COLUMNS
Scruples
The Ethics of
Confidential Information
Ellen Lockwood, CLA—Ethics Chair
Of course, much of our work is
confidential. But just how confidential is it? When is it appropriate to
talk about our work?
Many of us have worked on high-profile
cases. Sometimes they are high-profile only in our home city, sometimes
they are newsworthy on a national level. When working on those types of
cases, everyone involved is often given strict instructions on how to
maintain confidential information about the case and who may answer
questions from outside the firm. However, when working on regular cases
or for regular clients, we should all be equally cautious.
Real Life Isn’t Like TV
Although I enjoy television shows like
"The Practice" and "Ally McBeal," in reality, we
should not carry on conversations in the courthouse halls like the
characters do on those programs. They discuss strategy, plea bargains,
and evidence in the hallways without ever checking to see who is around
them, lowering their voices, or trying to find a more private corner. If
those programs involved real cases, they would often waive confidential
information before the trials even began.
Another mistake you sometimes see TV
attorneys making is talking directly to opposing parties who are
represented by counsel. No matter how well you know someone, or how
innocent your intentions may be, no one in your office may try to
directly contact anyone related to the opposing party once they are
represented by counsel. If you are at all un-sure, check with your
attorney before proceeding.
Confidential Means Confidential
Of course, virtually all information
provided by your client is confidential. That means you should not
discuss it with family or friends. You must also assume that in a
restaurant, everyone at the next table can hear what you say. You should
not discuss client information in elevators. You should even be careful
in your office if there is the possibility of a visitor being in the
office.
Although we often give vendors highly
confidential information such as documents, you should be careful not to
tell vendors anything that is confidential. People will sometimes assume
that if you told them something, it must be okay to tell someone else.
Care should also be taken in discussions with contract employees,
particularly those who aren’t working directly on your client’s
file. Some contract employees may not appreciate that information is
confidential.
In some instances, witnesses should not
be told everything about a case. Some witnesses cannot always be trusted
to appreciate the confidentiality of information, even though they often
think they are entitled to know everything. Witnesses and even clients
should be reminded often about discussing the case with outsiders. A
paralegal friend worked with an attorney who had a client who would talk
to anyone, anywhere, about his case, especially if she was an attractive
woman. The attorney had to remind the client that the attractive woman
in the hotel lobby who was so eager to speak with him the morning of
trial could be working for opposing counsel.
At times, information in a matter will
be designated as confidential, even though similar information has
become somewhat public through pleadings or other means. Information
designated as confidential may include testimony, specific documents,
details of settlement agreements, and even whether the parties are
discussing settlement. In those instances, it may be best to avoid
discussing that information with anyone not working directly on the
matter. It is probably safest not to tell even coworkers any more than
you would want to them to tell someone else, unless you are certain they
fully understand the confidential nature of the information. Better to
reiterate the confidentiality than wrongly assume someone understands.
Keeping Up Appearances
In addition to avoiding disclosing
confidential information, we should work to avoid even the appearance of
impropriety. If your behavior is consistently above reproach, then when
confidential information gets out (and it sometimes will), your past
conduct will assure others that the information could not have come from
you.
Law & DISORDER
In the wake of the popularity of the
beer-drinking menagerie of spokes-creatures currently promoting
Budweiser Beer, a freelance writer has accused Anheuser-Busch of
frog-rustling and infringement. Among the colorful characters hawking
Budweiser for Anheuser-Busch lately are frogs, talking lizards, an
alligator, and a squeaky, "French-speaking" ferret that is
reputedly popular with "the ladies." Several years before the
appearance of the Budweiser. menagerie, the freelance writer, Stephen
Arpaia, wrote a number of scripts intended as television commercials for
Budweiser Beer. Arpaia’s advertisements feature a character he
referred to as "the Bud Frog." When Arpaia submitted his
scripts, unsolicited, to Anheuser-Busch, they were rejected. After
Anheuser-Busch began to air advertisements that featured frogs croaking
"Bud," "weis," "er," Arpaia filed a
copyright infringement action in a New York federal court. The court
held, however, that the scripts used in Anheuser-Busch’s commercials
are not substantially similar to the scripts written by Arpaia, and
therefore it dismissed Arpaia’s lawsuit.
