Dallas Bar Association HEADNOTESHEADNOTES March 2021 | Volume 46 | Number 3 Focus | Entertainment, Art & Sports Law DBA Living Legends Program

fessionals—attorneys that do more Interview series than simply sit at their desks and will highlight Dallas bill hours, but instead, meaning- fully contribute to the profession. female attorneys Living Legends will kick off just in time for Women’s History BY CHALON CLARK Month, a time to celebrate the contributions women have made On January 20, 2021, I sat in to the United States and recognize my living room teary-eyed as I the specific achievements women watched Kamala Harris take her have made, in various fields, over oath of office as Vice President. I the course of American history. recalled when I was a little girl, and Mr. Tobin will launch the pro- I proudly announced that I wanted gram by interviewing Judge Mary to be the President of the United Murphy, a retired justice of the States. My grandmother, born in Fifth District Court of Appeals of 1919 in rural Texas and the grand- Texas, former judge of the 14th daughter of a slave, responded in Civil District Court, and former her matter-of-fact tone, “Ain’t no civil court master for the Dallas Left to Right: Rob Crain, Quentin Brogdon, Sarah Rogers, and John Spillane black and ain’t no woman ev-ah County district courts. Next, WE gon’ be President of America. You LEAD alumnae, Kandace Walter best find somethin’ else to do.” and Marifer Aceves will interview She did not intend to discourage Judge Maricela Moore, presiding Crain Brogdon Rogers LLP Contributes me, but instead, to prepare me for judge of the 162nd Judicial District the reality of life as an African- Court. American woman. She could not The goal of the program is to a Record EAJ Campaign have imagined how close America to conduct one interview each would get to changing that real- month. Mr. Tobin says the Living has held general intake clinics virtually on a BY MICHELLE ALDEN ity on Inauguration Day as Kamala Legend list is still being compiled, weekly basis since then, along with periodic Harris shattered glass ceilings of and he has just scratched the sur- In this challenging time, during the last specialized wills, driver’s license restoration, race and gender. face of the potential interview- few weeks of the 2021 Equal Access to Justice and veterans clinics. DVAP has seen a vari- This year, Dallas Bar Associa- ees list. He hopes Living Legends Campaign, the Dallas Volunteer Attorney ety of people seeking help with legal issues tion President, Aaron Tobin, has a will be a standing DBA program Program (DVAP) was fortunate to receive tied to COVID-19, including employment plan to uncover the stories of many and even imagines it could honor the support of Crain Brogdon Rogers LLP, issues, Chapter 7 bankruptcies, visitation Dallas women who shattered glass women lawyers posthumously by who came in with a $25,000 donation. This disputes due to the changes brought about ceilings through his brainchild interviewing people with first- makes an impressive grand total of $257,605 by remote learning for children, and land- program, Living Legends. The Liv- hand accounts of their journeys. from Rob Crain and his previous and current lord-tenant issues. One such case involved ing Legends interview series will The program’s purpose is for firms, along with a $50,000 pledge to the “Anna,” who was furloughed due to the pan- explore the untold stories of Dallas younger lawyers to learn the true DVAP Endowment, also known as the Justice demic. As a result, she was unable to pay her female attorneys. Current members stories—the good and bad—behind Forever Fund. Crain Brogdon Rogers, LLP is rent and her landlord moved forward with and alumnae of the DBA Women these accomplished women in the a team of lawyers and professionals focus- an eviction. Aaron Chibli, of Foley & Lard- Empowered to Lead Class (WE legal field. However, Mr. Tobin ing on serious personal injury and wrongful ner LLP, volunteered to take her case and LEAD) will conduct the inter- reveals that even if no one watches death cases of all types. Though their prac- filed an emergency motion to abate the trial views. For now, the interviews will the interviews, but, just one inter- tice is concentrated in North Texas, the firm pursuant to the CDC’s nationwide eviction be conducted and recorded via viewer develops a mentorship rela- handles cases throughout the country. moratorium and the Texas Supreme Court’s Zoom. The interviews will then tionship with a Living Legend, to Why do the accomplished attorneys of Emergency Order applying the same. “The be broadcast for Dallas Bar Asso- him, “that would be worth it.” Crain Brogdon Rogers support equal access court granted the motion to abate, which ciation members and posted online As an alumna of the inaugural to justice? “DVAP is a one-of-a-kind pro- ultimately allowed Anna more time to stay for members to access later. Mr. WE LEAD class, I have the privi- gram that allows Dallas lawyers to make a in the house, along with giving Foley enough Tobin thought the program would lege of interviewing former Chief real difference for real people. I can’t think time to negotiate a favorable settlement on be a wonderful way to get the Justice Carolyn Wright, the first of a program that’s more worthy of our firm’s her behalf. It truly was a rewarding expe- WE LEAD classes, consisting of African American to become chief support. Now, more than ever, DVAP needs rience,” Aaron explained. Anna faces a up-and-coming female attorneys, justice of any intermediate appel- all of us to help it continue its mission,” said brighter future thanks to Aaron, Foley, and involved in honoring these unsung late court in Texas. If my grand- Quentin Brogdon. DVAP. heroes. mother could listen in on the Liv- The justice gap in Dallas County remains Each case placed with a volunteer attor- Often, women have been over- ing Legends interviews, I know daunting. In a country based on justice for ney by DVAP can lead to one more parent looked in the legal profession, and she would be proud to learn that all and access to our court system, over 25 with access to their children, one more vet- Mr. Tobin wants to bring their women, particularly women of percent of Dallas County residents live near eran with access to benefits earned, one more stories to a greater audience. He color, did indeed leap over seem- the poverty level, and 42 percent have slim grandparent able to adopt a child whose par- describes a Living Legend as, “a per- ingly insurmountable obstacles hope of being able to afford an attorney. ents are absent, or one more person who is son who has, for a sustained period to become lawyers, judges, a vice With annual poverty incomes of $33,125 for able to finally secure employment due to an of time, navigated through the president, and a plethora of other a family of four, justice is a luxury for low- old criminal charge being expunged. Last legal profession in a collegial and firsts. Lastly, I know she would be and moderate-income families. year, DVAP placed 830 cases with volunteer professional manner, and someone proud that her little granddaughter As with every other business and nonprofit attorneys for full representation. This num- who has the ability to make oth- is breaking some glass ceilings of around, 2020 was an unprecedented year for ber does not include all those who received ers around them better—to lead, her own. HN DVAP. Unable to hold its usual intake clinics advice and brief services through DVAP influence, and impact the lives and around Dallas County due to the pandemic, careers of others.” In other words, Chalon Clark is a Partner at Husch Blackwell and may DVAP launched virtual clinics in April, and continued on page 22 the Living Legends are total pro- be reached at [email protected].

Inside 6 Equality Committee Presents Firm Diversity Report DBA MEMBER REMINDER: 9 Inaugural of Aaron Tobin All members who have not yet renewed for 2021 14 Stairway to Heaven: The Demise of the Inverse Ratio Rule will be dropped on March 19, 2021. Renew TODAY in order to continue receiving 18 Meet the DBA We Lead Class of 2021 all your member benefits. 23 Show Me the Money! Incentives for the Entertainment Industry Thank you for your support of the Dallas Bar Association! 2 Headnotes l Dallas Bar Association March 2021

All programs are presented virtually. Check the DBA Online Calendar (www.dallasbar.org) for webinar links and the most up-to-date information.

Calendar March Events Visit www.dallasbar.org for updates on Friday Clinics and other CLEs.

Hon. Dale Tillery, Jeff Tillotson, ​​​​​​​Will Snyder, Moderator. (MCLE 1.00)* THURSDAY, MARCH 18 MARCH IS WOMEN’S HISTORY MONTH Noon Appellate Law Section For additional resources on Women’s History Month, visit the ABA’s website at https://bit.ly/2Yf9pbJ. Immigration Law Section Topic Not Yet Available Topic Not Yet Available To find out more about the Dallas Women Lawyers Association, go to dallaswomenlawyers.org/. For Minority Participation Committee more on the DBA’s Diversity Initiatives, log on to www.dallasbar.org. Home Project Committee Legal Ethics Committee FRIDAY, MARCH 19 Noon Friday Clinic FRIDAY CLINICS WEDNESDAY, MARCH 10 “The Impact of COVID 19 On an Attorney’s Practice, MARCH 5 Noon Family Law Section Clients and Well Being, Part II,” Al Ellis, Richard Cheng, Noon “One Year Later-Mediators’ Top Tips for Counsel in Online Mediations,” John DeGroote, Chris Nolland, John Topic Not Yet Available and Kelly Rentzel. (Ethics 1.00) Co-sponsored by the Shipp, and Ross Stoddard. (MCLE 1.00)* CLE and Peer Assistance Committees. Co-sponsored Franchise & Distribution Law Section by the CLE and Peer Assistance Committees. MARCH 19 Topic Not Yet Available Noon “The Impact of COVID 19 On an Attorney’s Practice, Clients and Well Being, Part II,” Al Ellis, Richard Cheng, and Kelly Rentzel. (Ethics 1.00) Co-sponsored by the CLE and Peer Assistance Committees. Bankruptcy & Commercial Law Section MONDAY, MARCH 22 Topic Not Yet Available Noon Science & Technology Law Section “Emojis and the Law,” Prof. Eric Goldman. (MCLE MONDAY, MARCH 1 THURSDAY, MARCH 4 Bench Bar Conference Committee 1.00)* Noon Tax Law Section Noon Diversity Program “Nuts & Bolts of Cancellation of Indebtedness for “Why it Matters: Innovations in Diversity, Equity, 4:00 p.m. LegalLine E-Clinic. Volunteers needed. Contact Securities Section Businesses & Financial Institutions,” Anthony Hunt, Inclusion & Belonging, Part I,” Chasity Henry, Hon. [email protected]. Topic Not Yet Available Roberta Mann, Kate Roth, and Carol Wang. (MCLE Maricela Moore, Amber Rogers, Robert Walters, and 1.00)* moderated by Phil Kim and Courtney Barksdale Golf Tournament Committee Perez. (MCLE 1.00)* THURSDAY, MARCH 11 Noon Government Law Section TUESDAY, MARCH 2 “Cyber Threats Directed at Governments During the TUESDAY, MARCH 23 Noon Corporate Counsel Section FRIDAY, MARCH 5 COVID-19 Work from Home Environment,” Peter S. Noon Fireside Chat with Dallas Police Chief Eddie “What’s Happening on the Hill,” Chris McCannell. Noon Friday Clinic Vogel. (MCLE 1.00, Ethics 0.50)* Garcia (MCLE 1.00)* “One Year Later-Mediators’ Top Tips for Counsel in Moderated by Koi Lomas Spurlock. Sponsored by the Online Mediations,” John DeGroote, Chris Nolland, Criminal Justice Committee Public Forum/Media Relations Committee. Tort & Insurance Practice Section John Shipp, and Ross Stoddard. (MCLE 1.00)* “Mediating Insurance Coverage Disputes,” Tamara Publications Committee Probate, Trusts & Estates Law Section Bruno, Beverly Godbey, Catherine Hanna, Daisy “Legal Issues for Parents of Special Children,” Lisa H. Khambattta, Peter Laun, Sara Saltmarsh, Jill Schaar, MONDAY, MARCH 8 2:00 p.m. CLE Committee Jamieson. (MCLE 1.00)* Steve Schulwolf, Paul J. Van Osselaer. (MCLE 1.00)* Noon Alternative Dispute Resolution Section Topic Not Yet Available FRIDAY, MARCH 12 WEDNESDAY, MARCH 24 WEDNESDAY, MARCH 3 Criminal Law Section Noon Living Legends Program Noon Diversity Program Noon Employee Benefits & Executive Compensation Topic Not Yet Available “Living Legends Kickoff Program: Hon. Mary Murphy, “Why it Matters: Innovations in Diversity, Equity, Law Section interviewed by DBA President Aaron Tobin.” Pre- Inclusion & Belonging, Part II.” “Large Employer Health Strategies for 2021 and Real Property Law Section recorded program. (MCLE 1.00)* Beyond,” Debbie Harris. (MCLE 1.00)* “Bankruptcy Traps for the Weary Real Estate Collaborative Law Section Practitioner,” Liz Boydston and Katherine Clark. Trial Skills Section Topic Not Yet Available Solo & Small Firm Section (MCLE 1.00)* Topic Not Yet Available “Help, My Investments Have Fallen and They Can’t Entertainment, Art & Sports Law Section Get Up!” Richard Lewins. (MCLE 1.00)* Peer Assistance Committee “The CASE Act: Small-Claims Copyright Court for MONDAY, MARCH 15 Creators,” Thomas Maddrey. (MCLE 1.00* Public Forum/Media Relations Committee Noon Labor & Employment Law Section TUESDAY, MARCH 9 “Cannabis Laws and How It’s Impacting the Judiciary Committee 4:00 p.m. LegalLine E-Clinic. Volunteers needed. Contact Noon Business Litigation Section Workforce,” Richard Cheng and Kyla Cole. (MCLE [email protected]. “Panel Discussion: How Judges and Trial Lawyers 1.00)* Can Work Together to Dig out of the COVID Hole,” THURSDAY, MARCH 25 4:30 p.m. Equality Committee Hon. Melissa Bellan, Krisi Kastl, Hon. Emily Miskel, Noon Environmental Law Section TUESDAY, MARCH 16 Topic Not Yet Available Noon Antitrust & Trade Regulation Section Topic Not Yet Available Intellectual Property Law Section “Federal Circuit Update: Notable Cases and Topics Bankruptcy Tips Series Kickoff International Law Section 2020-2021,” Natalie Bennett, Pauline Pelletier, and “The Impact of Brexit and What This Means in Terms Deirdre Wells. (MCLE 1.00)* of the Law in the UK,” Gill Austin. (MCLE 1.00)* 3:30 p.m. DBA Board of Directors Meeting Entertainment Committee FRIDAY, MARCH 26 WEDNESDAY, MARCH 17 Noon No Events Yet Scheduled Noon Energy Law Section “Suspending Royalty Payments after ConocoPhillips Co. v. Koopman,” Katy Wehmeyer. (Ethics 1.00)* MONDAY, MARCH 29 Noon No Events Yet Scheduled Health Law Section “Keeping Your Deal Healthy: Representations and Warranties Insurance in Healthcare Transactions,” TUESDAY, MARCH 30 Lisa Atlas Genecov and Vipul Patel. (MCLE 1.00)* Noon No Events Yet Scheduled Law in the School & Community Committee

