Entertainment Law Matters

A New York federal judge has declared that a film based on an Emma Thompson screenplay does not infringe the copyright of another screenplay and play based on the same historical events.   The decision in Effie Film, LLC v. Murphy, No. 11 Civ. 783, 2013 WL 1188018 (S.D.N.Y. Mar. 22, 2013) (hereinafter “Murphy”) is a win for all those seeking to dramatize real historical events despite possible interference from competing versions of the same events. Continue reading »

Recently, Warner Brothers Entertainment (“Warner Brothers”) released in theaters its highly anticipated film, The  Hobbit: An Unexpected Journey, based on J.R.R. Tolkien’s first Middle-earth fantasy novel,  The Hobbit.  Days before the release, Judge Philip S. Gutierrez of the United States District Court for the Central District of California enjoined another production company, Global Asylum, from releasing its film entitled Age of Hobbits, finding a “substantial likelihood that consumers will be confused by Age of Hobbits and mistakenly purchase the film intending to purchase The Hobbit: An Unexpected Journey.”  Continue reading »

A recent Tax Court decision provides useful guidance to documentary filmmakers about whether their filmmaking is a trade or business. In Storey v. Commissioner of Internal Revenue (decided April 19, 2012) a documentary filmmaker, who produced a documentary about the 1960’s singing group “Up With People,” prevailed over a deficiency assessment by the IRS for 2006, 2007 and 2008 in an aggregate amount of $260,000, plus penalties. The IRS had initially rejected the filmmaker’s attempt to deduct her production expenses under Section 181 of the Internal Revenue Code (“IRC”). Continue reading »

Jolie Sued For Copyright Infringement On Directorial Debut:  Author and journalist James Braddock has sued Angelina Jolie, along with the producers and distributor of Jolie’s directorial debut film In the Land of Blood and Honey, for copyright infringement of his book The Soul Shattering.  The complaint alleges that both works involve a love story between an imprisoned woman and her captor, set in war-torn Bosnia-Herzegovina in the early 1990s.  Braddock claims that co-defendant and film producer Edin Sarkic approached Braddock in late 2007 and the two discussed the possibility of making a motion picture based on his book over the course of the next two years.   Braddock seeks statutory damages as well as an injunction against any use of the film, which is due to be released on December 23, 2011.

Author Claims Creation of Avatar Ideas: Eric Ryder has sued James Cameron and his production company, Lightstorm Entertainment, alleging numerous similarities between Cameron’s global blockbuster Avatar and a story developed by Ryder called K.R.Z. 2068.  According to the complaint, Ryder created K.R.Z. 2068 and wrote a treatment in 1997 and 1998, which was sent to Lightstorm Entertainment in 1999.  Lightstorm expressed interest in making the film, and Ryder continued to submit story drafts, materials and ultimately a screenplay to the company.  In 2002, however, Lightstorm informed Ryder that there was no market for a film based on his idea.  Ryder has now sued Cameron and Lightstorm on several theories:  that Lightstorm breached an implied contract with Ryder by disclosing elements of K.R.Z. 2068 to Cameron, who claims sole authorship of Avatar; that Lightstorm induced Ryder to disclose his ideas for K.R.Z. 2068 in order to prevent him from developing  a motion picture that would compete with Avatar; and that Lightstorm induced Ryder into entering an implied contact in order to obtain ideas to use in Avatar.

Lawsuit Against Beyoncé Will Proceed:  Last week, a New York state court rejected Beyoncé’s attempt to dismiss the lawsuit filed by Gate Five based on the pop star’s purported breach of her contract to collaborate on a motion-based video game, Starpower: Beyoncé.   Gate Five had filed a lawsuit against Beyoncé and her production company in April 2011, alleging that Beyoncé pulled out of her agreement with the company at the eleventh hour causing hundreds of millions of dollars in damages.  Beyoncé moved to dismiss the suit, arguing that she was contractually permitted to terminate the agreement.  The court denied the motion during oral argument, a transcript of which is not publicly available at this time.

