In this Episode:

• Follow up on Hot News
• Viacom loses suit against YouTube.
• Hurt Locker Suit(s)
• Idea Theft
• Tribute Band Names
• Celebrity Rights of publicity

GET CLE CREDIT for this episode.

Google, Twitter go to bat for Theflyonthewall| Reuters

Don Henley Wins case against California Politician

Copyright Office supports Broadcast Performance Royalty

Bill cite: Performance Rights Act, HR 848 in the House and S. 379 in the Senate

Copyright office letter issued June 7, 2010- http://www.gao.gov/new.items/d10707sp.pdf

Ringtone Copyright Royalty Upheld by Appeals Court (Update1) – BusinessWeek

Case cite: Recording Industry Association of America Inc. v. Librarian of Congress, 09-1075 (US Ct. App. DC (Washington)(opinion issued June 22, 2010).

9th Circuit joins 5th and 7th Circuits, ruling that copyright registration need only have been FILED before bringing an infringement suit. The 10th and 11th take the inverse position that registration certificate must be in hand.   (see 17 USC § 411(a)) and This article)

Case Cite: COSMETIC IDEAS, INC. v. IAC/InteractiveCORP, Court of Appeals, 9th Circuit 2010

Michael Douglas’ ex-wife, Deandra sues for share of his earnings from “Wall Street 2″

In this Episode:

• Ethics and the non-practicing attorney… a long tail
• Zorro draws its sword against M&M candies
• “Free Scooter!” cries Justin Bieber.
• Dramatic vs. Non-Dramatic rights in musical works
• Ride-along producer : Ride-along defendant?
• Bryant v. Media Right, Orchard
• Arista v. Lime Group
• Hot News Misappropriation

GET CLE CREDIT for this episode.

Quick Takes:

Ethics/Professional Responsibility,  a long tail?  Caveats for non-practicing lawyers.

Randy Quaid, Lloyd Braun and the lingering duties to former clients
Conflicts of Interest in the Entertainment Law Context

Just for Kicks:  Legal Specialty areas you’d never have thought of….

Tattoo Law: When Your Tattoo Turns Out Not-so-’Beatiful’

The Law of Tattoos

Tattooed Brands Global Survey 2009

Law and Magic Blog

Zorro vs. M&M masked character

Zorro sues over masked M&Ms character

M&M Trademark Infringement with Zorro

Zorro Productions, Inc. v. Mars, Inc. (ND Ca., filed March 22, 2010).

Crime Time: Should Justin Bieber’s manager really be prosecuted for a mall riot?–The Hollywood Reporter | Esq. | Entertainment and Media Law

Jersey Boys, LP v. Gehling, Cause No:1:2010cv03060 (SDNY), filed April 9, 2010.

Corbello v. DeVito, 1:2007cv00985, (ED Tex. [Beaumont] filed Dec. 28, 2007 venue moved to
Corbello v. DeVito, 2:08-cv-00867-RCJ-PA, (Nev.).

Lexology – Federal court: media defendants may be liable in Chicago ride-along case

Media Ride-Alongs Lead to Civil Rights Suits

Did an appeals court just give the music industry a big break?

Record Album Only Supports One Statutory Damages Award — Offer of Judgment in Copyright Cases

RIAA wins big in LimeWire lawsuit | Media Maverick – CNET News

http://thresq.hollywoodreporter.com/2010/05/limewire-decision.html

Appeals Court Puts Hold On Hot News Ruling Until Full Appeal Is Done

Internet Financial News Aggregator Enjoined under New York Hot News Misappropriation Law : New Media and Technology Law Blog

Breaking News: Dow Jones Files “Hot News” Case Against Briefing.com | Citizen Media Law Project

Lexology – Social networking sites that collect “hot news” are in the hot seat

The Trademark Blog: Get Your Hot News Compaint Here

Lexology – Hot-news misappropriation

Tyler Ochoa on the Legacy of the Statute of Anne

California CLE credit now available for all episodes.

It’s official! We’ve been approved as a California CLE ‘Multiple Activity Provider’.

What this means is that California CLE credit will now be available for all of our Entertainment Law Update podcast episodes… no more waiting for individual approval of each episode (after the fact).

]]> http://www.entertainmentlawupdate.com/2010/05/13/were-official/feed/ 0 http://www.entertainmentlawupdate.com/2010/04/13/entertainment-law-update-podcast-episode-10-use-the-force-big-boy-and-watch-out-for-beyonces-undies/ http://www.entertainmentlawupdate.com/2010/04/13/entertainment-law-update-podcast-episode-10-use-the-force-big-boy-and-watch-out-for-beyonces-undies/#comments Tue, 13 Apr 2010 21:24:09 +0000 firemark http://www.entertainmentlawupdate.com/?p=502

GET CLE CREDIT for this episode.

• Intellectual Property protection of movie memorabilia, replicas, etc.
• Big trouble over Big Boy statue
• Avatar, Hurt Locker draw the inevitable lawsuits
• Beyonce’s underwear gets designer’s panties in a twist.
• and, more…

Replicas, trademark, copyright, etc.