Pro Bono Activities Committee WEDNESDAY, MARCH 31 Noon No Events Yet Scheduled 4:00 p.m. LegalLine E-Clinic. Volunteers needed. Contact [email protected].

SpanishSpanish for for LawyersLawyers 2021 Summer Session: 2021 Summer Session: March 23-May 26 March 23-May 26 Held online via Held online via Google Meet/Video conference. Google Meet/Video conference. Learn how to read, write, and speak Spanish Learn how to read, write, and speak Spanish at an adult continuing education level, On January 29, the DBA hosted the first in a series of programming on the topic of at an adult continuing education level, “Bankruptcy Tips for the Non-Bankruptcy Practitioner,” with panelists (left to right) Hon. Stacey with emphasiswith emphasison legal terminologyon legal terminology at the at the intermediateintermediate and advanced and advanced levels. levels. Jernigan, Laura Smith, Hon. Harlin Hale, Hon. Michelle Larson, DBA President Aaron Tobin, and RegisterRegister online at online at Jason Kathman. Join us Friday, April 23, for the next installment of the series. www.dallasbar.org/spanishforlawyerswww.dallasbar.org/spanishforlawyers

If special arrangements are required for a person with disabilities to attend a particular seminar, please contact Alicia Hernandez at (214) 220-7401 as soon as possible and no later than two business days before the seminar. All Continuing Legal Education Programs Co-Sponsored by the DALLAS BAR FOUNDATION. *For confirmation of State Bar of Texas MCLE approval, please call the DBA office at (214) 220-7447. **For information on the location of this month’s North Dallas Friday Clinic, contact [email protected]. March 2021 Dallas Bar Association l Headnotes 3 4 Headnotes l Dallas Bar Association March 2021

