Jury Decides in Favor of San Diego Comic-Con

A federal jury ruled today that Salt Lake Comic Con infringed on a trademark held by San Diego Comic-Con by using the words “comic con” in their name without permission. However, the jury did not award the $12 million in damages sought by San Diego Comic-Con, only $20,000, finding no willful infringement of the copyright by SLCC.

The case was tried in San Diego. Defendants Dan Farr and Bryan Brandenburg have said that if the verdict went against them, Salt Lake Comic Con would appeal to the Ninth Circuit Court of Appeals. They have previously told the media the court battle will not affect their ability to put on the next convention, which draws more than 100,000 people to the Salt Palace.

Deseret News reporter McKenzie Romero tweeted some specifics about the jury’s determinations:

[Thanks to Dave Doering for the story.]

Salt Lake Comic Con Defendants Take the Stand

A federal jury has been hearing witness testimony this week in San Diego Comic-Con Inc.’s suit against Salt Lake Comic Con, accused of trademark infringement for using the term “comic con” in its name.

SLCC’s Dan Farr told Facebook followers on Wednesday:

I have been pretty silent about the lawsuit that Bryan [Brandenburg] and myself are involved in but today we ended witness testimonies. I wanted to express the gratitude I feel for all of the love and support we have felt because of all of the thoughts and prayers sent our way. We have received so many messages from people expressing positive thoughts that I can say that it honestly has given me strength and courage that I may not have had otherwise. I sincerely thank everyone for this support. I was very proud of Bryan’s testimony today and feel that he did a great job of telling our story and supporting our position in this. Tomorrow we will hear closing arguments from both sides and then the Jury will deliberate and potentially have an answer for us by the end of the day. Regardless of the outcome, I am so grateful for all of the love and support from everyone and the hard work that has gone into this by everyone involved.

The Deseret News covered Bryan Brandenburg’s appearance — “Salt Lake Comic Con organizer testifies he saw no trademark barrier to ‘comic con’ name”.

Although a Court of Appeals lifted the judge’s gag order on public statements, with the jury out of the room, an SDCC lawyer read one of Brandenburg’s social media posts to the judge —

The post announced that Brandenburg would take the witness stand to show that “comic con is owned by the people, by all the fans that experience the joy and celebration of comic con in cities all over the world.”

[Judge] Battaglia prohibited such arguments in the trial based on objections raised beforehand by San Diego. He warned that if Brandenburg intended to make any such statements during his testimony, “tell him to bring his toothbrush with him.”

The same applied to any of Salt Lake’s other witnesses, Battaglia indicated.

“I will put them in jail if they violate this order. They are not to escalate this case into a war involving the world,” Battaglia said.

When the jury returned, lawyers led Brandenburg through questioning:

As he and his new business partner considered starting a comic and pop culture convention in Utah in early 2013, Bryan Brandenburg fired up his computer.

He reviewed websites of other events, news stories about their conventions and online industry forums discussing them all.

What he found, he testified in court Wednesday, was inconsistency.

Varied spellings, differences in website designs and functionality, and distinct logos and themes all led Brandenburg to believe the events spread all across the country were all independent of each other, and many identified themselves as “comic cons.”

“It led me to believe we could call our company Salt Lake Comic Con,” Brandenburg testified.

…On cross examination Wednesday, Callie Bjurstrom, an attorney for San Diego, questioned Brandenburg on whether he reached out to anyone at San Diego Comic-Con to confirm whether they took issue with the name when Salt Lake chose it.

Brandenburg confirmed he did not.

She also presented two emails from Brandenburg, sent in the early days of Salt Lake Comic Con, discussing the businesses’ plan to “hijack” the popularity of comic con. One of the emails went on to clarify, “Comic con is just the abbreviation for comic convention.”

“Mr Brandenburg, that’s what you have done here, isn’t it? You have taken something that isn’t yours and you are using it for your own purposes, isn’t it?” Bjurstrom pressed.

“No, it is not,” Brandenburg replied.

Bjurstrom also alleged that Brandenburg didn’t do the research he talked about until after receiving the cease and desist order from San Diego Comic-Con. Brandenburg replied that was “absolutely not true.”

