Category: News Feeds

You may have seen the headlines lately, saying that famed pseudonymous street artist Banksy was being “forced” into opening up a pop up store in London in order to secure a trademark and prevent “a greetings card company” from selling “fake Banksy merchandise.” Banksy also claimed that the company was “attempting to take custody of my name.” Banksy and Banksy’s artwork are somewhat famous for protesting against commercial incentives and traditional capitalism — so many people rushed to Banksy’ defense because, from the initial description, it sounded like Hallmark or some sappy corporate giant of that nature was trying to rip off Banksy images for its own benefit.

Turns out that the story is very, very different. And it doesn’t make Banksy look very good at all once you understand the details. First, the “greeting card” company in question, Full Colour Black, has responded via a Facebook post, and you realize it’s a tiny home-based business and it’s not trying to take anyone’s name or sell fake merchandise at all. Indeed, contrary to some of the reporting, it’s not “suing” over anything. It just put forth a completely legitimate challenge to Banksy’s sketchy and probably illegitimate trademark on the “flower bomber” image (the official name of which is apparently “Rage, Flower Thrower.”)

As you know, to get a trademark, you need to show “use in commerce.” And Banksy wasn’t selling the flower bomber image — though it does appear others are selling sculptures and posters of the work that was produced (as always) in secret, in Jerusalem, in 2005. In 2014, an organization representing Banksy, with the clever name of “Pest Control Office Limited”, filed and received the registered trademark on the image.

However, since it wasn’t clear how the image could qualify as a trademark in the first place, a small three person greeting card company sought to invalidate the trademark. As Full Colour Black explains:

Loud Tie Weasels are being used to paint our tiny business as a ‘big corporate group’ and paint Banksy as the harddone-by artist. There are only three people in our small business. We don’t have high powered legal teams on three continents, we don’t have a Management teams dealing with Hollywood and we certainly don’t have highly effective PR teams. We also can’t afford to open high earning hotels with celebrity acts on the grand piano nor can we steal the thunder from Stormzy’s amazing performance at Glastonbury.

All of that is Corporate Activity. We are not corporate… we sell greetings cards from our home. It is ENTIRELY untrue that we are attempting to “take custody” of his name”. This line has been invented by his Corporate Lawyers to try and gain sympathy from you. He’s made this up!!!

As they further explain, they run a small business that does photography and sells cards involving public graffiti:

We legally photograph public graffiti and make it available to you – the public. We know that you don’t have the unlimited budgets of Angelina Jolie or Brad Pitt or Christine Aguilera. You cannot afford to buy one of his official canvases. We make cards because Banksy never makes anything available to his fans. We all love his graffiti. He doesn’t want you to have it and he’s hoping to trick you into thinking that we’re hurting his business. We’re not.

We don’t infringe his rights in any way. We don’t use his trademarks or his brand name. We make cards that feature Banksy’s Public Graffiti. It’s a legitimate enterprise.

So… that last part did make me wonder a bit — because it’s not exactly clear if the statements here are true. As we’ve noted in the past, there are significant legal questions around the copyright status of public graffiti art, with some courts coming down on the side of the graffiti artists, sometimes in ludicrous ways. And, of course, that’s resulted in more and more litigation.

But… that’s all about copyright. In reading the news coverage of all of this, I was stumped as to why were were discussing trademark at all — until I realized something kind of important. Banksy is using trademark because Banksy can’t use copyright without revealing who Banksy is. Full Colour Black’s lawyer, Aaron Wood, explains:

“We are contesting the validity of one of his EU trademarks on the basis that he has freely permitted it to be reproduced such that it no longer functions as a trademark (if it ever did), on the basis that he never intended to use it as a trademark and that he is trying to register for collateral purposes (ie, to avoid evidential issues with copyright and to avoid having to file a ‘statement of use’ in the US).”

