even if the shot is recorded. If the recorded performance is of a non-copyrightable work, such as a basketball game, there can be only one copyright—in the recording, not the game—and the recorder will be the sole owner. But if the recorded performance is of a copyrightable work, such as a song or a dance, and the performer authorized the recording, the performer and the recorder share ownership of the copyright in the recording (and the performer has sole ownership of the underlying work). In sum, where (i) an enhanced recording of (ii) a copyrightable performance of an original work is (iii) authorized by the performer, the performer owns a copyright in the underlying work and the performer and recorder share ownership of a copyright in the recording. Where the enhanced recording is not authorized or the performance is not copyrightable, there is no copyright in the underlying work and the recorder alone owns a copyright in the recording. If the recording is rote, there is no copyright in the recording, but there may be a copyright in the performance if it is of a copyrightable work and authorized. Finally, if the recording is rote and unauthorized, there is no copyright in either the underlying work (even it is copyrightable) or the recording. HN Michael Heinlen is Counsel at Thompson & Knight LLP. He can be reached at michael.heinlen@tklaw.com.
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D al l as Bar A ssoci ati on l Headnotes 11
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12 He a d n o t e s l D a l l a s B a r A s s ociation
Focus
March 2021
Entertainment, Art & Sports Law
Team and Venue Sponsorship Agreements in the COVID-19 Era BY JOHN R. SIGETY
COVID-19’s effect on the sports industry has been widespread and visible since the early days of the pandemic. In particular, the pandemic has significantly affected the relationship between sports teams and venues and their sponsor partners. Given the continued volatility in the sports industry, it is imperative that attorneys on both sides of a sponsorship contract think beyond typical force majeure provisions to maximize value and minimize uncertainty for their clients.
Traditional Force Majeure Provisions in Sponsorship Deals
Black’s Law Dictionary defines force majeure as “an event or effect that can be neither anticipated nor controlled.” A force majeure clause relieves a party of its contractual obligations where performance is made impossible due to causes beyond the parties’ control. In the early days of the pandemic, the worldwide spread of an unknown virus that shut down essentially everything seemed like just the type of thing that force majeure was intended to cover. But force majeure provisions are narrowly construed, such that their scope depends on their specific language rather than a traditional definition of the term. In the context
of sports sponsorship contracts, lawyers on both sides had to examine the language of their agreements to determine whether pandemics and subsequent government restrictions were specifically contemplated by their agreements as events that excused performance. In many instances, they were not. Most sports sponsorship deals are written so that it is the team or venue that is obligated to perform. For example, the team or venue is obligated to display a sponsor’s logo in certain places or say the sponsor’s name a certain number of times. Thus, the invocation of force majeure in the context of sponsorship deals would typically inure to the benefit of teams and venues, since they would be excused from their obligations to display a sponsor’s logo or mention a sponsor’s name at events. In this sense, the pandemic put sponsors in a more difficult position, having spent money to advertise at events that might never happen. Conversely, it was not clear that teams and venues could invoke force majeure, since many contracts did not specifically contemplate pandemics. However, teams and venues ultimately wanted to maintain relationships, so rather than wielding force majeure clauses as weapons, many opted to return to the table and rework deals that otherwise would have been ended by COVID-19. This often took the form of adding additional years to the terms of sponsorship deals or reducing spon-
sorship fees for subsequent seasons. In a sports landscape, where it is not clear how far into the future the effects of the pandemic will stretch, it can be in everyone’s interest to be fluid where possible.
Sponsorship Contracts During the Pandemic and Beyond
Generally, a force majeure provision may only be invoked to excuse performance where the event in question was unforeseeable at the time that the contract was signed. In 2021 and for the foreseeable future, no one can credibly argue that the cancellation of sporting events due to COVID-19 is unforeseeable. In other words, COVID-19 cancellations likely can no longer constitute an unanticipated event that excuses performance under a force majeure provision. Attorneys should therefore look for innovative ways to navigate the cancellation of sporting events and maximize value for clients without looking to traditional force majeure provisions. For example, the parties could negotiate and stipulate to liquidated damages for each game that is cancelled during a given season. Under this scenario, the sponsor would recoup a certain amount of the sponsorship fee for each cancelled game. This way, parties can anticipate what happens if part of a season is lost, while still allowing them to avoid scrapping the entire deal
when games are cancelled. On the other hand, the team’s attorney should endeavor to show that sponsorship value derives not just from games, but from other aspects beyond game time visibility. For example, a sponsor derives value from having its name on the team’s merchandise and promotional materials, by being the official sponsor of a team in a given industry, and by naming the team in marketing materials. These are examples of value that does not decrease in proportion with the number of games cancelled. Thus, a Major League Soccer team’s attorney, for example, should argue that inclusion of a liquidated damages provision does not mean that a sponsor gets back exactly 1/34th of the money it paid for the sponsorship simply because one game is cancelled.
