For the gamers among you, you might be interested in–and have probably already heard about–Super Mario Bros. Crossover, a fan-made game where players can run through the entire original Super Mario Bros. Nintendo game as Mario, or as five characters from other video game franchises: Link from the Zelda series, Mega Man from the Mega Man series, Bill R. from the Contra series, Simon Belmont from the Castlevania series, and Samus Aran from the Metroid series. Sounds like fun, right? Even the Washingon Post‘s Ezra Klein weighed in on the game.

But this isn’t a blog or a website about video games, and while my inner-child thinks that this game is a blast (as a child of the 1980s, playing through this game as other characters probably crossed my mind ten times a day), the lawyer in me saw huge red flags. In other words, given the intellectual property implications of mashing together the work of others, I wouldn’t be surprised to see the game’s creator Jay Pavlina receive some cease-and-desist letters in the mail very soon.

The problems? First, each character is a trademarked property: Mario, Link, Samus, and their respective franchises belong to Nintendo; Mega Man belongs to Capcom; and Simon Belmont, Bill F., and their respective franchises belong to Konami. Second, video games are protected under copyright. This protection, among other aspects, extends to the games’ code itself, which Super Mario Bros. Crossover likely appropriated in both its use of the original Super Mario Bros. game and each character’s individual mechanics. And third, Pavlina took great care into making this game, including details such as the music, which changes to a theme from each character’s game depending on the level and the situation. Seeing as how the advent of the Internet and file sharing has transformed the landscape of the music industry, I wouldn’t be surprised to see that Pavlina’s appropriation of this music will also be an issue should the copyright and trademark holders involved take action.

This begs the question, Does the doctrine of fair use protect Pavlina and Super Mario Bros. Crossover? Section 107 of the 1976 Copyright Act defines “fair use” as “including such use [of the works] by reproduction . . . for the purposes such as criticism, comment, news reporting, teaching . . . scholarship, or research.”  Such uses are “not an infringement of copyright.”  In order to determine whether a use is fair use, a court must consider “(1) the purpose and character of the use . . . (2) the nature of the copyrighted work . . . (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole . . . and (4) the effect of the use upon the potential market for or value of the copyrighted work.” Under these factors, and especially factor three, Super Mario Bros. Crossover fails under the fair use assessment, although it is arguable that, because Pavlina is not seeking to profit from the game, his use is fair. As Chris Kohler of Wired points out, “My advice would be to immediately start tweaking it into a parody.”

Another possible potential defense is that Super Mario Bros. Crossover is a derivative work, defined in Section 101 of the Act as “a work based upon one or more preexisting works.” Derivative works are protected, but according to Section 103(a), “protection for a work employing preexisting material in which copyright subsists does not extend to any part of the work in which such material has been used unlawfully.” Further, under 103(b), “copyright in a . . . derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material.” The copyright in the preexisting material exists separately of that in a derivative work. What this means is that the game as a whole, as put together by Pavlina, may be a protected derivative work . . . but only if the copyright in the preexisting material was lawfully used. Based on what we know, this does not seem to be the case.

Super Mario Bros. Crossover is certainly a unique game, and a very interesting product from an intellectual property standpoint. While I am a staunch believer in intellectual property rights and would not fault Nintendo, Capcom, or Konami for asserting their copyright and trademark claims, I am also a fan of creativity, and I believe that it should not be punished. If the video game companies were smart, they would recognize a clever and, quite frankly, flattering fan-made labor of love when they see one, and perhaps snap up the rights to it and offer it on the Wii Virtual Console. This would engender good-will amongst the gaming and Internet communities, and show that the video game companies are hip to what their fans consider worthy products. It would also give them good publicity.

My one question, though: whatever happened to Luigi?

Bill R. · Boston IP Lawyer · Capcom · Castlevania · Chris Kohler · Contra · copyright · Copyright Act of 1976 · derivative works · Ezra Klein · fair use · Jay Pavlina · Konami · law · Link · Luigi · Mario · Mega Man · Metroid · music · Nintendo · Samus Aran · Simon Belmont · software · Super Mario Bros. · Super Mario Bros. Crossover · The Legend of Zelda · trademark · video games · Washington Post · Wii · Wii Virtual Console · Wired · Worcester IP Lawyer

The Massachusetts Bar Association is offering free legal advice to veterans on April 29, 2010 from 5:30 – 7:30 PM.  Offered as part of the MBA’s Dial-a-Lawyer program, all veterans have to do is call (617) 338-0610.  Said MBA President, Valerie A. Yarashus,  ”Given the continued need of legal assistance for many of the 500,000 veterans residing in Massachusetts, we are pleased once again to respond to that need with this free public service.”

This is a great opportunity for any veterans out there and its a great way for us lawyers to say thanks for the service and dedication provided by all the soldiers, sailors, airmen, and Marines in this country.

free legal advice · MBA · Valerie A. Yarashus · Veterans

Much has been written about the painful and economic costs of litigation, and these costs are a fact of American life: no one wants to sue or be sued, and anyone who has is unlikely to want to repeat the experience. Over the past two decades, the legal profession has seen a rise in what is called alternative dispute resolution, or ADR. ADR generally refers to three ways of solving problems: negotiation, arbitration, and mediation.