Either way, Banksy, on the advice of “arts lawyer” Mark Stephens, seems to think that setting up a pop up shop with the (okay, absolutely brilliant) name “Gross Domestic Product”, which will exist for a few weeks but never actually open to the public (though sales will happen online), somehow will re-establish the trademark in question:

Mark Stephens, an arts lawyer and founder of the Design and Artists Copyright Society, called the case a “frankly ludicrous litigation” and is giving Banksy legal advice.

“Banksy is in a difficult position,” he said. “Because he doesn’t produce his own range of shoddy merchandise and the law is quite clear – if the trademark holder is not using the mark, then it can be transferred to someone who will.”

Except, as with much of this story coming from the Banksy side, this is absolutely misleading. There isn’t “litigation” happening at all. And this is not about “shoddy merchandise.” This is about challenging the legitimacy of what certainly looks like an illegitimate trademark. And Full Colour Black’s attorney highlights that, if anything, this shop harms Banksy’s case, because they’re not even arguing that the trademark fails for lack of use in commerce, but rather that the whole trademark is a sham to get around copyright law — and this stunt supports that argument:

“If it were a revocation case then the strategy would be ill-conceived,” he claims. “The real error, however, is that this isn’t a revocation case on the basis of non-use, so it’s a frankly pointless step which doesn’t stand up to scrutiny from anyone with a modicum of knowledge of trademark law. In fact, this has strengthened the arguments that the marks are a false attempt to monopolise his work in bad faith [and to] circumvent copyright law and trademark law. Banksy may be a subversive character but the same law applies to him.”

Indeed, as others have noted, Banksy has been increasingly aggressive about enforcing trademark claims regarding people selling works based on Bansky art — despite historically arguing against things like copyright:

Having once claimed that copyright is for losers, Banksy has been ramping up his legal position for several months now. At the end of 2018, the artist’s handling service Pest Control took action against an Italian company that organised an exhibition, The Art of Banksy—A Visual Protest, for Milan’s Mudec Museum.

In February this year, the judge ruled in favour of Banksy’s request for all merchandise bearing his name to be removed from the museum’s shop, but promotional materials using his name were allowed to remain. The judge noted that the documents filed in the proceedings showed a limited use of the Banksy brand.

The whole situation is kind of crazy when you think about it. Banksy doesn’t want to use the law that actually covers the artwork, copyright, because that would likely require an outing of whoever is behind Banksy. And, according to Banksy, “copyright is for losers.” But Banksy as a concept has become so profitable that now it’s suddenly trying to stop anyone else from making money from Banksy-related works — and appears to be abusing trademark to make that happen.

Full Colour Black, the greeting card company, notes that it’s been trying for years to send Banksy some money, but that it’s gotten nowhere:

We’ve written to Banksy, his team and his lawyers many times since 2010 to say that we want to pay royalties to him. He doesn’t want it. We believe he’s making so much money already; a couple of hundred pounds a year from us probably wouldn’t even cover the cost of his handmade shoes.

I’ll say it once again… don’t be fooled folks. He’s using weasels to paint our tiny little business as a ‘big corporate’ and paint himself as the poor artist. Look beyond his slick PR. He’s out of your league but he wants your sympathy. If you really want to support the little guy… stand by us. We’ll continue to offer you amazing graffiti and we can post it to you across the world.

This really does look like Banksy gone corporate in the worst sense — abusing trademark law for no good reason at all and (worse) lying about it and pretending that a small home-based business is a big corporate entity trying to “seize” Banksy’s name, when that’s not even close to the truth. Banksy could just confirm that copyright law (and much of trademark law) is for losers, and let this small shop sell these cards that only serve to make Banksy’s own artwork more and more valuable. The fact that all of this comes at a time when Banksy just sold a painting for $12 million, and part of the reason it’s worth that is the kind of fame driven by people photographing and sharing Banksy’s work, suggests that maybe Banksy should ditch some of the “copyright” lawyers advising Banksy, and go back to some more Banksy roots.