Conclusion
The pandemic has forced attorneys in the sports industry to think differently about how they negotiate deals. There is no question that all sponsorship deals should now specify pandemics as force majeure events that can excuse performance. However, with COVID-19 now an anticipated circumstance, teams and sponsors must look to new methods beyond force majeure to negotiate deals and maintain relationships during the pandemic. HN
John R. Sigety is an Attorney at Kane Russell Coleman Logan PC. He can be reached at jsigety@krcl.com
Client Development— Speak at a DBA Program Interested in sharing your legal knowledge and expertise with your colleagues? The CLE Committee is looking for speakers and hot topics for the Friday Clinic programs it holds throughout the year. Please submit a short bio, title, and 2-3 sentence description of your presentation to yhinojos@dallasbar.org. Submissions will be discussed at monthly CLE Committee meetings.
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D al l as Bar A ssoci ati on l Headnotes 13
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14 H e a d n o t e s l D a l l a s B a r A s s o ciation
Focus
March 2021
Entertainment, Art & Sports Law
Stairway to Heaven: The Demise of the Inverse Ratio Rule BY ANTHONY MAGEE
I was a short-haired preteen living in a bucolic backwater of rural Britain when I first encountered the emerging phenomenon Led Zeppelin. In truth, the band appealed more to my older sisters and their longhaired boyfriends. Little did I suspect that 50 years later, the musical genius of Jimmy Page would again cross paths with me, a now white-haired intellectual property attorney in Dallas. Last December, a long-running copyright dispute concerning Led Zeppelin’s Stairway to Heaven (Stairway) met its timely end with the U.S. Supreme Court’s denial of petition for rehearing, confirming the demise of a Ninth Circuit copyright doctrine known as the “inverse ratio” rule. In 1966, Randy Wolfe composed the song Taurus, performed on his band Spirit’s eponymous 1967 album. Wolfe’s publisher registered copyright in the unpublished musical composition of Taurus under the 1909 Copyright Act by depositing a single, handwritten
page of sheet music. Around this time, Led Zeppelin was formed and released a 1971 album that contained Stairway. Wolfe died in 1997, but 44 years after Stairway was released, his trustee Michael Skidmore filed a lawsuit alleging that Stairway infringed Wolfe’s copyright in Taurus. Stairway’s iconic opening notes, Skidmore alleged, are substantially similar to the eight-measure passage at the beginning of the Taurus deposit copy, which included five descending notes of a chromatic musical scale. Led Zeppelin afficionados will know that while Stairway contains a descending chromatic chord progression in A minor, Stairway also includes a concurrent ascending line and other distinctive musical notations, which Taurus lacks. The readers can listen to recordings of both songs to assess substantial similarity themselves, an option properly withheld from the jury that found the two songs lacked substantial similarity. In its March 2020 en banc decision in Skidmore v. Led
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Zeppelin, 952 F.3d 1051 (9th Cir. 2020), the Ninth Circuit held that the 1909 Copyright Act (which does not protect sound recordings) controlled because the copyright at issue was the unpublished musical composition registered in 1967. Consequently, only the Taurus deposit copy, not sound recordings containing performance elements that were not protected by the deposit copy, could be used to prove substantial similarity. Skidmore had to prove, inter alia, that Page copied protected aspects of Taurus by establishing both “copying” and “unlawful appropriation.” “Copying” could be proved by circumstantial evidence that Page had access to Taurus and that the songs “shared similarities probative of copying.” Page testified that he owned Spirit’s album containing Taurus, sufficient to prove access. “Unlawful appropriation” required proof of “substantial” similarities, which in the Ninth Circuit requires satisfaction of a twopart test: an extrinsic test comparing objective similarities of expressive elements in the accused work with protected elements of the plaintiff’s work; and an intrinsic test for similarity of expression from the standpoint of the ordinary reasonable observer with no expert assistance. Before Skidmore, the Ninth Circuit had long adhered, albeit erratically, to the “inverse ratio” rule, requiring “a lower standard of proof of substantial similarity when a high degree of access is shown.” The district court refused to give the jury an inverse ratio rule instruction, rightly according to the Ninth Circuit, which took the opportunity to abrogate the rule because it “defies logic, and creates uncertainty for the courts and the parties…,” thereby joining the
majority of circuits that declined to adopt the rule, including the Second Circuit, which in 1961 repudiated the rule, somewhat elliptically, as a “superficially attractive apophthegm which upon examination confuses more than it clarifies.” Loose translation: “[a]ccess does not obviate the requirement that the plaintiff must demonstrate that the defendant actually copied the work.” In concluding, the Ninth Circuit quipped: “[t]he trial and appeal process has been a long climb up the Stairway to Heaven.” Sadly, Wolfe completed his climb up the Stairway to Heaven years before the ill-fated lawsuit was filed; mercifully, the inverse ratio rule has now joined him. Arguably, the demise of the rule has already been kind to powerful, but allegedly plagiaristic, songwriters. Before Skidmore, Robin Thicke and Pharrell Williams unsuccessfully appealed a jury verdict that they Got To Give It Up to the tune of $5.3 million because Blurred Lines was substantially similar to Marvin Gaye’s hit. After Skidmore, Katy Perry’s Dark Horse won by a nose after she secured judgment as a matter of law, silencing the Joyful Noise that surely accompanied Christian hip-hop artist Flame’s $2.8 million jury award. Could Ed Sheeran be faulted, then, if Let’s Get It On was what he was Thinking Out Loud when a judge recently sent him to trial in a $100 million copyright suit involving another Gaye classic? Time will tell. The COVID19 pandemic has deferred the Sheeran trial until spring 2021 at the earliest. HN Anthony Magee is Managing Member of Magee Legal, PLLC. He can be reached at anthony.magee@magee.law.
