Tags: article, copyright, copyright law, DMCA, house judiciary committee, Intellectual Property, intellectual property law, legislation, regulatory
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While many are reflecting on the key copyright cases of 2016, Howard Zaharoff states the necessity of noting the important copyright legislative and regulatory developments that also took place. In his most recent article, Howard discusses developments by the House Judiciary Committee, the Small Copyright Claims Tribunal, and the new procedure for registering designated agents under the DMCA, among others.
For an overview on these and other copyright legislative and regulatory developments, read the full article.
MBBP’s 2016 M&A Year in Review 02/14/2017Posted by Morse, Barnes-Brown Pendleton in Corporate, Deal News, Internet and E-Commerce, M&A, Manufacturing, Retail & Service, Public Companies.
Tags: acquisitions, done deals, Manufacturing, mergers, privately-held companies, publicly-traded companies, transactions
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The MBBP M&A team has extensive experience guiding clients through the complexities of M&A transactions in diverse markets. Over the last decade, we have represented hundreds of publicly-traded and privately-held companies in transactions, both buyers and sellers, valued from several million dollars up to hundreds of millions of dollars. For a sampling of our 2016 transactions, visit our M&A blog.
MBBP’s Shannon Zollo and Josh French Discuss Quickly Enacting Trump Administration Policies in BBJ Article 02/10/2017Posted by Morse, Barnes-Brown Pendleton in Attorney News, Corporate.
Tags: bbj, Boston Business Journal, corporate law, infrastructure, Joshua French, legislation, shannon zollo, tax reform, trade policies, Trump administration
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In an article in the Boston Business Journal, Corporate partner Shannon Zollo and corporate senior attorney Josh French discuss the importance for the Trump administration to act quickly in enacting new policies that were promised during Trump’s campaign. The potential legislation, including protectionist trade policies, corporate tax reform, increased infrastructure spending, and immigration reform, has left businesses feeling uncertain about how to move forward with their business strategies. Zollo and French argue that the Trump administration must act quickly to enact legislation in order to foster a more certain business environment.
For further detail, read the full article.
Tags: ABA, business law, Corporate, M&A transactions, panel, private equity, venture capital
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Back by popular demand, corporate partner Mary Beth Kerrigan spoke on an encore panel of this year’s ABA Business Law Annual Meeting, titled “Venture Backed M&A: Special Considerations”. Mary Beth and her fellow panelists discussed complex issues that commonly arise in acquisitions of venture-backed companies, including complicated waterfalls, the blurring of management incentives with purchase price, and much more.
Congratulations to Mary Beth on another job well done!
To learn more about the conference, visit the ABA’s event page.
MBBP Held Series A Venture Capital Financing Event at Cambridge Innovation Center on 2/2/2017 02/06/2017Posted by Morse, Barnes-Brown Pendleton in Attorney News, Corporate, Events, Venture Capital & Private Equity.
Tags: angel investors, cambridge innovation center, cic, corporate law, entrepreneur, entrepreneurs, event, law seminar, panel, preferred stock terms, seminar, venture capital, venture capital law
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MBBP’s corporate partner Scott Bleier moderated our VC group’s event, “Series A Venture Capital Financing: A Review of 2016 and a Look Forward to 2017″ at the Cambridge Innovation Center on Thursday, February 2nd. Scott led our panel of VC and angel investors through a series of critical questions regarding raising capital. Additionally, the presentation included a review of 2016 Series A financing activity and preferred stock terms, and a forecast of financing activity for 2017.
MBBP’s Joshua Watson quoted in Bloomberg article discussing private equity tax and financial reform in the Trump era 01/30/2017Posted by Morse, Barnes-Brown Pendleton in Attorney News, Corporate, Venture Capital & Private Equity.
