Entertainment Law Matters

When a photographer sells a “limited edition” of a photograph, does that mean that she cannot later sell any additional prints of that photograph, even if the reprints differ in size and medium from the original edition?  The answer is no, according to a federal judge who recently dismissed a collector’s lawsuit claiming that artist William Eggleston violated the law by selling digitized reprints of some of his most popular photographs. The decision should comfort artists wishing to create new editions of prior work, and is a cautionary tale for collectors interested in works sold in multiples. Continue reading »

Judge Alison J. Nathan of the United States District Court for the Southern District of New York recently issued an important decision involving copyright infringement and the availability of content on social media sites like Twitter.  In Agence France Presse v. Morel, the court granted partial summary judgment to defendant and counterclaim plaintiff Daniel Morel, finding that the Agence France Presse (“AFP”) and the Washington Post (the “Post”) had infringed his copyrights in photographs he had taken after the 2010 earthquake in Haiti. Continue reading »

A New York court has dismissed “Flying Rabbi” David Sondik’s lawsuit against late night host Jimmy Kimmel and ABC.  Sondik’s complaint claimed that Kimmel and ABC had used his image without consent in a Jimmy Kimmel Live! segment that mocked a 2010 “business meeting” between basketball star LeBron James and Rabbi Pinto.

The segment began with Kimmel showing an image of LeBron seeking “advice” from Rabbi Pinto regarding his 2010 free agency decision.  Kimmel then announced that he too had met with Rabbi Pinto, and showed the audience a video of himself in a car speaking with an unidentified man dressed in Hasidic garb, who was loudly chanting.  However, the Hasidic man in the video was not Pinto.  Instead, Kimmel had spliced YouTube footage of New York’s “Flying Rabbi” David Sondik– a minor YouTube celebrity. Continue reading »

On October 18, 2011, a group of artists including Chuck Close and Laddie John Dill filed three class action lawsuits against Sotheby’s, Christie’s and eBay, Inc., respectively, alleging violations of the rarely-enforced 1977 California Resale Royalty Act.

Under California’s Resale Royalties Act, when the sale of an “original painting, sculpture, or drawing or an original work of art in glass” at an auction exceeds the seller’s purchase price, and the seller resides in California or the sale takes place in California, the auctioneer is required to withhold 5% of the resale price and locate and pay the artist (or, within 20 years of the artist’s death, the artist’s estate) within 90 days.  Although unique in the United States, the California’s Resale Royalties Act is similar to the well-established “droit de suite” laws in the E.U. Continue reading »

- 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

- Float like a butterfly, sting like a lawsuit.  Muhammad Ali Enterprises (MAE), owner of the famed boxer’s intellectual property and publicity rights, is suing Canadian digital reading device manufacturer, Kobo Inc. (“Kobo”), for using Ali’s slogan “Float like a butterfly, sting like a bee,” without permission.  In its complaint, MAE accuses Kobo of making unauthorized commercial use of its registered trademark for the slogan in a New York Times advertisement.  MAE claims that Kobo featured the phrase as its “attention getter” by making it “the most prominent wording on the page.”   To establish Ali’s and his slogan’s recognition, MAE quotes a 2011 study which ranked the boxer as first among all athletes in familiarity among 12-64 year-old Americans.  MAE further describes its highly selective licensing process for the phrase, listing Gatorade, Epson, and Intel as prominent companies which have licensed it for use in various commercial campaigns.  MAE is seeking an injunction against further use of the advertisement, as well as damages.

- Latin Jazz musicians sue the Grammys for cutting their category.  Four Latin Jazz musicians filed a class action lawsuit in state court in New York after the organizer of the Grammy awards, the National Academy of Recording Arts and Sciences, eliminated the Best Latin Jazz Album award category.  “The concern is [that] by lumping several categories together, it makes it much easier for larger record labels and those artists who have already gained recognition to dominate,” one of the plaintiffs said.  In their complaint, the musicians accuse the academy of harming their career by depriving them of the opportunity to be nominated for or win a Grammy.  According to the complaint, the category was started in 1995 to bestow “a long-overdue recognition to the highly-regarded artistic work of musicians who blended the improvisatory leaning of jazz with the native music and cultures of the Caribbean and Central and South America.”  The musicians are seeking class action status and are hoping that more artists will join them.  The recording academy has issued a statement  describing the lawsuit as “frivolous” and “without merit.” 

- Judge allows athletes’ publicity rights suit to proceed.  A federal judge rejected Electronic Arts’ motion to dismiss antitrust claims alleged against it in a class action lawsuit filed by former college basketball and football stars.  The athletes alleged that the NCAA and its licensing arm, the College Licensing Company, conspired with Electronic Arts (EA) to fix prices on student athlete compensation, preventing plaintiffs from the ability to control and profit from the use of their publicity rights.  According to the plaintiffs, the NCAA and CLC licensed out the athletes’ images, likenesses, and names to EA and included in the contract a provision setting athletes’ compensation at zero.  Although EA’s video games identify the athletes only by number, they permit players to upload rosters containing the athletes’ names and statistics.    Rejecting EA’s motion to dismiss, the federal judge pointed out that EA agreed to go beyond the NCAA’s rules against current student athlete compensation by not offering compensation to former student athletes.  Trial is set for March 2013.

