Hard to believe that the last California statute prohibiting impersonation dates back to 1872. SB 1411, a bill passed last June, updates the law and makes malicious “e-personation” a misdemeanor punishable by up to a $1,000 fine and a year in county jail. It is codified at Penal Code Section 528.5.

More specifically, the new law makes unlawful to “knowingly and without consent credibly impersonate another actual person through or on an Internet Web site or by other electronic means … for purposes of harming, intimidating, threatening, or defrauding another person.” Emphasis Added. In addition to criminal penalties, the law expressly provides ground to bring a civil suit for compensatory damages, injunctive relief or other equitable relief to anyone who suffers damage or loss as a result of the online impersonation. Other states (like New York and Texas) already have similar laws on the books.

Practice Note: Attorneys who represent celebrities and victims of online harassment and identity theft will particularly want to know about this law, which adds to the arsenal of remedies against California impersonators. Also good to know: If you are dealing with imposters on Facebook, MySpace, Twitter, eBay or other prominent sites, you can usually get the fake account deleted fairly expeditiously by using the site’s take-down mechanism. Many sites now have such procedures in place, not only for DMCA purposes, but also to request deletion of abusive or fake pages.

Finally, it is important to note that the new California law only targets “credible” impersonators of an “actual person.” @ChuckNorris_ and @drtobiasfunke are probably safe.

Dear Mr. Olson,

We are in receipt of your letter (below) in which you demand that we cease or you will sue.

We are a law firm; and we are reporting news in our blog. Clearly is that stated under the category on ‘News’ as you acknowledge in paragraph two of your letter.

We acknowledge that your client has trademark rights. However, protection for trademark rights under the Lanham Act is limited to protection against another’s use of a designation to identify its business, or in marketing its goods or services in a way that causes a likelihood of confusion. Such trademark rights do not override First Amendment rights.

Wilcox v. Career Step (D. Utah 12/1/10)

Wilcox is the author of a medical coding course, and claims that Career Step (CS) is infringing Wilcox’s copyright. Career Step licenses the disputed medical coding course to various schools and colleges; and, in each instance Career Step requires that each student sign a contract that specifies that jurisdiction will be in Utah.

The court faced two motions one for lack of personal jurisdiction and another for a motion to dismiss on grounds of sovereign immunity from two of the schools which were also named as defendants.

The court granted the motion to dismiss for lack of personal jurisdiction stating that both WVS and Laramie knew the fact that CS was based in Utah. The agreement itself established several connections to Utah. First, the governing law of the contract was Utah law and the agreement arguably selected Utah as the venue of any suit involving the contract. Second, CS administered the Wilcox course from Utah. Third, the court concluded that Wilcox, a third-party to the relationship between CS and the moving defendants, could hale those defendants into a Utah court to litigate whether they violated Wilcox’s copyright in the course at issue. WVS and Laramie transacted business in Utah with CS and allegedly caused Wilcox injury in Utah. The moving defendants, two schools, reached into Utah to obtain the right to use the Wilcox course, which they knew was subject to claims of copyright and other intellectual property protection. Wilcox’s asserted harm related directly to defendants’ intentional choice of contracting with a Utah company to purportedly obtain a license to use the course. While the moving defendants may not have intentionally directed their activities toward Wilcox in Utah, they did intentionally make contact with Utah involving the Wilcox course. For these reasons, the court denied the motion to dismiss for lack of personal jurisdiction.

With regard to the state school’s motion to dismiss based on sovereign immunity, the court detailed the history of the law of sovereign immunity and then applied the facts of the case focusing particularly that the school is a state school with one hundred percent of that school’s funding coming from the state coffers. The court held that the 11th amendment doctrine of sovereign immunity applies in this case barring the copyright action against the school.

Leslie Nielsen died last week at 84. He has been for thirty (30) years the single most reliable bellwether of a derivative work being found to be a fair use of the underlying work. When clients really wanted to go the extra mile to ensure that their use would be found to be ‘fair use’, they would ask, what can we do? The answer was go hire Leslie Nielsen.

Of course, no one ever took that advice, but it was a sure bet. If Leslie’s dead panned face was beaming out of the work, you could be sure that fair use was going to be found.

The EverReady Bunny in the Duracell ad point and counterpoint ad series that morphed into a Coors beer parody of both, the Demi Moore’s pregnant portrait … and well, so much more. There were only about four cases, but in each one, the judge or the jury was immediately assured that the derivative work was one that was bent on humor. This Canadian was one fella who spent the last thirty years cueing the viewing public to know that if that saw Leslie’s deadpan persona, that something worthy of a good wholesome laugh was afoot.

We need a whole community of such characters. People whose face immediately communicates that humor is afoot. Such a jester class would be a most welcome sector.

On December 2, 2010, Facebook released its new updated Promotions Guidelines. These are significant changes to the original guidelines and will likely affect all promotions offered on Facebook. The new guidelines may be found here.

As with Facebook’s prior release of promotions guidelines, sponsors must use third party approved promotions providers, but the guidelines have gotten more stringent. Currently, entrants make only enter on the canvas page of the promotions application or a tabbed application “box” on the wall of a sponsor’s Facebook page.

Facebook is also requiring a more conspicuous notice relating to sponsorship, including a blatant disclosure adjacent to the promotion and within the rules that This promotion is in no way sponsored, endorsed or administered by, or associated with, Facebook. You are providing your information to [list discloses] and not to Facebook. The information you provide will only be used for [disclose any and all uses]. In addition, Facebook now requires that all promotion rules include a release of liability to Facebook.

The new release of guidelines also affect promotions that are not administered through Facebook, but where the sponsor uses Facebook to advertise an offsite promotion. Up to this point, Sponsors could advertise their own promotions held on different sites through Facebook without having to abide by the Facebook guidelines.

A significant change to the Facebook guidelines is that you cannot give an entrant an automatic entry simply by having then “like” the sponsor page or by “checking in” at the sponsor location; the entrant must also affirmatively enter the sweepstakes or contest. Thus, while you can require that entrants “like” or “check-in” to your page before you provide them access to an entry, the entrant must actually take another step to enter.

Another key change to the Facebook guidelines is the winner notification process. Facebook now forbids sponsors from notifying winner using the Facebook

Facebook still allows sponsors to require someone “like” their Facebook fan page, but Facebook expressly provides that sponsors may not require any other action from entrants, such as posting a statement on the sponsor’s wall, or playing a game.

With the bad, comes some good. Facebook used to require advance consent of Facebook prior to launching a promotion. That requirement has been repealed, thus allowing sponsors to post promotions much more quickly.