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1 December 2014 Volume 45, Issue 12 The Marin Lawyer An Official Publication of the Marin County Bar Association Renew your membership today! Calendar of Events Mon Dec 8, :30-7:30 pm MCBA HOLIDAY PARTY Marin County Law Library Reception Hall, San Rafael Membership in MCBA demonstrates your support for the core values of our legal system: equal justice for all through equal access to an independent judicial system. With over 700 members, the MCBA provides continuing legal education in 12 specialty sections, serves as a liaison to the Marin County courts, educates the community, and enhances access to legal services. Your dues keep our office open and make possible community services such as the Modest Means Mediation program, Fee Arbitration services, and community education events like Teens & the Law. Membership provides you with access to informative events such as 2014 presentations by Professor Rory Little on recent U.S. Supreme Court rulings, and Lt. Governor Gavin Newsom on legalizing marijuana. Look for provocative presentations and networking opportunities in RENEW or JOIN TODAY! Simply complete and return the Membership Application form. For membership details and online membership links visit Sat Jan 10, :00-10:00 pm 2015 Board Installation Dinner & Gala Peacock Gap Country Club, San Rafael Look for details each month in The Marin Lawyer In This Issue MCBA Holiday Party... 3 Where Did We Come From? Installation Dinner & Gala... 5 MCLE Fair... 6 A Sound Business Decision... 7 The Cedars of Marin... 8 The Case of the Character Conundrum.10 The Full Credit Bid MCBA Standing Committee Signup New Members Calendar Details Marketplace Jessica Stuart Pliner was Guest Editor of this issue of The Marin Lawyer. Caroline Joachim is Series Editor for PRESIDENT'S MESSAGE I have had an amazing year serving as the President of the Marin County Bar Association. It kicked off with a fun and wellattended Installation Dinner at the Tavern at Lark Creek. (Hard to believe only a few months later it burned down.) I apparently gave the shortest president's speech in recent memory, which was well received, leading our future president Randy Wallace to promise more of the same. At the Installation Dinner, our well-liked Executive Director Robynn Gaspar announced she would leave the post she held for 10 years. The Executive Board conducted weeks of interviews and ultimately hired Mee Mee Wong. Mee Mee succeeded in bring- (Continued on page 2) 1

2 (President, continued from page 1) ing a new level of professionalism to the position and has applied her impressive marketing skills to promote our programs and communicate our mission. After MCBA's other employee, Jan Salas, left her post, after years of good service, Mee Mee hired Kathie Gaines, an experienced nonprofit communications and membership professional. Their hard work made that transition seamless; every program they put on was well run and successfully attended. The Board held its annual retreat and discussed matters for the Board to tackle in the up-coming year. We discussed the possible termination of MCBA Lawyer Referral Service ("LRS"), a public service attorney referral service offered by MCBA that provided members of the public with referrals to qualified attorneys. LRS was very successful in prior years but referrals significantly declined in recent years and, given the declining number of incoming calls, the huge efforts, MCBA financial support, staff time and Board time, the Board finally decided it did not make sense to continue LRS. The Board voted to close LRS operations and pass the LRS referrals on to the SF Bar Association and Marin Legal Aid. Many MCBA committees were incredibly active and continued to be successful this year. The MCBA Bench Bar Committee was lead this year by Barbara Monty. The Committee met with the judges to coordinate and improve Bench/Bar programs, such as the Modest Means Mediation Program and the Discovery Facilitator Program, and to discuss matters of mutual interest to the Court and MCBA. Another very active committee was the Judicial Evaluation Committee, which interviews applicants for judicial positions after receiving requests from the Governor's office. I had the pleasure of serving on this committee and of meeting applicants who aspire to public service. Chair Joel Gumbiner did a fantastic job of focusing our efforts and making the process fair and meaningful. An Ad Hoc Board Committee, led by Larry Strick, launched a new campaign to add non-attorneys to our membership and developed a sponsorship program at various levels to defray the cost of membership programs. Our MCBA sections, really, the lifeblood of the Marin County Bar Association, were lead by new section heads and continuing heads, who worked hard to deliver innovative and informative programs within practice areas. Our program chairs, Phil Green and Jessica Pliner, put on a number of great, well-attended general meetings. Highlights included speakers Lieutenant Governor Gavin Newsom and UC Hasting s constitutional law professor Rory Little. In addition, we organized two private tours to 2 San Quentin for a rare glimpse inside the historic prison. Our Annual Judge's Luncheon was a complete success and Judge D'Opal spoke and described how meaningful members of the Marin County Bar Association are to the successful operation of the Court. The MCBA and Marin County Women Lawyer's Association Continuing Legal Education Fair, orchestrated by President-elect Randy Wallace, featured Retired Judge Vaughn Walker speaking on the Prop 8 trial and Marin County Judges Beverly Wood and Verna Adams speaking on diversity. Dorothy Proudfoot did an incredible job chairing the Public Outreach Committee and putting on the Teens & the Law program, featuring local attorneys and attended by more than 100 teens and parents. We hosted a number of nice, social events, including Robynn's retirement party at the Brick & Bottle, the all sections mixer at Resolution Remedies, and a social with the Marin County Women Lawyer's Association and the Diversity Committee at Wellington's Bar. (The MCBA Holiday Party is still to come on December 8th at the Marin County Law Library.) We continue to publish the MCBA Newsletter, which is comprised of great articles and information, and edited by Board member Caroline Joachim, who stepped up and volunteered significant time to the effort. However, serving in the office of president sometimes comes with controversy. I spoke at a recent Judicial Council meeting, and responded on behalf of MCBA to a group critical of the Family Law Court. The criticism was not well founded and does not represent Marin County attorneys' experience with our family law bench. As with any organization, MCBA succeeds because of the dedication, unwavering commitment, and countless hours of volunteer work by members. I want to say a special thanks to the following people: (Continued on page 3) Serving the legal community of Marin since 1965 MARIN PACIFIC COMPANY.INC. General Insurance Brokers and Agents PROBATE BONDING Fourth Street Daniel C. Dufficy San Rafael, CA Gail Anne Geary Representing major surety carriers fast local service