-   Marisa Sarig

- Stop Stealing my Moves, Belgian Choreographer Tells Beyoncé. Belgian choreographer Anne Teresa De Keersmaeker recently claimed that Beyoncé’s new music video Countdown “plagiar[ized]” two of her pieces from 1983 and 1990.  A side-by-side comparison shows that the pop diva’s  video shares dance moves, costumes, set design and some specific shots from the contemporary dancer’s works and a film of the dance made by Thierry De Mey.  In response to the Belgian choreographer’s claim, Beyoncé stated that “Clearly, the [De Keersmaeker ballet] was one of many references for my video.”   The singer claims that the video was also a valentine to Audrey Hepburn’s performance in Funny Face, and that she drew inspiration from Brigitte Bardot, Andy Warhol, Twiggy and Diana Ross.

- Actor Claims Hangover 2 Based On His Life. Actor Michael Alan Rubin recently commenced a federal lawsuit in California against the creators of Hangover 2, as well as his presumably estranged wife, Tamayo Otsuki, claiming that they conspired to pilfer the story from Rubin’s life experiences and a script treatment he drafted.    The suit claims that Rubin wrote a film treatment  entitled Mickey and Kirin based on his real-life experiences, especially his travels from the U.S. to Asia to marry his Asian girlfriend.   Rubin seeks damages for copyright infringement and violation of his right of publicity, claiming Hangover 2 infringed Mickey and Kirin by copying its plot and theme, as well as his private life.  Rubin also claims that the film is defamatory, because the defendants falsely portrayed him as a drug-influenced person who  ditched his girlfriend only to later propose marriage to a transsexual prostitute.

- Actress Sues Amazon for Revealing Her Age on IMDb.com. An actress filed suit against Amazon.com and its subsidiary, IMDb.Com, the world’s largest internet movie database, for including her age on her online profile.  The actress, who uses a stage name professionally, brought the suit anonymously “[b]ased on fear of retaliation from Defendants that would result in even further damage and economic injury.”  She claims that, shortly after subscribing to IMDbPro, a paid premium account service, she noticed that her legal date of birth had been added to her public acting profile on the IMDb website.  She claims that the defendants must have performed record searches using the credit card information she provided during the subscription process to figure out her date of birth.  This, says the actress, was fraud, a breach of the subscriber agreement and privacy policy, and a violation of her statutory privacy and consumer protection rights.   In an industry where “youth is king,” the plaintiff claims that it is now  “nearly impossible” to get work as she is not given the same opportunities despite her appearance or talent.

- Amelia Brankov

- Don’t mess with the Zohan, Jayms Blonde! The Second Circuit has affirmed a lower court’s copyright infringement ruling in favor of the creators of You Don’t Mess With the Zohan, starring Adam Sandler. Plaintiff Robert Cabel is the creator of a comic book entitled The Hair-Raising Adventures of Jayms Blonde, which the court described as a “light in tone and replete with humor” storyline of a former U.S. Navy Seal who becomes a hairstylist and moonlights as a secret agent. Cabel argued that the movie’s promotional materials featuring Sandler holding a blow dryer pointed to the camera, Sandler’s posture, and the movie’s plotline infringed on his copyrights in the comic book. The court reasoned that the similarity between the posters and the comic book end with striking a fighting pose and “wielding the blow dryer as a weapon,” both of which were deemed unprotectable ideas. The potentially protectable elements of the images, the court pointed out, were dissimilar: one character is holding a weapon disguised as a blow dryer, the other a commonplace blow dryer; one character is facing the viewer with legs spread, the other stands with his right leg forward; and, importantly, the two have different hairstyles and wardrobes. The court also found the storylines to be different – while Jayms Blonde was a gay man hairstylist and secret agent, Zohan was a former Mossad secret agent who became a hairstylist (and a womanizer) to escape his past employ.