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D al l as Bar A ssoci ati on l Headnotes 15
1/15/21 10:17 AM
16 H e a d n o t e s l D a l l a s B a r A s s o ciation
March 2021
Bar None: Still Standing BY MICHELLE M. ALDEN
Last June should have seen the 35th annual production of Bar None, a collection of songs and skits poking fun at current events and the legal profession, starring and written, choreographed, produced, and directed by Dallas’ most talented lawyers and judges. When the pandemic made that impossible, some of Bar None’s longtime production talent created a music video (riffing on Elton John’s “I’m Still Standing”) and took to the phones to ask the show’s traditional sponsors to continue to support the Sarah T. Hughes Diversity Scholarships. The response of the Dallas legal community and, in particular, those firms, Dallas Bar Association sections and committees, and individuals who have been longtime supporters of both the show and the scholarships, was overwhelming. As much as the cast loves performing and making people laugh, their real motivation is to support the scholarships. The scholarship
program was established in honor of U.S. District Judge Sarah T. Hughes, a former trustee of the Dallas Bar Foundation, who devoted herself to improving the rights of women and minorities. The Hughes Scholarship provides tuition and fees for deserving minority students each year at SMU Dedman School of Law, UNT Dallas College of Law, and Texas A&M School of Law. But what motivated the longtime supporters of Bar None to step up and support the cause in a difficult year when there was no show to enjoy? Steve Gwinn noted, “Both of my parents were fans of Bar None. And my father and I are both double alums of SMU undergrad and law, and my mother got her undergraduate degree from SMU. I view the show and the scholarship as a way to strengthen both the Dallas legal community and SMU.” Ken Mighell stated, “I spent many years supporting Bar None and raising funds. I am a big supporter of scholarships for minority students and firmly believe in the program.
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The large number of those students now practicing law in Dallas proves the point. That’s why Bar None is important and I look forward to it continuing into the future.” Krisi Kastl recalls how although she wanted to attend law school from an early age, “My biggest fear was that I would never be able to afford my dream. I was fortunate to receive scholarships to make my dream a reality. I support Bar None as a way to give back and repay all the opportunities I was given as a young, struggling student.” The scholarships allow “individuals from a wide variety of backgrounds the opportunity to get a great legal education, so that we can add much needed diversity to our profession, and learn from those with a new and unique perspective,” Kastl added. Not to mention, “with all the stresses of work, we all need to pause occasionally to laugh and not take ourselves or the law so seriously.” In a year in which it was not possible to produce the annual Bar None show, more than 200 of Bar None’s staunch supporters
came through with generosity when asked, demonstrating their commitment to the mission of Bar None: to support the scholarships. According to Bar None producer, Tom Mighell, the 2020 donations total more than $90,000! “We know our fans love Bar None, and it’s wonderful to know that they will donate to the cause it supports even when they can’t enjoy the performances of their colleagues,” said Bar None’s director, Martha Hardwick Hofmeister. “We plan to be back in the summer of 2021 with a safe, hilarious, and virtual production!” For more information about Bar None, go to www.barnoneshow.com. To see the 2020 music video, go to www.youtube.com/ watch?v=h_m9c5TAMMk HN Michelle Alden is the Director of the Dallas Volunteer Attorney Program and a Member of the Marketing Committee of the Bar None Production Company. She can be reached at aldenm@lanwt.org.
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D al l as Bar A ssoci ati on l Headnotes 17
MUSIC, SINGING, ZOOMING, COMEDY... ALL WITHIN CDC GUIDELINES BENEFITING THE SARAH T. HUGHES DIVERSITY SCHOLARSHIPS
Thank you for supporting Bar None!