Negotiation is just what it sounds like: the parties and their lawyers get together to hash out an agreement. Books such as Getting to Yes by Roger Fisher and William Ury of the Harvard Negotiation Project describe useful techniques to make negotiations smooth and civil, and to ensure that each party gets what they want without feeling wronged.

Arbitration refers to a process where the parties submit their grievances to a third person, an arbitrator, who makes a decision that the parties agree to be bound to. The arbitration process is commonly used in sports and union disputes.

It has been my personal observation, however, that mediation is one of the best ways for potential litigants to resolve their disputes. In mediations, the parties themselves–with or without their lawyers–discuss their problem with the aid of a mediator, an unbiased and uninterested third-party who acts as a referee. The mediator’s job is to act as a facilitator, setting the bounds of the discussion and helping the parties come to an agreement that they choose to be bound by. The mediator does not make decisions for the party, though he may make suggestions from time to time.

Some of the advantages of mediation are that it is private, voluntary, and much more cost effective than litigation. Mediators, such as Safe Harbor, Inc., are a great place to start if you are looking to resolve a legal dispute without the pains of a trial.

alternative dispute resolution · arbitration · Getting to Yes · Harvard Negotiation Project · law · mediation · negotiation · Safe Harbor

The term “employment law” is somewhat nebulous. How do you know if you need an employment lawyer?

Employment lawyers work with businesses who need help writing employee handbooks, hiring and firing employees, and navigating the complexities of statutes such as the Americans with Disabilities Act of 1990 and its Amendments Act of 2008, the Occupational Safety and Health Act, and the Civil Rights Act of 1964.

Employment Lawyers also help those employees who may have been terminated wrongfully or who may be suffering from discrimination in the workplace. This past week, the Boston Globe‘s employment blog, Job Doc, posted a letter from someone complaining of a retaliatory firing.

The best advice for anyone in business, both employers and employees, is to seek the counsel of a competent attorney-advisor.

Boston Employment Lawyer · employee · employer · employment · Job Doc · law · New Hampshire Employment Lawyer · Worcester Employment Lawyer

Are you a musician in a rock band? Are you pursuing music as a serious career? Do you have a band agreement?

Cue the sound of a record screeching to a halt.  ”What’s a band agreement?” you may be asking. You’re not the only one. As someone with experience as a musician, I can attest that a band agreement can clear up uncertainties and is an important way to head off any difficulties for you and your band down the road.

A band agreement is a contract formally embodying the band and each member’s relationship to the band and to each other. For example, many bands formally incorporate as a corporation, a limited liability corporation (LLC), or some other business entity. And that’s just the tip of the iceberg. Effective band agreements include many key terms and provisions, comprehensively detailing how the band will work. Common terms in a band agreement include the ownership of the band name and likeness; the percentages by which profits will be shared; procedures for voting on band decisions; hiring, firing, and quitting; amending the agreement; and buyouts. Additionally, band agreements may delineate the how the songwriting and publishing moneys are distributed.  I know, I know: this all sounds too formal for a free-spirited rock n’ roll band to consider, but if you are looking to make a career out of music, a band agreement is essential. You have to treat your band like a business, and a band agreement is a great way to start.

On April 20, Volunteer Lawyers for the Arts is hosting a seminar on band agreements at the offices of Goodwin Procter, located at Exchange Place, 53 State Street in Boston.  The speaker is attorney Valerie Lovely, a musician and highly experienced music attorney. All information about registration and pricing can be found here on the VLA website. And so you know, the price has been reduced from $60 per person to $30, with each additional band member paying $10 for admission. It’s a bargain, and it’s a great opportunity to learn, so check it out!

If you are in a band and are interested in learning about band agreements, I highly recommend that you speak with a music attorney and attend this seminar. Who knows, you may find out that even musicians need to learn about contract law after all!

band agreements · Boston Music Lawyer · Goodwin Procter · law · music · Valerie Lovely · Volunteer Lawyers for the Arts · Worcester Music Lawyer

As lawyers, we are required to keep abreast of new developments in the law, not just in our chosen areas of expertise, but across the field generally. This stems from both a desire to be well-rounded attorneys and from professional curiosity. However, some areas of American law touch on the lives of everyone, attorneys and non-attorneys alike. One such area is tax law.

The horror! All joking aside, tax time is a stressful time for all because none of us want to make mistakes in paying our fair share to Uncle Sam. However, as the Center for Freedom and Prosperity recently highlighted, the costs of merely complying with America’s confusing thicket of tax regulations totals 7.6 billion man hours (yes, that’s “billion” with a “b”), the equivalent of 3.8 million full-time jobs. In fact, the tax compliance business is a $340 billion per year industry. Staggering numbers, to be sure. The video explaining these costs, a part of CF&P’s “Economics 101″ project, can be seen here.

As always,  it’s best to consult professionals, whether they be lawyers, accountants, or the IRS itself, if you have any questions regarding your tax obligations. However, the hidden compliance costs in both time and money (which, oftentimes, are the same thing) are worth mulling over the next time April 15 draws near.

Center for Freedom and Prosperity · compliance · law · tax

Welcome to the Athans & Hogan, LLC legal blog.! We will be writing about interesting and vital developments in the law that pertain to our practice and our clients. Please check back often, as we will be updating this blog regularly. Thanks for visiting, and we look forward to hearing from you in our comments section.

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