Blog!2019-05-09T23:51:08+00:00

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This is our blog, where we post stories, insights, and (hopefully) interesting content for everyone to enjoy. Alec is the primary author of all of these posts, he posts about every three weeks. If you have any questions about anything you read, please don’t hesitate to contact us for more information.

Apex Legends as a Metaphor for Life

April 3, 2019 – John Baker

We dropped into Skull Town. A tough drop for sure. Lots of teams drop in Skull Town every game. It’s one of those places that, if you come out on top you’ll be positioned for a win, but the odds are not in your favor.

Alec dropped nearby and we had a third, random teammate who dropped near Alec. Another team descended on them immediately. I don’t know if Alec even got a gun the fight hit so fast. They were down quick, their names in red on the side of my screen. I knew I had to act immediately to have any chance of reviving them.

But weapons were hard to come by, and I was under the same fire they were. I happened on a Longbow, a slow firing sniper rifle, not ideal in a close quarters gun fight.

I raced through the corridors of Skull Town heading towards the red indicators. My team was down in a small room at the end of a shortish corridor. The opposing team had come through a door opposite from the hall. As I approached the room, I saw my first opponent. He met me in the corridor.

The shots came fast and frantic. I was no-scoping my sniper rifle – range was too short for aiming down sights. I have no idea what weapon my opponent had, but it was firing fast. The corridor was filled with violence.

I did my best to strafe in the tight space, and I’m sure my opponent was doing the same. Fortunately, I was able to line up a few head shots and, in seconds, he dropped.

I raced to my teammates and started reviving, using Lifeline’s shield to protect myself and them from my opponent’s teammates.

Fast-forward two minutes, we rotated out of Skull Town, feeling strong. Seconds later we took a battle against a team entrenched behind some rocks…uphill… Game over.

It’s tempting to call this game a failure, and I suppose it was, but failure is essential to learning Apex Legends. In fact, failure is essential to learning anything, including the law and business.

Apex-Legends

Many of you know Apex Legends so I don’t want to go into a ton of detail about the game, but some explanation is necessary. In Apex Legends you and two teammates drop from an airship on a large map with 19 other teams. The object is to be the last team standing. You drop in with no equipment and no weapons. It’s a mad scramble for initial weapons and armor. Once you’ve survived the chaotic first minutes, the game slows into more of a chess match between the remaining teams.

The interesting thing about being a beginner in Apex Legends is that you’re tempted to rate your success based on your rank at the end of a game. In the game I detailed above, we probably finished like 11th overall, I don’t actually remember. We certainly didn’t “do very well.” In order to end with a high rank, some beginners attempt to avoid fights early in the game, hoping to survive till the end. But that is a fool’s errand.

Anyone who has learned Apex Legends and acquired any sort of skill in the game will tell you that the only way to improve is to drop right into the thick of things. You have to seek out fights so that you can learn how the game works. Figure out which guns you prefer, understand cover and your character’s abilities. Your rank doesn’t really matter. What matters is laying foundation for future games.

If you throw yourself into the conflict every game, you’ll have a lot of games like the one I described. Short, frantic, and perhaps a little fun. You have to lose a bunch before you start to get wins. If you avoid fights, you’ll never learn how to get the game-winning kills.

Why am I discussing this? Because Apex Legends is actually a lot like life.

You can’t really learn anything without throwing yourself into the mess and sorting it out. For example, you can’t learn how to manage the stress of trial by avoiding trials your whole career. It’s tempting for a young lawyer to fear trial and, therefore, figure out ways to avoid it. But, much like the conflict avoiding Apex player, if you’ve never handled a trial, you won’t be able to manage it when the time comes. And the time will come someday.

Young attorneys are much better off jumping right into the hard stuff. When I first started practicing law, I had the fortune of being an Assistant State’s Attorney. You simply could not avoid trial as an ASA. Impossible. But I took it a step further and created a rule for myself where I would say “yes” to every challenge offered to me. You want to handle this dead-bang loser case? Yes. You want to handle this super messy sentencing hearing? Yep. I said yes over and over again because I knew that the only way to learn was to try a bunch of cases. The outcomes mattered, of course, but not as much as the experience I was gaining through practice.

This is also true in business. I started my firm at 28-years-old. Too young, probably. But I figured it out by handling any case that would walk in the door. I took some messy ones in those early days (and I still do), but every case handled was another notch on my belt. Each one gave me more experience and more confidence.

If I had focused on my “stats” at the beginning of my career, I would have been disappointed and found my talent lacking. Frankly, it was lacking. I needed that experience to get to where I am today. The only way forward was to put my head down and work, ignoring the end results (though, most of my cases worked out just fine).

Mark Zuckerberg had a famous quote while building Facebook, “Move fast and break things.” It was their mantra. Now, I’m not claiming to be as smart as Zuckerberg (nor as wealthy), but he’s not wrong. In every pursuit in life, your best bet is to move fast, try lots of things, and fail a ton. Because through failure we learn, and we lay a foundation of experience for the future.

