Protecting Your Creative IP: Patrick Arenz Of Robins Kaplan On How to Successfully Protect Your IP in the Entertainment Industry
An Interview With Guernslye Honoré
Keep a paper trail. To prove copyright infringement in federal court, you generally must also prove that the defendant had access to your work and that the infringing work is substantially similar to original elements in your work. It is important to know who has received your work. Especially in Hollywood, where screenwriters and agents often widely share screenplays, and when infringement may occur years later, it is important to keep a written record of who received your screenplay.
The glitz and glamour of the entertainment industry can often mask the complexities that artists and professionals face when navigating their careers. Behind the spotlight lies a complex ecosystem of talent marketing and legal safeguards, elements that have become even more convoluted in our increasingly digital and globalized world. From the rise of social media to the ubiquity of streaming platforms, the avenues for both opportunity and exploitation have proliferated. That’s why understanding how to protect your creative intellectual property — or IP — is more vital than ever. In this interview series, we are talking to seasoned professionals, artists, legal experts, and marketing gurus, about how to protect your creative IP as an artist. As a part of this series, we had the distinct pleasure of interviewing Patrick Arenz.
Patrick Arenz, a partner at Robins Kaplan LLP, is a trial lawyer who focuses on representing inventors, screenwriters, and artists in high-profile intellectual property disputes over patents, copyrights, rights of publicity, and profit participation disputes. In the entertainment industry, for instance, he served as lead trial counsel for two Hollywood screenwriters in their copyright infringement case against Walt Disney Pictures over the Pirates of the Caribbean franchise, as well as a child development expert for her infringement claim over Inside Out.
Patrick is a trial lawyer known as an “excellent, thorough, and focused cross-examiner,” and someone who “develops strong trial themes from the moment a case is filed and brings the heat.” Patrick and his cases have been featured in the Wall Street Journal, The Hollywood Reporter, and Bloomberg, among other national media. He was one of four finalists for Public Justice’s prestigious Trial Lawyer of the Year award. Over his 17 years of experience, Patrick has recovered over $100 million in verdicts and settlements for his broad array of clients.
Thank you so much for doing this with us! Our readers would love to get to know you a bit better. Can you tell us the story of how you grew up?
I had the good fortune to grow up in Milwaukee, Wisconsin, home to the Brewers, Summerfest, and Kopp’s frozen custard (if you know, you know). My dad was a trial lawyer and my mom, who stayed home when my sister and I were young, was also a docent at the Milwaukee Art Museum and a part-time writer for the Milwaukee Journal Sentinel. While I didn’t necessarily appreciate it then, their backgrounds provided a great foundation for what I do now. From my dad, I naturally had some practical context for what lawyers do beyond just what you see on television. My mom really valued the arts, and she instilled in me the important role that art and culture play in our society.
Can you share a story with us about what brought you to this specific career path?
When I was young, I always dreamed of playing professional baseball. But by high school, it was painfully obvious that wasn’t in the cards for my future. So, I figured I needed to come up with a plan B. At some point thereafter I continued to pursue my interests in the humanities at college with an eye toward attending law school to become a trial lawyer.
The more I got into law school, the more it was clear that this was something I really wanted to do. At the same time, I realized I wanted to handle cases that really mattered. I didn’t want to push papers around for big corporations. I then landed a summer job at Robins Kaplan LLP, a 200-lawyer national law firm with offices coast-to-coast and a reputation as a high-stakes trial law firm. It was a perfect fit from the start. The firm had a history of taking on — and winning — some of the biggest courtroom cases in history, like a $7 billion settlement against the tobacco companies following a decade-long litigation fight.
I was lucky enough to get a job offer to start as an associate after graduating from law school in 2006. That’s where I started my work in really big intellectual property cases, although at that time, most of my work was on patent cases. I really enjoyed that type of work because it was always fascinating to learn a new technology, and even more so, to learn the trial-and-errors the inventor went through to come up with his breakthrough invention. I was also able to get into the courtroom often, learn from some of the best, and hone my own trial skills in big cases.
While I still handle patent cases, I have since expanded my practice. This includes a sub-practice focused on the entertainment industry. For instance, I represented two screenwriters in a copyright infringement case over the blockbuster franchise Pirates of the Caribbean and a child development expert for a copyright infringement claim on the film Inside Out. I have also represented celebrity chef, Chloe Coscarelli, in connection with various business disputes, including copyright, trademark, and name, face, and likeness rights. And my firm has likewise handled one of the highest-profile profit participation cases, which resulted in a judgment of over $320 million against Disney and its affiliates.