President’s Column Headnotes Published by: DALLAS BAR ASSOCIATION

2101 Ross Avenue Dallas, Texas 75201 Inaugural Address Phone: (214) 220-7400 Fax: (214) 220-7465 Website: www.dallasbar.org Established 1873 you do be sure and have fun along the way. I think about Dennis and The DBA’s purpose is to serve and support the legal BY AARON TOBIN profession in Dallas and to promote good relations my other teachers Bill Holston and Bobby Kolenovsky who were among lawyers, the judiciary, and the community. Taken from Inaugural Address given on January 30, 2021 great lawyers and who worked hard. But the thing that made a mark on me as a young lawyer is that they were able to accomplish a lot OFFICERS President: Aaron Z. Tobin while having fun practicing law. I am so thankful for the examples President-Elect: Krisi Kastl Gratitude they and you have set. It has led me to my current home, Condon First Vice President: Cheryl Camin Murray Second Vice President: Bill Mateja Thank you, Robert. Before you hang up your spurs, I want to Tobin Sladek Thornton and Nerenberg, where we have 25 strong Secretary-Treasurer: Ebony Rivon thank you for the work you have done this past year. Your leadership lawyers and a highly competent support team that I like, trust, and Immediate Past President: Robert L. Tobey in 2020 through this pandemic has been nothing short of remark- respect and most importantly I am having a ball practicing with. My able. When unforeseen and adverse circumstances hit earlier in the Directors: Vicki D. Blanton (Chair), Rob Cañas, colleagues challenge me every day to contribute to the firm, the pro- Jonathan Childers (Vice Chair), Stephanie G. Culpepper, year you acted swiftly, decisively and with great vision. And for me fession and to do the very best we can for our business clients. Whitney Keltch Green (President, Dallas Association personally, you have been a trusted friend and mentor. When you fin- Lesson 3: You have taught me that if you consistently put the of Young Lawyers), Marissa Hatchett (President, J.L. Turner Legal Association), Stacey Cho Hernandez ished your term, you encouraged me and told me that I am ready. I do interests of others ahead of your own, then you will be rewarded. The (President, Dallas Asian American Bar Association), not know if I am ready or not, but if I am it is because of the example lawyers at Sullivan & Holston were all great teachers at more than Hon. Martin Hoffman, Kate Kilanowski, Jennifer King you have set, my friend. To commemorate your unprecedented year (President, Dallas Women Lawyers Association), Hon. just the practice of law. They always encouraged me to serve the pro- Audrey Moorehead, Javier Perez (President, Dallas of faithful leadership, on behalf of the Dallas Bar Association, I want fession. Dennis in particular would preach if you just want a job sit Hispanic Bar Association), Hon. Monica Purdy, Lindsey to present you with a token of our sincere appreciation. at your desk and bill hours, but if you want to be a part of a reward- Rames, Kelly Rentzel, Bill Richmond, Sarah Rogers, I wish I had time to properly thank everyone in what has become ing profession then seek out opportunities to lead and do more. Mary Scott, Amy M. Stewart, and Mary Walters a rather large village that has led to me standing here before you Now at first this was a daunting charge for this somewhat introverted Advisory Directors: Ashlei Gradney (President-Elect, today, but if I did, we would be here well into next week. Hopefully, kid from East Texas who knew virtually nobody in the Dallas legal J.L. Turner Legal Association), Andy Jones (President- you all know who you are and how much you mean to me. Elect, Dallas Association of Young Lawyers), Jonathan community. Initially, I had this vision that the Dallas Bar was a mas- Koh (President-Elect, Dallas Asian American Bar I would like to recognize my family. My 4-year-old son is into sive and immovable institution filled with thousands of lawyers jock- Association), Elsa Manzanares (President-Elect, Dallas superheroes right now, so in his honor I would like to acknowledge eying for position to try and get to the top as they fight and claw their Hispanic Bar Association), Derek Mergele-Rust (President, Dallas LGBT Bar Association), and Marisa just a couple of the many superheroes in my life. The first being my way through an adversarial system. O’Sullivan (President-Elect, Dallas Women Lawyers mom, Chris Tobin. You see, at age 32, just a few years before this pic- I still remember my first introduction to the DBA. One day very Association) ture was taken with my sister, Lisa, and me, she found herself in a spot early in my practice (I am not even sure I was licensed yet) Dennis that she did not expect—newly divorced and on her own to care for Delegates, American Bar Association: and the other lawyers at lunchtime came into my office and said, Rhonda Hunter, Mark Sales two young children with no job and little to no education behind her. “You’re coming with us to the bar association.” This was before the All she did from there was to work two jobs, and go to night school mansion expansion and before we had inground parking, so we Directors, State Bar of Texas: Chad Baruch, Rebekah where she would earn 3 degrees including a masters in nursing. To be parked out behind the mansion and upon arriving were greeted by Brooker, Rob Crain, Michael K. Hurst, Mary Scott able to pay for her education she took a second job taking 12 hour a distinguished looking gentleman who was walking into the man- HEADNOTES shifts in the emergency room on the weekends. She would go on to sion and he cried out “Sully, how you’ve been. Gig ‘em!” Now being Executive Director/Executive Editor: Alicia Hernandez become the first nurse practitioner in my hometown of Paris, Texas. a lifelong longhorn fan, I did not care much for the gig em part, but I Communications/Media Director & Headnotes Editor: Jessica D. Smith Through all of this, she managed to miss very few basketball games, did appreciate the welcoming atmosphere. In the News: Judi Smalling tennis matches or recitals for my sister all the while providing a lov- I asked Dennis, “Who was that?” He replied, “That’s Mike Display Advertising: Annette Planey, Jessica Smith ing home in which we were raised. Mom—you are a super mom, and Baggett, President of the Bar. I asked, “how do you know him?” He always will be my hero. PUBLICATIONS COMMITTEE said I met him through volunteering at the bar association and our Co-Chairs: James Deets and Beth Johnson kids later went to college together. We’ve become good friends.” Vice-Chairs: Elisaveta (Leiza) Dolghih and Joshua Then, we proceeded to walk into this beautiful mansion and within Smeltzer Members: Logan Adcock, Benjamin Agree, Dallas the first 10 minutes of being there my new colleagues and teach- Andersen, Andrew Botts, David Brickman, Catherine ers were greeted warmly by many people who they obviously knew. Bright Haws, Ian Brown, Srinivasan Chakravarthi, Lindsay Drennan, Alexander Farr, Dawn Fowler, They swapped stories and introduced me around. At that moment, it Candace Groth, Ted Huffman, Neil Issar, Alexandra became clear that I was now a part of a united profession. Jones, Krisi Kastl, Katherine Kim, Brian King, Jared Over the years, my early mentors and those that came along Knight, John Koetter, Margaret Lyle, Majed Nachawati, Keith Pillers, David Ritter, Carl Roberts, John Shipp, later continued to encourage me to stay involved with the bar. This Jared Slade, Sarah Spires, Jay Spring, Sarah-Michelle helped me develop relationships that ultimately led to opportunities Stearns, Scott Stolley, Robert Tarleton, Paul Tipton, Anastasia Triantafillis, Pryce Tucker, Kathleen Turton, for my firm and for me. I have met a lot of great people along the way Peter Vogel, Benton Williams, Jason Winford and expanded my network and training in a way that would not have been possible had I not become involved. DBA & DBF STAFF Let me give you just one of many examples of how this has worked Executive Director: Alicia Hernandez Accounting Assistant: Shawna Bush for me. In 2005 I was volunteering to help put together a panel of Communications/Media Director: Jessica D. Smith trial lawyers to talk about trial law to a group of solo and small firm Controller: Sherri Evans Events Director: Rhonda Thornton lawyers. To show you how green I was, I was naïve enough to think Executive Assistant: Liz Hayden I could secure our bar’s best trial lawyers’ participation on fairly short Executive Director, DBF: Elizabeth Philipp notice. Luckily for me both Barry Sorrels and Frank Branson said LRS Director: Biridiana Avina LRS Program Assistant: Marcela Mejia yes, and the seminar was big hit. After the seminar I went up to Mr. LRS Interviewer: Viridiana Rodriguez Sorrels and asked “Mr. Sorrels, I’m trying to be a trial lawyer. What Law-Related Education & Programs Coordinator: Melissa Garcia does it take to be a great trial lawyer?” Looking back, I am sure he Marketing Coordinator: Mary Ellen Johnson The other superheroes in my life are my daughter Anna who loves was not overly impressed. To his credit, without hesitation, he said Membership Director: Kimberly Watson music and dance and any Disney princess. She even ranks them. I “It takes a whole lot of courage. So why don’t you give me a call and Director of Legal Education: Kathryn Zack Publications Coordinator: Judi Smalling learned this at Disneyland while after obtaining Cinderella’s auto- we’ll talk about it.” I did and that was the start of a 15-year friend- Receptionist: Araceli Rodriguez graph she turned to her and said with all sincerity, “Cinderella, I want ship. Over the years, Barry has offered wisdom. We have referred cli- Staff Assistant: Yedenia Hinojos you to know that you are my 4th favorite princess.” That was a bit of ents to each other and worked on cases together. He has been to my DALLAS VOLUNTEER ATTORNEY PROGRAM an uncomfortable moment. You can see my son Ashton who liter- house many times and we have become great friends. Had I not been Director: Michelle Alden ally plays a different super-hero every night when I come home. Most involved in the bar association and raised my hand, I might not have Managing Attorney: Holly Griffin importantly, my friend and wife of 16 years Jennifer Tobin, who herself ever met Barry. He was a criminal defense lawyer, and I was an aspir- Mentor Attorneys: Kristen Salas, Katherine Saldana Paralegals: Whitney Breheny, Miriam Caporal, Star is an accomplished property tax lawyer at Geary Porter and Donovan. ing civil trial lawyer. Our paths may not have crossed. Cole, Tina Douglas, Carolyn Johnson, Andrew She is a past president of the Junior League of Dallas as well as president This story keeps repeating itself. I keep coming down to our home Musquiz, Alicia Perkins and chair of many of other philanthropic causes. Anyone who knows seeking to help and the end result is always time and time again that Community Engagement Coordinator: Marísela Martin us understands that Jennifer has forgotten more about leadership than others end up helping me. Even as I am sitting here as the President, Copyright Dallas Bar Association 2021. All rights I will ever know. But like my mother, her greatest superpower is the you would think I might finally be in a position to do some good. reserved. No reproduction of any portion of this ability to juggle all of these responsibilities while being a tremendous publication is allowed without written permission from What has happened every day since I have been President, one of publisher. mother to our two beautiful children. And she is pretty darn cute too. our past presidents has reached out to me and said, “What can I do to help you? Whatever you need, I’m there for you.” Headnotes serves the membership of the DBA and, as such, editorial submissions from members are You see, my preconceived notion of what this bar was like could welcome. The Executive Editor, Editor, and Publications 3 Lessons not have been more wrong. What years of service has taught me is Committee reserve the right to select editorial content If you believe nothing else I say tonight, please believe me when to be published. Please submit article text via e-mail to that this association is simply a collection of stories of lawyers helping [email protected] (Communications Director) at I tell you how incredibly lucky I feel to be one of your colleagues each other and helping those in our community. I quickly learned least 45 days in advance of publication. Feature articles practicing here in Dallas, Texas with you. In a sense you have acted that it is not at all not about sharp elbows and jockeying for position should be no longer than 750 words. DISCLAIMER: as a very large law firm teaching me so many great lessons during my All legal content appearing in Headnotes is for but rather about propping each other up so that we can all find higher informational and educational purposes and is not career. ground together. It’s stories of ordinary people linked by a common intended as legal advice. Opinions expressed in articles For the sake of brevity, I am only going to focus on three lessons I bond to help our friends in the community, our clients and most are not necessarily those of the Dallas Bar Association. have learned from many of you. Lesson 1 came from my first teacher, importantly each other. All advertising shall be placed in Dallas Bar Association a great lawyer named Dennis Sullivan. He taught me that if you are It is stories like: Headnotes at the Dallas Bar Association’s sole discretion. going to do this gig and do it well, you are going to have to put in a • Bob Thomas and a few others who paved the way to purchase Headnotes (ISSN 1057-0144) is published monthly lot of time and effort and be committed. This is not a 9 to 5 job— the mansion so that we have a home to meet in where we can col- by the Dallas Bar Association, 2101 Ross Ave., Dallas, nowhere near it. He taught that you cannot fake competence in this TX 75201. Non-member subscription rate is $30 per laborate and educate. year. Single copy price is $2.50, including handling. profession, and I have found all of that to be very true. • The Honorable Merrill Hartmann starting a pro bono clinic Periodicals postage paid at Dallas, Texas 75260. Lesson 2: So, if it is a given that you are going to have to put a lot of time and effort in, then you might as well go through this journey POSTMASTER: Send address changes to Headnotes, 2101 Ross Ave., Dallas, TX 75201. surrounded by people that you like trust and respect, and whatever continued on page 9 March 2021 Dallas Bar Association l Headnotes 5 6 Headnotes l Dallas Bar Association March 2021 Equality Committee Presents Firm Diversity Report

how the firms and the Committee can work for demographic diversity between Dallas there is no one answer or one way to encour- STAFF REPORT together to improve diversity, equity, inclu- offices and U.S.-wide locations of the par- age, promote, and embrace diversity,” Last year, the DBA, along with J.L. sion, and belonging in the legal community. ticipating firms. The report also includes According to the Report, the legal pro- Turner Legal Association, Dallas Associa- This Report is offered to highlight success- results on the firms’ efforts to recruit, retain, fession has become more diverse and better tion of Young Lawyers, Dallas Asian Ameri- ful outcomes achieved by and best practices and promote minority attorneys. in representing the country’s demographics. can Bar Association, Dallas Hispanic Bar appropriate to each firm’s existing culture The Committee invited the top 50 law However, female attorneys, LGBT attor- Association, and Dallas LGBT Bar Associa- and dynamics, to move beyond reporting firms with the largest footprint in Dallas neys, attorneys of color, attorneys with dis- tion (Sister Bars), created the Allied Dallas only census data. The report was compiled County to participate. Of those, 21 par- abilities, and veterans still remain largely Bars Equality Task Force, through which a by Kanarys, a Dallas-based SaaS company ticipated in the survey: Akin Gump, Baker underrepresented in the profession. Call to Action was created and adopted as that helps organizations diagnose, measure, Botts, Baker McKenzie, Carrington Cole- So where do we go from here? a DBA Resolution. In early 2021, the Task and optimize diversity, equity, and inclusion man, Gibson Dunn, Husch Blackwell, “We continue to embrace diversity ini- Force became the Equality Committee in the workplace using data and research- Jackson Walker, Jones Day, Kane Russell tiatives which also address inclusion, equity, (Committee). The Call to Action expressed based methods. Coleman Logan, Katten, Munck Wilson and belonging,” said Blanton. “We con- the commitment by the DBA and Sister “This 2020 Report is a critical com- Mandala, Norton Rose Fulbright, Scheef & tinue to evolve in our efforts which will fully Bars to directly impact the legal community ponent to what the Task Force drafted to Stone, L.L.P., SettlePou, Shackelford, Shep- appreciate, use and embrace the talents, and the community at large through vari- become a formal DBA Resolution of a Call pard Mullin, Thompson Coe, Thompson skills, and perspectives to make our society ous action initiatives. One such initiative to Action,” said Vicki Blanton, Chair of the Knight, Vinson & Elkins LLP, and Weil. stronger. We continue to move forward.” was to create an updated survey studying the Firm Diversity Survey Task Force, and Assis- “This Survey sought to elicit how each The Task Force thanks AT&T for their diversity of attorneys working at major Dal- tant Vice President, Senior Legal Counsel firm successfully sought ways to advance sponsorship and underwriting of the Report; las firms, a first for the DBA. This afforded a of Tax/Benefits of AT&T Legal Depart- diversity initiatives within its own firm cul- UT-Austin’s Division of Diversity and Com- unique opportunity to impact not only the ment. “Providing a current snapshot of the ture and community. This allows for cre- munity Engagement for their support and bar community and the legal community, diversity landscape of the largest law firms is ative ideas leading to best practices that contributions; all of the law firms who par- but the Dallas community as a whole. key towards measuring the commitment to can be replicated by others,” said Blanton. ticipated in the survey; and Kanarys, the In early 2021, the Firm Diversity Report and the success of programs aimed at diver- “Although the numbers on a percentage Dallas-based SaaS company who compiled was released. The purpose of the survey was sity, inclusion, equity, and belonging within basis may not have had as great a leap from the Report. to assess diversity efforts in firms operat- the Dallas legal community.” the initial survey 15 years ago as one would To view the full Report, log on to ing in Dallas with the goal of determining The report establishes a benchmark hope, the important revelation was to recog- www.dallasbar.org and view the Diver- nize the diversity among the diverse—that sity tab. HN DBA 100 Club

What is the DBA 100 Club? LegalLine Volunteers Needed The DBA 100 Club is a special membership category that recognizes firms, agencies, law schools and organizations that give 100% membership support to the DBA! LegalLine is seeking volunteer What is the cost to join the DBA 100 Club? It’s FREE! attorneys for our LegalLine E-Clinics on Wednesdays. How do you join? Firms, government agencies, and law schools with two or more lawyers as well as Calls may be made between 4-8 corporate legal departments can qualify if all of their Dallas office attorneys are DBA p.m. from the comfort of their members. To join the 2021 DBA 100 Club, please submit a list of all lawyers in your Dallas office to Kim Watson, [email protected]. Once approved, we will add your own homes. organization to the 2021 DBA 100 Club member recognition list! Participating attorneys will be What are the perks? emailed contact information for Our 2021 DBA 100 Club members will be recognized in Headnotes, the 2022 DBA those who have submitted a Pictorial Directory, and at our Annual Meeting in November. request for a call.