3 (President, continued from page 2) MCBA Board Officers: President-elect Randy Wallace, Treasurer Scott Rogers, Secretary Larry Strick, and 5-year Past President Terry Mason, Past President Joel Gumbiner. Board Members: Paul Cohen, Barbara Monty, Dorothy Proudfoot, Kate Rockas, Barrett Schaefer, Philip Diamond, Michael Fish, Louis Franecke, Beverly Green, Jessica Pliner, David Brown, Aida de Valle, the Honorable Michael Dufficy, Caroline Joachim, Shelley Kramer, Patricia Medina, and Tom Brown Committee Chairs: Barbara Monty, Joel Gumbiner, Vic Obninsky, Jim Cohen, Randy Wallace, Terry Mason, Eliot Bien, Marlene Getchell, Kenneth Drexler, Steven Schoonover, Otis Bruce, Jr., Colleen Shaw, Phil Green, Jessica Pliner, Aida del Valle, and Dorothy Proudfoot. Section Chairs: Bev Green, Jessica Pliner, Nicole Cabalette, Dave Feingold, Barbara Monty, David Brown, Otis Bruce, Jr., Diana Maier, Patricia Prince, Kris Cirby, Richard Helzberg, Phillip Green, Lisa Fialco, Lisa Poncia, Tim Galusha, and Brian Pedersen. Staff: Mee Mee Wong and Kathie Gaines. Thank you for creating a great 2014 year! GREENE JORDAN & TAUBMAN, LLP Family Law Specialists is pleased to announce the addition of a new partner to the firm RODRIGO D. DIAS Effective January 1, 2015 our firm name will change to GREENE JORDAN TAUBMAN & DIAS, LLP Our address will remain the same 999 Fifth Avenue, Suite 400 San Rafael, California Telephone: (415) Facsimile: (415) MCBA Holiday Party MONDAY, DECEMBER 8, :30 to 7:30 pm Marin County Law Library, 20 N. San Pedro Road, San Rafael RSVP: or It's time to celebrate a terrific year and launch the holiday season in style. Bring your holiday mood and join us for wine, nibbles, and festive conversation at the newly renovated Marin County Law Library. Our Executive Board Members will regale you with holiday cheer as they"bar"tend your spirits, wine & beer included. Raffle! Show us your membership renewal, or renew at the party and receive a raffle ticket for a night at the movies & dinner for two. This is also the season of sharing. Please bring a can of food for the Marin County Food Bank Annual Food Drive. 3

4 WHERE DID WE COME FROM? By Randy Wallace, President elect Marin County Bar Association 2014 In order for a Bar Association to know where it is going, it needs to know where it came from. Each December presents an ending and a beginning for the Marin County Bar Association. Elizabeth will highlight her year, and something new is beginning. It is like waiting for pitchers and catchers to report for another year in the sun. Starting next month, the members of the MCBA will have an opportunity for eleven visits to the past, something completely different from all other President s messages. These eleven visits will begin in 1957 and end in Through the ears and eyes and prose of eleven past president, members will read where the Marin County Bar Association came from. Members will get this historical perspective from these past presidents: Bryan McCarthy (1957) Hon. Peter Allen Smith, ret (1964) Leonard Shaw (1973) Robert Praetzel (1974) Ann Diamond (1975) Hon. Richard H. Breiner, ret (1977) Jerry Ackeret (1979) Hon. Beverly B. Savitt ret (1981) Hon. Michael B. Dufficy, ret (1984) Hon. Verna A. Adams (1986) Wanden Treanor (1995) Some of you may not have been born when these folks served. Others may not even recognize their names, let alone know who they were as lawyers. Now you will have an opportunity to read what they have to say. And what they have to say is important to each member and to the continued existence of our Bar Association. So next month an opportunity begins. It s an opportunity to reflect on where each member came from and where each member is going. And opportunities not taken are opportunities lost. Don t miss the opportunities, folks open your newsletter and read it. PROGRAM AMBASSADOR SPONSORS Thank you to our new Silver and Bronze Level Program Ambassador Sponsors SILVER SPONSORS FindLaw BRONZE SPONSORS Brekhus Law Partners Williams & Gumbiner, LLP Strick Law Offices Law & Mediation Offices of J. Randolph Wallace Foley & Lardner LLP Volunteer Attorneys Wanted Legal Aid of Marin requests your assistance for a limited scope clinic to cover Civil Law! Holiday Clinic Monday & Tuesday, Dec. 29th & 30th, :30 a.m. to 4:30 p.m. 30 N. San Pedro Road, Suite 220 San Rafael, California Preference is a 1 or 2 day commitment (1/2 day will also help) If you are interested in volunteering for this event please respond by December 15, 2014 Please let us know your areas of expertise. Lunch will be provided Please contact Nancy Murphy at ext. 308 or via at 4

5 The Marin Lawyer You are invited to 2015 Board & Officers Installation Dinner & Gala An evening of music, celebration, and high spirits Saturday, January 10 6:00 pm Cocktails & Appetizers 7:00 pm Dinner The Clubhouse at Peacock Gap 333 Biscayne Drive, San Rafael $135 per person Dinner Menu Grass-fed Braised Short Ribs in Wine Citrus Marinated Petrale Sole with Caper Sauce Vegetarian Pumpkin & Sage Ravioli Wine Winter Green Salad Dessert Please RSVP by Dec 29: online or TABLE SPONSORS Law & Mediation Offices of J. Randolph Wallace Vasquez Estrada & Conway LLP Ragghianti Freitas LLP Greene Jordan Taubman & Dias, LLP Table & Wine Sponsorships Available, please contact Mee Mee Wong