Tags: bloomberg, corporate attorney, corporate law, dodd-frank, president trump, private equity, private investment funds & advisers
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Corporate partner Joshua H. Watson was quoted in a Bloomberg article discussing possible changes to the private equity industry during Donald Trump’s presidency. The article details the top three priorities for the private equity industry as Trump takes office: carried interest, interest deductibility, and changing Dodd-Frank registration requirements.
Regarding Dodd-Frank requirements, Josh notes that if the reform act passed by Obama’s administration is rolled-back, particularly in regards to registration requirements for private equity firms, there could be bipartisan political support for exempting more small firms from registering. Specifically, Josh states that “if small to mid-sized managers are able to spend less of their resources on compliance, they will have more resources available for making and managing investments.”
Revised HSR Thresholds 2017 01/27/2017Posted by Morse, Barnes-Brown Pendleton in Client News, Corporate, M&A.
Tags: acquisitions, antitrust, antitrust law, corporate attorney, corporate law, Hart-Scott-Rodino, HSR, HSR Act, HSR thresholds, mergers, mergers and acquisitions
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On January 19, 2017, the Federal Trade Commission (FTC) issued its annual press release announcing revised jurisdictional thresholds for 2017 in connection with reportable transactions under the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (HSR Act). These new HSR thresholds will go into effect 30 days after they are published in the Federal Register, which is expected to happen in late February.
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Dave joined the Firm in 2006 and was promoted to Senior Attorney in 2011. Dave is exceptionally proficient in guiding both buyers and sellers through a wide range of corporate transactions, including mergers and acquisitions, private equity transactions, venture capital financings, and joint ventures. Primarily a member of the firm’s corporate group, Dave also has a background in taxation and finance, and consequently brings an uncommon perspective to transactional matters.
Stan joined the Firm in 2009 as an Associate and was promoted to Senior Attorney in 2013. Stan is a Registered Patent Attorney, specializing in the licensing of intellectual property and related counseling. Stan advises clients in developing and implementing strategies to protect their intellectual property and advises clients with respect to a variety of related strategic collaborations, with a particular focus on clients in the life sciences industry. Prior to beginning his legal career Stan practiced as a Registered Pharmacist in both clinical and retail settings.
Congratulations to both!
MBBP’s Tim Manning Published in Article Discussing the Perspective of Unsecured Creditors of a Borrower 01/17/2017Posted by Morse, Barnes-Brown Pendleton in Client News, Corporate.
Tags: borrower, Commercial Finance Association, corporate law, debt financing, secured lender, TSL Express, unsecured creditor
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Tim Manning of our Corporate Practice group recently published an article in TSL (The Secured Lender) Express, which is published by the Commercial Finance Association. The article examines the risks to a senior secured lender that fails to take into account how its actions towards a distressed borrower are viewed by the unsecured creditors of such borrower.
Tags: card game, card games, china, copyright, copyright protection, videogame
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Discussion: The plaintiff in DaVinci Editrice v. ZiKo Games (S.D. Tex. 2016) published Bang!, a role-playing card game with Wild-West themes that became a world-wide success. Bang! players are assigned one of four roles – Sheriff, Deputy, Outlaw or Renegade – each with its own “winning condition” (e.g., the Sheriff wins by outliving the Outlaws and Renegades). Each player also gets assigned a card evoking a familiar Wild-West character (e.g., Calamity Janet) with its own unique ability and 1-to-5 “life points.” Players also draw “weapon cards” (enabling them to reduce competitors’ life points) and “mount cards” (enabling them to gain distance from competitors, making them harder to attack).
One defendant, Yoka Games, based in China, produced the card game Legends of the Three Kingdoms, distributed in the U.S. by the other defendant, ZiKo Games, LLC. Despite the different setting (Ancient China) and accompanying different artwork, the four roles in LOTK – Monarch, Minister, Rebel and Turncoat – had the same abilities, functions, goals and winning conditions as the comparable roles in Bang!; players were subject to nearly identical rules of play; players drew Chinese hero cards with similar abilities and life points as the Bang! character cards; and similar action cards were used.
