Here's the winning equation that landed Kirkland & Ellis LLP's Dale Cendali a spot on Law 360's list of Media & Entertainment MVPs: President Barack Obama, plus the world's most famous boy wizard and the two-time Emmy Award winner for outstanding comedy series.
Cendali, who heads Kirkland's copyright, trademark and Internet practice, won copyright infringement suits for Scholastic Inc., the U.S. publisher of the "Harry Potter" series, and Fox Entertainment Group Inc., which produces the ABC sitcom "Modern Family."
But no victory was bigger than the January settlement Cendali extracted for the Associated Press in its dispute with artist Shepard Fairey over the use of the Associated Press' copyrighted photograph of Obama in Fairey's iconic "Hope" poster.
The AP and Fairey agreed to share the rights to make the posters and other merchandise featuring the image, ending a two-year legal battle during which Fairey admitted he fabricated documents.
How high were the stakes in the case? Cendali says that if Fairey had prevailed, it would have had the "effect of disincentivizing the creation of content."
"It seemed like a misguided, killing-the-golden goose scenario that we were trying to stop," she said.
The "Hope" image, which was seen throughout the 2008 election season, shows Obama in red, white and blue, gazing upward, with "HOPE" underneath.
After the AP informed Fairey that he had used a copyrighted photograph taken in 2006, Fairey filed a complaint seeking a declaratory judgment in February 2009 regarding his use of the photograph as the basis for the illustration.
The AP disputed Fairey's interpretation of the fair use doctrine, saying that the doctrine "cannot be contorted to permit Fairey to wholly replicate a photographer's prescient photograph and exploit it for his own commercial benefit."
The case took a bizarre twist in October 2009, when Fairey filed a motion with the court asking to update his own complaint after admitting that he was "apparently mistaken" about the photograph that was the basis for his artwork.
Fairey admitted he attempted to delete the electronic files he had used to create the illustration and produced new documents for his attorneys purporting to show that he had used a different photograph.
Two months after the AP settled with Fairey, Cendali brokered another settlement between the AP and retailer Obey Clothing, to which Fairey enfranchised the "Hope" image for use on T-shirts and other merchandise. The AP and Obey agreed to collaborate to create apparel featuring the "Hope" image.
For Cendali, the fair use debate was the most compelling aspect of the AP litigation.
"You have the AP, which is a not-for-profit, news-gathering activity at the time when news-gathering activities are under financial pressure, attempting to get additional revenues by not just covering news of the day, but creating this fast photo archive in which photos can be licensed," she said. "The idea that you could bypass that licensing system and use it wholesale without any kind of credit or compensation, is not fair use."
Cendali added that the Fairey case wasn't the first copyright suit she's handled in which documents were fabricated and worries that technological advances will make the activity more prevalent.
"I'm hoping the Shepard Fairey case will serve as a deterrent … as a warning to lawyers to be on the lookout for it," she said.
The same month the AP settled with Fairey, Cendali obtained a dismissal of a copyright suit against Scholastic that claimed J.K. Rowling's fourth Harry Potter book, "Harry Potter and the Goblet of Fire," copied parts of Adrian Jacobs' 1987 book, "The Adventures of Willy the Wizard: No. 1 Livid Land." The suit, brought by Jacobs' estate, sought profits from the sales of "Goblet of Fire."
In July, a federal judge tossed a copyright suit lodged against Cendali client Fox, ABC and others by script writer Martin Alexander, who claimed they plagiarized his pilot script to develop ideas for "Modern Family," finding that the concepts of the two works were not substantially similar.
Cendali says she's always been drawn to media and entertainment law. She figures it partly stems from her undergraduate days at Yale University, where she was president of the college's dramatic association.
"I love the theater of being in a courtroom," Cendali said. "I love the intellectual challenge of puzzling out the best strategy of the case and I love the subject matter, both my cases, including their variety."
As a result, her litigation experience has touched all corners of the pop culture map, from comic book icons the X-Men, to the Tetris video game, to the social network Myspace.
"I love doing these cases because I feel like I am making a difference as a lawyer in helping my clients achieve important objectives that are important not just for them, but for creators, generally," Cendali said.
"And," she added, "they're a lot of fun."
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