Star Wars: the Court of Appeal strikes back – International Law Office

Stormtrooper Replicas: Final Strike By British Court of Appeal

Stormtroopers In The Courtroom — earlier post by Tamera:

http://ipandentertainmentlaw.wordpress.com/2008/04/08/storm-troopers-in-the-courtroom/

• LucasFilms won a $20 million judgement in a U.S. court in 2006 against British prop designer, Andrew Ainsworth, for copyright and trademark infringement of the Star Wars’ “Storm Trooper” design.
• Andrew Ainsworth, sculpted the Stormtrooper helmet for the first “Star Wars” movie in 1977. Ainsworth now sells replicas of the helmets and armor “casted from the original molds.”
• In 2008, the case moved to the UK, where LucasFilms sought to enforce the $20 million dollar judgment. Ainsworth countersued, claiming he owns the copyright and is entitled to a portion of the $24 Billion in “Star Wars” merchandising revenue.
• In January 2010, a UK court of appeal dismissed LucasFilms’ appeal on all points.  The UK court found the helmets did not qualify as sculptures under British Copyright law.
• Is attempting to enforce a U.S. judgement in the UK forum shopping?

• Different outcome in US?

“Bob’s Big Boy” Statue gives rise to a suit against former franchisee

Big Boy Restaurants International, LLC v. Schoenbaum; filed Feb 25, 2010

FILM

• What is protectable?
  • themes? (Dances With Wolves, Pocahontas)
  • plot? (Terra Incognita)
    • Fox has given us this statement on the lawsuit: “James Cameron wrote the story for ‘Avatar’ two years before Mr. Malak claims he wrote his work, and therefore ‘Avatar’ cannot be based on ‘Terra Incognita.’ We are confident that the lawsuit will be decided in our favor.”
  • legends?
  • specific images? (Timespirits)
  • bits and pieces of ideas in other films?
• Probably a no go on all of these – idea/expression dichotomy, originality requirement, etc.

Also, issues of common origin, idea v. expression, etc.

Scenes a faire: In copyright law, a principle in whicih certain elements of a creative work are held to be not protected when they are mandated by or customary to the genre.  Where there;s a limited range of expression possible, those limited forms will not be protected.

Idea/Expression dichotomy:  Ideas  and concepts are not protected by copyright law.

At root, isn’t this: “Man assimilates with foreign culture, falls in love, and joins with his new “family” to fight against his native culture in an epic battle of good vs. evil”

What about Hurt Locker Lawsuit?
Sarver v. The Hurt Locker, LLC, complaint filed 3/2/2010 in New Jersey District Court – Complaint

http://www.examiner.com/x-18039-Capital-District-Movies-Examiner~y2010m3d9-Avatar-and-The-Hurt-Locker-both-attract-ripoff-lawsuits

Speaking of common origin, ideas, etc:
Denizen, LLC v. Mindshare Entertainment, LLC.

Kareem Abdul-Jabbar sues producer for botching documentary–The Hollywood Reporter | Esq. | Entertainment and Media Law
Union/OSG LLC v. William P Zagger et al
Removed from the Superior Court of CA, Los Angeles County, to US District Court, Central District of California on March 1, 2010. http://www.courthousenews.com/2010/02/01/24239.htm

• Kareem Abdul-Jabbar is suing the film production company he hired to create a 90-minute film based on his book ”On the Shoulders of Giants: My Journey Through the Harlem Renaissance” in time to be considered for Sundance Film Festival for $1 million.
  • When an untimely rough cut was handed over, “the producers also allegedly had failed to obtain legal clearances for use of the materials” such as music clips and photographs.
  • Because the film wasn’t finished, it can’t be distributed or shown at the NBA Hall of Fame or All-Star events.

• John Paul Jones, Led Zeppelin bassist, formed a new band, but had a hard time coming up with a name, eventually settling on Them Crooked Vultures.
  • “Think of a great band name and Google it, and you’ll find a French-Canadian jam band with a MySpace page.”
  • Establishing an identity for a band works differently in the digital age:
    • Almost no time required to create a profile online and upload music
    • Downloads may create jurisdiction
    • More comprehensive name searches can be done online
    • Using common words requires coexistence?

Triumph v. Sony

First Amendment and the Press

• California’s First District Court of Appeals reversed the lower court, holding “that the First Amendment gives publications wide latitude to publish feature spreads next to advertisements that may be distasteful to those being profiled.”
  • 186 indie musicians were spotlighted with a Camel cigarettes ad spread, so they sued for “unauthorized use of artist names for commercial advantage.”
  • The District Court concluded that the indie promotion was “inextricably entwined” with the Camel ad, which would put a lot of content in danger of being categorized as commercial speech warranting less First Amendment protection.
  • Rolling Stone was not “engaged in the production, distribution or sale of cigarettes,” but simply the medium that is used by commercial speakers to distribute commercial messages.  The easily discernible beginning and end of the ad and the lack of clear and convincing evidence presented to prove actual malice and an injury were other reasons for a clear reversal.

Suit over use of “Route 66″ to name porn project

Roxbury Entertainment, Inc. v. Penthouse Media Group, Inc, et. al December 18, 2009 Judgment

AMEC/ACC Newsstand powered by Lexology – Roxbury Entm’t v. Penthouse Media Group Inc.

