Columbia's IP Alumni By Susan Wampler and Kate Forristall, Contributing Editors
Columbia Law School trains students to be leaders in all areas of law, including the hot field of intellectual property (IP). "The sky's the limit now, and it's pretty much whatever the imagination can conceive," says Michael Finkelstein '60 about digital and other forms of technology. Columbia graduates cover the IP field, from movies to the Internet to author rights. Their work is vital. As Mr. Finkelstein adds, "Content issues don't change; they'll be driven by economics, the same thing they've always been driven by." Here's a look at a handful of graduates and the work they do.
Fighting Piracy on Technology's Frothing Seas
Michael Lynne '64
Robert Shaye '64 founded New Line Cinema out of his Greenwich Village apartment in 1967, not long after he graduated from the Law School. In 1980, he asked former CLS classmate and longtime entertainment lawyer Michael Lynne '64 (far right) to serve as counsel to the company, eventually recruiting him full time.
Today, they serve as co-chairmen and co-CEOs of New Line, which has grown from a closely held small business to a major player in the entertainment industry. The company also has gained a reputation for its unconventional business strategies, such as greenlighting all three installments of The Lord of the Rings for simultaneous production. The risk paid off, with the trilogy grossing nearly $3 billion worldwide.
It's not a surprise that, with such large sums at stake, computer piracy is a serious issue.
"That became obvious when [a New Line executive] came into the premiere of the film Elf with a DVD he found on 42nd Street," says Mr. Shaye. "With digital technology achieving such sophistication, it's not just about having guys take a video recorder into a theater. If you have a good source, you can have a very good master that can be distributed around the world in about two hours."
Studios combat piracy by working with the Motion Picture Association of America to educate the public, place protective devices on content, and prosecute law-breakers. Mr. Shaye equates peer-to-peer file sharing with shoplifting. "You need the moral carrot and the punitive stick," he says.
Another frequently used strategy to reduce international piracy is releasing films worldwide, simultaneously. If a film has already debuted in a particular country, there is less demand for a pirated copy than if the release date is several months away. Mr. Shaye adds that piracy is not as significant of an issue with a big-event, highly anticipated movie. "People tend to want to see those on the big screen," he notes.
When a movie company considers how much to spend on a production, one aspect that is seriously discussed is theft. "It's a domino effect," he adds.
"We're in the early stages of a defining moment for the industry," says Mr. Lynne. "The traditional channels for distributing movies are still the dominant ones, but there's no question that there's an audience out there that would like more control over how it gets its content, including feature films. We have a whole generation growing up watching movies on iPods."
The film industry is moving faster than the music industry did to address the public appetite, he says, noting that down the road it is likely that the DVD or a legally downloadable version of a movie will be made available on the same day as a film's theatrical release.
"It's not practical now, but at some point out there, it will be impossible to deny an audience the opportunity to receive content online," he says. "It's inevitable."
Robert Shaye '64, executive producer of The Lord of the Rings trilogy and co-head of New Line Cinema, is making his major motion picture directorial debut with the film Mimzy. The film's star, Oscar-winning actor Timothy Hutton, plays a student who went to CLS. He describes the film as "a fantasy/science fiction/adventure story." The plot centers around a pair of siblings and the unusual talents they acquire after finding a box of toys from the future. Soon the kids, their parents, and even their teacher are drawn into a strange and sometimes terrifying world. Columbia University mathematics professor Brian Greene makes an appearance in the film, which also features Michael Clark Duncan (The Green Mile) and Rainn Wilson of NBC's "The Office." Mimzy is scheduled for release in 2007.
No Matter the Media; It's Content, Content, Content
Michael Finkelstein '60
Michael Finkelstein '60 began his career in the broadcasting industry working as a staff attorney with the Federal Communications Commission. From 1960-65 he worked on cable television regulations and opening up the UHF spectrum. His career went on to include the formation of Renaissance Communications, which became the largest affiliate of the Fox Television Network. After an "unsuccessful retirement," he says, he did a stint as the chairman of SBS Broadcasting (formerly the Scandinavian Broadcasting System). In each phase of his career, Mr. Finkelstein found himself at the cutting edge of visual media, but he maintains that the intellectual property and legal issues involved never really changed.
"When I started Renaissance, cable had about 20 percent of the market. When I left, it occupied about 80 percent, but the questions were the same - who owns the copyright, and who can use it," he says, noting that though European television companies lagged behind those of the United States, the digital technology available across the Atlantic, particularly with regard to phones, was more advanced. He points to the "telephony" phenomenon of broadcasting on telephones, which hit the European market before it spread here.