Banksy’s Fake Store Is An Attempt To Abuse Trademark Law To Avoid Copyright Law

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When my kids were younger, the older one used to build these Duplo towers. And then his younger brother would toddle by and knock the tower down. And then the older one would build it back up again. And the cycle would continue until one of them hit the other and the victim would come crying to me. And I’d tell them to figure it out, and eventually we’d all go to bed.

That story seems relevant to today’s news.

A federal judge in El Paso blocked Donald Trump’s construction on WALL. Previous cases have focused on Trump’s attempt to unconstitutionally usurp the appropriations power from Congress. Currently, John Roberts is letting Trump steal money, perhaps because he agrees, perhaps because he thinks the Democratic nominee will eventually beat Trump and resolve the issue for him. Who knows.

But the El Paso case is proceeding on statutory grounds, not Constitutional ones. The judge found that Trump was in violation of the National Emergencies Act, because his declaration of a national emergence is fake, and Trump admitted it was fake when he opined that he was declaring a national emergency to get WALL more quickly.

From Protect Democracy, which represented the plaintiffs in this case:

Today, a Texas federal court ruled that President Trump’s proclamation of a national emergency along the Southern border violated federal law. The court declared that the president’s proclamation is invalid because it illegally sought to override Congress’s decision to not fund further border wall construction. The court invited the plaintiffs, El Paso County, Texas, and the Border Network for Human Rights to propose terms for an injunction that would prevent the government from using funds to build border barriers that Congress specifically refused to authorize…

In this case, the plaintiffs argued that the president’s national emergency declaration exceeded his powers both under statutory law and the Constitution, and that its mere issuance injured border communities. The court based its ruling on statutory grounds and did not reach the constitutional issues. As detailed in their complaint, President Trump declared the emergency after months of failed attempts to obtain additional funding for his border wall culminated in the longest U.S. government shutdown in history. He publicly acknowledged that there was no urgency, saying “I didn’t need to do this, but I’d rather do it much faster.” The administration then moved to transfer $8.1 billion for border wall construction efforts – $6.7 billion more than the $1.375 billion approved by Congress.

When reached for comment, WALL audibly groaned a sigh of frustration from the existential plane: “No injunction can arrest my erection upon your lands. Soon, very soon, you will see your Circuit of Five cast out your puny guard rails of statutory interpretation, and cower before a mighty stay. For your President sayeth WALL is already thus, and thus WALL must be.”

It’s almost bedtime. I’m sure John Roberts will clean up the bricks in the morning.

BREAKING: Judge Will Block Trump Border Wall in New Ruling [Protect Democracy]

Elie Mystal is the Executive Editor of Above the Law and a contributor at The Nation. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.

Click here for a more extended look at Rao’s “whackadoodle” dissent in the Mazars case.

According to data collected by ALM as part of the National Law Journal 500 Women’s Scorecard, which NLJ 500 firm has the highest percentage of female equity partners?

Hint: 47.4 of the equity partnership at this firm are women.

See the answer on the next page.

You’ve found the perfect blackout curtains on Amazon, recommended specifically for overworked and late-sleeping New York associates, vampires, and Alaskans. They’re inexpensive and ship via Prime, but then you notice a wisp of yellow out of the corner of your eye that spells doom for your purchase: 3.5 stars. You click out of the product and start the cycle anew, maybe using the star filter this time. As technology has burgeoned over the last 20 years, anonymous or unknown reviewers have become more and more relied upon to shape our judgment in all aspects of our life. The idea of rating something is nothing new, but the proliferation of technology has allowed it to spread to even the most niche sectors. Law firms are one of the industries impacted by this rise in technology. Various sites and forums are devoted to the very task or rating firms. Why might this be problematic?

1) The Raters Are Overrated. We tend to be poor judges of our experiences, especially if we have limited context or reference points. What we may see as unreasonable, may be the norm for all employers in the industry — or vice versa. Regardless, we are prone to black and white thinking. Distributions of reviews tends towards bimodal distributions of reviews at one-star and five-star reviews. Furthermore, interpersonal factors have the largest correlation between good and bad reviews. One explanation for this is that overwhelming positive or negative experiences motivate us to actually review a product or company. Research shows that the more someone reviews, the more evenly distributed their reviews tend to be. When it comes to law firms, most reviewers have only practiced at a few firms and have limited comparison points.