• The Central District of California held that if a mark underlies an artistic work, “the First Amendment is a complete defense to Lanham Act claims.”   Summary Judgment was granted for Penthouse.

• Facts:  Roxbury, owner of the mark ROUTE 66 for the 1960′s TV show,  and other entertainment media, sued Penthouse for trademark dilution after they started selling DVDs of pornography as “Route 66.”
  • Penthouse claimed this title was protected by the First Amendment as free speech.

• Court relies heavily on Rogers v. Grimaldi, 875 F.2d 994 (2d Cir. 1989).
• Holding: The court used the Rogers balancing test and concluded that Penthouse’s use of “Route 66″ was protected by the First Amendment.
  • The first prong of the Rogers test requires more than zero artistic relevance which Penthouse showed because part of the film’s setting was a roadside motel.  This tenuous connection was enough.
  • The second prong of the Rogers test requires the court to evaluate whether consumers would be misled about the source or content of the work.  The court found that consumers would not be misled to think that Penthouse’s use of “Route 66″ was affiliated with with the 1960′s TV series.

This decision continues the line of entertainment cases that have developed in the last twenty years making clear that creators of artistic works should be relatively unrestricted in choosing titles for their works. So long as the creator can show some artistic relevance of the mark to his/her work, and so long as nothing about the use is explicitly misleading, the First Amendment will provide a defense to what might otherwise be an infringing trademark use.

GET CLE CREDIT for this episode.

• Quick Takes
• IP and the Olympics
• Sculptural works, photographs and subsequent uses
• Album Integrity in the age of digital downloads

Love Music? Support Grammy Foundation & MusiCares

Show notes

Some quick takes and follow ups

Chuck Yeager not so successful in another right of publicity lawsuit

Edward O’Bannon v. NCAA & Collegiate Licensing Company, Craig Newsome v. NCAA & Collegiate Licensing Company

Other setbacks for Redbox come from Walmart and Target who have recently begun to enforce a DVD purchase cap on new releases, likely motivated by studios instead of consumer access.

GET CLE CREDIT for this episode.

• Dick v. Google
• Vanessa Hudgens nude photos
• Taco Bell domain name issue,
• and more

SHOW NOTES

1. Estate of Philip K. Dick vs. Google -
   Trademark claims re “Nexus One” branding for mobile phone device

   • Nexus One, the name of Google’s new phone,
     may be a reference to “Nexus-6″ in Phillip K. Dick’s novel Do Androids Dream of Electric Sheep? and the film adaptation Blade Runner, which the late Dick’s daughter, Isa Dick,
     says is a “clear infringement of our intellectual property rights.”
   • But what intellectual property rights?
   • Endorsement issue?
     • no trademark in the name, so how can there be
       a trademark claim?
       • Lucas trademarked Droid
     • confusion between Dick and Google?
   • Publicity right issue?
     • who would confuse the name or likeness of
       Philip Dick with Nexus One?
   • Copyright issue?
     • Since short phrases and uninvented/old words
       aren’t copyrightable, is a key element of the plot or this “character”?
       • the main character in Dick’s book is a bounty
         hunter of androids, specifically the fugitive Nexus-6 model androids
     • Or would this use be considered fair use
       because
       • purely referential?
       • using the word for it’s original meaning?
     • Or fair use because it’s “transformative”?
       • commercial use, but purpose is
         practical/useful
       • different medium, useful
       • referential/literal use, very little in relation to the whole work
       • unlikely to subsume market for original work, may add value

   • Did these musicians get a license?
     • GMS (Growling Mad Scientists) released a track named “Do Androids Dream
       of Electric Sheep”
     • UK breakbeat DJ/producer 30hz has cited “Do Androids Dream of Electric Sheep?” as the source behind the title to his debut album “Electric Sheep”, released in 2007
   • http://en.wikipedia.org/wiki/Do_Androids_Dream_of_Electric_Sheep%3F
   • http://mashable.com/2010/01/06/nexus-one-phillip-k-dick/
   • http://www.engadget.com/2010/01/06/philip-k-dicks-estate-lawyers-up-says-nexus-one-name-is-cle/
   • http://www.cnn.com/2010/TECH/01/07/cnet.google.nexus.one.blade.runner/index.html
   • tech.slashdot.org/story/10/01/07/0314220/Nexus-One-Name-Irks-Philip-K-Dicks-Esta…

2. Vanessa Hudgens claims copyright in nude photos of herself?

• After moejackson.com released nude photos of Vanessa Hudgens, Hudgens registered copyrights in the photos claiming she took them herself, and sued for copyright
  infringement.
• Since whoever takes the picture owns the copyright, is it possible for the SUBJECT of a
  photo to own copyright in the image?
  • Originality?
  • Active control of the camera? Did she
    fire the shutter?
  • Timer? Automatic photo every # seconds?
  • Even possible with
    a camera phone?
  • joint author/work?
  • false registration
    consequences?
• http://blog.ipfactor.co.il/2009/12/28/vanessa-hudgens-claims-copyright-in-decolletee-images-of-herself/
• http://www.nydailynews.com/gossip/2009/12/24/2009-12-24_vanessa_hudgens_sues_over_nude_pics.html
• http://www.metro.co.uk/showbiz/715618-disney-star-vanessa-hudgens-is-facing-more-naked-sex-picture-shame

3. Yo Quiero Domain Name – Yum Brands (Taco Bell) v. Nelson Wellness & Therapy Center

UDRP domain name dispute over DriveThroughDiet.com Arbitration
award for Defendant.