So, to circle back to your question, I tell people that I both planned and accidentally fell into this type of work. I knew I wanted to be a trial lawyer when I went to law school. But I had no idea that I would have the opportunity for such interesting and varied cases. I can honestly say I never have a dull moment in the office, and I relish the privilege to serve as a voice for innovators, artists, writers, and inventors when in court.
Can you tell us the most interesting story that happened to you since you began your career?
That’s like asking me to pick a favorite child! It’s impossible to pick just one. Trials are human drama playing out in real life. This work has led me to interesting people in fascinating situations across the country. I’ve uncovered the origins of the iPod and life-saving heart valve technology; I’ve cross-examined Hollywood elites, like famed producer Jerry Bruckheimer; and I’ve taken on failed mental healthcare that caused indescribable tragedy. Every case seemingly includes the most interesting story I can remember.
I’ll answer your question with a story I’ll never forget. My first case after becoming a lawyer was for Sofya I., a young woman who fled Ethiopia because she was persecuted for her advocacy for democratic and women’s rights. After a harrowing journey out of Africa, through Central America, and into the United States, she was detained by the government in Texas. I represented her for free in the deportation proceedings and argued for political asylum. These are hard cases to win. As I’m getting ready for trial, one of Sofya’s relatives sends a letter that the Ethiopian government had left at her house. The letter noted that Sofya did not appear “for more questioning” after her initial imprisonment and if she did appear immediately, then (as translated) the police “will not be held responsible for the action we are planning to take.” It was proof of everything Sofya was saying — both in terms of what happened to her, and what will happen to her if she returns! I shared it with the government’s attorney and naively believed it would resolve the case in her favor. But the government still wasn’t convinced. So, we went to trial. It was among the bravest moments I’ve witnessed that is hard to describe in words here, as Sofya detailed why her political beliefs were so important to her, the inhumane imprisonment she endured for those beliefs, and her fear of what would happen to her if she returned to Ethiopia. She stood strong and unimpeached when the government cross-examined her too. Months after this hard-fought case, the order came in: Sofya was granted asylum.
It has been said that our mistakes can be our greatest teachers. Can you share a story about the funniest mistake you made when you were first starting? Can you tell us what lesson you learned from that?
This too is a tough question to narrow down, as the list is long. One experience that comes to mind is from a mock trial during law school. I was really eager to show my professors and myself that I was ready to be a real trial lawyer. So, I prepared and prepared to come up with the best closing argument that would convince every juror to vote for my client. The fact pattern was some type of personal injury case that focused on a dispute about whether a driver ran a red light or not.
When it was my turn to give my closing argument, I stood up and delivered the most impassioned argument I could muster. Sometime near the end, I argued why the jury should find the defendant was not believable and conclude that the light was red when he injured the woman who was the plaintiff in the case. I said some sort of folksy, canned line like, “Heck, that light was as red as the blood Jane Doe suffered.” I thought I had nailed it.
When it was time for feedback, my professor politely looked at me and said, you know, I am not sure you’re a “heck” type of guy. And my future wife (who I was lucky to meet in law school) also had a chuckle with me afterward about the comparison of the light to the blood as being a little over the top.
The takeaway was pretty clear, even if it took some time for me to accept it: To be a trial lawyer, you can’t try to be anyone else; you have to be yourself. And while closing arguments need to be persuasive, they can’t be over the top with hyperbole. The overall lesson is that I needed to be authentic. I also learned to run my closing arguments by my wife before delivering them to the jury.
You have such impressive work. What are some of the most interesting or exciting projects you are working on now? Where do you see yourself heading from here?
My next trial on the calendar is a patent case over artificial Christmas trees. The inventor came up with a new design to make artificial trees connect and light up with just one plug. It’s a big case with over $60 million at stake, and it’s been going on for over 8 years now. So, I am looking forward to that trial.
I also have several new cases that I am looking at for writers. The first is for a screenwriter who wrote a script that is really similar to a very popular show on a streaming service. The second is for an author who wrote a book that another author ended up turning into a bestseller and received a deal from a Hollywood studio to turn into a film. The details of those two cases aren’t public yet, but they are both pretty interesting.