Notwithstanding procedural wrangling over the lay vs. expert status of a witness and arguments about the significance of various similarities, this was an easy summary judgment for the Court: “Bang!’s characters, roles, and interactions are not substantially similar to those in LOTK. The aspects of the roles, characters, and interactions that are similar are not expressive, and aspects that are expressive are not substantially similar. ZiKo and Yoka are entitled to summary judgment of noninfringement.”
An Interlude for Copyright Aficionados: The Court’s reasoning begins with the black letter principle that copyright protects expression, not ideas. Therefore, “Copyright does not protect game rules because they fall within the section 102(b) exceptions for an ‘idea, procedure, process, system, method of operation’.”
On the other hand, the Court acknowledges that “courts have found expressive elements copyrightable, including game labels, design of game boards, playing cards and graphical works.” The present dispute focuses on the roles and characters and their interactions, which are very similar in both games. Thus, the key issue is: Are the characters’ similar interactions “unprotectable game play,” as the defendants argue, or “protectable expressive content,” as the plaintiffs argue?
The Court begins by distinguishing two types of games: (1) those like books and movies, which have a progression of events (plot) and developed characters (who interact following a script) “that make the game expressive” (e.g., The Legend of Zelda), and (2) those like NBA games, which consist of “loosely prescribed progression” (“teams trade offensive possessions over four quarters”) between players with assigned roles (guard, forward, center) but without predetermined interactions, which are therefore neither expressive nor copyrightable.
Bang!, says the Court, “has no specific plot or detailed information about the characters that tells us what these characters will do or how they will interact with other characters.” Rather, like basketball, Bang! has created a number of roles, defined their alignment with and opposition to other roles, and created rules for their interaction, but has not created a scripted or detailed performance for each game. Thus, Bang! is more basketball than novel, and its character interactions are not protected by copyright.
The Court also addresses character copyright and explains why LOTK wasn’t infringing, despite the near-identity of the 4 main roles (excluding their look and labels). The answer lies in the “distinctiveness” requirement: To earn copyright protection, characters cannot be stock, generic or indistinct, but must embody enough original expression to attain copyrightability. However, “Bang! has no specific plot or detailed information about the characters… LOTK’s alignment of roles tracks Bang!’s, which in turn was drawn from the general alignment of stock characters in ‘spaghetti Westerns.’”
The Court also considers and rejects the plaintiff’s argument that, even if the characters themselves are not copyrighted, their special abilities may be: “The Bang! characters’ abilities are largely drawn from stock-character abilities. Like a punch or kick in a karate game, Bang! characters’ abilities are common in games in which the object is to kill the other players.” Moreover: “Even if the Bang! characters’ abilities were not stock, they are still not expressive because they are essentially rules of game play.”
A similar conclusion applies to the plaintiff’s key claim, namely, that the Bang! characters’ interactions via the game rules are themselves subject to copyright. But that argument fails here for the same reason it failed at the higher level of character copyright: “Bang! characters do not have delineated personalities, temperaments, back stories, or other features typical of characters in movies and books that contribute to making those characters’ interactions protected.”
Conclusion: The Court was mindful that game rules are generally not copyrightable, a principle that anchored its holding in favor of the defendants. However, the Court did recognize at least three game elements that could potentially give rise to copyrights:
- expressive graphics or other original visual elements;
- a relatively fixed progression of themes, dialog, mood, setting and character; or
- well-delineated characters themselves.
Still, if a character (whether in a novel, film or videogame) is not sufficiently distinct to be copyrightable – which may be because it is a “stock” character defined only by generic traits, or because it is a positional player guided only by rules of play – then its interactions with other characters will not be copyrightable, unless these interactions are at least partly fixed or scripted.
In short, despite displaying some of the artistry of its namesake, DaVinci’s characters (and their traits and interactions) were too stock and generic to be copyrightable … and thus its suit failed to produce more bucks for its Bang!.