In 1990, Arpaia wrote and submitted to
Anheuser-Busch seven scripts featuring his Bud Frog character. In one of
the scripts, the scene opens with the sound of a frog going"RRIBBET
RRIBBET." A woman looks over to where the sound is coming from, and
sees a frog sitting there. As she bends over to kiss the frog, the Bud
Frog jumps into the picture. He is making a "BUD BUD" sound
and wearing a tuxedo shirt, a black tuxedo coat, and neon green mirrored
sunglasses. The woman kisses the Bud Frog, and it turns into a can of
Budweiser Beer. The woman then exits with the can of beer, while the Bud
Frog is "standing upright leaning on a tree with his legs crossed.
He has a big smile on his face. He nods his head in approval."
The Bud Frog is silent in the other six
scripts written by Arpaia. Typically, however, the Bud Frog is wearing
green mirrored sunglasses and sporting a big smile. After limited
correspondence between the two parties, AnheuserBusch informed Arpaia
that it had chosen not to pursue his idea.
Then, in 1994, Anheuser-Busch asked its
advertising agency to create a television commercial that was similar to
a Diet Pepsi commercial, in which an elephant swims up to a woman
floating on a raft, takes her Diet Pepsi, and leaves a few peanuts on
the raft.
The advertising agency came up with the
idea of using three frogs croaking "Bud,""weis," and
"er." The art director credited with initially coming up with
the idea, claimed that the frogs around his childhood home in rural
Illinois had often sounded to him as if they were saying
"Bud." The art director later insisted that he had not seen
Arpaia’s scripts prior to developing his idea for the Bud Frog, and
that no one at Anheuser-Busch ever discussed with him the concept of
using a frog in a Budweiser commercial.
By the time the court was considering
Arpaia’s copyright infringement claims against Anheuser-Busch, the
beer company had aired 22 television commercials featuring the Budweiser
frogs. One commercial opens with a large bull frog sitting on a rock in
a swamp, croaking "Bud." The camera then shifts to two smaller
frogs, one croaking "weis" and the other croaking
"er." The frogs continue to make these sounds randomly, until
eventually they each croak in sequence to form the word
"Budweiser." The camera pans up, revealing a neon Budweiser
sign above a bar.
In a later commercial, as the three
frogs continue to croak "Bud," "weis" and
"er" in the background, two lizards, Frankie and Louie,
discuss the fact that they had also auditioned for the now-famous
Budweiser frogs commercials. The smaller lizard, Louie, complains about
losing out to the frogs, and states "those frogs are gonna
pay."
Subsequent commercials provide ever more
insight into the psychology of suds-swilling lizards. In one, while the
three frogs continue to croak "Bud," "weis," and
"er" in the background, Louie signals to a ferret with a
ratchet wrench who is hiding behind the electric Budweiser sign above
the bar. The sign then falls into the swamp, sending an electric shock
through the water and silencing the frogs. Louie then tells Frankie that
"eventually, every frog has to croak."
To win on his claim of copyright
infringement against AnheuserBusch, Arpaia was required to establish two
main elements: (1) ownership of a valid copyright, and (2) copying of
original elements of the copyrighted work. Because Anheuser-Busch did
not deny that Arpaia owned a valid copyright in his scripts, the court’s
determination turned on the question of whether or not AnheuserBusch
copied original elements of Arpaia’s scripts.
In the absence of direct evidence,
copying may be established by indirect evidence, including access to the
copyrighted work, similarities between the works, and expert testimony.
In this case, the court found that because Anheuser-Busch had access to
Arpaia’s scripts prior to the creation of its commercials, it was
possible Anheuser-Busch had copied Arpaia’s scripts. There is some
similarity between the two sets of commercials; each promotes Budweiser
Beer and each involves humorous frogs - one, a frog that croaks
"BUD BUD," and the other, frogs that croak "Bud,"
"weis," and "er." To establish infringement,
however, Arpaia was required to show that there is substantial
similarity between the two sets of commercials.