Trial began last week – highlights of the opening statement made by SDCC’s lawyer were reported by Courthouse News, including “She claimed the Utah organizers identified their convention as a comic con was a way to ‘steal the Comic-Con brand.’”

The defense rested Wednesday. Attorneys will make their closing arguments on Thursday, then the case will go to the jury.

[Thanks to Dave Doering for the story.]

Worldcon, NASFiC and Smofcon Bidder Questionnaires Released

Smofcon 35, the convention for conrunners, taking place December 1-3 in Boston, asked Worldcon, NASFiC and Smofcon bidders, and seated Worldcon committees to answer a questionnaire. The responses have been posted at Smofcon’s website under Fannish Inquisition.

There will also be a Q&A session at the con – publishing these questionnaires in advance helps keep that time from being taken up with basic information. If you want to submit a question, see the information at the end of this post.

Smofcon Bids

Worldcon Bids

Seated Worldcons

NASFiC Bids

Submitting Questions to the Fannish Inquisition

At the Fannish Inquisition, all questions will be asked by the Inquisitors. The Inquisitors welcome your questions. They will ask them (possibly edited and combined), leaving you anonymous. Before the convention, E-mail questions to fi@smofcon35.org. At the convention, there will be a drop-off point in the con suite.

AggieCon Will Skip A Year

Cepheid Variable, the Texas A&M University student group that hosts AggieCon, says university has requested that the convention take a year off. No explanation was given for the request.

The group, which says AggieCon is the oldest, largest student-run fan convention in the world, will host AggieCon 49 at the Hilton College Station & Conference Center over the March 22-24 weekend in 2019. The past two cons were held at the Brazos County Expo Complex.

They concluded, “Sadly, this means there will be no convention in 2018, but the good news is that this allows us to put together a bigger and better convention for 2019.”

Barkley — So Glad You (Didn’t) Ask: A Column of Unsolicited Opinions — #19

Burn The Witch and Shoot the Messenger – Windycon 44

By Chris M. Barkley:

Red crosses on wooden doors
And if you float you burn
Loose talk around the tables
Abandon all reason
Avoid all eye contact
Do not react
Shoot the messengers

From “Burn The Witch” by Radiohead

It’s not as though I seek out unpleasantness, it seems to find me. The latest round of is playing out this weekend at Windycon 44, in Lombard, IL.

I week ago, I emailed the programming staff of Windycon to inquire about the panels I was going to be on. I had filled out a questionnaire several months ago and had not heard back from them.

On November 4, I received several urgent emails from Louisa Feimster, the head of Programming of Windycon, apologizing because Mail Chimp had lost some emails and mine was probably among them.

Even though it was far past the deadline to include me in the program book, she sent me a link to fill out a new survey and programming application. Within 24 hours of doing so, I was inserted into several panels which had members drop out for one reason or another:

  • Friday, 5:00 pm, Geek Chic: We don’t have to hide anymore. When did it happen and how long will it last?
  • Saturday, 11am, Creature Comforts: What would you miss the most? Ice, TV, Chocolate, etc.
  • Saturday, 12 pm, You Know Nothing, John (sic) Snow: Game of Thrones is very popular but there is a division between show fans and Song of Fire & Ice reader fans. Can we bring peace to the 7 kingdoms or at least the two fandoms?
  • Sunday, 10am, Yesterday, Today and Tomorrow: A lot of today’s technology was yesterday’s science fiction. Join a discussion about that past and what might be tomorrow’s tech.
  • Sunday, 11am, The Obligatory Doctor Who Panel: Discuss fandom’s favorite Doctor.
  • Sunday, 12pm, Tutti Frutti Literature: With changing social norms and lifestyles, how is this affecting our literature?

On Friday, at 6:18pm, I received a tweet from author Jim C. Hines: “Damn…@cmzhang42 – any idea what the heck’s going on with this one?” (screenshot)

I had NO idea of what he was talking about.

So, I immediately went to my Twitter feed and found a post from @leeflower, who was complaining about the “Tutti Frutti Literature” panel:  (screenshot)

After thinking a moment, I decided to enter the fray by directly asking @leeflower, “Hello, I’m on this panel. Can you explain what your objection is, please?”

