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Old 2007-12-29, 12:07 AM   #41
Cliffjumper
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On the hoof mental calculation:

Retail price of air freshener = $3.99

Now, let's assume every penny of that is her profit (which it wouldn't be... I'm guessing half or less is more likely) - that means she expected to shift a quarter of a million of the things over the past six months that she hasn't because of the film. That's, what, 4000 per month? So they've consistently been shifting 4000 units per month since around 2002, which would be, ohh, call it ~350k units (with massive underestimation, of course). And that's an underestimate. And yet something sold in those sorts of numbers across that long a period of time is assumed to be a knock-off all of a sudden? Yeh, that's neck-deep in plausibility, that is.

Anyone know of this item before the film, or know of anyone who knew about it? I'm not debating its' existance from 2002 onwards, i simply think she's pulling her claims figures out of her backside.
 
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Old 2007-12-29, 12:10 AM   #42
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Yes, I have seen it multiple times before the film, so yes, it did exist. Therefore, Dreamworks certainly did not create it.

Also, if someone hadn't seen it before the movie, they could very easily assume hers was a knock-off. It is not that big of a stretch. That is another part of the issue.
 
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Old 2007-12-29, 12:14 AM   #43
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Quote:
Originally posted by Tramp
As such, we are not privy to all of the information, nor should we be. However, from the infoprmation we do have, She is clearly well within her rights to sue Dreamworks for what they did.
Or maybe, just maybe (and here's a crazy idea), because we aren't privy to all of the information (or even more than a couple of pieces of it), we perhaps shouldn't be drawing any conclusions.

Quote:
Originally posted by Tramp
As Denyer himself put it, she doesn't need to show figures showing loss of income.
She should have to to support her claim; she probably won't have to, for sure, but that doesn't make her look like much less like a greedy opportunist.

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Originally posted by Tramp
The very fact that she only found out about it after the fact makes it even worse. I take her side on this because I am an artist myself with my own ideas and designs and would certainly not want what happened to her to happen to me.
Then I hope that if it ever happens to you you have figures to back up things like loss of earnings, or you'll just have to put up with looking like you're just after cheap money.
 
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Old 2007-12-29, 12:17 AM   #44
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Quote:
Originally posted by Tramp
Yes, I have seen it multiple times before the film, so yes, it did exist. Therefore, Dreamworks certainly did not create it.
Quote:
Posted by me, AN INCH AND A HALF FURTHER UP THE ****ING SCREEN
I'm not debating its' existance from 2002 onwards
You are so thick someone should weld you to the bottom of an aircraft carrier as an anti-torpedo defence. I don't see any particular point in discussing anything with someone as stupid as you. Welcome to the ignore list, I'm sure I'll miss little of value.
 
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Old 2007-12-29, 12:19 AM   #45
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Cliffjumper. Do you know anything about Copyright law? I may not know everything about it, but I know enough because of the profession I am in. Therefore, I know for a fact that she does not need to show exact figures of money lost. All she has to prove is that Dreamworks is using her design for commercial gain without her permission, and that is pretty evident just from the article.
 
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Old 2007-12-29, 12:33 AM   #46
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I'm kinda scared to raise my hand here because I agreed with Tramp once before and swore it would never ever happen again but the local car modifiers(Auto XS)which loves and imports loads of US and Jap stuff had a load of these a coupla years ago.
I distinctly remember seeing them and thinking thats a pish play on words and moving swiftly on and shaking my head-when I saw it in the the final trailer(the one that starts with Sams dad NOT buying him a Porsche) i thought "Oh its one of those shabby bee air fresheners they had in Auto XS a while back.
Sorry Cliffy
 
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Old 2007-12-29, 01:10 AM   #47
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Quote:
Originally posted by Tramp
I know enough because of the profession I am in.
Then why the credence in the "possible loss of income" statement as something beyond a standard legal opening gambit and publicity grab?

It'll settle out of court.

Quote:
Originally posted by Cliffjumper
She should have to to support her claim
Nah, just has to show derived commercial benefit, which'll be simple enough.

If they hadn't stripped the copyright markings and hadn't used it for trade and promo purposes there's a good chance they'd be in the clear. With actual products, a litigant would have to prove hostile context (eg, a plot point that the character's car is a new [insert prestigious brand] and a piece of ****.)

edit:
Quote:
Retail price of air freshener = $3.99
The point as presented will include orders lost due to uncertainty of origin; if you buy a load of counterfeit t-shirts (or whatever) the stock is liable to be forfeited in the event of legal action.
 
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Old 2007-12-29, 01:17 AM   #48
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Quote:
Originally posted by Denyer
Then why the credence in the "possible loss of income" statement as something beyond a standard legal opening gambit and publicity grab?

