In a recent decision, a California appellate court upheld a lower court holding in favor of Paramount Pictures against a private equity source of financing for a slate of the studio’s films. Continue reading »
Comments Off | Case Law, Contracts, Entertainment Finance
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 »
The Second Circuit has affirmed dismissal of photographer Janine Gordon’s copyright infringement claims against photographer Ryan McGinley and several other defendants who allegedly displayed McGinley’s work, including Frankfurt Kurnit client Ratio 3 Gallery. Continue reading »
Comments Off | Art, Case Law, Copyright, Photography
On May 17, 2012, the United States District Court for the Central District of California granted Sotheby’s and Christie’s joint motion to dismiss a complaint filed by artists alleging violations of the California Resale Royalties Act (“CRRA”).
In moving to dismiss, Sotheby’s and Christie’s argued that the CRRA (1) violates the dormant Commerce Clause, (2) is a “taking” of private property in violation of the U.S. and California constitutions, and (3) is preempted by the Copyright Act of 1976.
The court held that the CRRA violates the dormant Commerce Clause. The Commerce Clause in Article I of the U.S. Constitution expressly grants Congress the power to regulate commerce “among the several states.” There is no actual “Dormant Commerce Clause” found in the U.S. Constitution. Rather, it is a judge-made doctrine that has been inferred from the Commerce Clause and limits the States’ power to regulate interstate commerce.
The court found that the dormant Commerce Clause applies to the CRRA because works of fine art are sold from one state into another, and because the large number of such transactions has a “substantial effect” on interstate commerce.
The court then found that the CRRA violates the dormant Commerce Clause per se, because of its “problematic reach.” Under its clear terms, the CRRA regulates sales of fine art occurring wholly outside of California, so long as the seller resides in California. According to the court, the CRRA therefore exceeds the inherent limits of California’s authority.
Although the CRRA contains a severability provision, the court nonetheless struck down the entire statute. After analyzing the CRRA’s legislative history, the court concluded that the California legislature would not have enacted the CRRA without its extraterritorial reach. Thus, if the court were to sever the extraterritorial provisions of the CRRA, it would create a law that the legislature never intended to enact.
Because the court found that the CRRA violates the dormant Commerce Clause, it did not address the preemption and Takings Clause arguments.
Plaintiffs’ counsel intends to appeal this decision.
The boy band One Direction made history last month when their debut U.S. album “Up All Night” topped the Billboard charts – making them the first U.K. group to launch in the U.S. at Number 1. Now the newly stateside pop group, which reached celebrity status just as quickly as their CD, is being sued for trademark infringement.
The complaint, filed in federal court in California on April 9, 2012, lays out the claims of a “California-based pop-rock band” – also named One Direction. According to the lawsuit, the California group has been using the name One Direction in the U.S. continuously since the fall of 2009. The suit claims that the California group has performed concerts, maintained websites, posted videos to YouTube, sold music on iTunes, and released an album in February of 2011 titled “The Light,” all under the name One Direction. On February 14, 2011, the California group filed a trademark application for One Direction with the United States Patent and Trademark Office for “live performances by a musical band.” The One Direction trademark application published in the Trademark Official Gazette in December of 2011. However, the U.K. group’s manager interrupted the application process by requesting an extension of time to oppose registration. Currently, the U.S. registration is still being held up by the U.K. group.
The U.K. One Direction formed sometime in 2010 after its members competed together on the British television show “The X Factor.” At first, they used the One Direction mark exclusively in the U.K. Since trademark rights are jurisdictional, parallel use of the same name by different music groups in different countries usually will not raise any legal issues. However, since the U.K. group entered the U.S. in early 2012, there already has been some potential confusion: a song by the California group played during a segment to promote the U.K. One Direction on NBC’s Today show.
The California group’s suit seeks one million dollars in damages, and a permanent injunction requiring the U.K. group to cease use of the One Direction name. The complaint names each of the U.K. band members personally, along with Syco Entertainment (a joint venture between Sony and Simon Cowell), Simco Limited (the group’s manager), and Sony Music.
Last Friday, street artist Shepard Fairey pled guilty to one count of criminal contempt for destroying documents, manufacturing evidence and other misconduct in his civil suit against the Associated Press (“AP”).
In the Fairey-AP case, the AP claimed that Fairey and his licensee Obey Clothing committed copyright infringement by using an AP photograph of then-Senator Barack Obama on posters and apparel without crediting or compensating the AP. That case settled last year. Continue reading »
Comments Off | Art, Case Law, Copyright, Photography
A controversial federal rule on the preservation of electronic documents pending litigation has just been adopted by a New York State appellate court in Voom HD Holdings LLC v. Echostar Satellite LLC, 2012 NY Slip Op. 00658 (App. Div. 1st Dep’t Jan. 31, 2012), a dispute between a television programming provider and a direct broadcast satellite television service. The Voom decision represents the first time a New York appellate court has followed the rule articulated in Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 218 (S.D.N.Y. 2003), in which the federal district court stated: “Once a party reasonably anticipates litigation, it must suspend its routine document retention/destruction policy and put in place a litigation hold to ensure the preservation of relevant documents.” As Voom demonstrates, this may require in-house and outside counsel to put litigation holds in place even before litigation actually begins – or face the consequences. Continue reading »
Comments Off | Case Law, Contracts, Television
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 »
Comments Off | Case Law, Complaints, Right of Publicity/Privacy, Television
- 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.
Comments Off | Case Law, Complaints, Copyright, Film, Music
The United States Court of Appeals for the Second Circuit held oral argument on Tuesday October 18, 2011 in this highly significant copyright case. Viacom is appealing the decision by the district court dismissing most of its claims against YouTube (as described here). In the appeal, Viacom and a variety of other content owners argued that YouTube knew that vast amounts of material on its site infringed Viacom’s copyrights, including its rights in shows such as South Park, The Daily Show and The Colbert Report. The content owners argue that YouTube’s entire business, including its $1.6 billion sale to Google, was based upon copyright infringement. YouTube counters that under the so-called safe harbor provisions of the Digital Millennium Copyright Act, it is only required to remove infringing material when it has specific notice that a particular clip is infringing. Reports from the argument suggest that one or more of the three judges on the Court of Appeals panel may believe that there are factual issues that should have precluded a grant of summary judgment in favor of YouTube, but it often is difficult to predict what the court will do from the nature of the questioning. The case remains of great significance with respect to the responsibility of websites for the posting of infringing material by third parties. It is likely to be several months before a decision is issued.