I immediately tweeted back to Jim Hines, @leeflower and @Windycon, “I have made an initial inquiry with the person who complained. Stand by…” To date, I have yet to receive a response from @leeflower.

In the meantime, the shit was hitting fan. All sorts of people piled onto to this haywagon of condemnation of the Windycon Programming staff, based solely on the objections on @leeflower.

[Editor’s note: Chris supplied these screencaps without indicating their order. Looked at Twitter and attempted to reconstruct it. The inconsistent order of the internal timestamps (e.g., “14h”) is due to not all the screencaps having been made at the same time. That said, they still might not all be in order.]

No one in the Windycon administrative pipeline has responded in any way because…did I mention that Windycon was THIS weekend? And I might also add that as far as I know, NONE of the plaintiffs in this debacle are actually attending Windycon.

I happened to run into Louisa Feimster at the Saturday afternoon at the Art Show. When I outlined what was happening on Twitter in the past twenty-four hours regarding the “Tutti Frutti Literature” panel, she did a huge eyeroll and said, “You want to know what really happened? We were under a lot of pressure to come up with titles for panels and we kinda finished up in the middle of the night. Really, we didn’t mean to offend anybody, we were just tired.”

She also went on to explain that in her end of the BDSM world, ‘tutti frutti’ does not have a negative connotations and she thought it would be an interesting way to title a panel on the changing forms of literature.

So, there was no grand conspiracy to offend the gay community. While the choice of the term “tutti frutti” may be regrettable, it was NOT done in any sense of malice, at least from my point of view.

So, in every sense of the term, THIS was a witch hunt, but no actual witches were found. We only burned ourselves. (Author’s note: I in no way condone the burning of witches, good, evil or otherwise. It’s just a metaphor, OK?)

So at the appointed time, the panelists gathered; authors Cliff Jones, Ross Martinek and the moderator, Mari Brighe. Everyone had been briefed and I was looking forward to an interesting panel. The audience was rather sparse, it numbered no more than a dozen people.

Louisa Feimster was also in attendance, to make a statement about the controversy before the panel started. Her appearance seemed to annoy Ms. Brighe who asked if she still had control of the panel.

Louisa Feimster said she that she did, but wanted to make a brief statement about the title of the panel and to outline what the intentions of the the Programming staff was when they made the decision to title this particular panel. After eloquently stating her case from what she had said to me yesterday, she indicated that the panel should begin.

Then Ms. Brighe surprised me by asking if I wanted to make my statement then. Surprising to me because usually the moderator introduces themselves before the other panelists do.

“Some of you may have heard of a dispute that started on Twitter Friday evening regarding the title and subject matter of this particular panel, ‘Tutti Fruitti Literature.’ Someone with the twittter handle @leeflower has stated that the use of this term, in the context of a discussion about our changing social norms and literature is a slur against the gay community.”

I then went onto explain, perhaps a little too forcefully, that there was no intended slur and that in the big scheme of things, we had more to worry about than a perceived slight by people who were not attending the convention and did not know the context of how the phrase was being used.

“The main point is that damage has been done to the honor and reputation of Windycon because someone was offended.

“To which I respond : BIG DEAL!

“This is the double-edged sword of the pervasive use of social media; yes, when wrongdoing is detected and a bright harsh spotlight is aimed at targets like Wells Fargo, Volkswagen, Harvey Weinstein, Kevin Spacey and Louis C.K., the world can be enlightened and warned about a situation.

“But when there is an angry, unwarranted attack, as this shows every indication to be, it does a huge disservice to the accused party and to fandom as a whole.

“To @ leeflower and other offended parties I say this; save your indignation and anger for the bigger issues and targets, like the social forces who seek to divide and demoralize us. Save it for the corporations who seek to pocket more of our tax dollars to support their businesses and interests. Save it for the judicial and police forces who oppress and kill our brothers and sisters every day. Save it for the politicians and lobbyists who are plotting and this very moment to suppress voting rights and subvert the Constitution of the United States. And most of all, save it for the current occupant of our White House, whose list of crimes and misdemeanors grow with each passing day.”