A finding of substantial similarity
requires that the copying be both quantitatively and qualitatively
sufficient to support the legal conclusion that infringement has
occurred. The qualitative component concerns the copying of expression
rather than ideas, facts, or works in the public domain. The
quantitative component generally concerns how much of the copyrighted
work is copied, and the amount must be more than negligible. In this
case, to decide whether Anheuser-Busch’s frog characters infringed
Arpaia’s Bud Frog character, the court considered the totality of the
frogs’ attributes and traits, as well as the extent to which
Anheuser-Busch’s frogs capture the total concept and feel of Arpaia’s
frog.
Although all of the characters at issue
are frogs promoting Budweiser Beer, the court found as a matter of law
that AnheuserBusch’s frogs are not substantially similar to Arpaia’s
frog. The idea of using a frog to promote beer is not itself subject to
copyright protection. Apart from the fact that they are frogs, the
greatest similarity between the characters is that Arpaia’s frog
croaks "BUD BUD," while Anheuser-Busch’s frogs croak
"Bud," "weis" and "er." The court found
that the differences between these characters far outweigh the
similarities.
Arpaia’s frog croaks "BUD
BUD" in only one of his seven scripts, and the other frog in that
script croaks "RRIBBET RRIBBET." The ability to croak
"BUD" is not an important characteristic of Arpaia’s frog.
The court concluded that the most well-defined characteristics of Arpaia’s
frog are his semi-human appearance, his neon green mirrored sunglasses,
and his hipster attitude. The overall theme and feel of Arpaia’s
commercials is that Budweiser is hip and even more desirable than other
things such as romance.
In the view of the court, Anheuser-Busch’s
frogs have almost nothing in common with Arpaia’s frog. They are mere
frogs, albeit frogs with a taste for a cold brewski once in a while. The
only other ‘ human qualities that these frogs possess are the ability
to read and the ability to make certain vocal sounds and facial
expressions. The overall theme and feel of Anheuser-Busch’s
commercials is that Budweiser has a universal appeal, extending even to
frogs. Anheuser-Busch’s later commercials focus primarily on the
humorous antics of the two lizards, Louie and Frankie, with the frogs
playing only a minor role.
The court determined that, even if
copying had occurred, it was not quantitatively and qualitatively
sufficient to support a finding of infringement. Because of the vast
differences between the attributes and traits of the frogs, and because
of the differences in the total concept and feel of the two sets of
commercials, the court concluded that it was not possible to find them
substantially similar. Thus, Arpaia’s infringement claim failed, and
the court dismissed the case.
Reprinted with permission of King &
Ballow’s Entertainment Law Comment.
Nels Jacobsen is an attorney
practicing in the area of Entertainment Law. Formerly with King &
Ballow in Nashville, Tennessee, Nels has recently joined the Palo Alto,
California office of Cooley Godward.
Web Wizards
"I discovered the following website
in my search for articles relied upon by an expert in one of our cases.
In my case, I had a pending deadline and needed the articles faxed that
day—I paid approximately $30.00 per article—a fee which I was more
than happy to pay because of my urgent situation."
Kathy
Allbright, CLA, Sloan & Price, Longview, Texas
http://uncweb.carl.org
UnCover is a database of current article information taken from well
over 18,000 multidisciplinary journals. UnCover contains brief
descriptive information for over 8,800,000 articles which have appeared
since Fall 1998.
"Here are several great websites,
in case you haven’t seen them."
Linda J. Wolf, Sidley
& Austin, Dallas, Texas
http://www.refdesk.com—the
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http://www.uscorpserv.com/Pages/newstates.htm—this
is a home page with links to all of the Secretarys of State across the
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http://www.lawguru.com—lots
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a growing site for various legal forms from around the country. http://www.jurisline.com—believe
it or not, Jurisline allows you to download cases and to conduct legal
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http://www.llrx.com/—this
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subscription service as well.
If you have a favorite website that you
would like to share with our readers, please forward it to the Editor at
lad@lad.org or bslaw@prodigy.net.
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