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If you thought the Internet was a boon for transactional entertainment lawyers, who seized the opportunity to ink deals for online distribution of clients’ songs and movies, you ain’t seen nothin’ yet. Now the litigators have logged on and hit paydirt — or, in one case, just dirt, at least until a court rules. Pollstar, a concert and tour information company, suspected its listings were being copied and posted by an online competitor. So the company hired litigator Steven Shapiro to help do what screenwriters and mapmakers have done for years to catch copycats: intentionally insert mistakes in its printed material. When some glaring (and planted) scientific errors showed up in a competing volcano script, the writer of the original sued a major studio — and scored a big settlement. Ditto for Thomas Bros. when a nonexistent street with the same name and location appeared in a competitor’s map. Shapiro, an intellectual property and new media partner with Mitchell, Silberberg & Knupp in West Los Angeles, took the same tack for Pollstar but amped up the technology considerably. After the company’s concert portal, pollstar.com, noticed that one of its listings appeared verbatim on a competing Web site, with a typographical error intact, it began to suspect its goods were being “borrowed.” To test the theory — and, as it turned out, provide fodder for a suit — Shapiro helped Pollstar craft and post some concert listings so bogus their duplication couldn’t possibly be innocent. Gigmania, Pollstar’s chief competitor, apparently bit. Immediately after the fake listings were posted on pollstar.com, where they appeared for only a few hours, they popped up on gigmania.com, according to a complaint Shapiro filed this month in federal court in Fresno. A seemingly odd venue for a major entertainment law case, Fresno is home to Pollstar. And hey, Fresno’s a lot more believable than some of the concert locations Pollstar posted as bait, including these gems of ’60s popular culture: Roadrunner Theatre in Acme, N.M. (Acme supplies Wile E. Coyote with the outrageous devices and explosives he uses trying to catch the Roadrunner); and Mooze & Skwirl Auditorium in Frostbite Falls, Minn. (Frostbite Falls is home of Rocky the flying squirrel and Bullwinkle the moose.) Also featured was Robert Crane Auditorium in Hogan, Ariz., (Actor Robert Crane played the lead role in Hogan’s Heroes) and Hikawi Gaming Resort in Courage, S.D. (after the tribe that lived outside Fort Courage in the television series F Troop). Beyond the television references, the site listed a Lycanthropy Benefit in Talbot, Mich. (Lycanthropy is the fictional ability to transform oneself into a wolf; Larry Talbot was the name of the Wolfman in the 1941 movie.) Pollstar’s final offering, which it claims was also snapped up by Gigmania’s site, included a few lines of legal poetry crafted by Shapiro and his forces at Mitchell, Silberberg — containing a hidden message to Gigmania, which apparently didn’t register. Concert sites included the fictitious locales of Ucopy, N.J., at the Sloppy Joe’s Caf� (which Shapiro translates as “you copy sloppy”) and Commitort, Mo., at the Court Jester Theater (“commit a tort; go to court”). Levity aside, Shapiro says his client is serious about proceeding with the Pollstar complaint, which will test “the extent to which a dot-com can go to other sites, copy factual information and post it as its own.” The company claims its “Concert Hotwire” is developed “at great time and expense” and often contains concert locations and times before they are available elsewhere. By copying the listings, Shapiro says Gigmania violated the Web site’s automatic license agreement, which limits access of the material to personal, noncommercial use. Because the information allegedly copied was “hot, time-sensitive news that was exclusive to Pollstar,” says Shapiro, federal copyright laws do not pre-empt a misappropriation claim. He goes even further, claiming that because much of the bogus material posted by Pollstar was “fanciful and original,” it “constitutes expression deserving of copyright protection.” Once Shapiro obtains copyright registrations on the bogus material for Pollstar, he says, the case may be expanded to include a copyright infringement claim. Mitchell Zimmerman, head of the intellectual property practice at Fenwick & West in Palo Alto, who represents Gigmania, declined to comment because his client had not yet been served. The complaint seeks damages and an injunction for misappropriation, unfair competition and breach of contract — probably the only viable causes of action available to Pollstar because copyright law does not protect a mere listing of factual information. Unless, of course, stupidity is codified into law.

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