It'll settle out of court.
It may indeed settle out of court. I won't deny that. By the same token, it might go to trial. My initial point was though, that from the report, she has lost money from Dreamworks' use of her design because people think that she is copying the movie, and that shows loss of income.
Quote:
Nah, just has to show derived commercial benefit, which'll be simple enough.

If they hadn't stripped the copyright markings and hadn't used it for trade and promo purposes there's a good chance they'd be in the clear. With actual products, a litigant would have to prove hostile context (eg, a plot point that the character's car is a new [insert prestigious brand] and a piece of ****.)
Pretty much.
 
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Old 2007-12-29, 01:26 AM   #49
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Quote:
Originally posted by Tramp
from the report, she has lost money from Dreamworks' use of her design because people think that she is copying the movie, and that shows loss of income.
Possibly an order, possibly even a couple -- the 850K is almost certainly an extrapolation pulled out of someone's arse for publicity and as a bargaining chip. Proving even a fraction of that value as verifiable lost income ain't gonna happen.

Same ballpark as RIAA "1 track = $750 of lost value" estimates, which may explain the varying degrees of sympathy...
 
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Old 2007-12-29, 01:30 AM   #50
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I'm not sure she could actually claim a loss of sales, though, and certainly it would be very difficult to claim the the movie did it, considering... are we really to assume that those people who got them as promotional items would have bought them?

The giveaways are questionable, certainly, but I'm not sure that Dreamwave itself was liable. Did the marketing firm responsible swipe them? Did they figure on the original source? (I've seen a lot of KO goods of crap like this in my day). Admittedly, the giveaway items seem damning...

This will either settle, or the woman will fail because she can't prove her damages. She's obviously trying to 'cash in' now, else she would have cried foul back when the first promotional items were given away well before the movie's release.
 
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Old 2007-12-29, 01:45 AM   #51
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Quote:
Originally posted by Denyer
Possibly an order, possibly even a couple -- the 850K is almost certainly an extrapolation pulled out of someone's arse for publicity and as a bargaining chip. Proving even a fraction of that value as verifiable lost income ain't gonna happen.

Same ballpark as RIAA "1 track = $750 of lost value" estimates, which may explain the varying degrees of sympathy...
I wouldn't call it "pulled out of someone's back end" for publicity, though it could be used as a barganing chip. much of that is more punitive damages and court costs as well as financial recmpence and even what she would have earned from licensing fees had they gone through the proper channels. Just the federal copyright infringement laws apply severe financial penatlies for those who violate them. Those fines run into the tens or hundreds of thousands of dollars alone. IF I remember correctly, illegal showing or distribution of a movie has a civil and criminal penalty of five years in prison and/or $50,000.00 just based on the law itself. That doesn't even factor in possible lost sales figures or anything else. I don't find $850,000 that big of a stretch. Sure, it is a high figure, but I don't consider it unreasonable when you factor in legal costs, punitive damages, loss of credibility with potential customers, loss of potential sales (even if it cannot be proven), loss of the licensing fees owed her, so we aren't talking about just the potential sales. It is much bigger than that. Therefore, I see no reason why she shouldn't be pushing for that much. She deserves every bit of that money as far as I am concerned.
 
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Old 2007-12-29, 01:59 AM   #52
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Quote:
Originally posted by TFVanguard
I'm not sure she could actually claim a loss of sales, though, and certainly it would be very difficult to claim the the movie did it, considering... are we really to assume that those people who got them as promotional items would have bought them?
The key word is potential sales. The people who got them for free may or may not have purchased them on their own. Either way, the potential existed that they could have.

Quote:
The giveaways are questionable, certainly, but I'm not sure that Dreamwave itself was liable. Did the marketing firm responsible swipe them? Did they figure on the original source? (I've seen a lot of KO goods of crap like this in my day). Admittedly, the giveaway items seem damning...
The give-away is as damning as it gets. Dreamworks deliberately removed her copyright information and then manufactured their own with the movie information on the back lacking her copyright information. That is piracy. That alone is grounds for a major lawsuit. They also used it in the movie without her knowledge.

Quote:
This will either settle, or the woman will fail because she can't prove her damages. She's obviously trying to 'cash in' now, else she would have cried foul back when the first promotional items were given away well before the movie's release.
Who is to say she didn't cry foul from the beginning? As I said, preparing a lawsuit like this takes time for research and investigation to gather evidence before the suit is even filed. Also, just because the public is now just hearing about it does not mean that she only just filed the suit. It may settle out of court, but she will certainly not fail in the suit. Dreamworks is clearly in the wrong. They clearly infringed upon her copyrights, of that there is no doubt. Therefore, she will win this case. Whether she gets all $850K is debatable, but she will win the suit. Of that fact, I am certain.
 