- You know you authored a joke when…Jared Edwards, a former assistant to the Wayans Brothers, settled his court case against his former bosses for copyright infringement and breach of contract over their 2009 book 101 Ways To Know You’re A Gold Digger. In his complaint, Edwards charged that the brothers stole his jokes from a manuscript he had proposed to co-publish with them, entitled You Know You Are a Gold Digger When . . . .Edwards claimed that gold-digger jokes in the book such as “Your hands are shaped like money clips” and “[Before you go to] sleep, you count money instead of sheep,” were lifted verbatim from his manuscript. By his lawsuit, he sought a permanent injunction, a percentage of the book’s profits, all copies of the books, and punitive damages. The Wayans brothers claimed Edwards’ copyright registration was fraudulently obtained and that any authorship he claimed was “work for hire” entitling the defendants to whatever work Edwards did within the scope of his employment with them. The Wayans brothers are best known for starring in the comedies “White Chicks” and “Scary Movie.”  Trial was set to begin on July 12, but the parties reportedly settled to the case on the eve of trial.

- $480,000 statutory damage award for infringement of tattoo designs. A Virginia federal court ruled in favor of a tattoo designer in a copyright infringement case. The plaintiff had licensed hundreds of his designs to defendant, an airbrush body art retailer. The court found that defendant breached its licensing agreement with plaintiff when it created derivative designs by changing the colors and ceasing to pay royalties. The sticky point for the court was deciding how many copyright infringements occurred for the purposes of calculating statutory damages. Plaintiff conceded that, to save money on copyright registration, he compiled 24 books of 50 designs each and registered the books, rather than each design. In his complaint, the plaintiff argued that he was entitled to a separate statutory award for each infringed design, amounting to $2 million in damages. However, the court awarded statutory damages for each infringed book, rather than for each infringed design, because the plaintiff sold his work in the same format as he had registered it, suggesting that the books themselves were copyrightable compilations. The Court awarded plaintiff statutory damages in the amount of $20,000 for each of the 24 tattoo books, for a total of $480,000 in statutory damages.

- Righthaven loses another one.Embattled copyright enforcer Righthaven lost yet another copyright infringement lawsuit because of lack of standing and a fair use defense. It is just one in a series of unfavorable decisions for the copyright crusader, which has filed over 200 lawsuits against online bloggers and commentators. This time, the alleged infringer was a Vietnam veteran who posted an entire Las Vegas Review Journalarticle entitled “Public Employee Pensions: We Can’t Afford Them” on an online discussion forum. Righthaven sued on behalf of the copyright owner, Stephens Media, with whom it had a contractual relationship, sharing copyrights and proceeds of damage awards and settlements. While the contract had language suggesting full transfer of rights to Righthaven, the court focused on restrictions on the transfer and Stephens Media’s unilateral right to regain possession at any time. The court concluded that the contract conveyed only “illusory” copyrights: “These carveouts deprive Righthaven of any of the rights normally associated with ownership of an exclusive right necessary to bring suit for copyright infringement…” The court also pointed out that even if Righthaven had the right to sue, it would still lose the case on fair use grounds. The court held that even though the blogger had posted the entire article and the work had some creative elements, he had not used it for commercial purposes, but rather to spur a political discussion, and Righthaven failed to present any evidence that the infringement had an impact on the potential market for the work. The Righthaven cases continue to result in somewhat surprising decisions, including the one in this case that the posting of an entire article was fair use; it appears that judicial distaste for Righthaven’s business model may be driving this type of result.