“We have plenty of enemies to worry about. Windycon is definitely NOT one of them.”

Now, I have to admit that during the latter part of my statement, I was channeling my inner Keith Olbermann, my voice filled with more than a little outrage and anger. Because, let’s face it, I was more than a little angered and outraged.

Well, I had hoped that this little outburst would rally the troops to my cause and there would be a large burst of applause as the cherry on top.

It was met with mostly silence and a few angry faces. And then came the kicker.

Ms. Brighe then took center stage and stated, in no uncertain terms, how she as a transgendered fan, was very disappointed in Louisa’s leadership with the Programming staff and with this program item in particular. She also stated that she thought that Windycon was not as progressive as they thought they were and that she still found instances of “micro-aggression and homophobia” at the convention and that as a consequence, she was relinquishing her responsibilities with this panel and was leaving.

With that she got up and left the room, leaving all us in stunned silence.

After a moment or two, Ms. Feimster picked up the moderating duties. We started with a discussion of what the hell just happened. One woman (whose name I did not catch) seemed to blame me personally for the walkout; she thought Ms. Feimster’s speech struck the right note by my speech was loud, noisy and did not take Ms. Brighe’s point of view into account.

Cliff Johns remarked that the whole incident appeared to be an unfortunate misunderstanding. I followed up by saying that this would have been a great opportunity to more understand her point of view, HAD SHE STAYED to moderate the panel.

Then Ross Marinek came to my aid by stating that he understood my point of view because he saw this attack on Windycon as an act of bullying. None of the people complaining were actually attending the convention and were triggered to make an assumption of the programming staff’s intentions without knowing the context of the offending phrase.

After this rather tense disacussion, we settled down to throwing out some examples of books, television shows and films that show how we as a society have progressed in the past 75 years.

In the aftermath of the panel, people online have proclaimed that I am a “puppy,” a bully and guilty of being homophobic myself.

The only thing I can say is that in my passion for defending the kink positive panel and Windycon, the LGBTQ community sensed a dog whistle that did not exist. If I was being overly assertive in defending a convention I dearly love and cherish, I apologize.

I may choose to do it differently next time, having learned from this experience.

However, I will always defend all of fandom, all of the time.

2020 World Fantasy Con Awarded to Salt Lake City

Salt Lake City will host the 2020 World Fantasy Convention (WFC). The announcement was made at the conclusion of this year’s WFC in San Antonio.

When the event comes to Utah beginning October 29, 2020, it will take place at the Little America Hotel in downtown Salt Lake City.

“We’ve been working on this bid for more than a year,” said Dee Ann Larsen, Salt Lake resident and co-chairperson of the 2020 convention. “To say we’re thrilled is an understatement.”

Larsen and co-chairperson Ginny Smith will conduct the convention under the auspices of the Utah Fandom Organization, a nonprofit committed to bringing quality science fiction and fantasy events to Utah.

It will be the first WFC to be held in the Beehive State. “We’re excited to introduce the WFC members to our state,” Smith says. “And because Utah has a huge number of fantasy lovers, we think it’s a perfect match.”

The World Fantasy Convention will be held in Baltimore, Maryland in 2018, and Los Angeles, California in 2019. Memberships in the 2020 WFC will become available at the end of the Baltimore conference, at which time a website with more information will be launched.

[Based on a press release.]

WFC 2019 Awarded To Los Angeles

World Fantasy Con 2019 will be held in LA at the Marriott Los Angeles Airport Hotel from October 31 – November 3.

WFC 2019’s guests of honor are author Margo Lanagan, editor Beth Meacham, and artist Chris McGrath, with Robert Silverberg as Toastmaster.

The WFC board accepted the Southern California Institute for Fan Interests, Inc’s bid to run the 2019 event. SCIFI, Inc. is past sponsor of three Worldcons (1984, 1996 and 2006), the 1999 NASFiC, and several Westercons.

The WFC 2019 theme will be Fantasy Noir.