BENEFACTOR
MOGUL William “Mac” Taylor American Inn of Court Vistra Energy Producer Sarah T. Hughes Alumni Scholars
DIRECTOR Altrusa Int’l of Downtown Dallas, Inc. Anesthesia for Children’s Burdin Mediations DBA Corporate Counsel Section Gwinn Family Foundation Haynes & Boone Ken Mighell Shackelford, Bowen, McKinley & Norton
UNDERSTUDY Bradley Arant Boult Cummings Mickie & Jeff Bragalone DBA Securities Section Al Ellis Farrow-Gillespie Heath Witter Kristi & Bill Francis Royal Furgeson Hernandez & Browning Kent & Martha Hofmeister John Horany Ralph “Red Dog” Jones Locke Lord
BEST FRIENDS OF BAR NONE Christy Albano Allergy & Asthma Specialists LaVone Arthur Anne Ashby Jill Bindler Talmage Boston Bill Bridge Jim Burnham Tena Callahan Barbara Clay & Ken Bernstein Rob Crain Sally Crawford John Creuzot Dallas Women Lawyers Association DBA Tort & Insurance Law Section Bryan Dunklin Laura Geisler Beverly Godbey Grau Law Group Rebecca Greenan
BEST FRIENDS OF BAR NONE
FRIENDS OF BAR NONE
Judge Mark Greenberg Stacey Haggard Melinda Hartnett Carol Horany Michael Hurst Robert Jordan Barbara Kennedy & Jeff Kaplan Doug Lang Eric Levy Marty Lowy Mike and Judge Barbara Lynn Jay Madrid Anthony & Maria Marwill Magee Bill Mateja David McAtee McBride & Associates Tom Mighell Judge Ken Molberg Frederick Moss Justice Erin Nowell Elizabeth Philipp Molly Richard Steve Russell Kathleen Scott Mark Shank Stephen Shellenberger Pamela St. John Ken Tapscott Robert Tobey Peter Vogel Terry & Mary Claire Welch Joel Winful
Sherri Evans Robert Fountain Dawn Fowler Scott Frenkel Leland de la Garza Melanie Grimes Jeffrey Hage Orrin Harrison Judge Martin Hoffman Willie Hornberger Laura Hornung Susan Iannaccone Anne Johnson Andy Jones Mike Koenecke Brian Landa Justice Liz Lang-Miers Paula Larsen Jerry Lastelick George Terry LeeLexis-Nexis Julie & Michael Lowenberg Aurora Madrigal Michael Martin Patty & Jim Mathis Bob Michaelsen Paula Miller Regina Montoya & Paul Coggins Audrey Moorehead Kathryne Morris Cheryl Camin Murray Ronald Nelson Larry Newman Loren Parker-Jackson Jay Patterson Steven Pawlowski Vee Perini Elizabeth Philipp Nichole Plagens Rob Rippe Laura Roach Rudy Rodriguez Henry Simpson Robert R. Smith Paul Stafford Molly Steele Jeff & Jennifer Steiner Richard & Sandra Stewart Don Swanson Marc Taubenfeld Nancy Thomas David Weatherbie Webb Family Law Firm Brad Weber Nelson Weil Linda Wilkins Maryann Wilson Timothy & Nancy Zeiger
FRIENDS OF BAR NONE Michelle Alden Karen Askew Kim Askew Joan Ballard Lacey Barkley Courtenay Bass Marcy Berman Barbara Boyd Sherita Briscoe Linda and Gilbert Brown Scott Chase Jonathan Childers Collins Realtime Reporting Aubrey Connatser Glenda Copeland U. Sidney Cornelius Nina Cortell Christina Melton Crain Dallas Asian-American Bar Association DBA Health Law Section DBA International Law Section Katharine Deem Margaret Dunklin Rocio Cristina Garcia Espinoza
18 H e a d n o t e s l D a l l a s B a r A s s o ciation
March 2021
Introducing the 2021 Class of DBA WE LEAD of equity partners and less than 5 percent of managing partners in the AM LAW 100. Additionally, in compensation, particularly in the partnership ranks, women lawyers are not paid equivalent to their male counterparts. There are many reasons for these statistics, including the unique challenges that women lawyers face today. DBA WE LEAD was created to address these challenges. Through a series of four half-day sessions, led by career and personal development professionals, DBA WE LEAD offers leadership and professional development training, teaches networking
and business generation skills, and offers opportunities to empower women lawyers to take their already successful practices to new heights within their law firms, the business community and the community, at large. DBA WE LEAD class members are successful woman lawyers with 8 to 15 years of practice and in the critical period when many women choose to exit the profession. Each DBA WE LEAD member learns concrete tools to help her stay in the game and enhance the impact, economically and professionally, to her and the bottom line of the business, which creates positive results
for her and her colleagues. DBA WE LEAD class members are also provided with opportunities to interact with general counsel and senior women lawyers as well as network with supportive peers. Since its inception, DBA WE LEAD has been supported by Mary Kay, Toyota, Vistra Energy, and AT&T. Corporate sponsors host a half-day session on their campus and their executives often participate in panel discussions and otherwise interact with DBA WE LEAD class members. To find out more about DBA WE LEAD, contact Judi Smalling at jsmalling@dallasbar.org.
Sadaf Abdullah Skiermont Derby LLP
Raquel Alvarenga Haynes and Boone, LLP
Alexis Angell Polsinelli PC
Priya Arshanapalli Kirkland & Ellis LLP
Sorana Ban KASTL LAW, P.C.
Minoo Blaesche Jackson Walker L.L.P.
Ewa Champagne BakerHostetler LLP
Tara Clothier Essilor of America
Andrea Cook Gordon Rees Scully Mansukhani, LLP
Cassie Dallas Thompson, Coe, Cousins & Iron LLP
Chisara Ezie-Boncoeur Lynn Pinker Hurst & Schwegmann
Elizabeth George Salesforce.com, Inc.
Ashlei Gradney Gradney, P.C.
Amber Hamilton Gregg Dallas County District Attorney’s Office
Rachel Kingrey O’Neil Foley & Lardner LLP
Lauren Kulpa Perkins Coie LLP
Megan LaDriere Baker Botts L.L.P.
