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VM1

VM1

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Published by eriqgardner

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Published by: eriqgardner on Jun 07, 2012
Copyright:Attribution Non-commercial

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07/10/2013

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December 16, 2011Mr Paul BostManatt Phelps & Phillips, LPLos Angeles, CARe: VM2- The Virtual Marilyn (copyright/trademark 1996)Dear Paul:On December 9, 2011 I received an emailed letter from you claiming that my 1996 copyright andtrademark in "VM2-The Virtual Marilyn" infinged upon purported IP rights owned by the MarilynMonroe Estate ("Estate"). This was an almost identical demand letter to the first (and onlyprevious) such letter your client directed to me in 1996. As Yogi Berra so memorably stated "Itwas Deja Vous all over again". I have to admit to some mystification as to why, 15 years after myoriginal and never amended response was directed to your client, denying any infringement anddemanding that the Estate refrain from interfering with my exclusive copyright and trademarkrights to my character,"VM2- The Virtual Marilyn", that these issues should be raised by theEstate now.As I advised the Estate's legal counsel then, the character I created in 1995,"VM2- The VirtualMarilyn", the first virtual actress to live and work from Cyberspace, did not in any way infringeupon the purported IP rights that were asserted by the Estate. Analysis of the applicable law andbinding precedent confirmed my legal authority to create a new character that relied on newlyemerging computerized motion capture animation technology, to enable it, as the first virtualactress, to have an ongoing virtual "life" in cyberspace while promoting her acting career in allmedia. Her fictional adaptation of the Monroe persona to a "living" 21st century virtual actresssufficiently distinguished "herself" from the actress who passed away in 1962, and her Estate, tosatisfy requirements of copyright law and the Lanham Act. (Applicable cases in support, as of1996, included Hicks v Casablanca records, 464 F.Supp 426 (SDNY 1978); Rogers v Grimaldi etal, 875 F2d 994 (2d CA 1989); Yankee Publishing v News America 809 F Supp 267 (SDNY1992); New Kids on the Block v New American Publishing, 971 F2d 302,309 (9th CA 1992)among others).After my response to the Estate in 1996, because I did not receive any further correspondence,because no action was taken whatsoever to legally challenge my copyright and trademark claims,because no action was taken to interfere in any way with my quiet enjoyment of my characterrights as I licensed them to SONY and others openly and notoriously, and especially after morethan three years elapsed with the Estate's acquiescence to my rights, I reasonably assumed theissue was resolved.Since VM2 has been published and performed in various media, including the internet,continuously since 1996, and a simple Google search of videos of "VM2-The Virtual Marilyn"brings up various animation productions of VM2-The Virtual Marilyn, along with copyright noticesand explanations of the origin and use of the Virtual Marilyn character, it is especially hard toreconcile your statement that the Estate has a history of vigorously policing the Estate's IP rightswith the sudden assertion of a claim 15 years after my last objection to that same claim and myconsistent open and notorious actions adverse to that claim.What I find extremely perplexing is the contradiction implicit in your statement of vigilance inprotection of rights. The logical conclusion from your assertion is that, having policed my openand notorious actions for 15 years, your failure to take any action against me confirmed byconduct your agreement that I was not infringing on your rights and that you would not interferewith mine. Now, suddenly, after this position was queried by Mr Salter, who has publicly statedthat he believed that his $50 million acquisition of rights from the Estate included exclusive rightsto create a virtual Marilyn for TV and movies, you have decided to take a new legal positioncontrary the Estate's historical position over the last 15 years.This new assertion by the Estate of ownership of copyright and trademark rights that I perfectedsince 1996 through the unchallenged publishing of VM2- the Virtual Marilyn, is interfering with mypresent efforts to exploit the copyright and trademark perfected over the last 15 years. This begsthe question of your good faith in dealing with all parties involved.

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