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Old 2007-12-29, 02:10 AM   #53
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The thing is, Dreamwave purchased the infringing works from another company, though... after all, Dreamwave isn't in the business of air fresheners, but whomever they contracted is. Dreamwave could easily claim some ignorance here, and shunt the whole thing onto their contractor - which I'll bet is a Chinese KO company.

She has to prove that Dreamwave as a company was aware of the infringement and acted maliciously. If they simply contracted out, and didn't check it out they might not be liable at all.

Still, this strikes me that she's wanting to settle. The amount is absurd, though.
 
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Old 2007-12-29, 02:16 AM   #54
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Dreamworks.
Quote:
Originally posted by Tramp
I see no reason why she shouldn't be pushing for that much.
Because the suit stands greater chance of going through with minimum penalty to DW if she gives a judge reason enough to dislike her. Despite powers the RIAA and MPAA are trying to carve out for themselves, this is primarily civil law.

In particular, failing to get costs could have a deleterious effect.
 
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Old 2007-12-29, 02:17 AM   #55
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Quote:
Originally posted by TFVanguard
The thing is, Dreamwave purchased the infringing works from another company, though... after all, Dreamwave isn't in the business of air fresheners, but whomever they contracted is. Dreamwave could easily claim some ignorance here, and shunt the whole thing onto their contractor - which I'll bet is a Chinese KO company.

She has to prove that Dreamwave as a company was aware of the infringement and acted maliciously. If they simply contracted out, and didn't check it out they might not be liable at all.

Still, this strikes me that she's wanting to settle. The amount is absurd, though.
Dreamworks, not Dreamwave. Two different companies. Regardless, Dreamworks is at fault. They may not have done the manufacturing, but they did order the manufacturing of the promotional items. It was their responsibility to get the proper permission and license to do so. They were the ones who bought the few originals for use in the movie. The are the ones who copied her design and used it for promotion of the movie, They are the ones who ordered production of the promotional pieces using her design. All of the responsibility is on them, not the factory who actually manufactured the pieces. Therefore, yes, Dreamworks clearly knew what they were doing. They can't shunt it ontop their contractor because they are the ones who ordered the production. They are ultimately responsible, not the subcontractor.
 
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Old 2007-12-29, 02:19 AM   #56
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Freudian Slip?

Tramp, you're pushing hard to the point that your rationality is in question. This woman may have a claim, but her damages are ridiculous and you know it. "Sue the **** out of them" is a mantra you see a lot, but it's a bad thing, really. For juries, it often undercuts the entire case, regardless of the merits.
 
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Old 2007-12-29, 02:20 AM   #57
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Quote:
Originally posted by Denyer
Dreamworks.
Because the suit stands greater chance of going through with minimum penalty to DW if she gives a judge reason enough to dislike her. Despite powers the RIAA and MPAA are trying to carve out for themselves, this is primarily civil law.
I disagree. The suit has better chance of going through and her getting a decent level of compensation if ashe pushes for more than what she actually expects. IF she low-balls it, that is all she will get. If she pushes for more than she expects, she stands a much greater chance of getting at least what she is truely owed. Always shoot for higher than you expect; much higher. That way you are more likely to get what you expect.
 
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Old 2007-12-29, 02:23 AM   #58
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Quote:
Originally posted by TFVanguard
Freudian Slip?

Tramp, you're pushing hard to the point that your rationality is in question. This woman may have a claim, but her damages are ridiculous and you know it. "Sue the **** out of them" is a mantra you see a lot, but it's a bad thing, really. For juries, it often undercuts the entire case, regardless of the merits.
I don't believe it is ridiculous. I figure significantly higher than what she really wants gives her a greater chance of at least getting at least what she is porperly owed than if she started at a lower figure. It gives her bargaining room in case they do want to try and settle. IF you are suing someone and believe that you are due $400K, sue for at least twice that. Don't ask for $400K because, more than likely, you'll only get half. Always ask for at least double what you really want.
 

Last edited by Tramp; 2007-12-29 at 02:27 AM.
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Old 2007-12-29, 02:26 AM   #59
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Quote:
Originally posted by Tramp
Always shoot for higher than you expect; much higher.
First part yes, second part of dubious wisdom, but I hope you find yourself in a position to try and won't be talked out of it by counsel.
 
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Old 2007-12-29, 02:32 AM   #60
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Quote:
Originally posted by Denyer
First part yes, second part of dubious wisdom, but I hope you find yourself in a position to try and won't be talked out of it by counsel.
I have sued someone already because of a car accident I was in. I made the mistake of not asking for significantly more than what I felt I was owed. I asked for exactly how much I sought, and got a third of that. I asked for $15K because of a shoulder injury, and got $5K, half of which went to legal fees. IF I had asked for 50K, I would have had a much better chance of getting the 15K I sought. Therefore, it isn't dubious wisdom. It is calculated strategy. There is nothing dubious about it.
 
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