Tribute to James Gandolfini From Contracts in the Real World

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4 Responses

  1. IP prof says:

    “A property-based claim, such as an assertion of copyright or trademark, requires showing absolute novelty—something new under the sun.”

    I defer to your analysis of the contract claims, but absolute novelty is not required to obtain either a copyright or a trademark. Copyright requires independent creation, not necessarily absolute novelty, and a TM need only be source-identifying.

  2. jon stanley says:

    I was born and raised in Elizabeth, Italian/Irish family from ‘the Port’, in Elizabeth…..I’ll lay ya odds someone got to the jury.

  3. Lawrence Cunningham says:

    IP Prof: I’ll defer to your qualification of my statements, which may have been too broad or general. I confess reliance on and adaptation of a passage in the Baer court’s opinion (set out below). It may suggest that New Jersey law (which applied) adopts a different view, at least in the narrow setting addressed. Notably, the court’s prediction of New Jersey law was based, in turn, on a federal appellate court’s prediction of New York law, which may likewise reflect a minority approach (The latter opinion, incidentally, was written by then-Judge Sotomayor.) Here is the Baer court’s passage:

    Next, Baer argues that his ideas are compensable in quasi-contract because the ideas, though not novel in an absolute sense, were novel to Chase. New Jersey law, however, does not recognize the “novelty to the buyer” theory for idea submission claims that are not contract-based. In Johnson v. Benjamin Moore & Co., 347 N.J.Super. 71, 788 A.2d 906, 919 (App.Div.2002), the New Jersey Appellate Division adopted the standard announced in Nadel v. Play-by-Play Toys & Novelties, Inc., 208 F.3d 368 (2d Cir. 2000). The Nadel, or New York, standard distinguishes between idea submission claims that are property-based, which “can only arise from the taking of an idea that is original or novel in absolute terms,” and claims that are contract-based, which must only satisfy a “novelty to the buyer” standard. Id. at 378. Under the Nadel standard, Baer’s quasi-contract claim, which by its very nature is not based in contract, see Wanaque Borough Sewerage Auth. v. Twp of W. Milford, 144 N.J. 564, 677 A.2d 747, 752 (1996), fails because, as he has conceded, he cannot make a showing of absolute novelty.

    Perhaps I should not have given copyright or trademark as general examples of such property-based claims.

  4. Lawrence Cunningham says:

    jon stanley: I’ll defer to you on the relevant culture, but note that the judge had whittled most of Baer’s case down before it got to the jury; the jury addressed relatively small stakes in the overall case.