What is Parody?

February 1, 2019 – Alec Blalock

If you’re relatively familiar with Copyright Law you may know that one of the exceptions to infringement is parody under section 107 of the Copyright Act, which excuses works “for purposes such as criticism (or) comment.” Parody qualifies as fair use. You may think you know what parody is, but how does the legal world recognize it? It actually wasn’t until 1994 that the US officially recognized that commercial parody can qualify as fair use. The case was Campbell v. Acuff-rose Music, Inc. 510 US 569 (1994), and it revolved around a little song called Pretty Woman. You probably know the classic Roy Orbison song “Oh, Pretty Woman” from 1964. Well in 1989, rap group 2 Live Crew released the song “Pretty Woman” which parodied Orbison’s song and included the original’s well-known guitar riff. 2 Live Crew did not gain permission to use the riff or any portion of the song. The case was brought before the Supreme Court and they determined that 2 Live Crew’s song was protected work, even though it was primarily used for commercial purposes. Previously the courts held that a parody was not fair use if it copied the original work’s “heart”. However, here the court found that in order for 2 Live Crew’s parody to work, they had to use the “heart” (the guitar riff).

This still doesn’t really answer the question of what is a parody exactly. A parody under this ruling has to use parts of the original work and make a comment or criticism of the original work. In the “Pretty Woman” case 2 Live Crew’s lyrics were considerably more overtly descriptive that it made commentary on how the man in Orbison’s original was creepily hitting on a woman. However, many songs of popular parody artists like my childhood hero, Weird Al Yankovic, would not actually qualify as legally protected parody. As you may or may not know, Weird Al makes many parody songs but almost none of them actually make a commentary or criticism about the original work. However, his song “Smells Like Nirvana,” does qualify as parody since the song makes fun of the fact that Kurt Cobain was an unintelligible singer. I should probably point out that Weird Al always gets permission from the original artist before releasing a song. But what about satire? Satire is not protected because the Supreme Court distinguished it in the “Pretty Woman” case. According to the court, parody needs to mimic an original to make its point, but satire can stand on its own without the need to borrow from others. In other words, satire didn’t need to mimic an original in order to work as satire. So to sum up, to qualify as protected parody you must mimic an original work, make a commentary or criticism on the original work or creator of the work, and the work has to rely on mimicking the work in order to make its point.

I do need to make a rather important point here. Fair use like parody here, is a defense. As in in order to claim it, you need to have already been sued. If you are sued for copyright infringement and want to claim parody, you will need to prove it. So before you decide to make a parody or already have, you should always consult a lawyer.

Wait, Are Dances Copyrightable?

December 20, 2018 – Alec Blalock

You may have seen in the news that many people from music artist 2 Milly, the backpack kid dancer, and even Carlton from Fresh Prince (yes really) is suing the current biggest game in the world, Fortnite, over the use of their iconic dance moves. For those that didn’t know, Fortnite sells emotes (character animations like dance moves) that you character can do in game. This isn’t a new thing. Destiny has put in similar dances (including the Carlton) as well as other games and MMOs. The likelihood that this is happening now is that Fornite is the biggest thing right now, and they make A LOT of money off these emotes. But this begs the question, are dance moves even copyrightable? Short answer is yes, with a ton of caveats.

Now this is not to mean all dances are copyrightable. In fact, most probably aren’t. While all it takes to become copyrighted it to be an original expression fixed in some tangible form (YouTube videos count), the copyright act only covers choreography and pantomime when it comes to dancing. Ok, well then what counts as choreography and pantomime? Common elements that are found in legally defined choreography and pantomimes are:

  • Rhythmic movements in a defined sequence and defined space (like street, stage, or arena)
  • A series of dance movements or patterns organized into an integrated, coherent, and expressive compositional whole
  • A story, theme, or abstract composition conveyed through movement
  • Presented before an audience
  • Performed by skilled individuals
  • Accompanied by music or text

It’s important to note that the inclusion or absence of any one of these elements is not a determinative factor altogether.

So, does this mean that the Milly Rock, the floss, and the Carlton qualify? Maybe, but it’s quite another thing to suggest they were infringed. This is because the courts have said that choreography doesn’t extend to “social dance steps and simple routines.” This means things like ballet, the waltz, and folk dance are not protectable. Likewise, the Milly Rock, Floss, and the Carlton are likely to face a situation where the courts will say that the moves are too simple (each dance consists of simple arm movements and minimal steps) to be considered protected.

Now each case brought against Fortnite has also brought a claim of breach of their publicity rights (something California takes a bit more seriously) because the inclusion of their likeness through their dance seems to say they endorse the product. This is a much stronger claim, and I honestly couldn’t tell you how it’ll turn out. My gut tells me the artists may succeed on that claim due to the sheer vast amounts of money Fortnite is raking in off these Battle Passes, which include the emotes, but Epic, the studio behind Fortnite, has seemingly just as good of arguments in their favor. But in terms of whether the artists will succeed on their copyright claims, I would say it’s highly unlikely.

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