Okay, let’s now move to the main part of our interview. In order to make sure that everyone is on the same page, let’s start with a basic definition. What exactly is a Creative IP, and why does it need to be protected?
That’s a great question. It may help to start with a general overview of various kinds of intellectual property. In general, copyrights protect original expressions, like books, music, and paintings; patents protect inventions, things like new medical devices, consumer products, and pharmaceuticals; trademarks protect words, symbols, or names that identify a product or company, like Nike’s Swoosh logo, the name for Apple’s “iPod,” or McDonald’s “I’m lovin’ it” slogan; and trade secrets are devices or methods that companies obtain a competitive advantage by keeping secret, like the recipe for Coca Cola.
Copyrights are most commonly associated with “creative IP.” Copyrights exist to incentivize authors and artists to create new and original literary, musical, and artistic works because these works enrich our culture and so the broader public benefits from them. And because the broader public benefits, copyrights grant the authors and artists exclusive rights to use these original works, which in turn gives them bargaining power to receive fair compensation if anyone else wants to use those works. It is important to know what copyright does not protect too; copyrights do not protect ideas alone. For example, the idea of a starry night sky painting is not protected by copyright, but Van Gogh’s expressionist painting that features his unique design is.
Even so, that doesn’t mean studios and other companies can just steal ideas without compensation. An “idea theft” claim, sometimes called a Desny claim in California, may exist when a writer discloses an idea under circumstances that suggest that the recipient accepted the disclosure with an understanding that he would compensate the author if the idea was later used. These types of claims are highly fact specific. They also underscore the importance of being careful and thoughtful in how and who you disclose your work to.
What are a few of the most common mistakes you have seen artists make with their IP?
The main one that comes to mind is an eagerness to go along with a contract, even if some of the terms are unclear or somewhat unfavorable, out of excitement for the broader opportunity. When some type of joint venture or partnership opportunity arises, the artist often has less bargaining power than the other party, like a studio or whatever entity is funding the opportunity. After going back and forth on negotiations, the parties sometimes suffer from contract fatigue, which can result in compromises to get the deal done and get to work. Most of the time disputes don’t arise from the thousands of contracts entered into every day. But serious disputes most often arise in spectacular failures or huge successes. The outcome of those disputes will depend on what the contracts say, which is why it is so important to ensure that the artist protects her rights, especially as they pertain to name, face, and likeness rights in the future.
I had the privilege of representing a celebrity chef, Chef Chloe, in a wide-ranging series of business disputes over her “by Chloe” fast-casual vegan restaurant chain. One of the disputes included allegations that the operating company owned the “by Chloe” trademark and so that company could prevent Chloe from using her name as a chef with other restaurants even after she was no longer involved in the restaurant chain. Fortunately, we won a trial in federal court that concluded the “by Chloe” trademark was not something that could be sold without her permission and allowed Chloe to continue using her name as a result. But this dispute is still a cautionary tale of how a party could use a contract to threaten an artist’s ability to use something as personal as her name.
What are your “5 Things You Need To Know To Effectively Protect Your Creative IP As An Artist” and why?
1. Register. The first element for any copyright infringement claim is that you own a valid copyright. So, once you complete an original work (like a screenplay in the entertainment industry), you should generally register it with the United States Copyright Office. If you register your work before infringement began, then you may be entitled to some better remedies, like statutory damages and an award of attorneys’ fees.
2. Keep a paper trail. To prove copyright infringement in federal court, you generally must also prove that the defendant had access to your work and that the infringing work is substantially similar to original elements in your work. It is important to know who has received your work. Especially in Hollywood, where screenwriters and agents often widely share screenplays, and when infringement may occur years later, it is important to keep a written record of who received your screenplay.
3. Communicate about your expectation for compensation. As I alluded to before, an idea-theft claim exists when someone discloses a unique idea with an expectation of compensation if that idea is later used. Proving the expectation of compensation is often circumstantial and can be difficult. A contemporaneous email or similar writing confirming your expectation can help prove this claim.
4. Email like it will be read in court someday. This is good advice for pretty much anyone. The principle has special importance with creative professionals in my experience. Discovering that someone has copied your work can be a devastating experience. Like the seven stages of grief, writers and artists often go through a range of emotions when this happens. While some of those emotions pass with time, emails stay forever. Be careful what you say.