Fantasy Noir is a relatively new genre and has gained significant popularity in recent years.  Sometimes described as “magical cities in decay,” noir’s combination of urban grime and sleazy glamour brings a realistic and deliciously nasty flavor to the fantasy genre.  Fantasy Noir blends the setting, characters and plot structure of a Hardboiled Detective/Occult Detective mystery story with the more colorful elements of Fantasy and Science Fiction.

Noir heroes are often extremely flawed or bad people or – on occasion – an honest cop or hero figure whose morality is distinctly at odds with the way the world works. Flawed protagonists are often motivated by greed, lust, anger, and revenge as much as higher motives. When they do something genuinely noble, it can be with great reluctance. A hero’s honesty and nobility often results in horrific personal consequences for himself and others.

Current membership rates are:

  • Attending Membership: $150.00
  • Supporting Membership: $50.00

The Attending Membership Rate will increase on December 31, 2017.

Participant Says World Fantasy Con Program Audience Still Struggles With Diversity Conversation

Panelist Rebecca Kuang came out of the “Borrowing from History: Intention and Appropriation” item at World Fantasy Con 2017 in San Antonio and dispatched these tweets to express her dissatisfaction with the experience.

According to the schedule, the other panelists were Russell Blackford (moderator), Elizabth Crowens, Meg Turville-Heitz, and Jacob Weisman.

[Thanks to JJ for the story.]

With Gag Order Stopped, Salt Lake Comic Con’s Brandenburg Has Plenty To Say

Salt Lake Comic Con co-founder Bryan Brandenburg told the Associated Press “they’re going to try crowdfunding to help pay legal bills topping $1 million.” He is free to speak about the case again since the Ninth Circuit rejected a district court’s gag order in the San Diego Comic-Con’s trademark infringement suit against SLCC.

Brandenburg also wrote to supporters:

Here’s our thoughts. We’re considering a crowdfunding plan that allows fans and supporters to support the funding with rewards being tickets for Salt Lake Comic Con and other allied events and 100% of the proceeds will go to the legal fund, crowd funding fees and a documentary about the case. Support of the case will also get you a free copy of “Con Wars”.

That way, if you’re supportive of our cause, you can send a signal to the opposition AND get a ticket to one of our events or one of the events of our allies in the comic con community. What do you think? (Please keep it civil).

The Associated Press story said they did not immediately receive a comment from the San Diego Comic-Con.

Nor did Reuters commentator Alison Frankel, who approved the decision in a column titled “Common sense (and the Constitution!) win in Comic Con gag order appeal”:

On Thursday, a three-judge panel at the 9th U.S. Circuit Court of Appeals dissolved a pair of lower court orders that barred producers of Utah’s Comic Con events from commenting on – or even posting public documents from – their infringement litigation with a San Diego group that claims ownership of the Comic-Con trademark. The appeals court held the orders to be an unjustified, unconstitutional prior restraint on the Utah group’s free speech rights.

That was the only sensible outcome. The trial judge in the Comic Con case, U.S. District Judge Anthony Battaglia of San Diego, issued the orders because he was convinced the Utah group’s website, Facebook and Twitter posts – which included commentary as well as links to articles about the case and documents from the litigation – would irretrievably taint the jury pool in San Diego. The 9th Circuit said Judge Battaglia’s reasoning simply didn’t hold up given the size of the jury pool and the availability of common procedures like voir dire to weed out biased jurors.

Allowing the restraints to remain, the 9th Circuit said, would justify gag orders “in almost any situation where an article is written or a statement is made in a public forum.” In other words, if the 9th Circuit hadn’t struck down the Comic Con restraints, parties’ First Amendment rights would be vulnerable in every case of public interest in the circuit. Thanks to Judges Kim Wardlaw, Ronald Gould and Paul Watford, that dire prospect is foreclosed….

The Deseret News of Utah also ran an article based on the AP story, “Appeals court: Gag order on Salt Lake Comic Con violated First Amendment”.

The district court “clearly erred” in restricting the free speech rights of Salt Lake Comic Con co-founders Dan Farr and Bryan Brandenburg, quoting a 1976 U.S. Supreme Court decision that emphasized “the loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury,” according to the ruling.

