Truth, Justice and the Cendali Way
Who protects Harry Potter? IP lawyer Dale Cendali
Published in 2007 New York Metro Super Lawyers magazine
By Joan Hennessy on September 17, 2007
To understand Dale Cendali, consider an ordinary day at Harvard Law School in the early 1980s, when she walked into her dorm room and found a man there.
“He claimed he was in the wrong room,” she remembers. “He thought he was on a different floor and that he was in his friend’s room.”
When he took off, Cendali immediately fished through a wallet she’d left in the room and found $17 missing. A New Yorker weaned on a diet of good and evil served up in the comic books she read, Cendali did something few would dare.
She chased him down the hallway.
That, of course, is only the beginning of the story. Cendali is 48 now. Her dark brown hair is streaked with gray. She is a partner at O’Melveny & Myers, and chair of the firm’s copyright, trademark and Internet practice.
As one of the country’s pre-eminent intellectual property experts, she helped revise the statute on trademark dilution, which recently became federal law. She has represented children’s book author J.K. Rowling, argued a case on behalf of 20th Century Fox before the Supreme Court, and is frequently in the center of high-stakes corporate battles. Clients include Bratz doll maker MGA Entertainment in the high-profile war with Mattel; Lionel Trains in cases involving patent, trademark and trade secrets; and MySpace in litigation filed by Universal Music Group over copyright infringement involving songs on the popular site.
Yet Cendali is at heart the same New York kid, undaunted by the prospect of a fight.
So the rest of the story from that day at Harvard comes as no surprise. Cendali caught up with the thief. He denied taking her money but Cendali didn’t believe him.
“Finally, he got sort of fed up and he put his hands in his jeans pockets and he gave me back my money,” she says. “He said, ‘Here. Take this money. Just leave me alone.'”
Now, unfortunately, Cendali knew he had stolen her money. She couldn’t let him get away. Here it should be noted that Cendali stands 5 feet tall. The thief in question was taller and stockier and stronger.
Still, she tackled him.
“I reached up and I grabbed his ski jacket and wrapped my legs around his leg. And I started screaming, ‘Thief! Thief! Help, thief!'”
No doubt panicked, the thief attempted to make an escape. With Cendali still wrapped around him, he clumped down the hallway. She held on-until he approached a flight of concrete steps.
“At that point I let him go,” she says. “Fortunately, a bunch of the guys on the first floor were into weightlifting and they caught him when he came down.”
So did a woman who soon became known for tossing that same determined energy into every case.
One of the surnames in the Cendali family tree, Avvocato, is a variation of “lawyer” in Italian. Cendali doesn’t know if there were actual lawyers in the family’s Italian history, but it’s clear that by the time her family arrived in America, before the turn of the 20th century, an interest in law was emerging.
“My great-grandmother was an informal translator for Italian-American immigrants in the [New York City] courts,” Cendali says. “And she would be called over [to the courthouse]. … She was smart and good.”
Strong, smart women populated the family. Her grandmother didn’t finish high school because she needed to work, but she’d been an academic talent. “The teachers cried when she had to drop out,” Cendali says.
Her mother was an English major and a Phi Beta Kappa graduate of Hunter College at a time when many women didn’t pursue education. “She always said she had an interest in law,” Cendali says. “But in her time, World War II, it was very rare that a woman would be able to make a career in law.”
Her mother became a teacher, her father, administrative superintendent of buildings and grounds at City College in New York.
As a small child, Cendali stayed with her grandmother during the day. Often, the two walked to the five-and-10-cent store, where Cendali was given a quarter to buy comic books. She became a voracious reader-and comics became a lifelong hobby. Her early goals were simple: She planned to become a second-grade teacher. “And in summer, do summer stock,” she remembers.
But in high school, teachers suggested she run for student government, while her mother encouraged her to consider law. When the time came, she had no problem getting into Yale, where she majored in history but indulged an insatiable appetite for theater. She joined the Yale Dramatic Association-eventually serving as president and producing shows. With a full academic schedule, she had two phones ringing in her dorm room at all hours. She loved it.
“I really liked the sensation, like on The Ed Sullivan Show, of spinning the plates, keeping the plates in the air,” she says. “And I delighted in keeping my academics up while also going crazy.”
She graduated summa cum laude, Phi Beta Kappa, in history.
After Harvard Law, she took her energy to Fried, Frank, Harris, Shriver & Jacobson. Of course, Ivy League lawyers are a dime a dozen in New York. “Being bright is necessary but not sufficient,” observes Gregory P. Joseph, a one-time colleague at Fried Frank. Cendali, he says, stood out. “She’s got the diligence to put in enormous amounts of time to master the area [of law] and master the case.”
Eventually she took that diligence to O’Melveny. One of her mentors there, Joe Ryan, now a partner at Venable in Washington, D.C., says, “She has an infectious enthusiasm and is bright as a penny, all of which resonate.” Ryan evaluates young lawyers for “velocity,” an innate skill set that meshes high productivity with creativity. “She epitomized that,” he says.
In 1995 she landed in the national spotlight for the first time. As outside counsel for the Fox television show A Current Affair, she advised them on what could and could not air during sweeps week. The network wanted to air the wedding video of O.J. Simpson and Nicole Brown. “This was during his criminal trial,” she says. “I advised that they could.”