6 The Marin Lawyer 2014 MCLE FAIR By Jessica Stuart Pliner The 2014 MCLE fair was a success. The quality of the presentations I attended was impressive. Additionally, as is not always the case at CLE classes I have attended, the content included ample educational value. It was refreshing to walk out of a CLE class with particularized information that I plan to implement to improve my legal skills. I also now have a clear roadmap to ensure that my ethical obligations are met with respect to utilizing social media. Other attendees commented on the caliber of the presentations they attended. Randy Wallace & Retired Judge Vaughn Walker Judge Walker s insights about the arguments presented in Perry v. Brown, the case about the constitutionality of Proposition 8, which was later appealed to the Supreme Court (Hollingsworth v. Perry). It was fascinating to have a firsthand account of the decisions made about intervenors, the highlights from the trial, the counsel trying the case, the arguments made and the evidence presented. The lunchtime presentations dove-tailed nicely with each other and reinforced the theme of strides in diversity. Many thanks to Marin County Women Lawyers for co-hosting the MCLE Fair with MCBA this year. The hands-on assistance was invaluable to the event s success. Michael Roosevelt, Jim Budish & Joel Gumbiner Likewise, the lunch-time presentations did not disappoint. Judge Adams and Judge Wood s accounts of their experiences demonstrating the change over time in the attitudes of the legal community towards women in the practice of law was both informative and inspiring. Importantly, their presentation prompted me to reflect about ways in which I can contribute to the encouragement of diversity in our profession in general and the people with whom I regularly interact. Chuck Hansen Wanden Treanor MCBA President-elect Randy Wallace s dialogue with Judge Vaughn Walker was captivating. It was a treat to hear 6 Amy Phelps of FindLaw

7 A SOUND BUSINESS DECISION: HIR- ING PEOPLE WITH DISABILITIES By Jessica Stuart Pliner and Lisa Newmark I work at a law firm with approximately 15 attorneys in our San Francisco office. About two and one-half years ago, our firm Jessica Stuart Pliner hired Simon Ho to work as part of our support staff. Mr. Ho is a young man with autism. When Mr. Ho started work at our firm, he had a job coach from TransCen, Inc., (transcen.org), a non-profit organization dedicated to improving educational and employment outcomes for people with disabilities. Mr. Ho s job coach often accompanies him to work, and assists in teaching Mr. Ho the required job skills. Mr. Ho works in our office four days a week for approximately ten to fifteen hours and his assistance is greatly appreciated. Some examples of Mr. Ho s duties include monitoring the office-supply inventory, stocking supplies upon receipt, ensuring that all printers and copiers are stocked with the appropriate paper, loading staplers, helping with keeping the kitchen tidy and assisting with the filing for the firm s cases by sorting all the firm s loose filing by case. Mr. Ho s support has been invaluable to our law firm. On August 5, 2014, Mr. Ho testified at the State Capitol before the California Senate s Informational Hearing by the Select Committee on Autism and Related Disorders, chaired by Senator Darrell Steinberg. The Informational Hearing focused on vocational training and employment for individuals with autism spectrum and related disorders. Mr. Ho finds his work rewarding and especially appreciates how having an income allows him to be self-sufficient. Mr. Ho is headed to Europe next week and his long-anticipated trip was funded in large part through his employment income. The link to the Informational Hearing is below. In light of the extremely positive experience my law firm has had working with Mr. Ho, I wanted to inform the MCBA members about a non-profit organization in San Rafael, called Integrated Community Services (ICS) that provides employment services for individuals with disabilities. A diverse workforce builds understanding and acceptance while advancing new perspectives. It melds a team together. People become more tolerant of others once they understand we are more similar in our needs, hopes and desires than we are different. This process of acceptance and inclusion not only makes a company (and the world) a better place, it also makes good business sense. Since 1994, ICS has forged winning partnerships between skilled workers with disabilities and communityminded companies in Marin County. ICS customized nofee employment program offers all the job development, recruitment, training and follow-up support services needed to put diversity to work in your company. And, since ICS (Continued on page 8) A. MAGGI SAUNDERS & ASSOCIATES CERTIFIED SHORTHAND REPORTERS Serving the Entire Bay Area since (office) (mobile) In a deposition, the Court Reporter is your biggest asset Lowest Per Page Rate - Delivered in One Week No Premium rates for Doctors, Expert Testimony, Evening or Weekend Depositions Free Condensed transcripts, ASCIIs, CDs, Translators, Video Depositions, Free Conference Room Member: National Court Reporters Association & SFTLA Multiple References upon request, UCLA Graduate with Honors And Mom to a talented young actor Simon Ho in front of the Capital Building. Labor & Employment, Civil Rights, Medical Malpractice, Complex Personal Injury, Construction Defect, Product Liability, Commercial Business The best court reporter always gets the last word! 7

8 (Disabilities, continued from page 7) services are funded by government agencies, the only cost to you as an employer is the wage for the employee. ICS employment services make it easy to hire very capable people with disabilities men and women who want to work and contribute to your team. ICS will act as the bridge between a skilled candidate with disabilities and your firm to ensure a successful job placement. If you have a current opening, ICS will analyze the work skills required and find a suitable candidate to match the job. For instance, if you have documents that need scanning or data that needs entering, ICS might have the perfect person for that job. ICS works with individuals with Autism and many of them enjoy tasks that are repetitive and structured. When one of ICS job seekers is hired by a company, an ICS Job Coach works with the employer to teach your new employee the basic job skills required of the position. In addition to supporting the employee, ICS helps train and educate the staff on issues related to disabilities. ICS involvement provides the guidance and internal supports required to create a successful outcome and a cohesive team. Hiring people with disabilities can improve productivity through innovative and effective ways of doing business. Matching jobs to employee abilities not only improves labor efficiencies, but is a best practice for any company. In fact, companies that employ people with disabilities have seen their commitment to diversity translate into lower costs. Positions with a high turnover rate or jobs involving repetitive tasks can be reframed around the talents and strengths of people with disabilities. One can reduce hiring and training costs by increasing retention. People with disabilities have very high retention rates and employing them can also reduce costs due to absenteeism as employees with disabilities receive the highest marks on reliability and dependability. As can be seen, hiring people with disabilities is not an act of charity, but a sound business decision for companies both large and small. If you are interested in exploring how ICS can customize positions for people with disabilities in your company, please contact Lisa Newmark at Jessica Stuart Pliner is an associate attorney at Phillips, Spallas & Angstadt, LLP in San Francisco. She practices civil litigation, volunteers at a clinic with Legal Aid of Marin and is a Director of the Marin County Bar Association. She lives in San Anselmo. Jessica can be reached at Phillips, Spallas & Angstadt, LLP, 505 Sansome Street, Sixth Floor, San Francisco, CA NONPROFIT SPOTLIGHT THE CEDARS OF MARIN, A 93- YEAR ODYSSEY For some of us, anonymity can be a positive thing providing a screen for our compassion without drawing attention to ourselves. To those less privileged it can mean invisibility and namelessness. Those involved in The Cedars of Marin recognize that one of the biggest threats to family members and friends with developmental disabilities is anonymity. The essential part of the mission at Cedars is to help each individual emerge and shine in his or her own light. Elliot Jung, a client who came to Cedars 20 years ago, lived his entire life at home with his parents. They passed away within a short time of each other and had not planned for Elliot s care. He found himself on the street, fending for himself, finding what little food he could. He became anonymous. He subsisted in the shadows and slipped through the cracks until a social worker found him and placed him at Cedars. Elliot Jung Elliot weighed less than 100 pounds when he arrived, and he never spoke. He was nourished back to health as he became engaged with the Cedars Victory Center for Arts and Communication day program. In the beginning he drew only in black and white. His work today is a riot of color and energy. Elliot remains wiry, he rarely speaks, and his smile lights up a room. His art shouts out a testimony to his flourishing spirit and vibrant creativity. He is anything but anonymous. (Continued on page 9)

