Reardon Anderson - June 2021

Reardon Anderson - June 2021

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June 2021

UNIVERSAL VS. NINTENDO

HOW PAST LAWSUITS BECAME UNIVERSAL'S DOWNFALL

During the mid-1970s and ’80s, video games became a booming industry as arcades grew in popularity, especially in America. This led the Japanese company Nintendo — historically a small card and toy company — to begin dabbling in video games. One of their very first hits was "Donkey Kong," released in 1981. It was their first big effort to break into Western markets, and it was a huge success! (Fun fact: It’s also the first Nintendo game to feature Mario, the most recognizable Nintendo character today.) Nintendo’s new international fame didn’t go unnoticed. In 1982, Sid Sheinberg, the president of MCA and Universal City Studios and an experienced attorney, wanted to jump into the arcade market. He saw the success of Nintendo's "Donkey Kong" video game and realized it was both an obstacle (it would dilute the effect of using Universal’s own “King Kong” characters in a video game) and an opportunity. In looking to continually serve our clients, Reardon Anderson is gauging interest in monthly webinars to explain issues impacting individuals and businesses in 2021 and beyond. If you think this would be an added value, please let us know your thoughts by emailing [email protected] . Thank you so much for your support!

He directed one of his vice presidents, Robert Hadl, to investigate. Hadl determined that the "Donkey Kong’s" storyline was based on “King Kong” and, thus, was an infringement of Universal’s copyrights. Sheinberg took action by sending a “cease and desist” letter to both Nintendo and Coleco, a producer of home video game consoles, giving them 48 hours to cease marketing "Donkey Kong," dispose of all "Donkey Kong" inventory, and hand over all records of profits made from the game. Coleco caved, and agreed to pay Universal royalties based on "Donkey Kong’s" net sales price, which were worth about $4.6 million. However, while Nintendo was initially inclined to settle for $5–$7 million, Nintendo’s attorney, Howard Lincoln, decided to fight it. He took the lawsuit as a “sign that Nintendo has made it big.” On June 29, 1982, Universal officially sued Nintendo. Lincoln hired John Kirby — who’d won other big cases for PepsiCo, General Foods, and Warner-Lambert — to represent Nintendo in court. Kirby researched the game’s development, taking depositions from Nintendo designer Shigeru Miyamoto, who claimed that he’d called the ape character "King Kong" at first, but it was a generic term in Japan for any large ape. In his argument, Kirby showed key differences between "Donkey Kong" and "King Kong," and alleged that Universal had no rights to the "King Kong" character to begin with. He pointed out that Universal had successfully sued RKO Pictures in 1975, wherein they

proved that the plot of "King Kong" was in the public domain, opening the way for the Dino De Laurentiis’s “King Kong” remake in 1976. Judge Robert W. Sweet ruled against Universal and chastised them: “Throughout this litigation, Universal knew, as a result of the RKO litigation, that it had no rights to any visual image of King Kong from the classic movie or its remake. Nonetheless, Universal, when it seemed beneficial, made sweeping assertions of rights, attempting to extract license agreements from companies incapable of or unwilling to confront Universal's ‘profit center.’” He ruled that Universal didn’t own “King Kong” — and even if they did, "Donkey Kong" was a parody that couldn’t be mistaken for "King Kong." Nintendo was awarded licensing profits from Universal of $56,689.41, plus damages and attorney’s fees. Today, Nintendo’s games remain some of the best in the industry. Had Nintendo not decided to fight this iconic legal battle — they could’ve paid millions more than Coleco and possibly lost some of their foothold in the American gaming industry. For Universal, it just goes to show that past lawsuits can haunt you well beyond their grave.