"In Europe, digital technology means that everything is saved. So property questions became things like, ‘What about outtakes from televised shows that are now offered for broadcast on cell phones?' You can assemble the hardware any way you want - the fight is over the content."
Rapidly evolving digital technology means that current delivery systems include such previous unknowns as video iPods and cell phones that can show movies.
"The other day I was in an Apple store and saw a combination computer and TV receiver," he says. "They were working on that at MIT 20 years ago, but couldn't do the interface. The sky's the limit now, and it's pretty much whatever the imagination can conceive. But content issues don't change; they'll be driven by economics, the same thing they've always been driven by."
Avoiding the Mistakes of the Music Industry
Thomas E. Rothman '80
Thomas E. Rothman '80, co-chair of Fox Filmed Entertainment - the parent company of the Twentieth Century Fox film studio - is the only person to have served as head of film production for a major studio (Fox), a studio specialty division (Fox Searchlight, which he founded), and an independent film company (Samuel Goldwyn Company). This experience gives him a unique perspective on the state of the entertainment industry today - for example, on the issue of piracy.
"Piracy is a gentle word, but it's a massive challenge to the core of intellectual property law, which is protection of the most fundamental principles of the industry - the protection of the idea," he says. "We're dealing with a generation enabled by technology and unencumbered by morality - people who would never steal a CD or DVD with a physical embodiment, but who don't think twice about downloading and burning one."
However, having learned from the mistakes made by the music industry, he says the film industry is encouraging rather than fighting legal downloads of movies. "In any business, it's impossible to compete with free. That's why the protection of intellectual property is so vital," he says.
Collectively, the film industry is embarking on numerous legal initiatives to combat piracy while also meeting the needs of audiences accustomed to downloading entertainment content. Consumers will be able to legally download and license or download and own films sooner rather than later, adds Mr. Rothman, who was a partner at the entertainment law firm Frankfurt, Garbus, Klein & Selz before he became a film producer and studio head. "The notions so eloquently taught to me by Professor John Kernochan '48 about the sanctity of intellectual property now seem like halcyon and quaint days," he says. "I look back in fondness."
Protecting Author Rights
Morton Janklow '53
Morton Janklow '53 had practiced corporate law for nearly two decades when his friend and client William Safire approached him about a book he was writing about his former boss President Richard Nixon. Mr. Janklow quickly went from having no experience with publishing contracts to becoming one of the most powerful literary agents in the business.
He negotiated a then-unheard-of advance and later successfully sued when the publisher tried to back out of the deal - an unprecedented victory in an era when author rights were extremely limited.
Mr. Janklow went on to build the world's largest literary agency, now called Janklow Nesbit Associates, and has brokered several deals resulting in payouts of $25 million or more. His clients have included Barbara Walters, Ted Turner, Sydney Sheldon, Judith Krantz, Danielle Steele, Barbara Taylor Bradford, Al Gore, four U.S. presidents, and Pope John Paul II.
In 2001, Janklow Nesbit opened a London office, which now has five agents. "We have our finger on the pulse of the U.K. writing community, and it's a very dynamic place," he says.
He also has his finger on the pulse of changes engendered by new technology and its impact on intellectual property.
"The law hasn't changed much," he says, "but the applications to which it is subject now are very different. All intellectual property businesses are being affected by the digital and electronic side of the business. They have not impacted us in publishing yet, but they will."
Mr. Janklow uses the analogy of automobiles as intellectual property and highways as technology delivery systems to illustrate who he believes remains in the driver's seat, even as changes in technology become increasingly prolific.
"We control the cars," he says. "I'm perfectly happy to let others build their highways, but we'll decide on which highways our cars will run. The intellectual property itself is everything."
Philippe Dauman '78 was named president and CEO of Viacom, the media company whose holdings include MTV Networks, Nickelodeon, Country Music Television, Paramount Pictures, and Paramount Home Entertainment, along with 120 TV networks around the world. Viacom Executive Chairman Sumner Redstone first took note of Mr. Dauman when he was an associate at Shearman & Sterling. Mr. Dauman eventually went to work at Viacom, handling legal affairs, as well as international and government relations. He quickly rose through the ranks, serving as senior vice president and general counsel and later as executive vice president and deputy chairman. He worked for several years as chairman and CEO of DND Capital Partners, a private equity firm specializing in media and telecommunication investments, before returning to Viacom in September.
"The entire Viacom board and I are confident Philippe has the strategic and creative vision to take the company forward and the drive and energy to execute relentlessly on our strategy," Mr. Redstone said.