Moreover, what exactly are we rating? The discrete parts that make up an overall review may be composed of completely different categories based on who you ask and are more a reflection on their values. If you value work-life balance, you may give a sweltering New York litigation powerhouse a one-star review based on your unhappiness with firm’s encroachment into your personal life. Others who thrive in pressure cookers might find the firm perfectly aligns with their preferences. If we look even more granularly, we see another reason why current and former employees make for unreliable reviewers.

2) A Rose Is Not A Rose Is Not A Rose. Overall firm reviews reside in a vacuum, stripped from the individual components that are summed to generate that rating. The problem with this is that firms vary wildly from office to office, and from practice to practice. The experience of working as an associate at one firm in New York could be diametrically different to the experience of working in their San Francisco office. Even going up one floor in the same office, you may find the real estate practice to have a completely different atmosphere compared to your corporate practice. The experience is somewhat akin to college, where your grade and interest in your class largely depends on the professor teaching. Ultimately, the firm decides who to hire and sets the tone for corporate culture. As firms expand, this becomes harder to instill and police and sometimes incongruent attorneys slip in through the cracks — or the prospective bottom-line boost is enough to discount or ignore red flags. I cannot recount how many times I’ve heard: “The firm would be perfect, if only I didn’t have to work for this partner.” However, basing a lateral decision on firm personnel can lead to another complication.

3) As Constant As A Northern Star. It will come as no shock to you, that attorneys like to move around firms. The constant churn muddies the waters and can make it difficult to get an accurate read on a firm. The friend who told you not to move to her former firm because of the cantankerous rainmaker who made her life hell may be surprised to find out that the rainmaker is now on a permanent golf tour across the world. Associates tend to lateral every three years on average, while partners tend to stay a little bit longer, hanging on for five years. Since the composition of firms is changing so often, there are really only a few sources of information that can give you an unbiased and accurate view of the current market.

If you haven’t guessed it already, one is legal recruiters. We talk to thousands of people every year from attorneys to firm chairs, and have our finger constantly on the pulse of the market so that we can guide our candidates to the firm that makes aligns with all of their personal and professional needs. Using a source like Vault or the U.S. News and World Report can be tricky when assessing a prospective employer. For other industries, the resources available and corporate culture largely dictate your experience in the company. However, because law firms are more decentralized and have access to largely the same resources, your local practice bubble will largely dictate whether you have a positive or negative experience. Rather than relying on outdated information, feel free to contact me or my fellow colleagues at Lateral Link if you are interested in making a lateral move, armed with up to date and accurate information. Feel free to rate your current firm below and we’ll post the results next week and break down our observations.

Create your own user feedback survey

Ed. note: This is the latest installment in a series of posts from Lateral Link’s team of expert contributors. Michael Allen is the CEO of Lateral Link. He is based in the Los Angeles office and focuses exclusively on Partner and General Counsel placements for top firms and companies. Prior to founding Lateral Link in 2006, he worked as an attorney at both Gibson, Dunn & Crutcher LLP and Irell & Manella LLP. Michael graduated summa cum laude from the University of California, San Diego before earning his JD, cum laude, from Harvard Law School.

Lateral Link is one of the top-rated international legal recruiting firms. With over 14 offices world-wide, Lateral Link specializes in placing attorneys at the most prestigious law firms and companies in the world. Managed by former practicing attorneys from top law schools, Lateral Link has a tradition of hiring lawyers to execute the lateral leaps of practicing attorneys. Click here to find out more about us.

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It’s promotion time and White & Case welcomed 45 new partners to the firm effective in 2020. This breaks the firm’s previous record for largest class, set just last year. Another sign that White & Case is committed to its global expansion plan. Altogether, the new partners represent 13 practice areas in 21 offices.