• Taco Bell acquired www.drivethrudiet.com prior to the campaign launch, but did not acquire www.drivethroughdiet.com, a domain owned by a Georgia weight loss center.
• Yum! Brands, the parent company of Taco Bell, filed a UDRP Bad Faith action to acquire the Georgia weight loss center’s domain name.
• In 2008 Yum! Brands acquired the Drive Thru Diet trademark from a third party. Until December 21, 2009 the www.drivethrudiet.com website read “under construction.”

• • To be successuful on an UDRP bad faith/cybersquatting claiming the following factors must be met:
    • Domain name in question is identical or confusingly similar to a trademark in which Complainant has rights
    • Respondent has no legitimate rights/interests in domain name
    • Domain name has been registered and used in bad faith.

• Arbitration panel denied Yum!’s request to transfer drivethroughdiet.com based on 3 factors:
  1) Drivethrudiet.com was under construction until December 21, 2009; 2)
  Yum! did not provide evidence of using their mark prior; 3) DRIVE-THRU
  DIET was assigned to Taco Bell in October 2008, and there was no
  evidence the Georgia weight loss center had registered and used their
  domain in bad faith.http://domainnamewire.com/2010/01/18/the-biggest-loser-taco-bell-loses-case-for-drivethroughdiet-com-domain/
• Arbitration decision here.

1. 1. BMI v. T-Mobile – complaint re ringback tones.
      • T-Mobile provides a service for a fee that
        allows users to play a song in place of a ring sound (“musical ringback
        tone service”), which BMI claims is a public performance that requires
        a license.
      • what is the scope of “public performance”?
        • anything that might reach another person?
        • something that the general public is exposed to?

   2. UMG v. Grooveshark
      • Universal Music Group has sued music download service Grooveshark, alleging that the site is offering pre-1972 Universal recordings for free.
        • sound recordings
          were not granted protection under federal copyright law until
          2/15/72
          • removes DMCA “safe harbor” defense (remove infringements after notice)

        • only Common Law (State) protection prior to 2/15/72
      • new form of DMCA circumvention?
      • if site X can filter out pre-1972 recordings from its catalogue, why can’t it do the same for post-1972 recordings?
      • http://listen.grooveshark.com/
      • http://news.cnet.com/8301-13526_3-10432132-27.html
      • http://www.appscout.com/2010/01/universal_music_sues_groovesha.php
      • EMI v. Grooveshark – settled in 10/2009

SHOW NOTES

Entertainment Law Update podcast episode 7

First, a word about Google Scholar http://scholar.google.com This service from google offers a wealth of legal research tools for folks interested in the law. Case law from state and federal courts is online, and a rudimentary “how it’s cited” feature gives a good sense of whether a case is ‘good law’. Not a substitute for ‘True’ legal research tools, but a great starting point, if you don’t want to incur charges. I use it to get started on things for clients, and in preparing for this podcast. SCHOLAR.GOOGLE.COM

Story Links:

• Sacha Baron Cohen in the news again:
  • Bruno goes on Letterman and defames Palestinian Leader.Case was filed federal court in District of Columbia earlier this month.  Aita claims Sasha Baron Cohen represented him as a terrorist group leader in the film.  Aita is seeking compensatory damages of $110 million and an injunction against further DVD distribution of the movie.
    • www.thresq.com/2009/12/110-million-lawsuit-says-bruno-and-letterman-defamed-pale…
    • Video of Bruno’s  interview with Aita is in this link.  ttp://www.foxnews.com/entertainment/2009/12/09/ayman-abu-aita-sacha-baron-cohen-bruno-terrorist/?test=faces
    • Ayman Abu Aita v. Cohen, Leterman, et.al., 1:2009cv02285 (D.C. filed Dec. 2, 2009). Link to complaint:  http://www.jdsupra.com/post/documentViewer.aspx?fid=d02571ba-47b1-4551-a818-a475ef719408

• • 2nd Circuit upholds dismissal of Borat case in which Plaintiffs claimed fraud in inducement to sign releases (“documentary style production’)
    • http://www.thresq.com/2009/12/appeals-court-finds-no-fraud-on-part-of-borat.html
    • 2nd Circuit Ruling (order) http://reporter.blogs.com/files/0.pdf

• Blues Destiny Records, LLC v. Google, Inc., 3:09-CV-00538, (N.D. Fla.)- Label suing over links to pages containing links to copyright infringing materials, i.e. unauthorized downloads. Alleging vicarious infringement, inducement to infringe, and direct infringement.
  • http://www.out-law.com/page-10596
  • Blog post  http://blog.ericgoldman.org/archives/2009/12/record_label_su.htm
  • Complaint