In response, Simpson filed a lawsuit in California attempting to stop the show, charging that airing the video violated his right of privacy and his right of publicity under state law.
“I marched into court Monday morning in California,” she says. There were cameras in the courtroom, but she was ready for her close-up. Simpson, as it happened, had written a book, I Want to Tell You. Cendali had it handy.
“I was able to wave the book around, and say that he had talked about the wedding and had pictures from the wedding in the book,” she says. “He couldn’t block other people in a matter of keen public interest in the relationship with his wife.”
She won, and A Current Affair ran excerpts of her oral argument on television.
“The important thing was that a lot of people at Fox saw what I could do,” she says. “They started giving me more and more cases and bigger and bigger cases.”
Prominently, in 2001 she represented 20th Century Fox, which had rights to produce X-Men, in its copyright, false advertising and breach-of-contract lawsuit against Marvel Comics, Tribune and Fireworks over the television show Mutant X.
In a way, the case brought her full circle.
In the years since her grandmother had given her quarters for comic books, she was still collecting them. She owns 35,000 comics, locked safely in storage. After arguing a case before the Supreme Court, she purchased Action Comics #1 from a dealer for an undisclosed price. For a collector, it’s the Holy Grail: the comic that introduced Superman, and thus the modern superhero, to Depression-era children in June 1938.
She loves Superman, but her favorites aren’t household names: the Black Canary, a fishnet-stocking-wearing blonde bombshell, first introduced in 1947; and Nightwing, the grown-up Robin.
“Comic books truly have instilled in me a sense of justice,” she says. “The hero would sometimes be fighting daunting odds, but he’d always continue to try and he would not just prevail but prevail in an ethical manner.”
That said, she didn’t mind going up against Marvel. “I knew our side was right,” she says.
The spotlight hit her again in a case involving the legacy of American dance legend Martha Graham, who died in 1991. Graham’s heir was Ron Protas, director of the Martha Graham Dance Center. In 2000, he was fired, and a battle ensued.
“He hired a major law firm to file a lawsuit against the center to stop it from using the Martha Graham name or teaching the Martha Graham technique or the Martha Graham dances,” Cendali recalls.
She crafted her argument around an idea: “Maybe she [Graham] did leave him what she had at the time of her death. But the question is what did she have? If she had already assigned the intellectual property to the Martha Graham Dance Center, which she had founded and built and worked on her whole life, what was left for her to have left him?” she asks. “We were able to prove that she had already assigned the trademark rights to the center before her death. And we defeated his claims.”
It was a satisfying case for Cendali. “There was a real sense of doing something important,” she recalls. “This coupled my interest in arts with my interest in law perfectly.”
Another case, involving J.K. Rowling, author of the Harry Potter books, ignited Cendali’s unshakable sense of right and wrong.
Nancy Stouffer, a self-published author who has taken to styling herself as N.K. Stouffer, contended that names and terms in books she had written in the 1980s were subsequently used by Rowling. The first Potter book was published in 1998 in the United States.
Cendali, representing Warner Bros., met with Rowling and came away impressed. “She’s as spectacularly wonderful a person as you would expect,” she says.
Convinced that Rowling was innocent, Cendali charged in. “One of the things I wanted to do was not just win the case, but have a public vindication for the fact that these claims were baseless,” she says. In her motion for summary judgment and sanctions, Cendali asked the court “to make sure that the record is clear that Stouffer’s accusations are false and that Rowling never took anything from Stouffer’s works.”
And that’s just what the judge did. The court found that Stouffer “perpetuated a fraud on the court through her submission of fraudulent documents as well as through her untruthful testimony.” She was fined $50,000.
Cendali’s office is high over Times Square in New York City. It is decorated with paraphernalia from various cases. There’s a poster from the Martha Graham Dance Center and a stray Harry Potter figurine. But most notable is a painting of Cendali standing before the Supreme Court in 2003. Done by an artist for CNN, she looks comfortable, as if lecturing a class of law school students as opposed to, say, Supreme Court justices.
She admits to nerves beforehand but relaxed once it all started. The case involved the wartime memoirs of General Dwight Eisenhower, Crusade in Europe, which had been made into a documentary television series in 1949 by 20th Century Fox. Doubleday, publisher of the book, renewed its copyright in 1975, but Fox never renewed the copyright on the television series. The case alleged that another company, Dastar, used Fox footage and relabeled it as its own.
“I read her oral argument. I didn’t agree with her position,” says Carole Handler, partner at Foley & Lardner and vice chair of intellectual property litigation. But, she adds, “I thought it was one of the most well-done oral arguments.”
Ultimately, the court ruled against Fox on the trademark portion of the case. The case on copyright proceeded to trial, which Fox won.
Through it all, her reputation solidified. “Clients call her because they know they can get help figuring out if there is a problem. She thinks very creatively but is very practical,” says Claudia Ray, Cendali’s partner at O’Melveny.
There’s a home life too. Cendali has been married for nearly 20 years to law school classmate John Francis Fitzpatrick. They have three children, 11-year-old J.T. and 7-year-old twins, Ellie and Lucy.
That’s another way to understand Dale Cendali. She still enjoys spinning those plates, keeping all those plates in the air.
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