Lacy Lawrence Akin, Gump, Strauss, Hauer & Feld, L.L.P.
Hillary Lynch Platt Cheema Richmond PLLC
Angela Mayeux Southwest Airlines, General Counsel Department
STAFF REPORT
In 2017, the Dallas Bar Association launched its innovative and award-winning Women Empowered to Lead program. DBA WE LEAD (Women Empowered to Lead in the Legal Profession) is a program designed to promote leadership, empowerment, and professional development for high-performing women lawyers who have practiced for 8 to15 years. Most law school students are women, but retention and promotion lag far behind. Today women make up less than 20 percent
Meet this year’s participants:
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D al l as Bar A ssoci ati on l Headnotes 19
Jill Meyer Westwood Wealth Management
Melinda Newman U.S. Social Security Administration
Jervonne Newsome Lynn Pinker Hurst and Schwegmann
Victoria Oguntoye K&L Gates LLP
Kelly Perez JP Morgan Private Bank
Courtney Sauer Munsch Hardt Kopf & Harr, P.C.
Sunyi Snow Hunton Andrews Kurth LLP
Gabriela Sotelo UNT Dallas College of Law
DBA WE LEAD (Women Empowered to Lead) is a leadership program designed to address the challenges of high-performing women who have practiced law for 8 to 15 years. For more information, contact Judi Smalling at jsmalling@dallasbar.org.
Courtney Tawresey Munsch Hardt Kopf & Harr, P.C.
Katherine Zimmermann The Law Office of Katherine P. Zimmermann
California’s most respected neutrals are now offering mediations nationwide using secure video conference technology.
S I G N AT U R E R E S O LU T I O N .C O M
20 H e a d n o t e s l D a l l a s B a r A s s o ciation
Column
March 2021
Ethics
Lawyer, Agent, and Manager: A delicate balancing act BY MARINA AMENDOLA
Texas is home to a large amateur and professional music, film, rodeo, and sports scene. Lawyers representing clients in these fields should keep in mind the ethical hazards inherent in the entertainment industry, especially concerning client confidentiality (Rule 1.05) and conflicts (Rules 1.06 and 1.08). In addition to the legal ethics rules, entertainment lawyers should be careful not to cross the line between performing purely legal work and acting as an agent or manager—roles that may be inconsistent with the lawyer’s ethical duties, invoke additional duties, and require special certification. In Texas, the duty of confidentiality
(Rule 1.05) prohibits a lawyer from using confidential information to disadvantage the client or to the lawyer’s advantage. It also prohibits any disclosure of confidential information unless the client consents. Confidential information includes everything learned before, during, and after the representation. Disclosure of “generally known” information is allowed under very narrow circumstances that include a requirement that the general public is already aware of it. This means that any lawyer representing a (potential) celebrity must carefully guard what they know about the client. This duty is in stark contrast with the promotional work done by a talent agent or manager— whose job it is to keep their client relevant by consistently competing for the
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public’s attention. The general rule regarding conflicts of interest (Rule 1.06) prohibits lawyers from representing clients whose interests directly clash with other clients’ interests. It also prohibits representations limited by the lawyer’s own interest. These conflicts may be cured if the lawyer believes each representation will not suffer and each client consents in writing after being fully informed. Lawyers in the entertainment industry may represent several clients together as part of a package deal: Offering a studio the right combination of actors, writers, and directors just may ensure a box office hit. Nevertheless, an attorney should consider that clients packaged in one deal may already have or later develop mutually conflicting interests, and should minimize the risks by informing the clients of the implications and potential adverse consequences of their common representation from the start. Additionally, a lawyer who assumes the role of agent or manager risks having his client’s interests conflict with his own. A disappointed client could object to the attorney-manager’s commission as calculated on the client’s creative revenue. The duration and intimacy of the lawyer-client relationship as well as functions performed by the lawyer are important when considering the likelihood of conflicts. Rule 1.08 lists specific prohibited transactions that create conflicts of interest. This rule only allows the lawyer to enter into business transaction with a client if the terms are fair and reasonable to the client, the client fully understands them and consents to the transaction after having had an opportunity to seek independent advice. Therefore, lawyers who take on the role of agents or managers are advised to stipulate a joint business venture in order to minimize risk by separating their income based on the client’s creative proceeds. A better alternative is
to establish a separate business for promotion of talent, expressly stating that no legal services are provided, and advising the client to seek independent counsel before signing on. Negotiating appearance and merchandising deals and weighing in on proposed collaborations are typically the province of a talent agent or manager. These professions are, in some states, subject to their own regulatory laws and licensing requirements. The lawyer assuming these roles may also subject themselves to civil liability if things go wrong. Texas law does not require certification of talent agents and managers, but even without a certification requirement, one acting as an agent in Texas owes the client the duties of a common law fiduciary and faces liability if those duties are not met. Other states do require agents to be certified. For example, California and New York have well-developed licensing regulations, and are just two of the states with laws protecting the talent whether their agents are licensed or not. In addition to the rules and the common law fiduciary duties applicable to lawyers, agents, and managers in Texas, anyone acting in these capacities must be mindful of the Deceptive Trade PracticesConsumer Protection Act (DTPA). The DTPA applies to professional services offered by agents and managers. While this law does not generally apply to “professional services” which provide “advice, judgment, opinion or similar professional skill,” and thus would generally not apply to legal services, there is an exception if the professional services employ “misrepresentation, deception, or unconscionable acts.” The show must go on, but tread carefully in the ethical minefield of the entertainment industry. HN Marina Amendola is an attorney with Stanton LLP and co-chair of the DBA Legal Ethics Committee. She can be reached at marina@stantonllp.com.