• Seventh Circuit reverses order granting summary judgment against photographer in derivative works copyright case. Photos of toys may be derivative works, but photographer COULD register his copyrights in the photos without toy maker’s consent.
  • Daniel Schrock, et al. v. Learning Curve International, et al., 2009 U.S. App. LEXIS 24253 (7th Cir. November 4, 2009)
  • Lexology Article

• BBC News – Queen issues warning over paparazzi photos
  • news.bbc.co.uk/2/hi/uk_news/8397664.stm
  • http://lawprofessors.typepad.com/media_law_prof_blog/2009/12/queen-elizabeth-fires-shot-across-the-bow-at-paparazzi.html
  • Queen-sends-warning-to-newspapers-over-paparazzi-shots

• Redbox is now buying its videos at retail… but are retailers bowing to pressure from the studios? Is there an antitrust suit in the making?
  • Gordon wrote about the Redbox flap last summer. http://firemark.com/2009/08/20/whats-the-redbox-flap-really-about/
  • http://latimesblogs.latimes.com/entertainmentnewsbuzz/2009/12/redbox-running-short-on-fox-warner-universal-movies-blames-retail-restrictions.html
  • Blockbuster Rolls Out DVD Kiosks

• The U.S. officially has a new “IP Czar” (Intellectual Property Enforcement Coordinator) – Victoria Espinel
  • http://www.askbeforeyouact.org/BLOG/post.aspx?id=c50c8557-ed31-412d-9bd3-f2f2dbfaf917
    • Espinel will chair an interagency intellectual property enforcement advisory committee, comprised of representatives from the Office of the U.S. Trade Representative (where Espinel previously worked as an Assistant USTR for Intellectual Property and Innovation, as well as Deputy Assistant USTR for Intellectual Property and as Associate General Counsel at USTR), the Patent and Trademark Office, the Copyright Office, and others, that will develop a Joint Strategic Plan. The plan was supposed to be submitted to Congress no later than October 13, 2009 (12 months after the law’s enactment), but because Espinel was not confirmed until recently this deadline was delayed.

• Libel Tourism: British Government may rewrite libel law
  • What is Libel Tourism?
    • Forum Shopping, selection of UK courts to pursue defamation claims that wouldn’t stand up in US, due to 1st Amendment, etc.    UK courts are favorable because of the presumption that derogatory statements are false, the difficulty of establishing fair comment and “the caprice of juries and the malice of judges” (Geoffrey Wheatcroft)
    • Two other critics of English defamation law, the US lawyers Samuel A. Abady and Harvey Silverglate, have cited the example of Irish-Saudi businessman Khalid bin Mahfouz, who has sued or threatened suit 33 times in England against those who accused him of knowingly funding terrorism. George W. Bush advisor Richard Perle threatened to sue investigative reporter Seymour Hersh in London, because of a series of critical articles Hersh had written about him. In 2006 American actress Kate Hudson won a libel action in England against the British edition of the National Enquirer magazine after it published an article suggesting she had an eating disorder.
  • What’s the current proposal?
    • A member of the House of Lords is preparing a bill that would, among other things, require foreigners to demonstrate that they have suffered actual harm in England before they can sue here.
  • Why is this important?
    • Current law is archaic, makes it easy for a plaintiff to bring suit and succeed, etc., quashes publication of scientific and critical speech.

• Theatre Poster uses quote from FILM review to promote stage production of “Shawshank Redemption”. British Government investigating.
  • “The law is clear that if a producer has not been diligent in ensuring that their advertising material is not misleading and if an average member of the public could be mislead then action should be taken.” (by the “Trading Standards” board)  NY Times Article
  • Compare to U.S. Law 15 USC Sec. 45(a)(1)- False or misleading advertising prohibited, but “mere puffery” or “marketing speak” is permitted under the 1st Amendment.  Both Federal and State law could be implicated. Penalties can be severe. Mandatory counter-advertising, or even so-called “multiple product orders” requiring product manufacturers to pull ads for all product lines.

• Janky v. Lake County Convention & Visitors Bureau 576 F. 3d 356, 7th Cir, (2009) (re joint authorship of copyright by songwriter contributing 10% to lyrics)
  • http://jiplp.blogspot.com/2009/12/joint-authorship-of-doo-wop-song-found.html
  • Opinion via Google Scholar

• Oprah Winfrey adv. Mutual Of Omaha Insurance re: “Aha Moment” – settled by the parties. (The insurance company began using “official sponsor of the aha moment” in a national advertising campaign.) (Winfrey claims the phrase is synonymous with her, and is one of her trademarks.)
  • See TM registrations:
    • #77501970
    • #77753529
    • #77753488
    • (and note that at least one of insurer’s marks has been ‘abandoned’ #77540052) three other registrations of insurer remain “live”
  • http://blogs.findlaw.com/celebrity_justice/2009/11/a-ha-moment-trademark-case-settled.html
  • Oprah Winfrey, Mutual of Omaha fight for rights to ‘Aha’ moment (Chicago Sun-Times)
  • Aha Moment (New York Times)