5. Stand up for what is right. Litigation is a long, invasive, and grueling process. But at the end of the day, if someone copies your original work, then you need to stand up and defend what is yours.
For artists who can’t afford legal teams, what resources are available for them to protect their creative IP?
If someone needs legal advice, unfortunately, there really is no substitute for a lawyer. And access to justice is a real problem for many. But there are a number of really good non-profit organizations that strive to close that gap. Volunteer Lawyers for the Arts and California Lawyers for the Arts are two such examples.
The world of AI is a brand new frontier, and AI can easily copy an artist’s voice, style, and face. What should an artist do to make sure their IP is properly protected from being misused by AI?
It’s a brave new world, for sure. Several celebrities, like Sarah Silverman and John Grisham, have filed lawsuits against AI companies for copyright infringement. It will be interesting to see how those cases proceed, and hopefully, they will develop favorable case law for other artists. In the meantime, it’s also just important to stay vigilant, so you’re aware of it if anyone is using your works or name, face, and likeness rights.
Whatever AI has in store for the human race, I’m confident it will never replace the boundless creativity that the human mind has developed for centuries through the arts.
How important is it for artists to understand contracts and legal jargon when entering deals to protect their IP? Any specific tips?
It’s critical to understand the scope and terms of any contract before signing it. Unfortunately, the entertainment industry is among the worst in my experience when it comes to dense language and complicated legalese. One of my partners, Roman Silberfeld, tried a case on behalf of the creator of “Who Wants to Be a Millionaire” against Disney and its affiliates. Even though the show was ranked as the number one show for some time, Disney claimed it made no profits as that was defined by the contract. It took years of litigation and ultimately a jury in federal court to find that Disney’s interpretation was incorrect and award over $270 million in damages due to the creator, Celador International, which was later increased to over $320 million. The case, to this day, stands as the largest entertainment industry verdict and judgment in history.
There is a push among some lawyers to write in plain language, which hopefully gains traction. Until it does, it is incumbent on each party to ensure that they understand what the limits of the contract are. Because if you can’t understand, then you can’t be sure how it can affect you or your career in the future. And unless you’re vigilant, you can unwittingly grant a license or even ownership to your work or other rights to your name, face, and likeness when that was not necessarily the deal people had in mind at the outset.
IP laws and practices can vary significantly from country to country. How does the international nature of the entertainment industry complicate IP protection? Are there specific challenges artists should be aware of? What trends do you expect to see in your field?
My hope is that we will continue to see more access to justice for writers and artists in the court system. For a number of years, Hollywood studios had some real success obtaining dismissals of writers’ copyright infringement claims well ahead of trial. In fact, to my knowledge, there hasn’t been a jury trial against a Hollywood studio over a copyright infringement in many, many years. But the pendulum has begun to swing back as of late, and courts seem to recognize many of these cases deserve a full record and are so hotly contested that only juries should resolve them. The main takeaway then is that I think we’ll see more jury trials in copyright infringement cases in the future.
You are a person of enormous influence. If you could inspire a movement that would bring the most amount of good to the most amount of people, what would that be?
That’s a heavy question, which I feel somewhat unqualified to answer. But the older I get, the more I have discovered that happiness comes from the quality of relationships with those closest to us. And yet it’s alarming to see how detached we are becoming from real life through our focus and dependence on screens, and especially in how screens are impacting our children. We all need to put our phones down more! Besides, no photo will ever match the beauty of watching a sunrise (especially with someone you love).
Are you on social media? How can our readers follow you online?
Disregard what I just said for a moment, and yes, please connect with me on LinkedIn!
This was so informative, thank you so much! We wish you continued success!
About the interviewer: Guernslye Honoré, affectionately known as “Gee-Gee”, is an amalgamation of creativity, vision, and endless enthusiasm. She has elegantly twined the worlds of writing, acting, and digital marketing into an inspiring tapestry of achievement. As the creative genius at the heart of Esma Marketing & Publishing, she leads her team to unprecedented heights with her comprehensive understanding of the industry and her innate flair for innovation. Her boundless passion and sense of purpose radiate from every endeavor she undertakes, turning ideas into reality and creating a realm of infinite possibilities. A true dynamo, Gee-Gee’s name has become synonymous with inspirational leadership and the art of creating success.