Finding New Outlets for Actors and Ads
Peter Benedek '73
Peter Benedek '73 has always had an entrepreneurial bent. After serving as partner in a Beverly Hills law firm, he helped found Weissman, Wolff, Bergman, Coleman & Schulman in 1981, continuing his specialty as an entertainment attorney. Three years later, he left the practice to launch a talent agency that quickly evolved into United Talent Agency (UTA), one of the entertainment industry's most powerful representatives of actors, screenwriters, directors, and recording artists.
"My father had his own business," Mr. Benedek says of his entrepreneurial inspiration. "And I liked the idea of being in the personal service business."
UTA now employs some 100 agents and counts among its clients such A-list talent as Johnny Depp, Jim Carrey, Harrison Ford, Ben Stiller, Vince Vaughn, Jack Black, M. Night Shyamalan, David Chase, the Coen brothers, Nelly, Celine Dion, and Ricky Martin. Increasingly, UTA also works with major corporate clients.
"Corporations are unhappy with the way a conventional 30-second ad works for them," says Mr. Benedek, who oversees UTA's key corporate accounts in addition to being the agency's CEO and a senior partner. The decline in network television dominance, along with the proliferation of TiVos and iPods, has made it far more difficult for advertisers to reach their most coveted audience, the youth market. "Corporations now want to get their message out through entertainment content," says Mr. Benedek.
"In addition to piracy, the changing nature of entertainment distribution templates is one of the biggest challenges facing the industry. There is shrinking interest among young people in conventional entertainment outlets, but the audiences for YouTube.com [a site recently bought by Google for $1.65 billion that allows people to upload their videos] and other Internet applications are expanding. We're trying to monetize that," adds Mr. Benedek, who recently brokered a deal with Amazon.com to launch an online talk show with Bill Maher.
Fighting for Clients, Schooling Their Fans
Nina Shaw '79
Entertainment lawyer Nina Shaw '79 has earned a reputation as a formidable negotiator. She has structured lucrative deals for such clients as Oscar winner Jamie Foxx - whom Ms. Shaw has represented throughout his career - Laurence Fishburne, and James Earl Jones. She got her start at O'Melveny & Myers, then joined a boutique firm before co-founding Del, Shaw, Moonves, Tanaka & Finkelstein in 1989.
"In this country, the work is owned by the artist's employer," she says. "Everything tends to belong to the corporation, unless you specifically negotiate otherwise, which is extraordinarily difficult to do. I make sure my clients share in all revenue streams."
As for revenue streams from technologies yet to be developed, she explains that the talent unions primarily wrestle with those issues. "We're all dealing with the evolution of technology, which is often moving faster than the law can keep up with it," she adds.
An increasingly common scenario is the fan who creates an homage web site. "Now everyday people can take something that is copyrighted and edit it into something else," says Ms. Shaw.
"No one is making money on it, but it's not what my client bargained for and it's not how he wants to be represented."
Often, the infringer is so proud of his work, he'll notify the star's representatives.
"You would be surprised how many people turn themselves in. A James Earl Jones fan set up a web site with dialogue from all of the Star Wars movies and informed us via e-mail," she laughs. "We turned it over to Lucasfilm. It never occurred to him that it might be an infringement.
"[These fans] love the artists, but don't understand they are making it impossible for the artist to continue producing the work that they purport to love so much," she continues. "When they continue to download something for free that has an associated cost to produce, they may think they are only taking from a big corporation. Ultimately it undermines the artists' ability to earn a livelihood."
Author Rights? Hardly a Dubious Battle
Susan Kohlmann '82
As the chair of the New York Intellectual Property Department of Pillsbury Winthrop, Susan Kohlmann '82 has extensive experience with cutting-edge issues like cyber-squatting (the practice of purchasing an Internet domain name expected to be required by another organization and selling it at an outlandish price), as well as e-commerce content and software licensing. However, one of her current cases - one with a very high profile - involves the good old-fashioned book rights of a Nobel Prize-winning novelist.
Ms. Kohlmann represents the estate of Elaine Steinbeck, the third and last wife of John Steinbeck. The author's son, Thomas Steinbeck, and granddaughter, Blake Smyle, are battling over the copyright rights that John bequeathed to Elaine, whom he married in 1950 and lived with until his death 18 years later. When Elaine died in 2003, she bequeathed those rights to her sister and children, who are not biological heirs of the author.
At this point, Ms. Kohlmann, on behalf of Elaine Steinbeck's estate, has challenged the validity of several termination (of copyright) notices served by Thomas Steinbeck and Blake Smyle, which seek to allow the two biological heirs to recover rights to certain early works under a publishing contract with Penguin.
