Agreement approved on use of Twain name

Tourism officials can continue to use Mark Twain's name and image at no charge when promoting Carson City under an agreement approved Monday evening.

The Carson City Convention & Visitor's Authority agreed on a 3-2 vote to accept a settlement offer from CMG Worldwide, the Indiana company that manages the use of Twain's name for the Mark Twain Foundation Trust.

The settlement allows the Carson City Convention & Visitor's Bureau to use Twain's name and image indefinitely at no charge, but also requires that the parties to the agreement make no mention of the financial arrangements.

Authority attorney Lou Doescher acknowledged that the financial confidentiality stipulation was impossible for the authority to comply with because of Nevada's open meeting law.

"I warned them that this is a government body and a public meeting," Doescher said. "I don't think CMG has a lot of experience in dealing with a state that has such a strong open meeting law as Nevada's. There is no exception under our law for taking action outside a public meeting."

CMG contacted the CCC&VB after a bureau advertisement promoting Carson City and using Twain's name and image appeared in a travel agent trade magazine in 1999.

The company - which represents celebrities or their estates ranging from James Dean and Marilyn Monroe to Sophia Loren and the cartoon cat Garfield - wanted the bureau to stop using Twain.

Last month, bureau executive director Candy Duncan told the members of the authority, the governing board for the bureau, that CMG has offered to settle for $1,500 and an agreement for the bureau not to use Twain in future marketing efforts. Doescher was not at the May meeting to address the legal ramifications.

But Monday he went over possible costs, penalties and defenses if the authority decided to battle the licensing firm.

Among the defenses were that Mark Twain's name is in both commercial and non-commercial use in this area and several other places. Doescher said that if a trademark or image is in public use, it cannot be protected from use by licensing or copyright.

Another defense would be that the bureau has not made any money from the use of Twain's name or image, though promoting tourism might be interpreted as a commercial purpose, Doescher said.

Another defense might have to do with jurisdiction. The Mark Twain Foundation Trust is based in New York and the bureau in Nevada, with Indiana's right of publicity statute only coming into play because the travel magazine had issues distributed there. Doescher said the authority could try to have jurisdiction transferred from Indiana's state court to federal court there and and through change of venue to federal court in Nevada, under a rule called diversity of citizenship.

The authority might be able to successfully fight CMG's claims in court, Doescher said, but would have to hire an attorney in Indiana and pay other legal costs. He said a very rough estimate of potentials costs would be $20,000.

"I think, from Candy's perspective, the agreement does what we want, to be able to use Twain for publicity. I recommend you approve the settlement," Doescher said.

"My recommendation doesn't have anything to do with the merits of the legal case - it's simply going to cost a bunch of money to go to court.

"If you decide to litigate, I would like you to give $5,000 to Candy to fund the initial court costs and an attorney in Indiana and, if needed, I will be back to you to ask for more."

Authority member Brian Smith asked whether the discussion of the financial part of the agreement might already have invalidated it, but Doescher replied there was no other legal way to consider it. Chairman Don Quilici pointed out that the board's minutes are public documents that can be examined and copied.

Dwight Millard, another authority member, indicated that going to court might have publicity value. Since a second story about the dispute appeared in the Nevada Appeal in May, The Los Angeles Times and the Washington Post have also run articles about it.

"Where else else would you get the amount of publicity you would get from this for $20,000?" Millard asked.

The costs could be lower because two attorneys have offered to help for little or no fee. Doescher said one attorney from Washington, D.C., had contacted the bureau offering his services. And authority member Joe DiLonardo said a Lake Tahoe attorney who represents several celebrities had offered to help at no cost, saying that CMG was "way out of line" in taking its position regarding the bureau's use of Twain.

After a voice vote on Pete Livermore's motion to approve the settlement, Quilici asked if he heard one "nay," Millard's. DiLonardo said he also voted against the motion and Quilici ruled it passed with three "aye" votes.