9 (Cedars, continued from page 9) Cedars has come a long way since it opened back in 1919 as the first residential school for mentally retarded children in the western United States. Back then, individuals born with developmental disabilities were typically sent to live in institutions, hidden away from society with labels such as Mongoloid (now known as Down Syndrome) and Cretan (later learned to be caused by untreated hypothyroidism). Exclusion and lack of respect, value and dignity were the norm. That changed for many when Cedars opened its doors and embarked on its now 93-year journey. Operating today as The Cedars of Marin, the organization s mission is to provide adults with developmental disabilities opportunities to live creative, joyous lives. Today, the Cedars of Marin main campus has become one of the most progressive residential program models for adults with developmental disabilities in the world. Cedars operates a total of ten community-based homes dedicated to quality living for individuals with developmental disabilities. The Cedars ranch is home to the Textile Art Center, a designated building now humming with 52 active looms where individuals with developmental disabilities receive master weaver training and spend their days making some of the most beautiful and high quality hand-woven textiles to be found anywhere. Outside at the ranch, the grounds host a beautiful and highly productive organic garden where individuals learn the principles of gardening and methods of horticulture, from starting seeds and cuttings to planting, pruning and harvesting crops, and even beekeeping. Other program components include an animal husbandry program where participants engage in the care of working with animals typically associated with the production of textile fibers. Cedars Victory Center, located on the grounds of the Theological Seminary in San Anselmo, is home to studios where adults like Elliot are professionally trained in painting, drawing, beadwork, jewelry-making and sculpture. Additionally, the Community Challenges Day Program provides participants the opportunity to volunteer to fulfill community needs such as feeding the homeless, shore cleanup at Marin beaches, and grounds-keeping at the Marine Mammal Center. Cedars programs are designed to encourage entrepreneurship among adults with developmental disabilities and foster inclusion in the local community. Textiles made at TAC and art produced at the Victory Center are displayed and sold at a retail shop and gallery, Artist Within: A Cedars Collective. Fruits, vegetables and honey are sold at local farmers markets at stands also run by clients. A percentage of proceeds for all goods sold go directly to program participants, instilling the pride that naturally comes from being a working artist or entrepreneur, but also introducing this amazing population and their talents to the community. The Cedars of Marin enters its 93 rd year under the leadership of Chuck Greene, Executive Director who continues to ensure that people like Elliot have a voice and the opportunity to live creative, joyous and meaningful lives, out of the shadows and in the light. Under his leadership, the original campus has been dedicated as The Generoso Pope, Jr. Campus, and the retail store, originally called Cedarchest was remodeled. Cedars continues to create innovative programs and opportunities for business ownership for participants who sell their works and wares at local farmers markets. Today, Cedars serves 105 clients in residence and more than 165 in day programs. Just about anyone who visits Cedars walks away eager to become part of the Cedars family. If you would like to tour one of Marin s most diverse and cutting edge communities, please contact Chuck Greene at or For more information about the Cedars, please visit Drunk Driving and DMV Matters Paul Burglin MItChell, hedin, BreIner, ehlenbach & BUrglIn Courthouse Square 1000 Fourth St., Suite 570 San rafael, Ca (415) Author: Calif. Drunk Driving Law A-V Rated - Martindale Hubbell TM Board Certified in DUI Defense 9