 - Gergana Miteva

A federal court recently issued a preliminary injunction prohibiting a website operator from displaying the only available photograph of a painting entitled Salvator Mundi, which was recently attributed to Italian Renaissance painter Leonardo da Vinci.  The decision is a win for the owner of the photograph, who licensed it to museums and publishers for exhibitions, prints and other art merchandise. Continue reading »

- 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

- Lady Gaga songwriters in legal scuffle over royalties.  Calvin “Sci-Fidelity” Gaines and Rob Fusari, co-composers of some of Lady Gaga’s mega hits from her album entitled The Fame, are in a $1 million legal battle over royalties and credit for the Lady Gaga songs. The two have worked together since 1997, composing and producing music for Destiny’s Child and Whitney Houston.  But their relationship went sour last year when Fusari purportedly ignored Gaines’s requests to get credit and royalties for the Lady Gaga songs.  In his complaint against Fusari, Gaines claims that Lady Gaga and her production companies have agreed to be bound by the ultimate outcome of the case and compensate him if he comes out victorious.  The Fame has been certified platinum three times and has sold over three million copies in the United States alone.  This is not the first time Fusari finds himself in court over his former girlfriend, Lady Gaga.  Last year, he sued the pop star for $30 million, claiming he discovered her, helped her develop her performance style and came up with her stage name.  The case was eventually settled out of court for an undisclosed amount. 

- Celebrity class action swept under the red carpet. A Los Angeles court dismissed actress Shirley Jones’s right of publicity claims against online celebrity photo licenser, Corbis, finding that she consented to being photographed at red carpet events.   Jones is a well-known stage and film actress (she starred in the filmed versions of Oklahoma! and The Music Man, but perhaps is best known for portraying Shirley Partridge in The Partridge Family, an ABC sitcom about a widowed mother of five who travels with her kids’ pop rock band).  By her complaint, Jones sought to be lead plaintiff in a class action lawsuit, to enable other celebrities whose photos have been displayed on Corbis’s website to join the lawsuit.  The actress accused Corbis of violating her right to control the commercial exploitation of her name, image and likeness, by displaying photographs of her for financial gain.  All of the ten photographs of Jones at issue in the case were taken at high-profile award ceremonies.  The court pointed out that walking on the “red carpet” and posing for photographers is a matter of choice for celebrities, because celebrities are made aware that there are other entrances they can use to avoid the paparazzi.  By making that choice, the court reasoned, Jones effectively consented to the commercial use and exploitation of the images.  The court further noted that a contrary finding would require individual photographers to get express consent from each celebrity.  The decision addresses Jones’s claims against Corbis, but it does not mean that a third party could use her image from one of these red carpet events for commercial purposes.  Any such use could lead Jones to file a new lawsuit.

“A real-life Indiana Jones” accused of being fictitious. Adventurer-turned-philanthropist, Greg Mortenson, is subject to a class action lawsuit accusing him of fabricating his memoir Three Cups of Tea, and of fraudulently styling himself as a “a real-life Indiana Jones” to sell the book.  The lead plaintiff, a Montana lawmaker who read the memoir, questions the facts of the two central narratives in the memoir.  The first is that during a failed attempt to climb K2, Mortenson was inspired by the kindness of the inhabitants of a small Pakistani village to build schools there, which he subsequently did through his charity, Central Asia Institute.  The second is that the Taliban in Pakistan kidnapped him and held him against his will in 1996.  The plaintiff claims the author tricked her into buying a “phony and fictional story,” which she thought was an inspirational memoir, and wrongfully induced her into donating to the Central Asia Institute.  She is asking for disgorgement of the book’s profits and for the book to be marketed as a work of fiction.  This class action lawsuit follows a 60 Minutes exposé on the book, outlining the program’s investigation of its veracity and concluding that Mortenson only visited the Pakistani village a year after he claims to have done so and that most of the schools he purports to have built either do not exist or were built by somebody else.  60 Minutes also broadcasted interviews with Mortenson’s alleged kidnappers who deny belonging to the Taliban and having kidnapped him.  Mortenson has responded to the program on his charity’s website, vehemently denying all accusations.  Three Cups of Tea remained number one on the New York Times best seller list for three years, it has sold over 4 million copies and it has been translated into 47 languages.

 - Gergana Miteva

A legal battle begins between the Metropolitan Museum of Art, a famed gallerist and a group of collectors over the rights to Mark Tansey’s painting entitled The Innocent Eye Test (1981) (the “Painting”), a painting of a cow gazing at a painting of two cows.  The case began after a collector accidentally sold the Painting, which he previously pledged to the Met.

According to court filings, sometime prior to June 1988, contemporary art dealer and collector Charles Cowles acquired the Painting.  In June 1988, Mr. Cowles agreed to donate the Painting to the Met.  He gifted a 1% interest in the Painting to the museum, and pledged that he would donate the remaining 99% of the Painting in the future.  Continue reading »