DBA/DAYL Moms in Law Being a working mom can be challenging. Being a working lawyer mom can be a different ballgame with its own unique challenges. Moms in Law is a no pressure, no commitment, informal, fun, support group for lawyer moms. Email cpleatherberry@gmail.com to join the Moms in Law email listserv.
Online Annual Evening Ethics Fest Thursday, May 13, 2021 5:30 – 8:30 p.m. Ethics 3.00
Free for DBA members! Non-members: $135 To register, log on to www.dallasbar.org. For more information contact Marcela Mejia at (214) 220-7410 or mmejia@dallasbar.org. Sponsored by the DBA Legal Ethics Committee
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D al l as Bar A ssoci ati on l Headnotes 21
Entertainment, Art & Sports Law
Does Mitigation Matter in Copyright Infringement Suits? BY THOMAS MADDREY
The question is this: can an alleged copyright infringer raise the affirmative defense of failure to mitigate when a copyright owner elects the statutory damage remedy in a copyright infringement claim? On an issue of first impression, the Fifth Circuit found that failure to mitigate damages does not equal a complete defense to statutory damages claims made pursuant to the Copyright Act. With ordinary damage caps for each infringement ranging from $750 to $30,000, and willful infringement carrying statutory penalties up to $150,000, the number of infringements and efforts taken by the copyright owners to timely enforce their rights can make a significant difference. This decision in Energy Intelligence Grp., Inc. v. Kayne Anderson Capital Advisors, L.P., 948 F.3d 261 (5th Cir. 2020) impacts both the copyright owner and infringer in all future copyright actions. In this case, the infringement was first discovered by Energy Intelligence Group (EIG) in 2007 when multiple Kayne Anderson (KA) employees were using a single login to access EIG’s newsletter. After EIG contacted KA about the issue, a partner at KA cancelled the login and then had EIG send the newsletter via email as a PDF file. Although the login sharing stopped, the partner and other employees started forwarding the newsletter to others and renaming the PDF with inconspicuous names such as “123.” In 2014, EIG again contacted KA about the sharing, and also filed suit.
In its decision, the Circuit Court found “the district court appropriately instructed the jury to consider EIG’s lost revenues and mitigation in determining the amount of statutory damages.” However, it distinguished the district court’s finding that such conduct by a plaintiff could support an affirmative defense of mitigation, and instead stated that such damages “do not only approximate a copyright owner’s consequential damages, but … also serve an independent deterrent purpose; therefore, mitigation rules do not wholly preclude recovery of statutory damages.” The court’s decision on this issue relied almost exclusively on its interpretation of congressional intent, reasoning that even with the common law principle like mitigating damages, “courts may take it as a given that Congress has legislated with an expectation that the principle will apply except when a statutory purpose to the contrary is evident.” The court determined the intent in creating the damages provisions in the Copyright Act were “deterrent and potentially punitive” in nature. The court relied on Patrella v. Metro-Goldwyn-Mayor, Inc. to make this determination, which held that “Congress precluded the equitable defense of laches in copyright cases by providing a three-year statute of limitations” in the statutory language. Like this case, the Patrella court denied a common law defense when viewed in light of the specific language and intent of the Copyright Act. In its rationale, the court first looked to the language of the Copy-
right Act, which allows a copyright owner to “elect, at any time before final judgment is rendered, to recover, instead of actual damages and profits, an award of statutory damages for all infringements involved in the action.” Prior to the 1976 Copyright Act, the 1909 version allowed for statutory damages “in lieu of actual damages and profits” and could not “be regarded as a penalty.” Since the 1976 Act allowed for copyright owners to make the decision regardless of actual damages, the court relied on that notion as an explanation for denying the defense of mitigation. Using the 4th Circuit precedent and works of copyright expert Melville Nimmer, the 5th Circuit court supported its notion by explaining how such deterrence would be ineffective if certain common law principles were applied to infringement cases when the
statutory language allows the copyright owner the option to recover in that way. Therefore, despite the potentially drastic difference between statutory damages allowable for EIG to recover compared to what EIG may have actually lost, the court determined that this discrepancy was irrelevant. Such a precedent gives important guidance to both copyright holders and users as to how to proceed in infringement cases. This holding will allow copyright owners to elect statutory damages without fear that mitigation will be raised as an affirmative defense so long as the Copyright Act specifies otherwise. Copyright users as well must take heed of this ruling when developing their litigation and defense strategy. HN Thomas Maddrey is the Founder of Maddrey PLLC and can be reached at tbm@maddreypllc.com.