10 10 THE CASE OF THE CHARACTER CONUNDRUM Elizabeth J. Rest 2014 Even those without a passing familiarity of intellectual property law generally understand that if an author writes a book, a playwright composes a play, or a screenwriter pens a movie script, then that individual owns rights in that creative work. But, understanding whether that protection extends to the specific scenes or characters in a work can be challenging. Often, a character is the most important part of a story; imagine Superman without Superman, or the Harry Potter series without Harry Potter. Character protection has been challenged on several fronts in recent months, and artists are looking for alternative methods of protecting their beloved fictional creations. An important, but often misunderstood, legal doctrine of copyright law is that copyright protects only the expression of an idea, and not the idea itself. This is referred to as the idea expression dichotomy. For example, if an artist paints a landscape of the Golden Gate Bridge, he does not have the right to stop all others from painting the same landscape; that is merely an idea. However, he can stop others from copying the artistic expression that is captured in his painting of the Golden Gate Bridge. Likewise, if a scriptwriter pens a television series that centers on a detective solving crime, that does not prevent others from creating detective shows. The idea of a detective story, and the character of a detective in such a series, is an unprotectable idea. Similarly, while Disney cannot own the copyright to a mouse design, as that is an idea, it has rights to the Mickey Mouse character, which is Disney s expression of a mouse. A related doctrine is referred to as scène à faire, which refers to the rule that there are certain elements or scenes in every creative work that are basically obligatory for a particular genre. Such elements of a creative work will not be protected when they are mandated by or customary to the genre. For example, let s say I write a Christmas story set in the North Pole, with elves making toys for a jolly fat man with red cheeks and a hearty laugh; I am not infringing on the countless other stories that contain those elements, because those elements are essentially mandatory in a story about Santa Claus. Similarly, if I make a western movie set in the wilderness of the American frontier that includes a small, dusty town with a jail and saloon, men riding horses wearing boots with spurs and carrying guns, I am not infringing on the many westerns already in existence. These elements are scène à faire, and therefore are not owned by anyone. Thus, the idea expression dichotomy and the scène à faire doctrine serve as limitations on copyright protection. Accordingly, while the text or dialogue in a particular scene will be protected by copyright, individual scenes may not be separately protectable apart from the work as a whole. Whether a character will be considered simply an idea, or part of the scène à faire, will depend on how complete the character is. The more vague a character, the less likely it is to qualify for copyright protection. Another limitation on copyright is that protection does not last forever. The last amendment to the Copyright Act, the Copyright Term Extension Act of 1998 ( CTEA ), extended copyright terms in the United States. Since the Copyright Act of 1976, copyright would last for the life of the author plus 50 years, or 75 years for a work of corporate authorship. The Act extended these terms to life of the author plus 70 years, and for works of corporate authorship to 120 years after creation or 95 years after publication, whichever is shorter. Copyright protection for works published prior to January 1, 1978, was increased by 20 years to a total of 95 years from their publication date. The Walt Disney Company lobbied extensively on behalf of the CTEA, leading many to derisively refer to it as the Mickey Mouse Protection Act, because it delayed the entry of the earliest Mickey Mouse movies into the public domain. Even with this extension, the original Mickey Mouse films, including elements of the character of Mickey itself, will become public domain works in 2023, and most of those in the intellectual property profession expect Disney to start lobbying for further extension of the Act soon. It is important to understand that the CTEA was not retroactive, and those fictional characters that were already in the public domain as of the adoption of the Act remain in the public domain. For instance, the fictional character of Santa Claus is in the public domain and anyone can write a book, paint a picture, make a movie, or otherwise use Santa in a creative work without risk of infringing on a character copyright. This does not mean an author can copy another s creative expression of a Santa Claus story; but the idea, the scène à faire of a Santa story, and the character itself are fair game. Often, a character such as Harry Potter appears in a series of stories. Readers of the novels, or viewers of the (Continued on page 11)

11 (Character Conundrum continued from page 10) films, know that Harry s character evolved over the course of the series, and was not fully-developed until the series finale. Each book, and each film, is a separately copyrightable work and is protected accordingly. However, for the characters that appear in each of the installments, the question arises: At what point does copyright protection of Harry s character, as well as the other recurring characters, begin and end? This question was recently addressed with regard to the character of Sherlock Holmes. In a Seventh Circuit case, the author of an anthology about Sherlock Holmes, which consists of stories inspired by the famous works of Sir Arthur Conan Doyle, challenged the Doyle estate s demand for a licensing fee to use the characters of Holmes and Dr. Watson. Doyle published his first Sherlock Holmes story in 1887 and his last in 1927, 56 stories in all, plus four novels. The Doyle estate conceded that 46 of the stories, and the four novels, have all fallen into the public domain. Even with the enactment of the CTEA, all works published in the United States before January 1, 1923, are in the public domain. Thus, the estate has copyright protection only for the final ten stories that were published between 1923 and The estate argued that until the final story was written the characters were not fully developed, and therefore the characters should remain protected until all of Doyle s works fall into the public domain. The estate further argued that to hold otherwise would discourage creativity because it may take a long time for an author to perfect a character, and if that author loses copyright in the original character there will be no incentive to improve upon or evolve the character. The Court was not persuaded, and held that subsequent creative works involving the same characters as earlier works are derivative works of the original, and when the original story falls into the public domain, story elements, including characters, become fair game, and only original elements added in the later stories remain protected. For instance, in one of the later Holmes stories, readers learn that Holmes s attitude toward dogs has changed he has grown to like them. Because that detail is contained in a story that remains protected by copyright, if the author of the anthology were to write a Sherlock Holmes story in which Holmes liked dogs, this could be an infringement of the Holmes character copyright. But, the growth of a character, and any alterations to that character, do not revive the expired copyrights in the original stories, or in the characters they contain. With term and other limitations on copyright, authors are turning to alternative methods of protecting the fictional characters they create, such as trademark law. The primary The Marin Lawyer purpose of trademark law is to identify the source of goods or services. To maintain trademark protection, however, the owner must actually use the mark in U.S. Commerce to identify the provider of particular goods or services. Because the Doyle estate had not used the Sherlock Holmes or Dr. Watson characters as trademarks, the estate was not able to rely on trademark law to protect the characters. However, Disney, which as noted above risks losing rights to elements of the Mickey Mouse character in the next decade, has quite effectively used Mickey Mouse as a trademark to identify Disney as the source of everything from theme parks and major motion pictures to pencils and coffee mugs. There is little doubt that Disney has used Mickey Mouse as a trademark. Recently, based on its trademark rights in the silhouette of Mickey s head, Disney has opposed very popular electronic music DJ Deadmau5 s (pronounced dead mouse ). Joel Zimmerman s effort to register the trademark in the design of the mau5head that he wears at all of his shows, puts on all of his merchandise, and which generally identifies him in the entertainment industry. Deadmau5 has created a fictional character that identifies his goods and services, and for over ten years has extensively used the design as a trademark throughout the world with no objection from Disney. Deadmau5 has registered trademarks for the design in several countries, but only recently applied for federal trademark registration in the U.S. for the following mau5head logo mark: Disney challenged Deadmau5 s application, and argues that consumers are likely to be confused as to the source of Deadmau5 s goods and services. Disney argues that consumers will see Deadmau5 s mark and think that the entertainment services or products sold bearing the mark are related to, sponsored by, affiliated with, or otherwise authorized by Disney, when they are not. As both a Disney and a Deadmau5 fan, I personally would not be confused. But, the 13-factor test for trademark infringement will look at factors such as the similarity of the goods and services offered under both marks (many of which overlap), the target audience (arguably, children for Disney, adults for Deadmau5), as well as the channels of trade for the goods and services offered in connection with the competing marks. Furthermore, for famous marks, and likely the Mickey Mouse character silhouette qualifies, an extra level of protection is granted (Continued on page 12) 11