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Sponsored by the DBA Allied Bars Standing Committee on Equality March 2021 Dallas Bar Association l Headnotes 7 8 Headnotes l Dallas Bar Association March 2021

Focus Entertainment, Art & Sports Law Exploiting Government Works for Fun and Profit The government edicts doctrine, by nection with the non-binding annotations copyrights in expressive works created by BY SALLY HELPPIE comparison, is narrower and applies at both to the Official Code of Georgia. The anno- non-lawmaking employees. These might What do the following have in com- the federal and state levels. It developed tations were created by Matthew Bender & include writings, photographs, and audio/ mon: A dissenting opinion by Ruth Bader through a series of cases in the 1800s, when Company as a work for hire by Georgia’s visual materials produced by libraries and Ginsburg, a photograph taken by the Hub- the Supreme Court recognized that nobody Code Revision Commission, a state entity tourism offices. When considering whether ble space telescope, and Chapter 38 of the could “own” the law. Since everyone is pre- funded by the legislature and composed the government edicts doctrine eliminates Texas Civil Practice and Remedies Code? sumed to know the law, it followed that mostly of legislators. While the non-anno- copyright protection, it is now clear that we Thanks to the U.S. Copyright Act and everyone should have access to the law. tated Code was free to the public, Matthew must focus on the legal author of a particu- the government edicts doctrine, no copy- Accordingly, under the government edicts Bender was granted the exclusive right to lar work. If the author is a judge or legislator right protects these works. Each of us can doctrine, it has been long-established that sell annotated versions of the Code. The and the work is produced in the course of freely copy, display, or even put the words or there is no copyright protection for the annotations are undeniably original and official duties, it carries no copyright. images to original music—and then sell our written law. Even a judge’s unique and cre- creative works in a tangible medium of As an entertainment lawyer, I spend a lot “new” creations. ative decision, expressed in iambic pen- expression—thus meeting the normal ele- of time cautioning people about copyright Normally, the author of an original work tameter, is owned by “we the people” and ments for copyright protection. infringement and the limits of fair use. So, I am with a modicum of creativity that is in a tan- falls within the public domain. When the Public Research Organiza- delighted when I can give the green light to gible medium of expression owns a copyright But what about dissenting opinions or tion, without permission, made copies of an imaginative client who wants to write and in that work. But the U.S. Copyright Act annotations to statutes? They don’t carry the the annotations available to the public for perform a rap song based on an RBG judicial specifically excludes from copyright pro- force of law so they wouldn’t necessarily be free, Georgia (as the author at law) sued. opinion. And I am happy when a filmmaker tection all works “prepared by an officer or exempt from copyright under the govern- In a 5-4 decision, the Supreme Court ruled implements my suggestion to substitute a employee of the United States Government ment edicts doctrine. At the federal level, that, “[u]nder the government edicts doc- photo taken by NASA and the Space Tele- as part of that person’s official duties.” This the U.S. Copyright Act stipulates an exemp- trine, judges—and, we now confirm, legis- scope Science Institute for one “ripped from is a decision made by Congress, which has tion, but the Copyright Act doesn’t apply to lators—may not be considered the ‘authors’ the internet” in a key scene. I am now eagerly determined that there is no “authorship” for similar works created at the state level. of the works they produce in the course of awaiting my first question about using a state most federally created works irrespective of In 2020, the U.S. Supreme Court their official duties as judges and legislators. legislative mandate regarding COVID-19 in the government employee’s position. It is a revisited the government edicts doctrine in That rule applies regardless of whether a a horror novel. HN very broad copyright bar at the federal level. Georgia v. Public Research Org., Inc. in con- given material carries the force of law.” The Court did acknowledge that, unlike Sally Helppie is an entertainment attorney and movie producer; she can Support the at the federal level, states are free to claim be reached at [email protected] [email protected]. Habitat House DBA Home Project

$90,000 Help us reach our goal of $90,000 to build our 31st house for Habitat for Humanity. FREE MCLE FREE MCLE $60,000 For more information, log on to www.facebook.com/DBAHomeProject $40,000 or contact Co-Chairs David Fisk ([email protected]) or Mike Bielby OneO onef othf teh em maannyy MMeemmbebre Bre nBeefintsefits $30,000 ([email protected]). thtahta t hthee DBBAA o offeffres rs

Make checks payable to Dallas Area is mois rmeo trhe athna n4 0400 C CLLE ccoouursresse esa ceha ycehar y, ear, $20,000 Habitat for Humanity and mail donations: c/o Araceli Rodriguez mosmt osft wofh wichhic ha arree offffeerered dat anto nchoa crghea. rge. Dallas Bar Association $10,000 2101 Ross Avenue Dallas, TX 75201 JOJIONIN O ORR RRENNEEWW N ONWO AWT AT $5,000 WWWWW.D.DAALLLAASSBBARA.ORR.OG.RG. Medical License Defense DVAP’s Finest BRADFORD PATTERSON Bradford Patterson is a Senior Associate with Alston & Martin Merritt Bird LLP. Health Law and Healthcare Litigation BEST Executive Director, 1. How did you first get involved in pro bono? Texas Health Lawyers Association With some other attorneys in our office, I became involved Chairman, DBA Health Law Section in a clinic to assist military veterans in obtaining expunc- tions and orders of non-disclosure related to past criminal convictions. Connect on LinkedIn www.linkedin.com/in/martinmerritt/ 2. Describe your most compelling pro bono case. It was actually through LegalLine, which does not establish 214.952.1279 an attorney-client relationship, but allows attorneys to offer [email protected] practical solutions to problems. A mortgage borrower called who had been faithfully paying her mortgage except in specific instances where the lender (a relative) had waived certain payments. The lender sold the loan to a third party without communicating effectively with the borrower or the third party, and the new noteholder incorrectly believed that the MARTIN MERRITT, PLLC borrower was significantly behind on payments. I had the opportunity to discuss with the 2020 4258 RENAISSANCE TOWER borrower how she could lay out a clear history of payment and demonstrate her good-faith desire to remain current and reach and amicable solution, while not making payments she 1201 ELM STREET did not owe. DALLAS, TX 75270 3. Why do you do pro bono? Over time, practicing law causes us to accumulate general legal skills without always real- www.martinmerritt.com izing it. Pro bono work is a good way to use some of those skills in a new area of law to help meet legal needs.

4. What impact has pro bono service had on your career? In addition to making me well-rounded, it has enabled me to connect personally with cli- ents in ways that are not always possible in everyday practice.

• Texas Medical Board 5. What is the most unexpected benefit you have received from doing pro bono? • Texas Pharmacy Board I did not expect to have much to offer in an area other than my typical practice area (finance), but with the right training it is possible to add value in areas that are not directly • Texas Nursing Board connected to your core practice. • DEA, FBI, AG, OIG, CMS Actions Pro Bono: It’s Like Billable Hours for Your Soul. • Insurance Fraud Unit Investigations To volunteer or make a donation, call 214/748-1234, x2243. • Network Termination

D Magazine Best Lawyers in Dallas 2020 March 2021 Dallas Bar Association l Headnotes 9 The Inaugural of Aaron Z. Tobin 112TH PRESIDENT OF THE DBA

The Inaugural of Aaron Z. Tobin, DBA’s 112th Presi- dent, was held virtually on January 30, 2021. In addi- tion to a presentation by Mr. Tobin, the audience also enjoyed a virtual concert by Siren Songs (www.siren- songsmusic.com). Each year, the Inaugural is the cul- mination of the Campaign for Equal Access to Justice. This year, an amount of $1.3 million was raised for the Dallas Volunteer Attorney Program. Thank you to our EAJ Chairs Vicki Blanton, Rocio Cristina Garcia Espinoza, and Mey Ly-Ortiz. Congratulations to this year’s Ticket to Drive Raffle winner:Janet Kresslein, who will take home a 2021 Lexus NX 300, and runner up Natalie Fortenberry, winner of the vacation travel package.

Inaugural Address

her last moments at this very celebration you can be assured that we will be stronger miss a chance for someone to continue writ- CONTINUED FROM PAGE 4 to inspire us and be around her friends. than ever because we will not only facilitate ing their story this year. in East Dallas that later became the foun- opportunities for those that want to gather I want to close with a quote. We just dation for our Dallas Volunteer Attorney and collaborate in the Mansion and Pavil- celebrated one of our Bar’s most important Program that aims to provide access to jus- Encourage a Colleague ion, but we will also continue broadcasting events—the MLK luncheon—so I think tice for all. One of the questions I get most often virtually to those who cannot be present in it is fitting to finish with a quote from Dr. • It’s Past President Al Ellis leading and is what keeps you up at night? It is a good person. King. He once said, “Life’s most persistent saying everyone has a seat at the Dallas Bar’s question and for me the answer is maybe So, what keeps me up at night, other and urgent question is, what are you doing table to include all of our sister bar associa- not what you would think. It’s not the pan- than a 4-year-old superhero who is some- for others?” Let’s have a lot of fun tonight, tions. demic. This bar association has only grown times bedtime challenged, is the question, raise some money for DVAP, enjoy the music • In recent memory it’s friends like during the pandemic. With our online plat- “Will we miss someone’s story? Will a law- and come Monday, let us strive to remember Michael Hurst and Shonn Brown creat- form started under the leadership of Presi- yer miss the opportunity to engage in 2021 3 lessons: 1) work hard, 2) be present and ing DBA WE LEAD to foster the careers of dent Tobey we are the largest provider of so that this bar association can do for them enjoy what you are doing and who you are our bar’s most talented and dynamic women free CLE in the state and one of the largest what it has done for me and so many others?” doing it with, and most importantly 3) let’s lawyers. in the country. And, it’s all free! Our atten- Let’s not let this happen. I would encourage do what lawyers in this bar do best—act • Last year, it was our dear friend and dance numbers are up during the pandemic. all of us to channel our inner Sully and reach with persistence and a sense of urgency to Vice President of the bar association, I am not sure at what point in the year we out and encourage other lawyers, especially help others and to help each other. Karen McCloud; while her body was fight- will get back into the building. We will open young lawyers to not sit on the sidelines and ing cancer, she chose to spend some of when it is safe to do so, and when we do, to engage in 2021. Because I do not want to Aaron 10 Headnotes l Dallas Bar Association March 2021