- Gergana Miteva

- 70’s Rat on Fire novel ignites copyright dispute. Acclaimed author George V. Higgins’s widow, Loretta Cubberley, filed a complaint against the Fund for Theatre and Television (“FTT”) to halt its production of a film based on Higgins’s novel Rat on Fire.  Cubberley charges that FTT lost the book’s exclusive motion picture rights it acquired in 1979, after sitting on them for over thirty years.  Higgins, who had a successful career as a Boston prosecutor, authored 25 books focusing on Boston’s criminal underworld and is considered one of the masters of the crime-novel genre.  He initially wrote Rat on Fire as a manuscript for a PBS television miniseries, which was never produced, and subsequently released it as a novel.  Cubberley speculates in her complaint that the miniseries project never came to light because PBS deemed the content inappropriate for public television (the book drew attention to some professional arsonists’ practice to set rats on fire and release them in targeted buildings).  She further contends that FTT dusted off the novel, in part, because a Brad Pitt film based on another Higgins book is in production.

- Harley-Davidson’s Brando boot starts off on the wrong foot. The iconic actor’s brand licensing entity, Brando Enterprises, is suing Harley-Davidson Motor Company for launching a line of boots called The Brando without authorization.  Brando’s estate is seeking an order to bar the sale of the product, plus punitive damages and any profits on the boots’ sale.  According to the Associated Press, the boots look similar to those the late actor wore in the 1953 film classic The Wild One, and although Harley-Davidson does not currently offer them, they can still be purchased through some online retailers.  A number of high-profile brands have licensing partnerships with Brando Enterprises, including Triumph motorcycles, MasterCard, and Dolce & Gabbana.

- Disney cedes Seal Team 6 trademark to the Navy. The Walt Disney Company announced recently that it is abandoning its application for the Seal Team 6 trademark “out of deference to the Navy,” following a competing application for the trademark by the Navy.  Two days after the Navy Seals overpowered Osama Bin Laden, Disney applied in the U.S. Patent and Trademark Office to trademark Seal Team 6.  Had it acquired the trademark rights, Disney would have been able to sell a branded line of products like toys, video games, Christmas stockings, and Christmas-tree ornaments bearing the Navy team’s name.  The Navy’s application for the trademark, filed ten days later, had the potential of blocking Disney’s bid if the media conglomerate had not voluntarily withdrawn it (the Navy already owns the trademark for “Navy Seals”).  There are currently three Navy Seals-themed films in production, including one by Hurt Locker director Kathryn Bigelow.

- Gergana Miteva

- Gere/Sarandon film in pre-production legal clash.  The writer and director of Arbitrage, Nicholas Jarecki, and the film’s former producer, Michael Ohoven, have each filed complaints against one another over who owns the production rights to the film.  The two collaborated on the screenplay without a written contract for months, casting Richard Gere and Susan Sarandon and securing the film’s budget.  It is now up to the courts to determine whether an option agreement for Ohoven to acquire rights in the production was ever executed.  The Hollywood Reporter reports that the sticking point was Jarecki’s insistence on shooting the entire film in New York, while Ohoven sought a more budget-friendly state like Louisiana.  Jarecki was the first to file a complaint, asking a New York federal court to declare him sole owner of the copyright.  Last week, Ohoven, through his production company, Infinity Pictures, hit back in California state court.  He claims Jarecki used his reputation (he produced Capote and other critically acclaimed films) as a “stalking horse” to lure prominent actors.  This off-stage drama sets a promising backdrop for the thriller, for which production is scheduled to begin this month.

- Online post of entire copyrighted article deemed fair use.  Copyright crusader Righthaven suffered its second defeat in federal court to a non-profit organization which published on its Web site a Las Vegas Review-Journal story about the local police’s relationship with immigrants.  As a copyright enforcer for the newspaper, Righthaven had sued the Portland, Oregon-based immigration organization for copyright infringement, but federal judge Hon. James Mahan ruled that the charity’s publication was “fair use.”  In a rare application of the fair use exception to exploit an entire copyrighted work, Judge Mahan said Righthaven’s use of the copyright was afforded lesser protection because its objective was to litigate rather than to protect the creative work, and it gave the non-profit no opportunity to remove the story before resorting to legal action.  Further, the non-profit posted the article online for non-commercial educational purposes and targeted a different audience than the newspaper.  Since last year, according to Paid Content, Righthaven has filed roughly 250 lawsuits against various Web sites and blogs and recently lost a similar case on fair use grounds (though that case involved only partial use of copyrighted work).  While it is early to speculate, this decision may have significant implications for non-profits and publishers everywhere. 

