Tales from the IP Bar
Maria Crimi Speth finds intellectual property disputes in unusual settings
Published in 2019 Southwest Super Lawyers magazine
on April 25, 2019
Updated on July 23, 2019
It was while clerking for a small law firm as a student at Hofstra University’s law school in New York that Maria Crimi Speth fell in love with intellectual property work.
“I was immediately drawn to it,” she says. “I think it’s fascinating, the fact that IP is not tangible property. It’s ever-changing and hard to pin down, easy to steal, and people don’t have the same respect for it. A person who would never consider taking their neighbor’s car might not think twice about using someone else’s photos on the internet.”
Or maybe someone else’s tattoo design in a video game.
In 2012, Speth represented tattoo artist Chris Escobedo, who sued video game developer THQ, maker of the UFC Undisputed franchise, over the in-game appearance of a tattoo he had inked on the body of a mixed martial arts fighter. “It was a prominent, large tattoo on the midsection of a UFC fighter, a champion,” Speth says. “What fascinated me about that case is, if you took a picture of the fighter, that would be a fair use issue. But because the game created an avatar, someone had to literally redraw my client’s artwork. In my mind, that was absolutely copyright infringement. It was quite precedential.”
The court agreed, though the case ended up in bankruptcy court after THQ went bust. “That was foreign territory for me,” she says. “We hired an expert to discuss damages, which are always really difficult. We went with a royalty approach. We had to figure what was due for a tattoo on one fighter—a proportion of a proportion of a proportion. Ultimately, we settled.”
Speth is a shareholder at Jaburg Wilk in Phoenix. Most of her work involves assisting businesses in protecting trademarks, copyrights, trade secrets, information technology and other IP in the internet age. As in the UFC tattoo matter, it can lead to unprecedented cases, such as defending a woman who wrote fondly about her deceased mother on her blog, only to be sued by her sisters, who claimed the writings were a violation of their mother’s right of publicity.
The woman’s blog post largely revolved around her mother’s experience with aging and planning for her children’s future. “Her siblings didn’t like that at all,” Speth says. They claimed she had used their mom’s name without her permission, and that the rights of publicity survived the death of the mother.
“We had never had a state law case in Arizona like this before,” Speth says. She argued that rights of publicity do not apply to someone writing on a blog and wouldn’t survive the death of the person, an argument that is upheld “in states with famous people, like California and Tennessee,” she says. “The court agreed with me. The First Amendment trumps this. You can’t put her face on a soup can, but you can write about her.”
Her most interesting case, she says, was representing a controversial website that hosts user-created discussions and complaints. “There were lots of free speech issues with that one,” she says. A prosecutor in a small Midwestern county was being “blasted on my client’s website. The Communications Decency Act makes clear that websites are not responsible for user-generated content. That’s the only reason Facebook and YouTube can exist.”
The prosecutor launched a criminal investigation of the site to try to take it down. “Using his government authority as a prosecutor,” Speth says, “he did search warrants; got private, confidential emails and bank records; and shared those with others adverse to the website. It was just bad behavior all around.” She filed a federal lawsuit, and a judge enjoined the prosecutor from investigating her client. “That was very unusual, but it was so egregious what was going on. My client got a chunk of money in settlement, but more important we convinced the court to stop the bad behavior.”
Taking on a prosecutor was a little nerve-wracking, she admits: “I thought I better be really careful, or I could end up in jail for a bad taillight.” But Speth has a passion for anything to do with the First Amendment. “That is the core of who we are as a society. If we forget that, it’s very dangerous.”