• Quick Takes:
  • Tiger Woods – Endorsement contracts and ‘Morals Clauses’. (He made estimated $105 Million last year)
    • Is Tiger Woods at risk of losing his endorsement contracts? http://kwikablog.com/?p=678 There are no court decisions involving a termination under a morals clause for adultery. Most commentators have stated that to justify discharge under a morals clause, the employer must prove that the employee’s conduct would have resulted in actual losses to the employer if the employment continued. Thus, the endorsee would have to show that the alleged marital infidelity would have affected the endorsee’s bottom line. Given the popularity of an athlete like Tiger Woods, it would be difficult to prove that marital infidelity could actually affect an entire business. Tiger can rest assured that his millions of dollars in endorsement contracts are secure.
    • So Far, Nike, Gatorade, Pepsi & Gillette have stuck with Tiger… despite his admission of marital infidelityNike- Tiger is still prominent on their webpage and they are sticking by him.http://www.telegraph.co.uk/sport/golf/tigerwoods/6811897/Nike-Tiger-Woods-affairs-are-a-minor-blip.htmlGatorade (owned by Pepsi)- Tiger’s drink line has been discontinued, however Gatorade says this was a planned phase-out prior to the scandal.http://www.cnbc.com/id/34330134Gillette-  Has not officially dropped him, but is limiting his presence in their advertising at this time.http://www.boston.com/news/local/breaking_news/2009/12/gillette_benche.html
    • Accenture- has dropped him   http://www.time.com/time/nation/article/0,8599,1948181,00.html

• Jon Gosselin – Judge orders him to curb media appearances
  • http://www.washingtonpost.com/wp-dyn/content/article/2009/12/10/AR2009121004178.html

• The Canadian Recording Industry has recently been sued for infringement (irony) in a class action. Specifically, the defendants in this case are the four main members of the Canadian Recording Industry: Sony BMG Canada, Warner Music Canada, EMI Canada, and Universal Music Canada. The infringement stems from the Canadian Recording Industry’s practices on its compilation releases.   According to the Toronto Star, the plaintiffs are asking for $60 billion.
  • “A Taste of Their Own Medicine” http://entertainmentagenTBlog.com/2009/12/10/a-taste-of-their-own-medicine/
  • Complaint filed in 2008. http://www.michaelgeist.ca/content/view/4596/135/

• New Form Inc., v. Tekila Films, Inc., et. al. Ninth Circuit affirms jury award of statutory damages for $1,312,500 for willful copyright infringement, rejecting defendants’ argument that statutory damages should be measured in relation to the fair market value of the infringed works
  • “Tekila Films’s excessive-verdict claim turns on the incorrect premise that statutory damages must be tethered to actual damages. Because there is no such requirement, the jury’s verdict cannot be deemed excessive on that basis.”
  • Full Decision

Approximate Running Time: 01:07 CLE CREDIT
COMING SOON!

Record Date:  November 16, 2009, 2:15pm PDT

SHOW NOTES

TOPICS:

• Quick Takes:
  • Noonan v. Staples -  Jury: Truthful E-Mail Sent About Fired Staples Manager Wasn’t Libelous
  • Disney settles with Luxo over the Luxo Jr. Lamp – .http://www.thresq.com/2009/11/pixar-luxo-lamp-settlement.html
  • Carly Simon is suing her record label & starbucks over poor marketing of record – http://www.nytimes.com/2009/10/12/arts/music/12simon.html?
    • Response from Starbucks http://news.starbucks.com/article_display.cfm?article_id=283
  • FTC Guidelines for Bloggers
    
    • http://www.nytimes.com/2009/10/06/business/media/06adco.html?_r=3&em

    • • Revised Endorsement and Testimonial Guides: http://ftc.gov/os/2009/10/091005revisedendorsementguides.pdf
      • FEDERAL TRADE COMMISSION, 16 CFR Part 255, Guides Concerning the Use of Endorsements and Testimonials in Advertising: http://www2.ftc.gov/os/2009/10/091005endorsementguidesfnnotice.pdf

    • Regs
    • More helpful links:
      • http://www.ftc.gov/opa/2009/10/endortest.shtm
    • Bottom line: if a blogger/celebrity has a relationship with a company, then she/he must be upfront about the relationship.  To be safe, disclose the connections you have.  If they sent you samples, tell your audience.  Think about what protects the consumer.
      

• • Vent v. Mars Snackfood U.S., LLC

    • M&M Mars not liable in idea submisson case surrounding ‘addams family’ characters/cross promotion
    • Entertainment Broker did not establish that there was a confidential or fiduciary relationship arising from her submission of idea to Mars.  Under  New Jersey Misappropriation of Idea Statute, plaintiff  mustshow that (1) the idea was novel; (2) it was made in confidence to the defendant; and (3) it was adopted and used by the defendant in connection with his own activities.. The district court granted defendant’s motion to dismiss because Vent’s idea was not novel and because she did not convey it in confidence.
    • The court also rejected Vent’s argument that it is customary in the entertainment and marketing industries for a pitch to be confidential; as the court noted, Mars is not in the entertainment or marketing industries and thus cannot be expected to know or abide by such standards.