12 (Character Conundrum continued from page 11) to prevent against dilution of the mark, even if consumers are not confused. Disney is likely to claim that Deadmau5 s use of the mau5shead design will dilute the uniqueness of its Mickey Mouse mark. The litigation is likely to be fact-based, and intellectual property practitioners, as well as Disney and Deadmau5 fans, will be watching this character design challenge closely. With recent challenges such as these to intellectual property protection of characters, artists and authors are struggling to find ways to protect their creations. Although it may seem surprising to know that Sherlock Holmes or at least most of the character s attributes are now in the public domain, Article I, Section 8, Clause 8 of the United States Constitution, known as the Copyright Clause, empowers the United States Congress to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries. The Founding Fathers intended copyright protection to be for a limited time in order to encourage and inspire others to create new works. While it may be tempting to accept the Doyle estate s argument that until the final story was written the characters of Holmes and Dr. Watson were not fully developed, if each new creative work containing a character renewed the copyright protection in that character, a copyright holder could actually own a copyright in a character forever by simply continuing to release new works containing the character. This would create a perpetual copyright, which would violate the U.S. Constitution, and discourage the development of new creative works. Trademarks, however, are not limited in term by the Constitution, and can last forever if they continue to be used in commerce. This is why many creators are turning to trademark law to try and protect their fictional characters in perpetuity, or at least those attributes that are protectable. Limits on trademark protection, however, make protection of characters in this way challenging for many artists. Even given the character-driven stories (e.g., Harry Potter), movies (e.g., Forrest Gump), television shows (e.g., The Big Bang Theory), and plays (e.g., Wicked) that permeate society today, there are many characters that are not well-suited for trademark use. It would be unfeasible and undesirable to use every character in every fictional work to identify the source of goods or services; ponder Hannibal Lecter chili, a Dexter knife set, or a Forrest Gump toothbrush. Perhaps it is for the best that many of our beloved characters will simply inhabit their fictional worlds, amply and fairly protected under the copyright laws. Encouraging new creative expression is a noble endeavor, and one which requires that works not remain protected in perpetuity. That protected works fall into the public domain is just as important to society as it is that we protect them until that point. Although it feels a bit sad that the characters of Sherlock Holmes and Dr. Watson are now in the public domain, if it inspires a new author to create new works with these beloved characters, the purpose of the copyright laws will have been served. Further, if a character is not used as a trademark, it should not be granted the robust protections of federal trademark law. Disputes regarding character trademarks should be limited to the tenets of trademark infringement, namely, whether consumers are confused as to the source of the goods or services. If consumers are not likely to be confused, characters should be able to be freely used as marks, without conflating the idea of perpetual trademark protection with the creative expression of a copyright. While the case of the character conundrum remains unsolved, recent challenges, such as those to the characters of Sherlock Holmes and Deadmau5, are helping to unravel the mystery. Elizabeth J. Rest is an attorney at Hiaring + Smith in San Rafael. Elizabeth s practice is focused on representing clients in domestic and international trademark prosecution and enforcement, copyright, entertainment, rights of publicity, domain name disputes, business entity formation and maintenance, and the licensing of intellectual property. Elizabeth is Secretary of the State Bar of California Intellectual Property Law Section Executive Committee, and serves as the Immediate Past Chair of the Entertainment and Sports Law Interest Group of the California Bar s IP Section. Elizabeth is also a member of the American Bar Association s section on Intellectual Property, and its Forum Committee on the Entertainment and Sports Industries, the Bar Association of San Francisco, and the Marin County Bar. To contact Elizabeth: The Bay Area s Premier Reporting Service Capturing your words with caring hands Complimentary Conference Rooms Document Depository Livenote/E-Transcript Videoconferencing 117 Paul Drive, Suite A San Rafael, CA Fax