[Thanks to Dave Doering for the story.]

Ninth Circuit Lifts Gag Order in SDCC v SLCC Suit

The Ninth U.S. Circuit Court of Appeals this week refused to sustain the district court’s gag order on the litigants in the San Diego Comic-Con’s suit against Salt Lake Comic Con and its organizers, Dan Farr and Bryan Brandenburg. The suit about alleged infringement of SDCC’s trademark on the words “comic con” has been in progress since 2014.

Judge Anthony Battaglia granted the gag order in July at the request of SDCC’s attorneys, swayed by their argument that publicity is tainting the jury pool. Salt Lake Comic Con’s Bryan Brandenburg has worked hard to gain public support for his side in the suit brought by San Diego Comic-Con.

The Ninth Circuit judges overruled the order, saying:

The orders at issue are unconstitutional prior restraints on speech. They prohibit speech that poses neither a clear and present danger nor a serious and imminent threat to SDCC’s (San Diego Comic-Con) interest in a fair trial…

For those interested in greater detail, here are several excerpts from the decision which begins —

This petition for a writ of mandamus arises in the context of a hotly contested trademark action initiated by San Diego Comic Convention (“SDCC”) against the producers of the Salt Lake Comic Con—Dan Farr Productions, Daniel Farr, and Bryan Brandenburg (“Petitioners”)—over the use of the mark “comiccon” or “comic con.” The case has drawn nationwide attention and discussion on traditional and social media alike, in part because “comic cons” have been held in hundreds of venues across the United States. Because defendants actively participated in the public discussions over the internet, on various websites and through social media platforms, including Twitter feeds and Facebook postings, SDCC successfully moved for a sweeping set of “suppression orders” prohibiting Petitioners from expressing their views on the pending litigation and from republishing public documents over social media platforms. Instead, the court ordered Petitioners to prominently post on their social media outlets its order prohibiting comments about the litigation on social media, dubbing this posting a “disclaimer.” Petitioners assert that the court-ordered prior restraints on their speech violate the First Amendment. We agree, and order that the district court vacate the “suppression” and “disclaimer” orders.

Several times in the Ninth Circuit’s decision, they practically teased the district court judge about his inept analysis, and tendency to draw conclusions despite a lack of evidence to support them.

There is no evidence of the extent to which the jury pool was exposed to such coverage, which apparently did not even reach the district court judge. [The district court noted at one hearing about the extensive nature of the postings, “Because for some reason, I must live under a rock. I didn’t see any [of] this stuff.”] There is also no evidence that any of the Facebook users who expressed support for Petitioners in response to Brandenburg’s postings about this case are part of the jury pool, and in any event the record reflects that the total number of such users is insignificant.

The district court’s analysis also disregarded two critical factors for evaluating the likely effect of pretrial publicity on the jury pool: whether the subject matter of the case is lurid or highly inflammatory, and whether the community from which the jury will be drawn is small and rural, or large, populous, metropolitan, and heterogeneous….

…In addition to improperly analyzing each alternative, we note that the district court’s logic disqualified alternatives categorically and would justify imposition of prior restraints in almost any situation where an article is written or a statement is made in a public forum.

Although the Ninth Circuit refused to uphold the gag order because it violated the parties’ Consitutional rights, the panel could not resist pointing out how the order was ineffectively drafted to accomplish its purpose.

The orders are simultaneously unmoored from the interest they purport to protect—the integrity of the San Diego-area jury pool. For example, nothing prohibits Petitioners from contacting and collaborating with San Diego-area media to create newspaper articles, magazine features, or television coverage of the case, and Petitioners would not even have to include the “disclaimer,” which is explicitly limited to Petitioners’ online activities. Nothing prevents Petitioners from mailing all San Diego-area residents annotated copies of the publicly available filings. And nothing prevents Petitioners from holding press conferences in San Diego at which they discuss the case (while avoiding the specific prohibitions in the first protective order).

The parties are expected to fight to the finish. In other rulings handed down by Judge Battaglia in September, he refused to grant summary judgment on the trademark infringement issue because some factual issues can only be resolved by a trial.

[Thanks to David Doering for the story.]