In the United States, the firm promoted 16 attorneys, of which over half are women and five self-identify as diverse. Globally, 37 percent of the class is made up of women.

Partner promotions are one of the most underrated tea leaves to read when considering a firm’s, for lack of a better term, “health index.” What practice areas is a firm investing in? What offices are seen as growth opportunities? How well has the firm developed internal talent? From this list, it’s pretty clear that White & Case doesn’t see M&A slowing down any time soon.

Congratulations to all the new partners. You’ve finally earned the right to make unreasonable requests and make passive-aggressive jabs at junior associates that will haunt their quiet moments for years to come.

You shouldn’t do, well, any of that… but technically you’ve earned that right.

Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

[M]y initial reaction upon reading White House Counsel Pat Cipollone’s letter to the House is — adapting a line from the great legal scholar Tom Cruise (A Few Good Men) — to wonder whether the White House counsel was sick the day they taught law at law school.

Yes, it’s that bad. If one of my students made those arguments in a paper, I don’t think I could give that person a passing grade.

— Prominent libertarian legal scholar Ilya Somin, in some immediate thoughts given on Facebook after White House Counsel Pat Cipollone released his letter to Congressional Democrats, where he openly mocked the impeachment inquiry against Donald Trump, stating not only that the president could not “permit his administration to participate in this partisan inquiry under these circumstances,” but that it “lack[ed] any legitimate constitutional foundation” and violated “the Constitution, the rule of law, and every past precedent.” Somin isn’t the only prominent lawyer who found Cipollone’s letter absurd.

Staci Zaretsky is a senior editor at Above the Law, where she’s worked since 2011. She’d love to hear from you, so please feel free to email her with any tips, questions, comments, or critiques. You can follow her on Twitter or connect with her on LinkedIn.

My Law Jobs for Humans colleague and program co-chair Bill Henderson made my day not long ago. He told me, not for the first time, that a blog post I’d written early last year perfectly summarized the zeitgeist of the modern legal innovation career. “You said it in that blog post, Dan,” Bill said. Then going on, quoting my post, he said, “In fact, “uncertainty” may be the best word to sum up the challenge of pursuing a career in legal tech.”

It’s pretty cool when someone that you look up to – and someone who’s pretty smart him or herself (he was on Malcolm Gladwell’s podcast!) – glowingly quotes you back to yourself. 

But this post isn’t just an extended humble brag – at least, it isn’t from now on – my point is that this emerging landscape of law jobs is incredibly uncertain. There’s no clear entry point, no established career path, and no promises of a brass ring at the end. 

Personally, the uncertainty is precisely why I love working in this space so much. I don’t want to follow the beaten path and I get excited by new and uncharted territory. That being said, I also freak out regularly because I live and die by my wits and there’s no clear map to follow or brass ring to seek.

Enter Law Jobs for Humans. While we know we can’t instantly create career paths that have been decades, if not a century plus, in development, we can provide both examples and community.

First, precisely because we know the path is unclear and uncertain, in organizing Law Jobs for Humans, we’ve invited the most interesting and innovative career renegades to the event. It’s nearly impossible to build a freeway where not even a path has existed previously, but at Law Jobs for Humans we’re creating a space for those who have explored the unknown territory to tell us what they’ve seen and learned.

Second, we can’t eliminate the uncertainty but we can lessen the fear by limiting the loneliness. Striking out into uncharted waters can seem overwhelming but you don’t have to do it totally alone. The Law Jobs for Humans audience is made up of others exploring the frontier of the 21st century legal career – and we’re creating the space for sharing stories about those experiences and giving encouragement to fellow travelers.  

So, if you’re down to embrace the uncertainty in exchange for some amazing stories and the chance to explore uncharted territory, Law Jobs for Humans is for you.

Join us in New York City on November 15th to bridge the uncertainty gap and build a legal career for the 21st century.