Focus Entertainment, Art & Sports Law Whose Copyright Is It? Think, for example, of a musician playing sion, there was no author under copyright performances are copyrightable. A basket- BY MICHAEL HEINLEN an original, previously unrecorded tune in law. More to the point, if the recording was ball player, for example, will not have a The copyright statute defines copyrights a subway station and the tune is recorded not authorized the tune is not copyrighted, copyright in a three-point shot from half as “original works of authorship fixed in any by someone waiting for a train. The tune, even though it was fixed in a tangible court even if the shot is recorded. If the tangible medium of expression.” Original- an original work of authorship, was fixed medium. recorded performance is of a non-copyright- ity is a low bar, requiring only a modicum in a tangible medium, but who owns the But that is not the end of the story. able work, such as a basketball game, there of creativity. “Works of authorship” are copyright—the musician who created and Because sound recordings are statutorily can be only one copyright—in the record- defined by the statute and include, among performed it or the person who recorded it? protected works of authorship, the record- ing, not the game—and the recorder will be other things, paintings, novels, songs, mov- Stated differently, who is the author of such ing itself may also have a copyright. In the sole owner. But if the recorded perfor- ies, choreography, and sound recordings. a work? other words, recording the performance mance is of a copyrightable work, such as a And a work of authorship is “fixed in a The author of a copyrighted work is the may have created two copyrights, one in song or a dance, and the performer autho- tangible medium of expression” when it is person who personally fixed it in a tangible the tune (if the recording was authorized) rized the recording, the performer and the embodied in a material object from which medium of expression or who authorized and the other in the recording. Although recorder share ownership of the copyright it can be perceived. someone else to do so. So, with respect to the musician owns a copyright in the tune, in the recording (and the performer has sole The copyright in a work is created the tune in our example—the particular the question remains, who owns the copy- ownership of the underlying work). immediately when the work is fixed in a combination of notes and chords that the right in the recording? The answer depends In sum, where (i) an enhanced record- tangible medium of expression. Owner- musician performed—copyright ownership on three things: (i) whether the recording ing of (ii) a copyrightable performance of an ship vests in the author at the same time. depends on whether the musician autho- was rote or enhanced; (ii) whether the per- original work is (iii) authorized by the per- This might sound relatively straightforward, rized the recording. If the recording was formance was of a copyrightable work; and former, the performer owns a copyright in but things can get tricky when a “work of authorized, the musician owns a copyright (iii) whether the recording was authorized. the underlying work and the performer and authorship” is performed by one person and in the tune. But if the person recorded the As to the first, a person who merely recorder share ownership of a copyright in “fixed in a tangible medium” by another. performance without the musician’s permis- fixes another’s expression through rote or the recording. Where the enhanced record- mechanical transcription is not an author ing is not authorized or the performance is for copyright purposes, so a rote recording not copyrightable, there is no copyright in will not have a copyright (though if autho- the underlying work and the recorder alone rized, rote recording creates a copyright in owns a copyright in the recording. If the the underlying work, which is solely owned recording is rote, there is no copyright in by the performer). If, on the other hand, the recording, but there may be a copyright the recording involves sufficient creativity in the performance if it is of a copyrightable or technical enhancement, the recording work and authorized. Finally, if the recording will have a copyright, which the recorder is rote and unauthorized, there is no copy- will own. right in either the underlying work (even it The performer, however, may jointly is copyrightable) or the recording. HN own the copyright with the recorder if the performance was of a copyrightable work Michael Heinlen is Counsel at Thompson & Knight LLP. He can be and the recording was authorized. Not all reached at [email protected].

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Focus Entertainment, Art & Sports Law Team and Venue Sponsorship Agreements in the COVID-19 Era of sports sponsorship contracts, lawyers sorship fees for subsequent seasons. In when games are cancelled. BY JOHN R. SIGETY on both sides had to examine the lan- a sports landscape, where it is not clear On the other hand, the team’s attorney COVID-19’s effect on the sports guage of their agreements to determine how far into the future the effects of the should endeavor to show that sponsorship industry has been widespread and vis- whether pandemics and subsequent pandemic will stretch, it can be in every- value derives not just from games, but from ible since the early days of the pan- government restrictions were specifi- one’s interest to be fluid where possible. other aspects beyond game time visibility. demic. In particular, the pandemic has cally contemplated by their agreements For example, a sponsor derives value from significantly affected the relationship as events that excused performance. In having its name on the team’s merchandise between sports teams and venues and many instances, they were not. Sponsorship Contracts During and promotional materials, by being the their sponsor partners. Given the con- Most sports sponsorship deals are official sponsor of a team in a given indus- tinued volatility in the sports industry, written so that it is the team or venue the Pandemic and Beyond try, and by naming the team in marketing it is imperative that attorneys on both that is obligated to perform. For exam- Generally, a force majeure provision materials. These are examples of value that sides of a sponsorship contract think ple, the team or venue is obligated to dis- may only be invoked to excuse perfor- does not decrease in proportion with the beyond typical force majeure provi- play a sponsor’s logo in certain places or mance where the event in question was number of games cancelled. Thus, a Major sions to maximize value and minimize say the sponsor’s name a certain number unforeseeable at the time that the con- League Soccer team’s attorney, for exam- uncertainty for their clients. of times. Thus, the invocation of force tract was signed. In 2021 and for the ple, should argue that inclusion of a liqui- majeure in the context of sponsorship foreseeable future, no one can credibly dated damages provision does not mean deals would typically inure to the benefit argue that the cancellation of sporting that a sponsor gets back exactly 1/34th of Traditional Force Majeure of teams and venues, since they would be events due to COVID-19 is unforesee- the money it paid for the sponsorship sim- Provisions in Sponsorship excused from their obligations to display able. In other words, COVID-19 cancel- ply because one game is cancelled. a sponsor’s logo or mention a sponsor’s lations likely can no longer constitute an Deals name at events. In this sense, the pan- unanticipated event that excuses perfor- Black’s Law Dictionary defines force demic put sponsors in a more difficult mance under a force majeure provision. Conclusion majeure as “an event or effect that can position, having spent money to adver- Attorneys should therefore look for The pandemic has forced attorneys be neither anticipated nor controlled.” tise at events that might never happen. innovative ways to navigate the can- in the sports industry to think differ- A force majeure clause relieves a party of Conversely, it was not clear that teams cellation of sporting events and maxi- ently about how they negotiate deals. its contractual obligations where perfor- and venues could invoke force majeure, mize value for clients without looking There is no question that all sponsor- mance is made impossible due to causes since many contracts did not specifically to traditional force majeure provisions. ship deals should now specify pandem- beyond the parties’ control. In the early contemplate pandemics. For example, the parties could nego- ics as force majeure events that can days of the pandemic, the worldwide However, teams and venues ulti- tiate and stipulate to liquidated dam- excuse performance. However, with spread of an unknown virus that shut mately wanted to maintain relation- ages for each game that is cancelled COVID-19 now an anticipated circum- down essentially everything seemed like ships, so rather than wielding force during a given season. Under this sce- stance, teams and sponsors must look just the type of thing that force majeure majeure clauses as weapons, many opted nario, the sponsor would recoup a cer- to new methods beyond force majeure was intended to cover. But force majeure to return to the table and rework deals tain amount of the sponsorship fee for to negotiate deals and maintain rela- provisions are narrowly construed, such that otherwise would have been ended each cancelled game. This way, parties tionships during the pandemic. HN that their scope depends on their spe- by COVID-19. This often took the form can anticipate what happens if part cific language rather than a traditional of adding additional years to the terms of a season is lost, while still allowing John R. Sigety is an Attorney at Kane Russell Coleman definition of the term. In the context of sponsorship deals or reducing spon- them to avoid scrapping the entire deal Logan PC. He can be reached at [email protected]

Client Development— Speak at a DBA Program Interested in sharing your legal knowledge and expertise with your colleagues? The CLE Committee is looking for speakers and hot topics for the Friday Clinic programs it holds throughout the year. Please submit a short bio, title, and 2-3 sentence description of your presentation to [email protected]. Submissions will be discussed at monthly CLE Committee meetings.

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Focus Entertainment, Art & Sports Law Stairway to Heaven: The Demise of the Inverse Ratio Rule page of sheet music. Around this time, Led Zeppelin, 952 F.3d 1051 (9th Cir. 2020), the majority of circuits that declined to adopt BY ANTHONY MAGEE Zeppelin was formed and released a 1971 Ninth Circuit held that the 1909 Copyright the rule, including the Second Circuit, I was a short-haired preteen living in a album that contained Stairway. Act (which does not protect sound record- which in 1961 repudiated the rule, some- bucolic backwater of rural Britain when I Wolfe died in 1997, but 44 years after ings) controlled because the copyright at what elliptically, as a “superficially attrac- first encountered the emerging phenomenon Stairway was released, his trustee Michael issue was the unpublished musical composi- tive apophthegm which upon examina- Led Zeppelin. In truth, the band appealed Skidmore filed a lawsuit alleging that Stair- tion registered in 1967. Consequently, only tion confuses more than it clarifies.” Loose more to my older sisters and their long- way infringed Wolfe’s copyright in Taurus. the Taurus deposit copy, not sound record- translation: “[a]ccess does not obviate the haired boyfriends. Little did I suspect that Stairway’s iconic opening notes, Skidmore ings containing performance elements that requirement that the plaintiff must dem- 50 years later, the musical genius of Jimmy alleged, are substantially similar to the were not protected by the deposit copy, onstrate that the defendant actually copied Page would again cross paths with me, a now eight-measure passage at the beginning of could be used to prove substantial similarity. the work.” white-haired intellectual property attorney the Taurus deposit copy, which included five Skidmore had to prove, inter alia, that In concluding, the Ninth Circuit in Dallas. Last December, a long-running descending notes of a chromatic musical Page copied protected aspects of Taurus by quipped: “[t]he trial and appeal process copyright dispute concerning Led Zeppelin’s scale. Led Zeppelin afficionados will know establishing both “copying” and “unlawful has been a long climb up the Stairway to Stairway to Heaven (Stairway) met its timely that while Stairway contains a descending appropriation.” “Copying” could be proved Heaven.” Sadly, Wolfe completed his climb end with the U.S. Supreme Court’s denial of chromatic chord progression in A minor, by circumstantial evidence that Page had up the Stairway to Heaven years before the petition for rehearing, confirming the demise Stairway also includes a concurrent ascend- access to Taurus and that the songs “shared ill-fated lawsuit was filed; mercifully, the of a Ninth Circuit copyright doctrine known ing line and other distinctive musical nota- similarities probative of copying.” Page tes- inverse ratio rule has now joined him. as the “inverse ratio” rule. tions, which Taurus lacks. tified that he owned Spirit’s album con- Arguably, the demise of the rule has In 1966, Randy Wolfe composed the song The readers can listen to recordings taining Taurus, sufficient to prove access. already been kind to powerful, but alleg- Taurus, performed on his band Spirit’s epon- of both songs to assess substantial similar- “Unlawful appropriation” required proof edly plagiaristic, songwriters. Before Skid- ymous 1967 album. Wolfe’s publisher regis- ity themselves, an option properly with- of “substantial” similarities, which in the more, Robin Thicke and Pharrell Williams tered copyright in the unpublished musical held from the jury that found the two songs Ninth Circuit requires satisfaction of a two- unsuccessfully appealed a jury verdict that composition of Taurus under the 1909 Copy- lacked substantial similarity. In its March part test: an extrinsic test comparing objec- they Got To Give It Up to the tune of $5.3 right Act by depositing a single, handwritten 2020 en banc decision in Skidmore v. Led tive similarities of expressive elements in million because Blurred Lines was substan- the accused work with protected elements tially similar to Marvin Gaye’s hit. After of the plaintiff’s work; and an intrinsic test Skidmore, Katy Perry’s Dark Horse won by a A B A P U B L I C A T I O N D I S C O U N T for similarity of expression from the stand- nose after she secured judgment as a matter point of the ordinary reasonable observer of law, silencing the Joyful Noise that surely F O R D B A M E M B E R S with no expert assistance. accompanied Christian hip-hop artist Before Skidmore, the Ninth Circuit Flame’s $2.8 million jury award. Could Ed Dallas Bar members can purchase ABA books at a had long adhered, albeit erratically, to the Sheeran be faulted, then, if Let’s Get It On 15% discounted rate. For a complete list of titles or “inverse ratio” rule, requiring “a lower stan- was what he was Thinking Out Loud when to place an order, visit www.ababooks.org. Enter dard of proof of substantial similarity when a judge recently sent him to trial in a $100 code “PAB7EDBA” upon checkout and the 15% a high degree of access is shown.” The dis- million copyright suit involving another discount will be automatically applied to your trict court refused to give the jury an inverse Gaye classic? Time will tell. The COVID- ratio rule instruction, rightly according to 19 pandemic has deferred the Sheeran trial order. Discount does not apply to ABA-CLE iPod the Ninth Circuit, which took the oppor- until spring 2021 at the earliest. HN products. tunity to abrogate the rule because it “defies logic, and creates uncertainty for the courts Anthony Magee is Managing Member of Magee Legal, PLLC. He can and the parties…,” thereby joining the be reached at [email protected]. F o r a s s i s t a n c e , c a l l ( 3 1 2 ) 9 8 8 - 6 1 1 2 .

