Some lawyers, if they're lucky, might get their cases covered by the legal press, but intellectual property litigator Dale Cendali has a resume that People or Entertainment Weekly would find interesting. The Kirkland & Ellis partner is currently defending the producers of the musical Spider-Man: Turn Off the Dark against a copyright infringement suit filed by former director Julie Taymor. She's also represented author J.K. Rowling against the publisher of an unauthorized Harry Potter lexicon, and the Associated Press against artist Shepard Fairey, who was accused of using an AP photo for his Obama "Hope" poster. We recently spoke with Cendali about the secrets of her success. An edited version of our conversation follows.
Q How did you end up with such an enviable caseload?
A Doing what you love helps. My undergraduate background was president of the Yale Dramatic Association, and I went to law school hoping to combine my interests in law and entertainment. It also seems that if you get hired for one cutting-edge case, that tends to lead to another cutting-edge case. I love those cases where we are making law and not just applying it.
Q If a young law student asked how she could have a career like yours, what would you tell her?
A I actually get asked that a lot, because I teach trademark and copyright litigation at Harvard Law School. The first thing I tell my students is to pick an area that you are enthusiastic about. The second thing is to truly become an expert in that area early on, which might involve writing articles, joining bar committees, and otherwise showing that you really have something to add. The final element is to make sure people know you exist and have that expertise, which involves communicating with people outside your own office, internally within a law firm, or externally to clients and client groups.
Q What's been your most memorable case, and why?
A That's a tough one. It's like choosing between your children. I've had two cases at the U.S. Supreme Court, Daystar v. Twentieth Century Fox and Moseley v. Victoria's Secret. Those were obviously special experiences, as was my work for the Associated Press on the Shepard Fairey Obama poster case, and our victory at trial for the Martha Graham Center of Contemporary Dance that involved protecting the Martha Graham legacy.
I will always have a special appreciation for the cases I have handled protecting Harry Potter on behalf of J.K. Rowling, Warner Brothers, and Scholastic. Harry Potter is such a wonderful creation, and getting to work with the amazing people involved with it is a real gift.
Q Has there been a case that didn't turn out the way you expected when you took it on?
A When I took on the Shepard Fairey Obama poster case, I assumed it would ultimately be decided on the fair use issues. [The AP accused Fairey of using one of its copyrighted photos for his "Hope" poster.] I did not expect we would discover spoliation and fabrication of evidence that would detour the case, at least with regard to Fairey, away from those issues. We did, however, litigate the fair use issues against the different defendants in the case, and won that on summary judgment in 2011. [Fairey also pled guilty this past February to criminal contempt.] As that case was at least the fourth time I uncovered fabricated evidence in my career, I think it's really important for litigators to be on the lookout for that kind of tampering — especially in a technological age where it is relatively easy to do.
Q What would have been the impact if the AP had lost?
A Part of the reason the AP and other content creators come up with new works is the hope that they will get a fair return on their investment. If they don't, they lose the incentive to keep creating content. There would be fewer original works created and thus there would be few derivative works that could profit from them. Everyone would be the poorer.
Q Currently you're representing the producers of the Spider-Man musical. Can you discuss in general terms what you think is important about this case?
A While I don't feel comfortable commenting on pending cases, I can say that, as was detailed in the counterclaims of my client, 8 Legged Productions, the show is a hit despite its former director — not because of her. 8 Legged does not believe the IP claims have any merit.
Q What will be the key issues in IP law in the near future?
A There will be continued focus on what use can be made of someone else's work. I see the fair use debate staying with us, and becoming increasingly important. I also think trademarks will continue to be recognized as a form of proprietary right and not just a consumer protection mechanism. I believe that the issue of IP enforcement particularly on the Internet is going to remain extremely important.
REPRINTED WITH PERMISSION FROM THE MARCH 27, 2012 EDITION OF THE AMERICAN LAWYER © 2012 ALM. ALL RIGHTS RESERVED. FURTHER DUPLICATION WITHOUT PERMISSION IS PROHIBITED