The battle went to court, and the decision, handed down in June, was one of the first to address the issue of terminating copyright ownership since the Sonny Bono Copyright Term Extension Act (CTEA) was adopted by Congress in 1998. Federal District Judge Richard Owen ruled that the Penguin notice was valid because the 1994 agreement the biological heirs sought to terminate was a continuation of the original 1938 agreement with Penguin. This isn't the ruling, just an explanation of what termination rights are designed to address.
Ms. Kohlmann and the estate have appealed, and the case will be heard by the 2nd Circuit Court of Appeals in New York.
"These termination rights have not been extensively litigated and will be a case of first impression in the 2nd Circuit," Ms. Kohlmann says.
Like many issues in the world of IP law, outcomes are hardly certain. Even before the changes enacted through the CTEA, the Copyright Act included provisions allowing authors or their heirs the right to terminate agreements made prior to commercial success. Yet a recent 9th Circuit decision in a similar case, Milne v. Slesinger, found that the notice of termination was invalid. In this era of new media, the issues are likely to become even more muddied.
Brad Meltzer's '96 sixth novel involves a young presidential aide named Wes who, riding with the president's oldest friend in the presidential limousine, is permanently disfigured by an assassin's bullet taken in the face. The president's friend is himself killed. It is now a decade later. The hunt to figure out what happened leads Wes on a chase that takes him back to a decade-old presidential crossword puzzle, ancient Masonic symbols hidden in the street plan of Washington, D.C., and a secret code invented by Thomas Jefferson. Once again, Mr. Meltzer's thorough research into presidential lore and Washington, D.C.'s powerful system of secrecy, along with a jaunt into the glittering world of Palm Beach high society and its seedy fringes, have come together to create another page-turner. Publisher's Weekly says: "Meltzer's many fans will enjoy this substantial meal of a book."
New Technologies? No Problem
As a student at CLS, Martin Lebwohl '99 had the good fortune of arriving on the cusp of Columbia's expansion of its transactional practice curriculum. Professors like Jeffrey Gordon, Victor Goldberg, Ronald Gilson, and Dean David Schizer (then a tax professor) and classes like Deals, Mergers & Acquisitions, Federal Income Tax, and a seminar on private equity and venture capital investments allowed him to approach law school from the standpoint of a future transactional lawyer. His CLS experience subsequently served him well at Wachtell Lipton Rosen & Katz as he worked on high-profile mergers and acquisitions and other corporate transactions.
After four years in private practice, he joined IDT Corp., a telecommunications company that was launching an entertainment business, which at the time focused on animation production and home video distribution. From the start, Mr. Lebwohl's responsibilities included not only negotiating the acquisition transactions that IDT pursued in its roll-up of several animation production and distribution companies, but also handling a broad range of IP matters that the company's newly acquired production and distribution businesses faced on a daily basis.
Following IDT's recent sale of its entertainment division to Liberty Media, Mr. Lebwohl is now the general counsel and senior vice president of business affairs of the newly named Starz Media LLC.
With a staff of three attorneys, he handles everything from rights acquisitions and talent negotiations to film financing and distribution deals and his company's expansion into new media. He also deals with litigation and employment issues. He is upbeat when asked about challenges presented by declining ticket sales and worries over the growth of new media.
"For young independent companies like ours, the Internet, electronic sell-through, and other new media technologies present at least as much opportunity as challenge," he says. "These technologies give us new ways of getting our product to the market and harvesting revenues. And they are making it easier to distribute IP to the public, which is great news for independents. Our company is in an exciting phase of evolution, having just combined our production and home video distribution businesses with Starz's pay-television channel and growing Internet presence."
In a business that requires him to work with both the creators and the distributors of art, Mr. Lebwohl can appreciate the fine line between accessibility and protection in his field perhaps more than most.
"You want artists and owners of IP to share their creative output with the public, but there must be protections in place," he says. "Siphoning of IP produces economic disincentives for artists in all fields to invest the time and money required to develop and market new intellectual property."
MSNBC tapped Dan Abrams '92, its on-air legal-affairs anchor, to run the struggling network, which places third behind Fox News and CNN. Mr. Abrams will be giving up The Abrams Report, his nightly legal-affairs show, and will be managing a 600-person staff. "I wouldn't be doing it if I didn't want it. I'm giving up something I love," he told USA Today, referring to his popular show. His immediate goal, he said, is to build upon the success of two of MSNBC's highest-rated shows, Chris Matthews' Hardball and Keith Olbermann's Countdown, "and use some of the irreverence, some of the excitement that comes from those shows and have that reflected throughout the network." Mr. Abrams began his TV career in 1997 as an MSNBC correspondent.