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irmadeadnotesfincropr.indd 16 Headnotes l Dallas Bar Association March 2021 Bar None: Still Standing

program was established in honor of U.S. The large number of those students now came through with generosity when asked, BY MICHELLE M. ALDEN District Judge Sarah T. Hughes, a former practicing law in Dallas proves the point. demonstrating their commitment to the Last June should have seen the 35th trustee of the Dallas Bar Foundation, who That’s why Bar None is important and I look mission of Bar None: to support the schol- annual production of Bar None, a collec- devoted herself to improving the rights of forward to it continuing into the future.” arships. tion of songs and skits poking fun at cur- women and minorities. The Hughes Schol- Krisi Kastl recalls how although she According to Bar None producer, Tom rent events and the legal profession, star- arship provides tuition and fees for deserving wanted to attend law school from an early Mighell, the 2020 donations total more ring and written, choreographed, produced, minority students each year at SMU Ded- age, “My biggest fear was that I would never than $90,000! and directed by Dallas’ most talented law- man School of Law, UNT Dallas College of be able to afford my dream. I was fortunate “We know our fans love Bar None, yers and judges. When the pandemic made Law, and Texas A&M School of Law. to receive scholarships to make my dream a and it’s wonderful to know that they will that impossible, some of Bar None’s long- But what motivated the longtime sup- reality. I support Bar None as a way to give donate to the cause it supports even when time production talent created a music porters of Bar None to step up and support back and repay all the opportunities I was they can’t enjoy the performances of their video (riffing on Elton John’s “I’m Still the cause in a difficult year when there was given as a young, struggling student.” colleagues,” said Bar None’s director, Mar- Standing”) and took to the phones to ask no show to enjoy? Steve Gwinn noted, The scholarships allow “individuals from tha Hardwick Hofmeister. “We plan to the show’s traditional sponsors to continue “Both of my parents were fans of Bar None. a wide variety of backgrounds the opportu- be back in the summer of 2021 with a safe, to support the Sarah T. Hughes Diversity And my father and I are both double alums nity to get a great legal education, so that hilarious, and virtual production!” Scholarships. The response of the Dallas of SMU undergrad and law, and my mother we can add much needed diversity to our For more information about Bar None, legal community and, in particular, those got her undergraduate degree from SMU. I profession, and learn from those with a new go to www.barnoneshow.com. To see the firms, Dallas Bar Association sections and view the show and the scholarship as a way and unique perspective,” Kastl added. Not 2020 music video, go to www.youtube.com/ committees, and individuals who have been to strengthen both the Dallas legal commu- to mention, “with all the stresses of work, we watch?v=h_m9c5TAMMk HN longtime supporters of both the show and nity and SMU.” all need to pause occasionally to laugh and the scholarships, was overwhelming. Ken Mighell stated, “I spent many years not take ourselves or the law so seriously.” Michelle Alden is the Director of the Dallas Volunteer Attorney As much as the cast loves performing and supporting Bar None and raising funds. I am In a year in which it was not possible to Program and a Member of the Marketing Committee of making people laugh, their real motivation is a big supporter of scholarships for minority produce the annual Bar None show, more the Bar None Production Company. She can be reached at to support the scholarships. The scholarship students and firmly believe in the program. than 200 of Bar None’s staunch supporters [email protected].

See the best Get noticed! high school Update your resume on the mock trial DBA Career teams in Center today! the state!

Sign up to score our virtual state mock trial competition Thursday, March 4 - Saturday, March 6. No experience necessary! AND earn CLE and ethics credit! Thousands of top employers could be looking at your resume right now. The first way to stand out from the other candidates on the DBA Career Center is to update your resume to show the employers why you’re the one they’re looking for.

Here are some simple tips on how to diversify yourself from the others: 1. Add your objective in the title 2. Add your LinkedIn, Twitter and Facebook links so employers can see your personality 3. Add more accomplishments to show your strengths

www.texashighschoolmocktrial.com www.dallasbar.org/careercenter March 2021 Dallas Bar Association l Headnotes 17

MUSIC, SINGING, ZOOMING, COMEDY... ALL WITHIN CDC GUIDELINES

BENEFITING THE SARAH T. HUGHES DIVERSITY SCHOLARSHIPS

BENEFACTORThank you for BESTsupporting FRIENDS OF BAR NONE BarFRIENDS None! OF BAR NONE Judge Mark Greenberg Sherri Evans Stacey Haggard Robert Fountain Melinda Hartnett Dawn Fowler Carol Horany Scott Frenkel Michael Hurst Leland de la Garza Robert Jordan Melanie Grimes Barbara Kennedy & Jeff Kaplan Jeffrey Hage Doug Lang Orrin Harrison MOGUL Eric Levy Judge Martin Hoffman William “Mac” Taylor American Inn of Court Marty Lowy Willie Hornberger Vistra Energy Mike and Judge Barbara Lynn Laura Hornung Producer Jay Madrid Susan Iannaccone Sarah T. Hughes Alumni Scholars Anthony & Maria Marwill Magee Anne Johnson Bill Mateja Andy Jones DIRECTOR David McAtee Mike Koenecke Altrusa Int’l of Downtown Dallas, Inc. McBride & Associates Brian Landa Anesthesia for Children’s Tom Mighell Justice Liz Lang-Miers Burdin Mediations Judge Ken Molberg Paula Larsen DBA Corporate Counsel Section Frederick Moss Jerry Lastelick Gwinn Family Foundation Justice Erin Nowell George Terry LeeLexis-Nexis Haynes & Boone Elizabeth Philipp Julie & Michael Lowenberg Ken Mighell Molly Richard Aurora Madrigal Shackelford, Bowen, McKinley & Norton Steve Russell Michael Martin UNDERSTUDY Kathleen Scott Patty & Jim Mathis Bradley Arant Boult Cummings Mark Shank Bob Michaelsen Mickie & Jeff Bragalone Stephen Shellenberger Paula Miller DBA Securities Section Pamela St. John Regina Montoya & Paul Coggins Al Ellis Ken Tapscott Audrey Moorehead Farrow-Gillespie Heath Witter Robert Tobey Kathryne Morris Kristi & Bill Francis Peter Vogel Cheryl Camin Murray Royal Furgeson Terry & Mary Claire Welch Ronald Nelson Hernandez & Browning Joel Winful Larry Newman Kent & Martha Hofmeister FRIENDS OF BAR NONE Loren Parker-Jackson John Horany Michelle Alden Jay Patterson Ralph “Red Dog” Jones Karen Askew Steven Pawlowski Locke Lord Kim Askew Vee Perini BEST FRIENDS OF BAR NONE Joan Ballard Elizabeth Philipp Christy Albano Lacey Barkley Nichole Plagens Allergy & Asthma Specialists Courtenay Bass Rob Rippe LaVone Arthur Marcy Berman Laura Roach Anne Ashby Barbara Boyd Rudy Rodriguez Jill Bindler Sherita Briscoe Henry Simpson Talmage Boston Linda and Gilbert Brown Robert R. Smith Bill Bridge Scott Chase Paul Stafford Jim Burnham Jonathan Childers Molly Steele Tena Callahan Collins Realtime Reporting Jeff & Jennifer Steiner Barbara Clay & Ken Bernstein Aubrey Connatser Richard & Sandra Stewart Rob Crain Glenda Copeland Don Swanson Sally Crawford U. Sidney Cornelius Marc Taubenfeld John Creuzot Nina Cortell Nancy Thomas Dallas Women Lawyers Association Christina Melton Crain David Weatherbie DBA Tort & Insurance Law Section Dallas Asian-American Bar Association Webb Family Law Firm Bryan Dunklin DBA Health Law Section Brad Weber Laura Geisler DBA International Law Section Nelson Weil Beverly Godbey Katharine Deem Linda Wilkins Grau Law Group Margaret Dunklin Maryann Wilson Rebecca Greenan Rocio Cristina Garcia Espinoza Timothy & Nancy Zeiger 18 Headnotes l Dallas Bar Association March 2021 Introducing the 2021 Class of DBA WE LEAD

of equity partners and less than 5 percent of and business generation skills, and offers for her and her colleagues. DBA WE LEAD STAFF REPORT managing partners in the AM LAW 100. opportunities to empower women lawyers to class members are also provided with oppor- In 2017, the Dallas Bar Association Additionally, in compensation, particularly take their already successful practices to new tunities to interact with general counsel and launched its innovative and award-winning in the partnership ranks, women lawyers are heights within their law firms, the business senior women lawyers as well as network Women Empowered to Lead program. DBA not paid equivalent to their male counter- community and the community, at large. with supportive peers. WE LEAD (Women Empowered to Lead in parts. There are many reasons for these sta- DBA WE LEAD class members are suc- Since its inception, DBA WE LEAD has the Legal Profession) is a program designed tistics, including the unique challenges that cessful woman lawyers with 8 to 15 years been supported by Mary Kay, Toyota, Vistra to promote leadership, empowerment, and women lawyers face today. of practice and in the critical period when Energy, and AT&T. Corporate sponsors host professional development for high-perform- DBA WE LEAD was created to address many women choose to exit the profes- a half-day session on their campus and their ing women lawyers who have practiced for these challenges. Through a series of four sion. Each DBA WE LEAD member learns executives often participate in panel dis- 8 to15 years. half-day sessions, led by career and per- concrete tools to help her stay in the game cussions and otherwise interact with DBA Most law school students are women, sonal development professionals, DBA WE and enhance the impact, economically and WE LEAD class members. To find out more but retention and promotion lag far behind. LEAD offers leadership and professional professionally, to her and the bottom line of about DBA WE LEAD, contact Judi Small- Today women make up less than 20 percent development training, teaches networking the business, which creates positive results ing at [email protected]. Meet this year’s participants:

Sadaf Abdullah Raquel Alvarenga Alexis Angell Priya Arshanapalli Skiermont Derby LLP Haynes and Boone, LLP Polsinelli PC Kirkland & Ellis LLP

Sorana Ban Minoo Blaesche Ewa Champagne Tara Clothier KASTL LAW, P.C. Jackson Walker L.L.P. BakerHostetler LLP Essilor of America

Andrea Cook Cassie Dallas Chisara Ezie-Boncoeur Elizabeth George Gordon Rees Scully Mansukhani, LLP Thompson, Coe, Cousins & Iron LLP Lynn Pinker Hurst & Schwegmann Salesforce.com, Inc.