–The Reardon Anderson Firm

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Is Social Media Advertising a Good Fit for Your Brand? In 2021, everyone’s social and commercial experience is connected virtually. That’s why social media has become an invaluable tool for companies to set up new “store fronts” in busy “avenues” that customers frequent, such as with Facebook ads on a local Facebook newsfeed. Here’s what you need to know to get started for your brand. FACEBOOK (2.8 BILLION MONTHLY ACTIVE USERS) Pros: Facebook Ads are self-service and very affordable — you can spend as much or as little as you’d like, according to your budget. You can also micro-target consumers, adjusting your ads’ exposure to demographic information like age, gender, location, and language, or even detailed interests or behavior. You can retarget people who interact with your ad or even design a “lookalike” audience with current valued customers so Facebook can try to replicate those results. Cons: Facebook’s Newsfeed algorithm is always changing, and you may experience less organic reach. Reaching your audience may eventually require more and more ad spending, and less attention to organic page post engagement. Also, Facebook advertising requires constant monitoring, ad refreshes, and video and mobile optimization to give your business the best shot at success, making it reliant on your creativity and attention. INSTAGRAM (1 BILLION MONTHLY ACTIVE USERS) Pros: High-quality photos and videos are key to grabbing attention and promoting positive brand awareness. If you have an attractive product that serves a very specific type of audience, you’ll love Instagram’s hyper-focused targeting capabilities. Instagram is very effective for e-commerce and allows you to group products together. Also, Instagram has higher engagement rates — over 10 times higher than Facebook, 54 times higher than Pinterest, and 84 times higher than Twitter. Cons: About 90% of users are younger than 35. This could be a “pro” for your business! But it does limit your available audience. Also, text-heavy images or lengthy copy won’t do well on Instagram, while requiring a lot of time and effort to maintain your following. LINKEDIN (260 MILLION MONTHLY ACTIVE USERS) Pros: If you’re B2B, marketing on LinkedIn will be one of the most attractive options for you. Not only will you get higher quality leads by marketing directly to top decision-makers, but, like with Facebook, you’ll be able to specifically target your ads based on salary, job title, employer, and company size. It’s also self-serve and you’ll be able to utilize text ads, display ads, lead-generation forms, and video ads. Cons: Compared to other platforms, LinkedIn is more expensive and is generally considered more difficult to use. You won’t find as many educational resources about LinkedIn marketing as you will Facebook marketing.

LEGALLY SPEAKING, WHAT IS CENSORSHIP?

The First Amendment has been the centerpiece of a contentious debate about what can legally be posted (and deleted) on social media like Twitter and Facebook. But before we can define “censorship,” we need to know what is defined as “free speech.” What exactly does the First Amendment say about free speech? What are the boundaries for what people can and cannot do? THE FREEDOM TO SPEAK — WITHOUT OBSCENITY OR INCITING VIOLENCE The First Amendment covers the freedom of speech, press, and religion. It’s arguably one of the most fundamental amendments in American democracy, but its interpretations can vary significantly. This is how the full First Amendment reads: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” Why is it that the Ku Klux Klan and Westboro Baptist Church have gotten into legal trouble for expressing their opinions? Their groups often promote acts of violence against another group, which violates the “peaceably” qualifier to the people’s right to assemble. However, more restrictions have come up. In Miller v. California (1973), the U.S. Supreme Court found that the First Amendment’s freedom of speech doesn’t apply to obscenity.

How does the court define obscenity? There are three things they’ll take into account:

1. Will the average person (applying contemporary “community standards”) find the work appealing to the overly sexual interests? 2. Does the work depict or describe, in an offensive way, sexual conduct or excretory functions as defined by state law? 3. Does the work, when taken as a whole, lack serious literary, artistic, political, or scientific value? Certain types of hate speech are legal, so long as they don’t incite violence and cannot be categorized as obscenity as described above. But what about more ordinary political opinions? Can those be legally censored? THE FIRST AMENDMENT’S BOUNDARY Corporate censorship and censorship by private entities are legal because the First Amendment only applies to government censorship. That’s why when Twitter bans an account or Facebook deletes a post, these actions don’t count as violations of free speech. Could that change? According to legal experts, the big question now is how to treat large social media platforms. Clay Calvert, professor of law at the Levin College of Law, asks, “Should we treat them differently and regulate them more closely? Have we reached that stage where we need antitrust litigation, perhaps, and say they have such powerful platforms, they’re like near- monopolies that we should do some trust-busting and break them up?”

Thanks for joining us! From everyone at Reardon Anderson, we hope these tips give you a hand. Happy advertising!

Would it be a good idea for the First Amendment to apply to private entities? We’ll leave that to the future debates that are sure to come.

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THE GOVERNMENT SEIZED MY PROPERTY — WHAT NOW?