For more information on this topic, please contact Howard Zaharoff.
MBBP’s Howard Zaharoff Will Be a Panelist in Boston Bar’s 17th Annual Intellectual Property Year in Review 12/19/2016Posted by Morse, Barnes-Brown Pendleton in Attorney News, Events, Intellectual Property, MBBP news.
Tags: attorney, boston bar association, copyright, copyrights, Intellectual Property, ip, IP Attorney, IP Litigation, law review, panel, patents, trade secrets, trademarks
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MBBP’s Howard Zaharoff will be a panelist at this year’s Boston Bar Association Intellectual Property Year in Review, one of Boston’s premier annual IP events. Howard will be discussing some of the most important copyright developments of the past year, with his co-presenter, Attorney Lucy Lovrien.
This annual panel has been organized for intellectual property specialists to discuss the latest developments with practitioners in the field. Howard and his fellow panelists will discuss patents, copyrights, trademarks, and trade secrets, and the event will close with a networking opportunity for all attendees.
The event is scheduled for Thursday, January 26th, 2017 from 3:00 PM to 6:00 PM at the Boston Marriott Long Wharf. See the event details for more information.
Copyright Alert: New Copyright Office Electronic System to Register Designated Agents Under the DMCA 12/02/2016Posted by Morse, Barnes-Brown Pendleton in Intellectual Property.
Tags: copyright, copyright infringement, copyright office, digital millennium copyright act, DMCA, safe harbor
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Effective December 1, 2016, the US Copyright Office rolled out a new electronic system for the online registration of designated agents under the Digital Millennium Copyright Act (“DMCA”). Consequently, all online service providers who want the benefit of the safe harbor against copyright infringement claims are required to register under the new electronic system or, if they’re already registered under the old paper system, to submit fresh designations under the electronic system by December 31, 2017. Thus, agents who previously filed hardcopies of their DMCA agent designations must now do so again online, within the next 13 months, in order to keep the benefits of the safe harbor.
To learn more about the DMCA and necessary compliance, read the full alert.
Tags: Abpro, antibodies, antibody, AstraZeneca, biochemistry, collaboration, DiversImmune, Ian Chan, industrial, Life Sciences, MedImmune, technology
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MBBP’s client Abpro, a pioneer in the field of industrial biochemistry, has recently entered into a Collaboration Agreement with MedImmune, the global biologics research and development arm of AstraZeneca. The collaboration will advance the development of a preclinical, novel bispecific antibody targeting angiopoietin-2 and vascular endothelial growth factor (Ang2-VEGF). Abpro will contribute its strong scientific, technical and clinical expertise to this partnership, along with its core technology platform, DiversImmuneTM, which will be utilized to further develop the bispecific antibody. Ian Chan, CEO and co-founder of Abpro, has expressed the Company’s enthusiasm towards collaborating with MedImmune, as the two businesses work together to advance these innovative therapeutics into the clinic.
For more information, read the full article.
Tags: attorney, attorneys, Best Law Firms, Best Lawyers, corporate law, rankings, tax attorney, tax law, U.S. News & World Report, vc attorney, venture capital, venture capital law
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Morse, Barnes-Brown & Pendleton PC is pleased to announce it
has received national and regional rankings in the U.S. News & World Report / Best Lawyers® “Best Law Firms” listing for 2017. To be eligible, firms must have attorneys who are listed in the current edition of the Best Lawyers in America.
MBBP has received national rankings in three practice areas — Tax Law (Tier 2), Tax Litigation (Tier 2), and Venture Capital Law (Tier 3) — and Boston metropolitan rankings in three areas — Tax Law (Tier 1), Tax Litigation (Tier 1) and Venture Capital Law (Tier 3).
Employment Law Alert: Federal Judge Temporarily Blocks New Overtime Rule From Taking Effect On December 1 11/23/2016Posted by Morse, Barnes-Brown Pendleton in Employment.