Ashlei Gradney Amber Hamilton Gregg Rachel Kingrey O’Neil Lauren Kulpa Gradney, P.C. Dallas County District Attorney’s Office Foley & Lardner LLP Perkins Coie LLP

Megan LaDriere Lacy Lawrence Hillary Lynch Angela Mayeux Baker Botts L.L.P. Akin, Gump, Strauss, Hauer & Feld, L.L.P. Platt Cheema Richmond PLLC Southwest Airlines, General Counsel Department March 2021 Dallas Bar Association l Headnotes 19

Jill Meyer Melinda Newman Jervonne Newsome Victoria Oguntoye Westwood Wealth Management U.S. Social Security Administration Lynn Pinker Hurst and Schwegmann K&L Gates LLP

Kelly Perez Courtney Sauer Sunyi Snow Gabriela Sotelo JP Morgan Private Bank Munsch Hardt Kopf & Harr, P.C. Hunton Andrews Kurth LLP UNT Dallas College of Law

DBA WE LEAD (Women Empowered to Lead) is a leadership program designed to address the challenges of high-performing women who have practiced law for 8 to 15 years. For more information, contact Judi Smalling at [email protected].

Courtney Tawresey Katherine Zimmermann Munsch Hardt Kopf & Harr, P.C. The Law Office of Katherine P. Zimmermann

California’s most respected neutrals are now offering mediations nationwide using secure video conference technology.

S I G N A T U R E R E S O L U T I O N . C O M 20 Headnotes l Dallas Bar Association March 2021

Column Ethics Lawyer, Agent, and Manager: A delicate balancing act (Rule 1.05) prohibits a lawyer from using public’s attention. to establish a separate business for promo- BY MARINA AMENDOLA confidential information to disadvantage The general rule regarding conflicts tion of talent, expressly stating that no Texas is home to a large amateur and the client or to the lawyer’s advantage. of interest (Rule 1.06) prohibits lawyers legal services are provided, and advising professional music, film, rodeo, and sports It also prohibits any disclosure of confi- from representing clients whose interests the client to seek independent counsel scene. Lawyers representing clients in dential information unless the client con- directly clash with other clients’ interests. before signing on. these fields should keep in mind the ethi- sents. Confidential information includes It also prohibits representations limited Negotiating appearance and merchan- cal hazards inherent in the entertainment everything learned before, during, and by the lawyer’s own interest. These con- dising deals and weighing in on proposed industry, especially concerning client after the representation. Disclosure of flicts may be cured if the lawyer believes collaborations are typically the province confidentiality (Rule 1.05) and conflicts “generally known” information is allowed each representation will not suffer and of a talent agent or manager. These pro- (Rules 1.06 and 1.08). under very narrow circumstances that each client consents in writing after being fessions are, in some states, subject to In addition to the legal ethics rules, include a requirement that the general fully informed. their own regulatory laws and licensing entertainment lawyers should be careful public is already aware of it. This means Lawyers in the entertainment industry requirements. The lawyer assuming these not to cross the line between performing that any lawyer representing a (poten- may represent several clients together as roles may also subject themselves to civil purely legal work and acting as an agent tial) celebrity must carefully guard what part of a package deal: Offering a studio liability if things go wrong. or manager—roles that may be incon- they know about the client. This duty is the right combination of actors, writers, Texas law does not require certifica- sistent with the lawyer’s ethical duties, in stark contrast with the promotional and directors just may ensure a box office tion of talent agents and managers, but invoke additional duties, and require spe- work done by a talent agent or manager— hit. Nevertheless, an attorney should even without a certification requirement, cial certification. whose job it is to keep their client rele- consider that clients packaged in one deal one acting as an agent in Texas owes the In Texas, the duty of confidentiality vant by consistently competing for the may already have or later develop mutu- client the duties of a common law fidu- ally conflicting interests, and should min- ciary and faces liability if those duties are imize the risks by informing the clients not met. Other states do require agents to of the implications and potential adverse be certified. For example, California and Let's Keep it Social. consequences of their common represen- New York have well-developed licensing tation from the start. regulations, and are just two of the states Additionally, a lawyer who assumes with laws protecting the talent whether Follow us! the role of agent or manager risks hav- their agents are licensed or not. ing his client’s interests conflict with his In addition to the rules and the com- own. A disappointed client could object mon law fiduciary duties applicable to Find out what's going on at to the attorney-manager’s commission as lawyers, agents, and managers in Texas, #DallasBarAssoc calculated on the client’s creative rev- anyone acting in these capacities must be enue. The duration and intimacy of the mindful of the Deceptive Trade Practices- lawyer-client relationship as well as func- Consumer Protection Act (DTPA). The tions performed by the lawyer are impor- DTPA applies to professional services tant when considering the likelihood of offered by agents and managers. While Facebook Twitter Instagram LinkedIn conflicts. this law does not generally apply to “pro- Rule 1.08 lists specific prohibited fessional services” which provide “advice, transactions that create conflicts of inter- judgment, opinion or similar professional est. This rule only allows the lawyer to skill,” and thus would generally not apply enter into business transaction with a cli- to legal services, there is an exception if ent if the terms are fair and reasonable to the professional services employ “misrep- the client, the client fully understands resentation, deception, or unconsciona- them and consents to the transaction ble acts.” after having had an opportunity to seek The show must go on, but tread care- independent advice. Therefore, lawyers fully in the ethical minefield of the enter- who take on the role of agents or manag- tainment industry. HN ers are advised to stipulate a joint business venture in order to minimize risk by sepa- Marina Amendola is an attorney with Stanton LLP and co-chair rating their income based on the client’s of the DBA Legal Ethics Committee. She can be reached at creative proceeds. A better alternative is [email protected].

DBA/DAYL Moms in Law Being a working mom can be challenging. Being a working lawyer mom can be a different ballgame with its own unique challenges. Moms in Law is a no pressure, no commitment, informal, fun, support group for lawyer moms.

Email [email protected] to join the Moms in Law email listserv.

Online Annual Evening Ethics Fest Thursday, May 13, 2021 5:30 – 8:30 p.m. Ethics 3.00 Free for DBA members! Non-members: $135 To register, log on to www.dallasbar.org. For more information contact Marcela Mejia at (214) 220-7410 or [email protected].

Sponsored by the DBA Legal Ethics Committee March 2021 Dallas Bar Association l Headnotes 21

Focus Entertainment, Art & Sports Law Does Mitigation Matter in Copyright Infringement Suits? In its decision, the Circuit Court right Act, which allows a copyright statutory language allows the copyright BY THOMAS MADDREY found “the district court appropri- owner to “elect, at any time before owner the option to recover in that The question is this: can an alleged ately instructed the jury to consider final judgment is rendered, to recover, way. Therefore, despite the potentially copyright infringer raise the affirma- EIG’s lost revenues and mitigation in instead of actual damages and profits, drastic difference between statutory tive defense of failure to mitigate when determining the amount of statutory an award of statutory damages for all damages allowable for EIG to recover a copyright owner elects the statutory damages.” However, it distinguished infringements involved in the action.” compared to what EIG may have actu- damage remedy in a copyright infringe- the district court’s finding that such Prior to the 1976 Copyright Act, the ally lost, the court determined that ment claim? On an issue of first impres- conduct by a plaintiff could support 1909 version allowed for statutory this discrepancy was irrelevant. sion, the Fifth Circuit found that an affirmative defense of mitigation, damages “in lieu of actual damages and Such a precedent gives important failure to mitigate damages does not and instead stated that such damages profits” and could not “be regarded as guidance to both copyright hold- equal a complete defense to statutory “do not only approximate a copyright a penalty.” Since the 1976 Act allowed ers and users as to how to proceed in damages claims made pursuant to the owner’s consequential damages, but … for copyright owners to make the deci- infringement cases. This holding will Copyright Act. With ordinary dam- also serve an independent deterrent sion regardless of actual damages, allow copyright owners to elect statu- age caps for each infringement rang- purpose; therefore, mitigation rules do the court relied on that notion as an tory damages without fear that miti- ing from $750 to $30,000, and willful not wholly preclude recovery of statu- explanation for denying the defense of gation will be raised as an affirmative infringement carrying statutory pen- tory damages.” mitigation. defense so long as the Copyright Act alties up to $150,000, the number of The court’s decision on this issue Using the 4th Circuit precedent specifies otherwise. Copyright users infringements and efforts taken by the relied almost exclusively on its inter- and works of copyright expert Melville as well must take heed of this ruling copyright owners to timely enforce pretation of congressional intent, rea- Nimmer, the 5th Circuit court sup- when developing their litigation and their rights can make a significant dif- soning that even with the common ported its notion by explaining how defense strategy. HN ference. This decision in Energy Intel- law principle like mitigating damages, such deterrence would be ineffective ligence Grp., Inc. v. Kayne Anderson “courts may take it as a given that if certain common law principles were Thomas Maddrey is the Founder of Maddrey PLLC and can Capital Advisors, L.P., 948 F.3d 261 Congress has legislated with an expec- applied to infringement cases when the be reached at [email protected]. (5th Cir. 2020) impacts both the copy- tation that the principle will apply right owner and infringer in all future except when a statutory purpose to the copyright actions. contrary is evident.” The court deter- In this case, the infringement was mined the intent in creating the dam- first discovered by Energy Intelligence ages provisions in the Copyright Act Group (EIG) in 2007 when multi- were “deterrent and potentially puni- ADVERTISE HERE! ple Kayne Anderson (KA) employ- tive” in nature. The court relied on ees were using a single login to access Patrella v. Metro-Goldwyn-Mayor, Inc. EIG’s newsletter. After EIG contacted to make this determination, which held Don’t miss your opportunity to KA about the issue, a partner at KA that “Congress precluded the equitable cancelled the login and then had EIG defense of laches in copyright cases by advertise (print & online) in the #1 send the newsletter via email as a providing a three-year statute of limi- “Legal Resource & Expert Witness Guide” PDF file. Although the login sharing tations” in the statutory language. Like in Dallas County. stopped, the partner and other employ- this case, the Patrella court denied a ees started forwarding the newsletter common law defense when viewed to others and renaming the PDF with in light of the specific language and For more information, contact (214) 321-3238 inconspicuous names such as “123.” In intent of the Copyright Act. or [email protected] 2014, EIG again contacted KA about In its rationale, the court first the sharing, and also filed suit. looked to the language of the Copy-

WE’RE GROWING AGAIN

The Rogge Dunn Group is excited to announce the addition of its new partner, Greg McAllister.

In trial and arbitration, Greg litigates employment and business disputes. As a partner at Littler, he won jury trials and favorable results in claims regarding trade secrets, noncompetition/nonsolicitation, overtime, and discrimination. He also brings experience representing executives in noncompetition, severance, executive compensation, and change-in- control matters. Greg helped build/fundraise 12 homes (and counting) with the DBA’s Home Project and insists he was part of Leadership Dallas’s “Best Class Ever” at the Dallas Regional Chamber.

