The guys discuss the trademark infringement case involving Mickey Mouse and Deadmau5. They also answer, “What should I include in a general release?”
Full Podcast Transcript
NASIR: Welcome to Legally Sound Smart Business. You’re listening to Legally Sound Smart Business with Nasir Pasha.
MATT: And this is Matt Staub.
NASIR: And welcome to our podcast where we cover business in the news and also answer some of your business legal questions that you, the listener, can send in to firstname.lastname@example.org and, of course, follow us on Twitter. The Twitter handle is @askbizlaw.
MATT: I don’t know how the intros get worse as the week progresses. I know I always talk about this but you’re so good at everything else. The intros, not as good, but that’s fine. Actually, I want to get into the story here but first it’s dealing with Mickey Mouse and a DJ but I just wanted to know. I’m guessing you don’t know who this is but I wanted to see how you would pronounce his name.
NASIR: Oh. Uh, yeah, of course, it’s Deadmau5.
MATT: Okay. I think that’s what a lot of people say. It’s “deadmouse” is the actual pronunciation.
NASIR: Yeah, that’s what I said. Yeah, “deadmouse.”
NASIR: I was saying how most people would say something stupid like Deadmau5 but, yeah, “deadmouse.”
MATT: Well, I don’t hold that against you at all but, like I said, a lot of people probably say this – even people that listen to the music. For those of you who don’t know or maybe those of you who’ve heard of him, there’s a very iconic thing he wears on his head when he does all of his DJ-ing. I’d say one of the most popular DJs right now in the last few years. But how to describe it is he wears this thing on his head that essentially makes him look like Mickey Mouse – an electric techno version of Mickey Mouse. We’ll definitely link a story so you guys can check it out for yourself to see what it looks like because it’s hard to picture it if you haven’t seen it but that’s where this whole lawsuit’s come into play. There’s a dispute over the infringement of Mickey Mouse’s head, more or less. And so…
NASIR: You know, I hate to interrupt you but I was looking at this article that we’re referencing here and it says, “Here are the two logos side by side. You be the judge.” It’s not a picture of a logo. It’s literally a picture of someone in a Mickey Mouse costume and then this Deadmau5 character and a picture of him DJ-ing. It’s weird to just call them logos. I don’t know what the definition of logos is but apparently it’s changed.
MATT: That’s poor captioning by…
NASIR: The Daily Beast.
MATT: Yeah, The Daily Beast.
We talk about these infringement issues a lot and they do look similar but there’s a few different things about this case and other ones – one of which being that Deadmau5 has – well, the guy, I forget his actual real name, something Zimmerman – he owns trademarks to this logo – there’s your logo – in thirty different countries and has been using the image for over a decade. That definitely works in his favor, I would say. I’d assume that Disney had some sort of trademark for the Mickey Mouse logo. I would think they have to have it.
NASIR: I would assume so.
MATT: Obviously, they do because they even have an act that’s better known as the Mickey Mouse Protection Act. Deadmau5, he already has a lot of these trademarks filed so that definitely works in his favor. Another thing too is it’s not whether he can trademark this. I think they’re kind of saying that he can but it’s whether it’s infringing upon what Disney has with Mickey Mouse.
NASIR: In other words, I think they’re saying that, “Okay, you can still use it,” but, as far as making it a registration, I think they’re opposing that and I can understand that. You mentioned that he registered in another country. Sometimes, it’s easier to do so in other countries like China is classic that it’s basically first to file. In fact, just as a side note, a lot of issues when you want to go international with your mark or your business, some of the time you’ll have these guys in China that will actually register your mark and basically it’s like what they call a trademark troll instead of a patent troll – a trademark troll in which they basically hold the trademark ransom. You know, when you’re dealing with international countries and so forth, it’s a little bit more difficult to enforce. But here, in this case, just from a simple perspective of allowing this guy, even when you see him, we all see the resemblance. We all say, “Oh, that guy looks like a digitized caricature of Mickey Mouse,” and I think that is just because Mickey Mouse has become so prevalent in American culture that we see that association. We’ve seen it since we were kids. But does it necessarily create a likelihood of confusion and affiliation or association? I think this DJ has also made his own too as well to have enough of an independent kind of following to be freely differentiating between Mickey Mouse.
MATT: I agree with you. Like I said earlier, he’s been doing this for a decade.
NASIR: Yeah, why now?
MATT: Why didn’t they take any action prior to now?
NASIR: Disney is classically very aggressive in enforcing any kind of copyright infringement and trademark infringement, et cetera. I think, only until recently, even in this article, they comment on how they’ve taken a little bit of a step back with their movie, Frozen, because there’s been so many parodies and tributes to Frozen on YouTube and alike that it’s actually helped the actual movie get more viewers and so forth. And so, they’ve kind of let it go because it’s in their favor – which I haven’t seen the movie either, have you? I’ve heard it’s good.
MATT: Have I seen Frozen? No, I have not, and I don’t plan on seeing it either.