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WE’RE GROWING AGAIN The Rogge Dunn Group is excited to announce the addition of its new partner, Greg McAllister. In trial and arbitration, Greg litigates employment and business disputes. As a partner at Littler, he won jury trials and favorable results in claims regarding trade secrets, noncompetition/nonsolicitation, overtime, and discrimination. He also brings experience representing executives in noncompetition, severance, executive compensation, and change-incontrol matters. Greg helped build/fundraise 12 homes (and counting) with the DBA’s Home Project and insists he was part of Leadership Dallas’s “Best Class Ever” at the Dallas Regional Chamber. We look forward to Greg continuing his success at the Rogge Dunn Group. GREG MCALLISTER, PARTNER
22 H e a d n o t e s l D a l l a s B a r A s s o ciation
Focus
March 2021
Entertainment, Art & Sports Law
Characterization of Intellectual Property in Divorce BY CYNTHIA DUNN RAIBOURN AND LAURA H. CASTON
Texas courts have defined “intellectual property” as “the set of legal rights to an expressed idea—it is property that results from the fruits of mental labor.” Black’s Law Dictionary boasts an expansive definition of “intellectual property” beyond trademark, copyright, and patent rights, also including in its definition trade secrets, publicity rights, moral rights, and rights against unfair competition. What happens to this brain child when its parent gets divorced? In a Texas divorce case, intellectual property is an asset to be characterized as either separate property or community property, and then valued and divided. This article is limited in scope to characterization of intellectual property. The same basic principles for characterizing real or personal property in a Texas divorce case also apply to intellectual property. Texas is a community property state, meaning all real or personal property acquired during marriage is presumed to be community property, subject to being divided in a just and right manner upon divorce. All real or personal property acquired prior to marriage, or acquired during marriage by gift, devise, or descent, is the separate property of the owning party. The standard for proving an asset is separate property is “clear and convincing.” The key question in characterizing an intellectual property right is: when was the idea created? Texas law applies the inception of title rule to intellectual property in determining its character-
ization. “Inception of title” defines the point in time when a party’s ownership interest has vested. Although federal law generally governs patents, copyrights, and other intellectual property assets, multiple cases—both state and federal— have consistently held that federal law is not designed to preempt community property laws as it relates to characterization of intellectual property for division in a divorce. Applying the inception of title rule to intellectual property, there are several questions to consider:
Was the Idea Initiated Before or After Marriage?
The starting point for characterizing intellectual property is identifying when it was created. Intellectual property that is clearly documented, such as by way of a copyright or patent, as having been incepted entirely prior to marriage is clearly separate property. Intellectual property that was incepted during marriage seems simple enough to characterize as community property, as it is presumptively community property already. However, further analysis may be required because some intellectual property rights may be separate property, even if they are more fully developed during marriage. For instance, it may be argued that an artistic idea for a painting generated exclusively by the painter is the separate property of the painter, even if the painting itself is community property. Intellectual property that was partially created prior to marriage but vested during marriage is arguably a “mixed character” asset—an asset that is part commu-
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nity and part separate. Consider patent royalties paid partially prior to marriage and completed during marriage. Absent a property agreement, the royalties during marriage associated with the intellectual property would be separate property. Due to the very high burden of proof to establish separate property, a party may argue in the alternative to mixed characterization that a higher percentage of the intellectual property should be awarded to the originator of the idea.
Classification of Intellectual Property Right
In considering when title to intellectual property is incepted, you must first classify the intellectual property right in dispute and identify what laws apply to that particular right. For example, federal law provides that copyrights are incepted at the time they are reduced to “any tangible medium of expression.” In contrast, Texas common law provides three different points in time for when title to a patent may be incepted: when the idea is sufficiently developed, when the invention is actually built, or on the effective date of the patent.
Isolation of Intellectual Property Right from Other Assets or Liabilities
In attempting to pinpoint when an intellectual property right arose, the timing is heavily influenced by the ability to appropriately isolate intellectual
property rights from associated assets or liabilities. Specifically, the intellectual property right itself is typically different than the physical item or creation and the income from the physical item or creation. In other instances, like a painting, the intellectual property right may have only been created once the physical item/creation came into existence, and not necessarily when the idea was initially cultivated. However, even this example can be complicated if an artistic expression is part of an ongoing series— Monet’s Water Lilies, for example, is a series of some 250 paintings created over more than 30 years.
Other Considerations
Characterization of intellectual property rights is fact-specific. Prior to considering divorce, gather information on the intellectual property right to the extent it is available, such as by conducting a copyright or patent search online and reviewing applicable employment agreements to determine the ownership of “works for hire” created by an employee spouse. Also understand the general principle that all income earned during marriage—even income earned during marriage from separate property—is community property. To protect income earned on separate property, a Premarital Agreement or a Partition or Exchange Agreement should be considered. HN
Cynthia Dunn Raibourn is Board Certified in Family Law by the Texas Board of Legal Specialization, and is a Shareholder at Quilling, Selander, Lownds, Winslett & Moser, P.C. She can be reached at cdunn@qslwm.com. Laura H. Caston is an Associate at the firm and can be reached at lcaston@qslwm.com.