- OK for Oprah to read from presidential trivia booklet.  The Hollywood Reporter is reporting on the dismissal of  a $100 million copyright infringement lawsuit against the talk show queen for allegedly using material from a presidential trivia booklet without permission.  The author, Charles Harris, claims Oprah read content from the booklet on air, asking kids questions about presidential facts, one of which called for the name of the heaviest U.S. president – identified as William Howard Taft at 354 pounds.  Oprah said Harris failed to register his booklet as a compilation, which, as the court noted, is the one circumstance where historical facts are afforded copyright protection.  The court reiterated that facts are not copyrightable unless presented in some original form and that, while the booklet had “some hallmarks of originality,” in its essence it was a “piece of raw data,” rather than a creative work.

- Online store thrilled to pay $950,000 for Beatles copyright infringement.  Online music store BlueBeat.com has settled its $1 billion lawsuit with EMI – for less than $1 million.  EMI, owner of the copyrights in many Beatles works, sued when BlueBeat offered the entire Beatles catalog on its Web site at the “unreasonabl[y] low” price of 25 cents a song, without permission.  By the time BlueBeat took down the infringing music, it had already sold 67 million Beatles songs.  EMI won the first battle when a federal judge refused to indulge BlueBeat’s unusual argument that the infringing music files were “psycho-acoustic simulations” of the songs and scheduled a trial to determine damages.  To BlueBeat’s delight, the settlement agreement came just a day before the trial.  “I felt that was sort of an acknowledgement on their part that they don’t have the damages they claimed,” said a BlueBeat lawyer. Before BlueBeat stepped in to offer Beatles music online, EMI had elevated the online product to cult status by withholding it for years; indeed, only last year did iTunes add the Fab Four to its catalog.

- Hungry for Howard Stern’s Porky’s sequel? Prepare for an extended fast.  Just as controversial radio host Howard Stern was rolling up his sleeves to produce the next installment of the 1982 raunchy teen comedy, Mole Entertainment went to a Los Angeles Superior Court to claim that it owns the rights to the franchise.  In 2001 the rights holder Lontano Investments granted Mole Entertainment the exclusive option to make a Porky’s sequel within a certain number of years.  Apparently to retain its Porky’s remake rights, Mole produced a speedy sequel in 2009 named Pimpin’ Pee Wee, but did not distribute it.  With no knowledge of the sequel, Lontano went ahead with another Porky’s follow-up with Howard Stern.  Lontano maintains that to exercise its option, Mole would have had to put up a minimum budget of $10 million (it had only expended $1 million).  On the bright side, the temporarily derailed Howard Stern sequel is still on track to begin production.

- Gergana Miteva

- Michael Moore settles “Sicko” Suit.  The Hollywood Reporter reports that filmmaker Michael Moore settled a copyright infringement lawsuit over the allegedly unauthorized use of third-party footage in his Academy Award nominated documentary “Sicko.”  The plaintiff sued Moore for using a short clip from a video he shot while visiting London without his permission.  Moore received the footage in response to his call for stories on healthcare experiences outside the U.S.  The settlement, for an undisclosed amount, followed plaintiff’s appeal of a federal court decision in Moore’s favor on First Amendment grounds.

- AP reporter sued for blowing the whistle on NBA referee.  Longtime NBA referee Bill Spooner has sued the Associated Press (the “AP”) and one of its reporters over a tweet.  The AP reporter’s tweet said that “Ref Bill Spooner told Rambis he’d ‘get it back’ after a bad call. Then he made an even worse call on Rockets. That’s NBA officiating folks,” implying that Spooner would make amends to Timberwolves coach Kurt Rambis for a bad call.  In his Complaint, Spooner recounts a different story, claiming he did not respond to the coach’s grievances, but merely promised to review the call at half-time.  The referee is asking for an injunction removing the tweet from Twitter.com and for more than $75,000 in damages.