We look forward to Greg continuing his success at the Rogge Dunn Group. GREG MCALLISTER, PARTNER 22 Headnotes l Dallas Bar Association March 2021

Focus Entertainment, Art & Sports Law Characterization of Intellectual Property in Divorce ization. “Inception of title” defines the nity and part separate. Consider patent property rights from associated assets or BY CYNTHIA DUNN RAIBOURN AND LAURA H. CASTON point in time when a party’s ownership royalties paid partially prior to marriage liabilities. Specifically, the intellectual interest has vested. Although federal law and completed during marriage. Absent a property right itself is typically different Texas courts have defined “intellec- generally governs patents, copyrights, property agreement, the royalties during than the physical item or creation and tual property” as “the set of legal rights and other intellectual property assets, marriage associated with the intellectual the income from the physical item or to an expressed idea—it is property that multiple cases—both state and federal— property would be separate property. Due creation. In other instances, like a paint- results from the fruits of mental labor.” have consistently held that federal law to the very high burden of proof to estab- ing, the intellectual property right may Black’s Law Dictionary boasts an expan- is not designed to preempt community lish separate property, a party may argue have only been created once the physi- sive definition of “intellectual property” property laws as it relates to characteriza- in the alternative to mixed characteriza- cal item/creation came into existence, beyond trademark, copyright, and pat- tion of intellectual property for division tion that a higher percentage of the intel- and not necessarily when the idea was ent rights, also including in its defini- in a divorce. Applying the inception of lectual property should be awarded to the initially cultivated. However, even this tion trade secrets, publicity rights, moral title rule to intellectual property, there originator of the idea. example can be complicated if an artistic rights, and rights against unfair competi- are several questions to consider: expression is part of an ongoing series— tion. Monet’s Water Lilies, for example, is a What happens to this brain child Classification of Intellectual series of some 250 paintings created over when its parent gets divorced? In a Was the Idea Initiated more than 30 years. Texas divorce case, intellectual property Property Right is an asset to be characterized as either Before or After Marriage? In considering when title to intellec- separate property or community property, The starting point for characteriz- tual property is incepted, you must first Other Considerations and then valued and divided. This article ing intellectual property is identifying classify the intellectual property right in Characterization of intellectual prop- is limited in scope to characterization of when it was created. Intellectual prop- dispute and identify what laws apply to erty rights is fact-specific. Prior to consid- intellectual property. erty that is clearly documented, such as that particular right. For example, federal ering divorce, gather information on the The same basic principles for char- by way of a copyright or patent, as hav- law provides that copyrights are incepted intellectual property right to the extent acterizing real or personal property in a ing been incepted entirely prior to mar- at the time they are reduced to “any tan- it is available, such as by conducting a Texas divorce case also apply to intellec- riage is clearly separate property. Intel- gible medium of expression.” In contrast, copyright or patent search online and tual property. Texas is a community prop- lectual property that was incepted dur- Texas common law provides three dif- reviewing applicable employment agree- erty state, meaning all real or personal ing marriage seems simple enough to ferent points in time for when title to a ments to determine the ownership of property acquired during marriage is pre- characterize as community property, as patent may be incepted: when the idea is “works for hire” created by an employee sumed to be community property, subject it is presumptively community property sufficiently developed, when the inven- spouse. Also understand the general to being divided in a just and right man- already. However, further analysis may be tion is actually built, or on the effective principle that all income earned dur- ner upon divorce. All real or personal required because some intellectual prop- date of the patent. ing marriage—even income earned dur- property acquired prior to marriage, or erty rights may be separate property, even ing marriage from separate property—is acquired during marriage by gift, devise, if they are more fully developed during community property. To protect income or descent, is the separate property of the marriage. For instance, it may be argued Isolation of Intellectual earned on separate property, a Premari- owning party. The standard for proving that an artistic idea for a painting gen- tal Agreement or a Partition or Exchange an asset is separate property is “clear and erated exclusively by the painter is the Property Right from Other Agreement should be considered. HN convincing.” separate property of the painter, even if The key question in characterizing the painting itself is community property. Assets or Liabilities Cynthia Dunn Raibourn is Board Certified in Family Law by the an intellectual property right is: when Intellectual property that was partially In attempting to pinpoint when an Texas Board of Legal Specialization, and is a Shareholder at was the idea created? Texas law applies created prior to marriage but vested dur- intellectual property right arose, the Quilling, Selander, Lownds, Winslett & Moser, P.C. She can be the inception of title rule to intellectual ing marriage is arguably a “mixed charac- timing is heavily influenced by the abil- reached at [email protected]. Laura H. Caston is an Associate property in determining its character- ter” asset—an asset that is part commu- ity to appropriately isolate intellectual at the firm and can be reached at [email protected].

DBA MEMBERSHIP Crain Brogdon Rogers LLP Contributes Adding value to your career and the profession. to a Record EAJ Campaign

to the Equal Access to Justice Cam- CONTINUED FROM PAGE 1 paign is impressive. Since 1997, the + clinics and in DVAP’s pro se assisted DBA and Legal Aid have joined forces Members divorce programs. to raise money for the program, with “Among the many remarkable pro- Dallas lawyers donating almost $16 11,392 DBA members come grams organized by the Dallas Bar Asso- million. together to learn, to ciation, DVAP is our most important DVAP is a joint pro bono program of Sections share, to teach, and collective effort. DVAP staff and attor- the DBA and Legal Aid of NorthWest to advocate for the Online 30 practice areas with profession. neys are essential workers for so many Texas. The program is the only one of its hundreds of opportunities for Communities networking and professional North Texas families living below fed- kind in Texas and brings together the vol- 5,000+ development. eral poverty guidelines; we are proud unteer resources of a major metropolitan members participate in one to play a small part in supporting them bar association with the legal aid exper- or more of the DBA online communities. $ and their work,” said Rob. tise of the largest and oldest civil legal aid Crain Brogdon Rogers LLP’s gener- program in North Texas. For more infor- Publications ous gift to the EAJ Campaign contrib- mation, or to donate, visit www.dallas- 9,300 uted to a record amount raised, despite volunteerattorneyprogram.org. HN attorneys and legal professionals the pandemic, bringing the total for read Headnotes each month. this year to $1,300,372. The commit- Michelle Alden is the Director of the Dallas Volunteer Attorney ment of Dallas attorneys and the DBA Program. She can be reached at [email protected]. Online Directory Savings $1,000+ estimated savings 2,500 searches per month through DBA membership. for attorneys in the DBA Online Member Directory.

15,000+ attendees 470 CLE 87.5 hours at Section CLE, networking hours offered of Onlne CLE. CLE and social events. including... Need Referrals? Take out an Area of Practice and/or Foreign Language Proficiency Mock Trial Pro Bono listing in the 2021 DBA Member Directory to get great exposure for your practice. 1,900+ members and high 13,270 hours of pro bono school students participate in services by the Texas High School Mock For just $25 per listing you will be included in Trial Competition. 1,500 volunteer attorneys. both the printed and online DBA Member directory. DBA MEMBERSHIP Listing Cost: $25.00 | Deadline: April 9, 2021 For more information and an order form contact Judi Smalling What are you waiting for? Join today at DallasBar.org at [email protected] or (214) 220-7452. March 2021 Dallas Bar Association l Headnotes 23

Focus Entertainment, Art & Sports Law Show Me the Money! Incentives for the Entertainment Industry tures. While some question the effective- make it extremely expensive to shoot experienced tremendous growth in the last BY KERRY TASSOPOULOS ness of the program, recent data shows that exteriors. For example, a production can two years. The world’s third-largest video- The U.S. media and entertainment for every $1 the state gives as a rebate to shoot for only 14 hours a day with normal game development hub after California industry is the largest in the world with applicants who submit audited accounts overtime and then must pay double time. and Japan, Québec has welcomed 42 new an estimated value of $717 billion. The of proven in-state spending to the Texas These costs run even higher for indepen- studios and created 2,100 jobs since 2012. industry includes motion pictures, televi- Film Commission, Texas receives $5.11 of dent producers. In Canada, producers still Generous tax credits, a vibrant business sion programs and commercials, stream- actual benefit. have unionized labor to contend with, but climate, and a talented workforce are some ing content, music and audio recordings, By 2009, more than 40 states offered they get a huge discount by paying labor of the assets drawing the industry’s biggest broadcast, radio, book publishing, video some form of film and television produc- in Canadian dollars. On top of that, the names, including Texas-based companies. games, and ancillary services and prod- tion incentives. Ten years later, only 31 Canadian Federal Government provides General tech incentives include startup ucts. Producing content is challenging, states maintained incentive programs. foreign producers with a subsidy called benefits, tax breaks, and zoning incentives. costly and time sensitive—therefore gov- Pressure on state budgets, and doubts the Film Production Services Tax Credit, Hiring incentives include unemployment ernment production incentives can mean about actual economic benefits, reduced which now equals 16 percent of the Cana- insurance and rewards for hiring workers success or failure. the annual appropriation available for film dian labor costs. Other provincial benefits with disabilities. Considering all of these Hollywood has long been associated incentive programs. Even Louisiana, the exist, and there is also a 20 percent break factors, content creators and producers with America’s dominance in the motion pioneer of state film incentives, introduced on digital effects, if they are done in Can- will carefully scrutinize production incen- picture industry. In the early 1990s, a a $150 million cap on the amount of cred- ada. tives from all locations—in essence shout- favorable currency-exchange rate and its that can be issued each year. These incentives have also led other ing “Show me the money!” HN government-sponsored tax incentives Whether in Texas or elsewhere, it is producers, such as video-game creators, to lured film production from California to clear that incentives can develop, main- establish operations in Canada. The digi- Kerry Tassopoulos is the Founder of The Tassopoulos Law Firm, Canada. In response, several U.S. states tain, and promote the entertainment pro- tal entertainment industry in Québec has PLLC. He can be reached at [email protected]. developed their own incentive programs duction industry, improve the attractive- to entice filming in those states. Incentives ness of a location for filmmaking, and pro- ranged from Refundable Tax Credits (state mote the state or country’s culture, history, Office Space, Position Wanted, payments to the production company in and beauty. In the international setting, Positions Available, Services excess of the company’s owed state tax); incentives bring in foreign capital and Transferable Refundable Tax Credits (tax increased economic activity and spending, credits can transfer over to a local com- since qualifying projects have to be filmed, pany, reducing or eliminating tax liabil- in whole or in part, in the country and Classified ity); Rebates and Grants (direct payments make use of the country’s vendors, crew, issued to the production company); and and talent. Ads Bonuses (additional perks offered by the While many states, including Texas, state, such as for using specific locations or provide scenic settings for production available hiring local staff). activities, Canada has enhanced economic In 2005, the state of Texas founded the incentives and drawn producers from the Texas Moving Image Industry Incentive U.S. In fact, it is not the production values Online Program (TMIIIP), providing qualifying that film producers seek out in Vancouver, film, television, commercial, video game, Toronto, or Montreal—the lure is finan- Contact Judi Smalling animation, visual effects, and extended cial incentives and cost savings. [email protected] reality productions the opportunity to In Hollywood, studios have highly effi- 214-220-7452 receive a cash grant based on a percent- cient soundstages and an abundance of age of a project’s eligible Texas expendi- skilled technicians, but union work rules www.dallasbar.org

FEDERAL & STATE CRIMINAL DEFENSE | FEDERAL & STATE CIVIL TRIAL MATTERS

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500 NORTH AKARD STREET, ROSS TOWER, SUITE 2150 DALLAS, TEXAS 75201-6654 | 214-237-0900 *Independent Law Offices HN_March2021-B&WGroup.pdf 1 2/1/2021 3:15:27 AM 24 Headnotes l Dallas Bar Association March 2021

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