NASIR: I feel like we’re missing out. I feel like I should watch it because it’s… um, just talked about all the time. Now, granted, most of those people just speaking about it are six, seven, eight-year-old girls but, you know, they are a big demographic in the United States.
MATT: And a big demographic for this podcast so I hope I didn’t alienate anyone.
One last thing I want to mention, I might remember this incorrectly, didn’t Walt Disney kind of rip off someone else when he created Mickey Mouse or am I making that up?
NASIR: No, there’s something about that but I can’t recall if that’s part rumor or what-have-you. I mean, obviously, Disney has a whole history of that, going back to its origins with that, but I think, as much as they are a kid-friendly organization, they’ve been pretty aggressive in the legal sphere when it comes to protecting their rights – even dealing with employees and they’ve had a number of employment issues in the past couple of decades.
MATT: Yeah, I just wasn’t sure if I was remembering that correctly or if I was confusing it with the Simpsons episode when the guy ripped off the “Itchy & Scratchy” cartoon – that definitely happened.
NASIR: But I think that was an illusion to the actual story but I can’t say.
MATT: Question of the day. Short question, I like it.
“What should I include in a general release?”
NASIR: It’s a short question but it’s actually a really good question but there’s a big fundamental problem with this question and that is: “What should I include?”
Well, what’s a general release? A general release is basically, usually, when you have a dispute that comes up with anyone for that matter and you come to a settlement, then you want to make sure that, “Okay, I’m paying you $100 in settlement so that neither of us have any more claims with each other. We can go our separate ways and we don’t have to deal with each other anymore,” right? That’s the concept with a general release. But what should I include in a general release? Frankly, if it’s of any consequence, you should not be drafting your own general releases. It’s not a simple document – not as simple as people think it is, especially in different states, there are different requirements, depending upon what exactly you want to be released.
For example, classically in California, if you want to release any and all claims, including unknown claims, you have to specifically waive certain rights of the California law – I think specifically it’s Section 1542 of the California Civil Code – because, without that, California only allows you to release claims that are known or suspected to exist – not ones that are unknown. Usually, you know, a general release usually tries to include those kinds of things.
MATT: That’s what I thought you were getting to when you said there was a fundamental problem with the question. We didn’t know where it was from so, depending on what state they’re in, there’s different rules. You covered California.
NASIR: Oh, that’s true.
MATT: I know. I know it’s different in New York but, yeah, that’s very important for California. Yeah, you’re kind of right here – well, you’re not kind of right – you are right with what should I include. Every instance is going to be different. There’s general things that you can… I guess there’s common sense things that you would think about like who’s releasing who or who’s providing the release to who and these are all, like I said, basic level stuff but what claims are being released.
NASIR: You’re right, these are questions that need to be answered. Who’s being released? Is it the entity or the individual or both? You know, a lot of times, when that can be kind of mixed and mashed, you might want to include the individuals in there. What if there’s some kind of dispute? Are you going to go under arbitration or attorney’s fees? Basic stuff that are in any contract. You mentioned what claims? Sometimes, you just want to release one specific claim dealing with one issue but not touching the others because, again, they may be unknown so you want to kind of reserve your right to follow-up with that. Also, a lot of times, with these settlement agreements, you want to make sure, especially from a business perspective, you may want to make sure that they’re confidential because you don’t want the other person saying, “Hey, this guy settled with me and, because he admitted he was wrong or whatever, their business is bad and so forth.” Adding in stuff like non-disparagement clauses and things like that are also something to consider.
MATT: I don’t know if we talked about warranties from the releasor. There’s a lot of different things.
MATT: It’s not a simple thing you can draft up in a minute. Despite the short question, it’s not a short answer.
NASIR: Yeah. Just like everything, if you Google it, you can find forms out there but I know for a fact, general release forms that are out there are very poorly written as far as when I recall looking in the past. I mean, I’ve seen a lot of people use these general releases as a quick fix. If you don’t do it right, you can very easily get out of it.
MATT: I just typed in “general release” into Google and I clicked the first one that popped up and it’s a very poor release so I would not recommend using that. I won’t say what site it was through.
NASIR: LegalZoom? No.
MATT: It was not LegalZoom, no.
NASIR: I’m hopefully looking at the same one you are and that is not going to work. It’s three paragraphs, double-spaced to fit the whole page, and I think that the last paragraph is pretty much useless. It’s like ten lines of actual terms there so that’s not going to work.
MATT: Yeah, buyer beware! Well, I guess they’re not buying but beware.
NASIR: You get what you pay for I think is what you’re looking for.
MATT: There we go.
NASIR: I’m usually terrible with those things.
MATT: I know.
NASIR: Yeah, I got that one.
MATT: It came through. You redeemed yourself!
NASIR: Nice. All right. Well, thank you for joining us once again and, if you hold on just for a little bit in a couple of days, you’ll hear another episode this Friday.
MATT: Keep it sound and keep it smart!