• • The Weinstein Co. v. Smokewood Entertainment Decision reached in “Push” case – emails do NOT satisfy the statute of frauds requiring written assignment of copyright interest, and did not suffice as evidence of agreement
    • http://www.schwimmerlegal.com/2009/11/oral_contract_n.html
    • http://www.scribd.com/doc/22155496/Decision-Twc-Oral-Copyright
    • http://www.thresq.com/2009/02/lionsgate-moves-first-to-dismiss-weinsteins-push-suit-.html
    • http://latimesblogs.latimes.com/entertainmentnewsbuzz/2009/09/inside-the-battle-for-precious.html

• • Jon Gosselin has countersued against TLC, on grounds that his contract is ILLEGAL – citing child labor violations, among other things
  • (TLC is suing Gosselin for breach of contract exclusivity by appearing on other TV shows, engaging in celebrity endorsements, etc.

• California’s new anti-paparazzi statute  -The amendment to the 11-year-old law which made it illegal for photographers to trespass, both physically and constructively, with the intention of photographing celebrities engaged in personal and familial activities in a “manner that is offensive to a reasonable person” – now allows plaintiffs to file suit against any media organization that sells, transmits or publishes an image knowing it was obtained through such illegal trespass.
  • Prior Statute: (1998)
    • http://www.firstamendmentcenter.org/news.aspx?id=11029Beatles MP3s -
  • 2005 version http://www.hollywood.com/news/Arnold_Schwarzenegger_Approves_Tough_New_Paparazzi_Law/2445824
  • 2009 law
    • http://blogs.wsj.com/law/2009/10/14/will-californias-new-anti-paparazzi-law-unleash-a-torrent-of-law-suits/
  • Hollywood Reporter, others question constitutionality

• Side-note – The New York City government has announced that the public will no longer be able to visit the Office of Film, Theater and Broadcasting to leaf through the city’s film shoot permits. Instead, those who are interested in figuring out where celebrities will be on any given day, will be forced to file a request under the Freedom of Information Act. The Mayor’s office says it isn’t making the change to stifle paparazzi, but rather because of budgetary considerations.

• Beatles music catalog finally available online.. but is it legal? (EMI v. Bluebeat)
  • The Complaint: http://www.scribd.com/doc/22140566/Capitol-Records-v-BlueBeat-Complaint
  • http://latimesblogs.latimes.com/music_blog/2009/11/meet-the-beatles-usb-drive-emi-files-suit-against-bluebeat-for-selling-beatles-downloads.html
  • Bizarre legal defense after EMI sues over Beatles MP3 sales – Ars Technica
  • Defendant Bluebeat claims IT is the author of those recordings, because they were made using  ‘psycho-acoustic simulation’….
  • http://arstechnica.com/tech-policy/news/2009/11/judge-hits-beatles-mp3-seller-with-restraining-order.ars

• Radio Station liable for wrongful death of woman in “Hold your wee for a wii” case
  • • The tab for Entercom Sacramento LLC came to $16,577,118 in the water-intoxication death of Jennifer Lea Strange in a contest put on by radio station KDND “The End” (107.9 FM).
  • See Weirum v. RKO General, Inc. (1975) setting forth the idea that radio station can be held liable for unlawful or negligent actions of its listeners participating in a contest. (foreseability)
  • $16.57 million verdict in hold your wee for Wii case – what are the FCC implications and what should broadcasters learn?
  • Sacramento jury awards $16.6 million for mom’s death in Wii radio contest
  • Jury Says Radio Station Must Pay $16.6M in Woman’s Water Intoxication Death | ABA Journal – Law News Now

• ASCAP’s claims re ringtones and “preview” in iTunes
  • ASCAP Argues Ringtones are Public Concerts, and Loses « JETLawBlog: The Official Blog of the Vanderbilt Journal of Entertainment and Technology Law
  • Order:  http://www.jdsupra.com/post/documentViewer.aspx?fid=bc198b72-5e21-4600-92f7-35d74bb52b53
  • Music publishers: iTunes not paying fair share

• Copyright Termination of Transfers – starting to get interesting.
  • Termination rights: music to artists’ ears–The Hollywood Reporter | Esq. | Entertainment and Media Law
  • Disney Faces Rights Issues Over Marvel
    • Copyright Act of 1976 – § 203(a)(3)-(5): Termination of transfers and licenses granted by the author³
      • 2011(?): first year holders of sound-recording copyrights can take advantage of this provision from recordings in 1978
        • “By 2013, artists will be able to effectuate their termination notices, but thanks to quirks in copyright law, the window to send notices on songs made between 1978 and 1984 will be closing soon.”
    • This isa complicated web of rules:
      • During 35-40 years after the execution of the grant (or date of publication), <– termination window
      • termination of the grant may be effected
      • by the author(s)/heir(s) that have at least 51% of the termination interest
      • by serving an advance notice in signed writing
      • no less than 2 years or more than 10 years before the stated effective date of the termination.<– window for NOTICE of termination
      • Finally, a copy of the notice must be recorded in the Copyright office before the effective date of the termination.
    • Conditions:
      • applies to works on or after 1/1/78
      • *excludes work made for hire, derivative works made before the effective date of termination, and transfers by will
      • takes priority/preempts any other agreement to the contrary
      • termination reverts all rights in the (c) to the author(s)/heir(s)