WHAT HAPPENS NEXT? You’ll often be notified about the government’s intent by mail, although they may even send an agent to talk to you. Before an offer is made, they will assign an appraiser to visit the property. This person will assess its size, condition, zoning classification, location, accessibility, and current use.

Not many people find themselves in this situation, but when it does happen, it can be especially shocking. The Fifth Amendment allows the government to seize property if they compensate the land owner — but what happens then? And what if they offer a “fair” amount for compensation? WHAT IS THE ‘POWER OF EMINENT DOMAIN’?

Eminent domain entitles a government (whether federal, state, or local) to seize property if it’s for legitimate public use — typically to build new public amenities, such as airports — and they “justly compensate” the landowner. However, the U.S. Supreme Court has ruled that a government transfer of property from one private owner to another for the purpose of economic development is a “public use.”

Then, you’ll receive a copy of this appraisal. Review it carefully, because this plays a critical role in determining your compensation. Of course, you’ll still be in a good position to bargain for a higher price than initially offered, especially if you have neighbors whose homes are also needed for the project.

Ultimately, though, the best thing you can do is hire a lawyer to help you through the negotiating process. If the government comes knocking, give Reardon Anderson a call. Our team’s Land Use & Zoning expertise can help you get the highest compensation for your land possible!

This can give enough leeway for unjust dealings, but unfortunately, an eminent domain lawsuit is extremely difficult to win. Due to the complexity of these lawsuits, instead of fighting the sale itself, it may be best for property owners to invest their time in getting a fair price, as “just compensation.”

GRILLED CHICKEN SHAWARMA

INGREDIENTS

2 tbsp ground cumin

1 tsp ground black pepper

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2 tbsp ground coriander

2 tsp allspice

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2 tsp kosher salt

8 garlic cloves, minced

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1/4 tsp cayenne pepper

6 tbsp olive oil

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2 tsp turmeric

2 lbs boneless, skinless chicken thighs

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1 tsp ground ginger

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DIRECTIONS

1. To create marinade, whisk all spices with the garlic and olive oil in a medium bowl. 2. Add chicken to the bowl, coat well with marinade, cover, and let sit in the fridge for at least 20 minutes — or up to 48 hours. Strain off excess marinade before cooking. 3. Preheat grill to medium-high heat. Grill thighs for 10–12 minutes on each side, or until a meat thermometer reads 165 F.

4. Serve with rice, vegetables, or pita bread with tzatziki.

Inspired by FeastingAtHome.com

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INSIDE THIS ISSUE

1 Can Past Lawsuits Legally Haunt Future Lawsuits? 2 Pros and Cons for Social Media Platform Marketing Legally Speaking, What Is Censorship? 3 The Government Seized My Property — What Now? Grilled Chicken Shawarma 4 Superfoods Are Not So New ...

KALE, SEAWEED, AND OTHER NOT-SO-NEW SUPERFOODS

There’s nothing so trendy as a new superfood or diet, and the “in vogue” ones change constantly. Some readers may remember the Atkins diets and other fads of the early 2000s, others may not even remember a time before the paleo diet was a thing — and it’s already almost a thing of the past. Many things we associate with these trends, though, are anything but new. We see this most clearly with the grains we turn to in the name of health. Westerners generally wouldn’t be familiar with quinoa, amaranth, teff, or kamut if it weren’t for their presence in the hippest healthy-eating Instagram feeds. Many of these foods hail from Africa or the Far East, so it’s understandable we don’t know them all — but there’s nothing really new about them. People in the Americas and the Old World have eaten quinoa for 3,000–5,000 years. Teff, which is technically a grass seed, was one of the first domesticated plants, emerging thousands of years ago in what is now Ethiopia. Alternate sources of protein and fiber show a similar trend. Seaweed — the perennial favorite of Twitter dieters everywhere — has been consumed in China, Korea, and Japan since before recorded history.

If you know anything about recorded history in those regions, then you know that’s a long time! And kale, whose reputation precedes itself, has been cultivated since at least 2,000 B.C. in Greece, Asia Minor, and other parts of the Mediterranean. So, the next time you dig into your favorite health food, take a moment to Google what you are eating. You might be part of a long line of human beings who have turned to that food for sustenance over the millennia!

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