13 THE FULL CREDIT BID AVOIDING (EXPENSIVE) UNINTENDED CONSEQUENCES By Scott D. Rogers and Theodore K. Klaassen* 2014 Scott D. Rogers Foreclosing real estate lenders are often surprised to learn that their full credit bid at a trustee s foreclosure sale has had expensive unintended consequences. In the recent California case of Najah v. Scottsdale Insurance Company, 230 Cal. App.4 th 125 (2014), a full credit bid prevented the lender from recovering insurance proceeds for pre-foreclosure damage to the security property. To avoid this and other unintended consequences, lenders are well- Theodore K. Klaassen advised to understand the legal import of a full credit bid and to develop a comprehensive bid strategy in advance of the trustee s sale. Under California law, a foreclosing lender is permitted to credit bid at the foreclosure sale any amount due to the lender with respect to the defaulted loan. This avoids the inconvenience of a foreclosing lender having to pay cash at the foreclosure sale only to have the money delivered back to the lender. The amount credit bid is treated the same as if the lender had bid and paid cash. A full credit bid occurs when a lender credit bids the sum of all amounts owed to the lender at the time of sale, typically including all unpaid principal, accrued interest, late charges, advances, foreclosure costs, legal fees and other sums due. As the amount credit bid is treated the same as cash, when a foreclosing lender obtains title as the result of a full credit bid, the indebtedness to the lender is generally deemed to have been paid in full the full credit bid rule. In the Najah case, Najah and Akhavain (together, Najah) sold a commercial property to Orange Crest Realty Corporation (Orange Crest) taking back a second deed of trust to secure $2,550,000 of the purchase price. After Orange Crest defaulted under both deeds of trust, Najah purchased the senior debt and deed of trust, presumably to avoid having their second deed of trust wiped out if the first lienholder foreclosed. Najah then instituted foreclosure proceedings under the second deed of trust and reacquired title to the property by making a full credit bid of the amounts owed under the second deed of trust ($2,878,000) at the trustee s sale. After getting the property back through the trustee s sale, Najah brought suit against Scottsdale Insurance Company (Scottsdale) to collect under a commercial general liability insurance policy issued to Orange Crest covering the property and naming both the senior lender and Najah as insured mortgage holders. Prior to the foreclosure sale, the property had been vandalized and many of its fixtures removed by the principal owner of Orange Crest. The estimated cost to repair the property exceeded $500,000, which Najah hoped to recover from Scottsdale. When Scottsdale would not pay Najah s claim, Najah sued, and the trial court ruled in favor of Scottsdale and denied Najah any recovery. Najah appealed, and the appellate court affirmed the trial court s judgment in favor of Scottsdale. The appellate court held that Najah s full credit bid at the foreclosure sale under the second deed of trust precluded Najah from making a claim on the proceeds of the Scottsdale insurance policy. The appellate court found that the amount payable to Najah under the insurance policy was limited to the amount necessary to satisfy the debt and that because the debt was fully satisfied through the full credit bid, Najah had no further claim on any insurance proceeds. According to the appellate court, the purpose of requiring the trustee s sale to be a public auction is to resolve the question of value of the foreclosed property through competitive bidding at a public sale. This gives any member of the public an opportunity to participate in setting the value for the property. This public value setting provides some degree of market protection (and transparency) for those who may be financially impacted by the value of the foreclosed property. As the appellate court stated: A lender who intends to later claim that the value of the property was impaired due to waste, fraud, or insured damage, but nonetheless makes a full credit bid, interferes with that [public value setting] process by impeding bids from third parties willing to pay some amount between the value the lender places on the property and the amount of its full credit bid. The appeals court noted that a lienholder could readily preserve its right to insurance proceeds by bidding less than the total of all of secured amounts. Lenders must understand when credit bidding that, although they are not paying cash, they are taking part in a market to establish property value, and full credit bids are seen by the courts as potentially impeding that market. In this case, the appeals court stated that the effect of appellants [Najah s] bidding the full amount of their second lien, notwithstanding their belief that the property was worth less (Continued on page 14) 13

14 (The Full Credit Bid, continued from page 13) than the combined amount of their first and second liens, was to block other interested parties from participating in setting the price for the property, and preventing the property from going to the party that placed the highest actual value on it. The appellate court summarized its approach saying a lender who makes a full credit bid despite believing the value of the property to be impaired subverts the integrity of the foreclosure auction at the expense of the insurer or any other party whom the lender intends to pursue through legal action post-foreclosure. In the court s view, having deprived Scottsdale of the benefit of a true public auction, Najah should not be entitled to pursue insurance proceeds in an amount between what Najah freely paid to obtain the property and the amount Najah now claims the property to be worth. Giving effect to the full credit bid made by the lender, the appellate court concluded that the value of the property established by Najah s credit bid was $4,627,000 (the $2,878,000 bid by Najah at the trustee s sale and the $1,749,000 paid by Najah to buy the senior lien). Consequently, as the value of the property obtained by Najah at the trustee s sale was equal to the sum of all amounts owed to Najah, the court determined that the indebtedness owed to Najah had been fully satisfied and that Najah had no claim to any potential insurance proceeds because such proceeds would be a double recovery for Najah. No doubt Najah was surprised and dismayed with the outcome of this case. At the time of the trustee s sale, Najah believed the property to be worth far less than the combined amount of both loans due, at least in part, to the property damage caused by Orange Crest. Had Najah thought through his foreclosure bid strategy, he could easily have credit bid a much lower amount to leave outstanding sufficient indebtedness to allow for recovery under the Scottsdale insurance policy. Although the facts in Najah v. Scottsdale are relatively uncommon, the application of the full credit bid rule has very broad implications for lenders in planning their foreclosure bid strategies. The full credit bid rule has also been applied to prevent foreclosing lenders from later pursuing claims for foreclosure of additional collateral, bad faith waste, rents held by a receiver, fraud, mortgage bond proceeds and negligence. A full credit bid can also be risky to the lender should the computation of the full credit bid amount be erroneously high for any reason. This can easily occur where there is uncertainty in the calculation of variable and/or default rate interest due, imposition of late charges, recovery of attorneys fees and other enforcement costs, reimbursement of protective advances, etc. In the event that the credit bid made by the lender is subsequently determined to have 14 exceeded the full amount of the indebtedness, the lender runs the risk of being required to come out of pocket to pay the excess to junior lienholders or even to the borrower. Due to the potential loss of additional recovery rights and exposure for payment of overbid amounts, lenders should very carefully plan the amount of their bid(s) at trustee s sales. Even in circumstances where the value of the security property is thought to equal or exceed the unpaid obligations, it is generally advisable to avoid a full credit bid to preserve potential claims against other security, to allow for recovery under insurance policies or against third parties and to avoid exposure from an inadvertent overbid. Once again our mothers had it right, an ounce of prevention is worth a pound of cure. * Scott Rogers is a partner in the Palo Alto office of Rutan & Tucker, LLP where he specializes in real estate finance, equity and lease transactions, title insurance and real estate litigation. He is the former Chair of the Real Property Section of the State Bar of California. Scott obtained both a J.D. and M.B.A. from UCLA. * Ted Klaassen is senior counsel in the Palo Alto office of Rutan & Tucker, LLP where he represents developer, investor, corporate, and institutional clients in a broad spectrum of real estate transactional and litigation matters. Ted earned his journalism degree from the University of Missouri and his law degree from the University of Southern California. To increase sales, announce a new partner or advertise a new business: place your ad in The Marin Lawyer Contact Pat Stone Phone: (707)