        • happens even if opposed by minority % parties in (c)
        • THB article on termination: http://www.jdsupra.com/post/documentViewer.aspx?fid=918f6a4f-cb74-4837-8512-4503028c10ac
        • http://williampatry.blogspot.com/2008/07/lassie-rescued-again.html Lassie Rescued Again
        • http://www.vincemanapat.com/index.php/archives/37 Steinbeck estate issues

Show notes… after the jump

• Launchcast is NOT an interactive service

• Launchcast is a webcasting service that provides users with individualized internet radio stations – the content of which can be affected by users’ ratings of songs, artists, and albums – is an interactive service within the meaning of 17 U.S.C. § 114(j)(7).  If it is an interactive service, the webcasting service would be required to pay individual licensing fees to those copyright holders of the sound recordings of songs the webcasting service plays for its users

• • http://news.softpedia.com/news/Yahoo-Wins-Copyright-Infringement-Lawsuit-119902.shtml

  • http://www.thresq.com/2009/08/webcasting-interactive-launchcast.html

  • http://www.broadcastlawblog.com/2009/08/articles/internet-radio/court-of-appeals-determines-that-launchcast-is-not-an-interactive-service-thus-not-needing-direct-licenses-from-the-record-labels/

  • http://www.thresq.com/2009/08/webcasting-interactive-launchcast.html

• Jessica Seinfeld’s win in cookbook copyright case.

  • http://www.thresq.com/2009/09/jessica-seinfeld-wins-cookbook-copyright-lawsuit.html

• The King of Beers not getting the royal treatment in Europe.  – Bud Battle?

  • http://ipandentertainmentlaw.wordpress.com/2009/09/10/bud-battle-continues-in-czech-court/

• Dish Network/Echostar fined $200 Million for contempt in TiVo Case

  • http://www.deadline.com/hollywood/court-awards-tivo-200m-in-damages-from-dishechostar-in-patent-case

  • /http://mcsmith.blogs.com/eastern_district_of_texas/2009/06/court-grants-tivos-motion-to-hold-echostar-in-contempt.html

• United Transp. Union Local 1745 v. City Of Albuquerque

  City of Albuquerque orders transcripts of hearings.  Plaintiff’s attorney then obtains transcripts through Inspection of Public Records Act , instead of purchasing from Ct. Reporter service.  Service sues.  Held:   Defense.  No property right in the transcripts.

  • http://feedproxy.google.com/~r/ExclusiveRights/~3/4MdN3qBKe7M/

  • http://www.exclusiverights.net/wp-content/uploads/2009/08/United-Transportation-Union-Local-1745-v.-City-of-Albuquerque.pdf

• Annie Leibovitz in legal hot-water – 1 case settled, 1 to go
  • Art Capital Group – Copyright as security for loans?
  • This dispute is between Annie Liebovitz and Art Capital Group over Ms. Leibovitz’s refusal or inability to pay back her $24 million loan by the deadline (9/8/09).  Currently, Art Capital Group and Ms. Leibovitz have reached an agreement: a new deadline will be set for the loan repayment and Leibovitz bought back the rights to sell her homes and copyrights.  The real dispute centers around money and is rooted in Ms. Leibovitz’s inability to manage her finances properly.  But, the interesting part is that it involves a celebrity/icon leveraging the future value of her intellectual property.
    • http://www.latimes.com/entertainment/news/la-et-leibovitz5-2009sep05,0,6842384.story
  • Annie borrowed a total of $24 million with her life’s work.  Annie’s financial mismanagement almost caused her to default, but Art Capital Group gave her more time and let her buy back her copyrights.  Art Capital is worried that Annie will file for bankruptcy and then they’ll have to deal with the courts handling all of her debt.  Where will they be in that line?
• Art Capital also sued Getty Images for negotiating a contract that violated the loan agreement’s terms (confidentiality agreements) and making it difficult for Art Capital to sell Leibovitz’s archives
  • “Getty announced earlier this year it would represent Leibovitz for some current assignments, a deal which Art Capital said violated confidentiality agreements it had with Getty.”
  • http://www.pdnonline.com/pdn/content_display/photo-news/photojournalism/e3id4e011604f3ec5829edbcaaddc080f82
  • http://www.pdnonline.com/pdn/content_display/photo-news/photojournalism/e3id4e011604f3ec5829edbcaaddc080f82

• Paolo Pizzetti v. Liebovitz, Liebovitz Studio, Lavazza Premium Coffees Corp.
  • http://www.nydailynews.com/gossip/2009/09
  • This case is between Paolo Pizzetti and Annie Leibovitz over Ms. Leibovitz use of Mr. Pizzetti’s photos in a calendar.  Currently Mr. Pizzetti’s complaint has been filed in the New York Southern District of New York for $300K. Pizzetti v. Leibovitz, 1:2009cv07696 (S.D.N.Y September 4, 2009).  The real dispute centers around copyright infringement. photographer who scouted locations in Italy, sent digital images to Leibovitz –> project moved to NYC
  • Pizzetti claims 2 of his photos were used without permission for the calendar/05/2009-09-05_oh_snap_another_suit_hits_fotog_leibovitz.htmlhttp://www.thecelebritycafe.com/features/31053.html