Crain Brogdon Rogers LLP Contributes to a Record EAJ Campaign CONTINUED FROM PAGE 1
clinics and in DVAP’s pro se assisted divorce programs. “Among the many remarkable programs organized by the Dallas Bar Association, DVAP is our most important collective effort. DVAP staff and attorneys are essential workers for so many North Texas families living below federal poverty guidelines; we are proud to play a small part in supporting them and their work,” said Rob. Crain Brogdon Rogers LLP’s generous gift to the EAJ Campaign contributed to a record amount raised, despite the pandemic, bringing the total for this year to $1,300,372. The commitment of Dallas attorneys and the DBA
to the Equal Access to Justice Campaign is impressive. Since 1997, the DBA and Legal Aid have joined forces to raise money for the program, with Dallas lawyers donating almost $16 million. DVAP is a joint pro bono program of the DBA and Legal Aid of NorthWest Texas. The program is the only one of its kind in Texas and brings together the volunteer resources of a major metropolitan bar association with the legal aid expertise of the largest and oldest civil legal aid program in North Texas. For more information, or to donate, visit www.dallasvolunteerattorneyprogram.org. HN Michelle Alden is the Director of the Dallas Volunteer Attorney Program. She can be reached at aldenm@lanwt.org.
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D al l as Bar A ssoci ati on l Headnotes 23
Entertainment, Art & Sports Law
Show Me the Money! Incentives for the Entertainment Industry BY KERRY TASSOPOULOS
The U.S. media and entertainment industry is the largest in the world with an estimated value of $717 billion. The industry includes motion pictures, television programs and commercials, streaming content, music and audio recordings, broadcast, radio, book publishing, video games, and ancillary services and products. Producing content is challenging, costly and time sensitive—therefore government production incentives can mean success or failure. Hollywood has long been associated with America’s dominance in the motion picture industry. In the early 1990s, a favorable currency-exchange rate and government-sponsored tax incentives lured film production from California to Canada. In response, several U.S. states developed their own incentive programs to entice filming in those states. Incentives ranged from Refundable Tax Credits (state payments to the production company in excess of the company’s owed state tax); Transferable Refundable Tax Credits (tax credits can transfer over to a local company, reducing or eliminating tax liability); Rebates and Grants (direct payments issued to the production company); and Bonuses (additional perks offered by the state, such as for using specific locations or hiring local staff). In 2005, the state of Texas founded the Texas Moving Image Industry Incentive Program (TMIIIP), providing qualifying film, television, commercial, video game, animation, visual effects, and extended reality productions the opportunity to receive a cash grant based on a percentage of a project’s eligible Texas expendi-
tures. While some question the effectiveness of the program, recent data shows that for every $1 the state gives as a rebate to applicants who submit audited accounts of proven in-state spending to the Texas Film Commission, Texas receives $5.11 of actual benefit. By 2009, more than 40 states offered some form of film and television production incentives. Ten years later, only 31 states maintained incentive programs. Pressure on state budgets, and doubts about actual economic benefits, reduced the annual appropriation available for film incentive programs. Even Louisiana, the pioneer of state film incentives, introduced a $150 million cap on the amount of credits that can be issued each year. Whether in Texas or elsewhere, it is clear that incentives can develop, maintain, and promote the entertainment production industry, improve the attractiveness of a location for filmmaking, and promote the state or country’s culture, history, and beauty. In the international setting, incentives bring in foreign capital and increased economic activity and spending, since qualifying projects have to be filmed, in whole or in part, in the country and make use of the country’s vendors, crew, and talent. While many states, including Texas, provide scenic settings for production activities, Canada has enhanced economic incentives and drawn producers from the U.S. In fact, it is not the production values that film producers seek out in Vancouver, Toronto, or Montreal—the lure is financial incentives and cost savings. In Hollywood, studios have highly efficient soundstages and an abundance of skilled technicians, but union work rules
make it extremely expensive to shoot exteriors. For example, a production can shoot for only 14 hours a day with normal overtime and then must pay double time. These costs run even higher for independent producers. In Canada, producers still have unionized labor to contend with, but they get a huge discount by paying labor in Canadian dollars. On top of that, the Canadian Federal Government provides foreign producers with a subsidy called the Film Production Services Tax Credit, which now equals 16 percent of the Canadian labor costs. Other provincial benefits exist, and there is also a 20 percent break on digital effects, if they are done in Canada. These incentives have also led other producers, such as video-game creators, to establish operations in Canada. The digital entertainment industry in Québec has
experienced tremendous growth in the last two years. The world’s third-largest videogame development hub after California and Japan, Québec has welcomed 42 new studios and created 2,100 jobs since 2012. Generous tax credits, a vibrant business climate, and a talented workforce are some of the assets drawing the industry’s biggest names, including Texas-based companies. General tech incentives include startup benefits, tax breaks, and zoning incentives. Hiring incentives include unemployment insurance and rewards for hiring workers with disabilities. Considering all of these factors, content creators and producers will carefully scrutinize production incentives from all locations—in essence shouting “Show me the money!” HN Kerry Tassopoulos is the Founder of The Tassopoulos Law Firm, PLLC. He can be reached at kerrytassopoulos@tasslaw.com.
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