Tags: department of labor, employment law, employment law alert, federal judge, overtime, overtime regulations, u.s. department of labor
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MBBP’s Employment Law Group just released an Employment Law Alert regarding a preliminary order by a federal judge in Texas that temporarily blocks the U.S. Department of Labor (DOL) from implementing changes to the salary basis for white collar overtime exemptions.
Learn more on our Employment Law Blog.
Client Paragonix Technologies Enters Into Distribution Agreement with Pacific West Medical Sales for Paragonix SherpaPak™ Transport Systems 11/17/2016Posted by Morse, Barnes-Brown Pendleton in Client News, Deal News, Licensing & Strategic Alliances, Life Sciences, Medical Devices.
Tags: agreement, distribution, distribution agreement, pacific west medical sales, paragonix technologies
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MBBP client, Paragonix Technologies Inc. recently entered into an exclusive distribution agreement with Pacific West Medical Sales to market Paragonix Technologies’ SherpaPakTM Cardiac and Kidney Transport Systems. The SherpaPakTM Cardiac and Kidney Transport Systems are innovative medical devices that are indicated for the static hypothermic preservation of donor hearts and kidneys during transportation and eventual transplantation into a recipient.
Pacific West Medical Sales is a medical equipment sales company that provides services for hospitals, doctors’ offices, and long-term care facilities, and provides supplies for emergency medical services and home medical needs. Paragonix Technologies, is a privately held medical device company founded in 2010 and is headquartered in Braintree, Massachusetts. For more information, read the full press release.
NYSE’s Corporate Board Member Online Magazine Brings in MBBP’s Carl Barnes for Insights on D&O Liability 11/17/2016Posted by Morse, Barnes-Brown Pendleton in Attorney News, Corporate, Financial Services, Litigation, M&A.
Tags: carl barnes, corporate attorney, Corporate Board Member, D&O, director liability, Directors and Officers, duty of care, Enron, liability, litigation, nyse, officer liability, SEC, whistleblower
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NYSE‘s publication, Corporate Board Member, has recently published an article, “Sidestepping D&O Liability”. This piece brings to light the year 2015 as a record-breaking one for securities litigation against directors and officers, and how this trend is continuing into 2016. The level of whistleblower activity has significantly increased, as exemplified by the astonishing 119 filings of new federal class-action securities cases, and complementing this increase is the substantial decrease in the settlement sizes of these suits.
MBBP’s Carl Barnes, who specializes in director and officer liability, was asked to discuss precautions and to offer his counsel on this subject. Throughout the article, Carl is often cited offering advice on the various types of director liability and the methods in which to avoid litigation. Carl explains that directors are under fierce scrutiny in order to ascertain whether or not they have satisfied their duty of care, as this is the item that drives litigation. In order to minimize, or even avoid, liability altogether, Carl advises that directors be “actively involved, ask questions, and demand answers.” In a post-Enron world, directors need to be vigilant in order to avoid being liable, and the counsel that Carl offers may help directors and officers dismiss litigation quickly and perhaps even avoid it entirely. For more information, check out the full article.
MBBP’s Shannon Zollo Quoted in Reuters Article Regarding Loan Volume Boost and Election Outcome 11/10/2016Posted by Morse, Barnes-Brown Pendleton in Attorney News, Corporate, M&A, Venture Capital & Private Equity.
Tags: corporate attorney, Election, Financial Industry, M&A Loans, Reuters
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Reuters quoted MBBP’s Shannon Zollo in an article regarding the financial industry’s propensity for a Hillary Clinton presidency. Zollo expressed that the “devil you know” is the more predictable, and therefore safer, outcome because in an election as turbulent and polarizing as this one, the impact could eventually destabilize potential future deals. Before the election, various companies were receiving acquisition loans as they were expecting the market to be stable with a Clinton victory.
Shannon is a corporate partner whose practice specializes in private equity, venture capital, M&A transactions, and corporate governance. For more information, please contact Shannon Zollo.