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New York Mercantile Exchange Inc. v. IntercontinentalExchange Inc. Can you copyright a price? The New York Mercantile Exchange thinks so. On Nov. 20, NYMEX sued its Atlanta-based competitor, IntercontinentalExchange Inc., for copyright infringement in the Southern District of New York. Both companies provide exchanges for trading futures for natural gas and light sweet crude oil. NYMEX charges that ICE infringed its copyrights on prices by using the prices to clear and settle trades for similar futures contracts. NYMEX claims that the settlement prices are determined by sophisticated, educated committees of workers, and are original works of authorship. ICE says that settlement prices are facts which cannot be copyrighted, and that NYMEX’s assertion is an illegal restraint of trade, intended to restrict competition. ICE is seeking treble damages for NYMEX’s alleged violation of federal antitrust law. For New York Mercantile Exchange, Inc. (New York) In-House (New York): Christopher Bowen, general counsel. Olshan Grundman Frome Rosenzweig & Wolosky (New York): Randy Friedberg, Herbert Ross, and associate Jack Kint For Intercontinental Exchange, Inc. (Atlanta) In-House (Atlanta): James Falvey, general counsel. Sullivan & Cromwell (New York): James Carter, David Gilberg, Richard Klapper, Kenneth Raisler, and associate Michael Cheah. Winston & Strawn (Chicago): Steve Molo and Dan Webb. Chicago National League Ball Club Inc. v. Sky Box on Waveland, L.L.C., et al. Blocked by the city government from expanding the bleachers in Wrigley Field, the owners of the Chicago Cubs are attempting to get money from a new source. The Cubs are suing the owners of 13 rooftop clubs near Wrigley Field for copyright infringement, trademark infringement and misappropriation because the patrons of these clubs can look down and watch the events on the Cubs’ baseball field, as well as on television screens placed on the rooftops. Watching Cubs games from these rooftops is big business. The clubs sell rooftop seats for $100 or more, according to the Cubs’ complaint. Sales total $7.5 million each year, according to Crain’s Chicago Business. The Dec. 17 suit complains that the rooftop clubs infringe the Cubs’ copyright in televised home games by giving unauthorized public performances of the telecasts. According to the complaint, the rooftop clubs’ marketing activities use the Cubs’ trademarked name and logos, and confuse the public into thinking that the baseball team and the clubs are affiliated. The clubs say that the Cubs have encouraged people to watch games from nearby buildings for decades. The current bleachers in Wrigley Field were built in 1937 at a low height specifically to allow people in nearby buildings to watch the games from nearby rooftops. It’s too late for the baseball team to cry foul, the clubs say. Since 1988, the city of Chicago has required rooftop owners to purchase licenses to sell tickets for Cubs games. The city has also required the rooftop clubs to meet new safety code and handicapped access requirements, forcing the clubs to spend millions for renovations. The Cubs had tried to add 2,600 seats to the 38,500-seat stadium, but the rooftop businesses lobbied the city government to stop the move because the new seats would have obstructed the view from the rooftops. City officials got involved in negotiations between the team and the club, but ultimately decided to seek landmark status for Wrigley Field, restricting the Cubs from making any changes to the stadium. After negotiations finally collapsed, the Cubs filed suit. For the Chicago National League Ball Club, Inc. (Chicago): In-House (Chicago): Mark Hianik, general counsel. Grippo & Elden (Chicago): John McCambridge and associate Gary Miller. For the 13 rooftop businesses (Chicago): Freeman, Freeman & Salzman (Chicago): Glynna Freeman, Lee Freeman, Jr., and Chris Gair. Baniak Pine & Gannon (Chicago): Michael Baniak and Charles Valauskas. Stan Lee v. Marvel Enterprises Inc. The movie Spider-Man was a huge hit, grossing more than $400 million in the United States and delivering millions of dollars to Marvel Enterprises Inc., which owns the rights to the Spider-Man character. However, the film hasn’t been particularly profitable for Stan Lee, the former head of Marvel who was largely responsible for creating Spider-Man, the X-Men, Daredevil, the Hulk and many other well-known Marvel comic book characters. In a 1998 agreement, Lee gave Marvel the right to commercially exploit the characters he helped create, and in return, the company gave Lee a package that included a base salary (currently $1 million per year), stock options, and a share of certain profits Marvel derived from the use of its characters in movies and TV shows. On Oct. 30, 2002, Marvel announced that it had received $4 million in the third quarter from its rights in the Spider-Man movie. Lee, however, has not received a penny of Marvel’s take from the Spider-Man and X-Men movies. He sued Marvel on Nov. 12 for breach of contract. The suit was brought in the federal district court of the Southern District of New York. Lee is seeking at least $10 million in damages, along with an order directing Marvel to properly account to Lee for its profits from the Spider-Man and X-Men movies, and from TV shows based on Spider-Man, the Hulk and the X-Men. Marvel says it is fully complying with its contractual obligations. When movie studios license the rights to a character, they normally provide the character’s owner with two separate income streams — license fees and a portion of the movie studio’s net profits — and that’s what happened in the 1998 agreement, according to David Fleischer, a partner in Paul, Hastings, Janofsky & Walker, who is representing Marvel in this suit. “Lee has no interest in the license fee [which Marvel has received],” Fleischer says. “He only has an interest in profits from profits, which under Hollywood accounting practices is illusory. It was never intended to be a source of significant compensation. For Stan Lee (New York): Dickstein Shapiro Morin & Oshinsky (New York): Howard Graff and counsel Judith Cohen. For Marvel Enterprises Inc. (New York): In-House (New York): Allen Lipson, executive vice president, business and legal affairs. Paul, Hastings, Janofsky & Walker (New York): David Fleischer and associate Jodi Kleinick.

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