- Lawsuit brewing over use of “Spiral Jetty” on beer label. A Salt Lake City brewery is taking heat from New York-based Dia Art Foundation, a co-owner of the copyright in “Spiral Jetty,” for using a photograph of the earthwork on a beer label.  Built entirely out of mud on the shore of the Great Salt Lake, “Spiral Jetty” is considered to be sculptor Robert Smithson’s most significant work. In its efforts to preserve Smithson’s original vision for the work, the foundation plans to have all images and reproductions of it licensed. While the brewery called the endeavor “ludicrous” because the work has been photographed countless times, it is reportedly open to licensing discussions if the foundation can prove its copyright ownership.

- “Hurt Locker” Filmmakers wave a white flag in a piracy class action. The copyright holders in the film “Hurt Locker” recently dropped their claims against approximately 100,000 BitTorrent users who allegedly pirated the film.  While the plaintiffs’ decision to “desert” the lawsuit remains a mystery, commentators speculate that recent dismissals of similar lawsuits on procedural and jurisdictional grounds may have influenced the move.  Nevertheless, the accused pirates should hold off on their victory lap, because the cases were dismissed “without prejudice” — meaning the copyright holders have the right to re-file their Complaint.

- Featuring Slash may cost you $20M in cash. Celebrated Guns and Roses frontman Axl Rose sued videogame publisher Activision Blizzard for breach of contract because it included Rose’s ex-bandmate Slash in Guitar Hero III: Legends of Rock in contravention of the parties’ agreement.  In his Complaint, Rose alleges that he licensed the use of the G N’R song “Welcome to the Jungle” for the videogame on condition that Slash would not be featured in the game.  Rose also claims that Activision spun a “web of lies and deception to conceal its true intentions” to not only include Slash in the game, but make him a playable avatar. Apparently having exhausted the game’s battle arenas, the two rockers will have to duke it out in court.

- Spinning Charlie Sheen’s catch-phrases into cash-phrases.  It is open season on trademarking Charlie Sheen’s catch-phrases, according to several entrepreneurs who have been sprinting to the U.S. Patent and Trademark Office to trademark his utterances.  Sheen himself is in the running, and he will no doubt coin a few more gems on his “Violent Torpedo of Truth/Defeat Is Not an Option” tour.  Some of Sheen’s most popular quotes at the USPTO are “Winning,” “Tiger Blood,” and the “Defeat is not an Option,” all of which Sheen directed at his former bosses at “Two and a Half Men” who recently fired him from the show.

- Netflix Privacy Suit. Online video streaming giant Netflix faces a class action lawsuit over retaining members’ billing and viewing information after their subscriptions have expired.  In a five-count complaint filed in federal court, former subscribers accuse Netflix of, among other things, violating federal privacy laws by holding onto confidential data and unjustly enriching itself by selling their personal information to third parties.  Plaintiffs rely on the Video Privacy Protection Act, a federal law that requires the destruction of consumer records that are more than one year old.  If this case goes to trial, it may resolve a longstanding legal question of whether the law applies to online video streaming as well as physical video rental.

- Gergana Miteva

A film production company’s bankruptcy proceeding has become the backdrop for an important ethics opinion on conflicts of interest.  As most lawyers know, under Model Rule of Professional Conduct (“MR”) 1.9, a former lawyer is disqualified from representing a party adverse to her former client if she either has confidential information about “the same or a substantially similar matter” or if she actually imparts confidential information to the new client.  Under MR 1.10(a), that former lawyer’s conflict of interest is generally imputed to other lawyers “associated in” the former lawyer’s new law firm.  In In re Thinkfilm, the Court addressed the question of whether the same imputation rule applies to the former lawyer’s co-counsel on the new, adverse representation. Continue reading »