15 SIGN UP NOW TO SERVE ON AN MCBA STANDING COMMITTEE To: Members of the Marin County Bar Association From: President-Elect Randy Wallace Re: 2015 Standing Committees Each year your Marin County Bar Association seeks members to serve on its standing committees. Committees cover all types of activities such as innovating new legal education opportunities for members, liaisons to the Marin Bench, overseeing client fee arbitrations, monitoring and commenting on new legislation, creating community service and outreach opportunities for members, and many other functions of the MCBA. Members who participate in committees meet and work with other members, make professional connections, network and provide a valuable service to the Bar, Bench and the public. Committee functions are described at Exhibit A of the MCBA Bylaws: pdf Current committee members are found at The President appoints the chairperson of each Committee for a one-year term and the committee members for three-year terms. Please give serious consideration to volunteering your time this year to chair or serve on a committee. Just mark up to three committees on this sheet in your order of preference. If you have no preference, but are willing to serve, please so state. Committee appointments will be made in January Please return this form to MCBA no later than December 20, 2014 by mail to 101 Lucas Valley Road, Ste. 326, San Rafael, CA 94903; by FAX (415) ; or by If you have any comments or suggestions regarding Bar activities, please contact me personally or use the comment lines below. I thank all our members for their continued support and service. Name: Bylaws Client Relations Ethics Judicial Fairness Legislation MCBA Legal Education Scholarship Pro Bono Committee Bench Bar and the Administration of Justice Continuing Legal Education Judicial Evaluation Lawyer Referral Service Law Library Membership & Member Benefits Program Public Outreach Comments: 15

16 CALENDAR OF EVENTS DETAILS Mon Dec 8, :30 7:30 pm MCBA HOLIDAY PARTY Marin County Law Library Reception Hall San Rafael Please bring a can of food for Food Bank Holiday Drive RSVP: Sat Jan 10, :00 10:00 pm 2015 Board Installation Dinner & Gala Peacock Gap Country Club, San Rafael $135 per person, includes dinner & wine $1,500 table sponsorships RSVP by Dec 30 Invitations by mail soon place an ad in The Marin County Bar Association 2014 Member Directory Full page $1000 1/2 page $500 1/4 Page $250 The MCBA directory sits on the desk of every member of the bar association. Place your ad today! contact Pat Stone, Phone: (707) NEW MEMBERS Kevin Kaaha 1144 Carlos Privada Mountain View CA Kristie Morris 269 Butterfield Road San Anselmo CA Kassra Nassiri 47 Kearny Street San Francisco CA Douglas Powell 37 Cottonwood Dr San Rafael CA Nicole Ryan 1315 Nye Street San Rafael CA Judith Teichman 2558 Clay St. #1 San Francisco CA Legal Videos, LLC Serving Marin and the Bay Area since 1988 Legal Videos, LLC 4340 Redwood Highway F #150 San Rafael, CA F Digital Trial Services Trial Preparation Courtroom Equipment Trial Presentations We can help display your Exhibits, Audio & Video Call for a free trial consultation today Complimentary Deposition / Conference Suites with Free refreshments when using our services Serving Deposition / Conference Marin Suites County also available & for the Rent San Francisco Bay Area since 1988 Lots of easy parking & right off of Highway Redwood Highway, F #150, San Rafael, CA

17 David Hellman Marin Bar ad 2008 THE MARKETPLACE Fee to advertise in Marketplace: $40/month for up to 25 words, each additional word at $1/word. Please your text ad to Make payment to MCBA, 101 Lucas Valley Rd., San Rafael CA Deadline: 15th of each month. PRIVATE WINDOW OFFICE + WORKSTATION in attractively designed suite located next to Civic Center. Shared amenities in law firm with friendly, professional atmosphere. Rent negotiable. Please contact Caroline (415) Use the 1031 Exchange Intermediary Other Intermediaries Call for Advice! David Hellman, 1031 Exchange Expert at MARIN COUNTY EXCHANGE CORPORATION A Qualified Intermediary Providing Real Estate Exchange Services and Expertise with over 3,000 Exchanges facilitated since David M. Hellman, President TEL: (415) Attorney & CPA FAX: (415) Deadline for submission of articles, ads, inserts, and announcements is the 15th of each month. CORRECTION TO NOVEMBER MARIN LAWYER Congratulations to Rodrigo Dias who should have been included in list of 2015 MCBA Board of Directors We apologize and regret the omission. Bay Area Attorney Appearance Service Marin, Alameda, San Francisco, Solana, Sonoma, Napa, Contra Costa Appearances by local San Rafael attorney with 19 years of experience $75 flat rate for standard appearances in Marin County (slightly higher fees for other counties) Discount on multiple cases (same day/same court) Orders accepted up to 5:00 pm the day before at no additional cost Additional services available at reasonable hourly rates Edward Villanueva, Esq. Tel: Fax: PLACE YOUR AD HERE Super Business Card Ad Only $70 per month with a 6 month contract. Call Pat Stone (707) for more information The Marin County Bar A s s o c i a t i o n MISSION STATEMENT OF THE MARIN COUNTY BAR ASSOCIATION To involve, encourage, and support bar association members, to serve as a liaison to the Marin County courts, and to educate the community and enhance access to legal services. Marin County Bar Association 101 Lucas Valley Road, Suite 326, San Rafael, CA published by The Marin County Bar Association Fax MCBA Officers Elizabeth Brekhus President Randy Wallace President Elect Scott Rogers Treasurer Lawrence A. Strick Secretary Joel Gumbiner Past President Terrell Mason 5 Year Past President Board of Directors Thomas S. Brown Paul S. Cohen Philip R. Diamond Judge Michael Dufficy Michael J. Fish Louis S. Franecke Beverly R. Green Caroline Joachim Shelley Kramer Patricia Medina Barbara S. Monty Jessica Stuart Pliner Dorothy Chou Proudfoot Kate Rockas Barrett R. P. Schaefer Executive Director Production Advertising Mee Mee Wong Express Printing Pat Stone MCBA encourages submission of articles that may interest the legal community. Letters to the Editor are also welcome and may be published if space permits. Submissions will not be returned. The Editor reserves the right to publish, decline to publish, edit or otherwise modify any submission. Editorial material should be sent to the Marin County Bar Association at the above address. 17

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