Entertainment Law Matters

Hill v. Public Advocate of the United States, No. 12 Civ. 2550 (D. Colo. Sept. 26, 2012).

On Wednesday, September 26, 2012, married couple Brian Edwards and Thomas Privitere, along with Kristina Hill, their Brooklyn-based photographer, filed a lawsuit against an anti-gay rights organization named Public Advocate of the United States (“PA”).  The same-sex couple alleges that PA misappropriated their identities by copying a photograph that Hill had taken of them posing and kissing by the Brooklyn Bridge shortly after their engagement,

and incorporating it into two flyers distributed during local political races in Colorado:

The two individuals referred to in the posters – Jean White and Jeffrey Hare – were Republican primary candidates who had supported a bill that, if passed, would have granted same-sex couples the right to enter into civil unions.  If it weren’t clear from the bold lettering, the blood-red banner framing the words, the quotes around “family values” or the suggestive question marks – PA does not support same-sex marriage or civil unions.  Continue reading »

The controversial activities of the Westboro Baptist Church culminated in a near-unanimous  Supreme Court decision earlier this month.  On March 2, in an 8-to-1 ruling, the Court held that Westboro members could not be held liable for the emotional distress caused by their demonstration at the funeral of Lance Cpl. Matthew Snyder, a 20-year-old soldier killed in Iraq.  According to the Court, regardless of how offensive the protestors’ activities may be, they are fully protected by the First Amendment.

The decision turned primarily on whether the Westboro demonstration involved matters of “public concern,” a category of speech that “is entitled to ‘special protection’ under the First Amendment.”  Unlike speech involving private matters, “speech concerning public affairs is more than self-expression; it is the essence of self-government,” according to the Court.  Thus, public speech “occupies the highest rung of the hierarchy of First Amendment values.”  The Court also found it significant that the demonstrators remained on public land, maintained a required 1000 foot distance from the church, and did not interfere with the funeral service.  In fact, Snyder’s father – the plaintiff in the lawsuit – was unable to hear the protestors or read their signs during the funeral itself, but learned of their content afterwards while searching for references to his son on the Internet.

While most Americans undoubtedly reject the views expressed by Westboro (a small extremist group of people, most of whom who share the same name – and bloodline – as founder Fred Phelps), the Court’s decision implicitly recognized that, for freedom of speech to mean anything, it must protect those with whom we vehemently disagree.  That the decision was virtually unanimous and crossed the Court’s ideological lines suggests that it was fairly conventional as a matter of constitutional law.  Nevertheless, the passionate dissent written by Associate Justice Samuel A. Alito may resonate more strongly with some readers. Continue reading »

In Tamkin v. CBS Broadcasting, a California appeals court has ruled that the First Amendment — through the state’s “anti-SLAPP” law — insulates a television writer’s creative process from defamation and invasion of privacy claims.

Background

Plaintiffs, husband and wife real estate agents Scott and Melinda Tamkin, brought a defamation and false light/invasion of privacy action against CBS and one of its writers for the popular show CSI, Sarah Goldfinger.  Plaintiffs allege that Goldfinger became familiar with them when they represented the seller of a Los Angeles home that Goldfinger had contracted to buy.  Goldfinger got out of the sales contract when a property inspection showed that the house needed extensive repairs.

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The Supreme Court today granted the certiorari petition filed in this case.  Petitioners — orchestra conductors, film distributors and others who “depend upon the Public Domain for their work” — allege that Section 514 of the Uruguay Round Agreements Act (17 U.S.C. §§ 104A, 109(a)) is an unconstitutional violation of both the Progress Clause and the First Amendment because it restores the copyright in certain foreign works that were previously in the public domain.  Petitioners appeal from a Tenth Circuit decision that upheld the constitutionality of Section 514.

- Jessie Beeber

That may be true, at least if you’re in Illinois, which has perhaps the toughest eavesdropping statute in the country. 

In a day and age when most everyone has some kind of audio/video recording capability on their cell phone, few probably stop to think about the consequences of publicly exposing their recordings.  Perhaps we should, if what’s happening in Illinois — where two ordinary individuals are facing jail time for exposing audio recordings of public officials — is any indication of what’s to come.   Continue reading »

The recent decisions by two museums to take down controversial artworks may have a lasting effect on future art exhibits.

On November 30, 2010, the Smithsonian Institution removed a video art installation entitled A Fire in My Belly by the late David Wojnarowicz from an exhibit at the National Portrait Gallery purportedly after receiving complaints from conservative leaders.  Wojnarowicz, who died of AIDS in 1992, made the video in the 1980s to depict the suffering of an AIDS patient.  His work was removed from the National Portrait Gallery’s highly-acclaimed show entitled “Hide/Seek: Difference and Desire in American Portraiture,” which explores homosexual themes in American art. Continue reading »

Attorneys in Schwarzenegger v. EMA stood their ground – albeit shakily at times – under withering interrogation by the Supreme Court on Tuesday. Entertainment Law Matters reviewed the 72-page transcript. Update: the audio is now available.

Here are the highlights from the argument:

The Big Picture

The case involves a First Amendment challenge to a California statute criminalizing the sale of certain violent video games to minors.  Zackary Morazzini, California’s supervising deputy attorney general, argued that the Court already treats the First Amendment rights of minors differently when it comes to sexually explicit materials (or “girlie magazines” as Justice Brennan charmingly dubbed them in Ginsberg v. N.Y.).  Morazzini argued the Court should simply extend this standard to video games containing “deviant violence.”

Paul Smith, who represents the gaming industry, countered that making a First Amendment exception for “deviant violence” would be a radical departure from the Court’s constitutional jurisprudence and would open the door to government regulation of all creative media, including movies, books, television, and comic books.

Image courtesy of Ars Technica

How Do You Define “Deviant Violence”?

Justice Scalia wasted no time getting to the heart of the issue, interrupting Morazzini’s opening remarks to ask: “what’s a deviant . . . violent video game?”  Evidently unimpressed with Morazzini’s response that “Deviant would be departing from established norms,” Justice Scalia shot back: “There are established norms of violence?”  What about Grimm’s fairy tales, he queried.  “Are you going to ban them too?”  Of all the Justices, Scalia seemed most offended by the statute, sarcastically suggesting that California “should consider creating” a special office to issue advisory opinions:  “You might call it the California office of censorship. It would judge each of these videos one by one. That would be very nice.”

Justice Kennedy also voiced concern about defining “deviant violence,” noting that society has not developed a “consensus” about violent depictions.  This must have been a depressing moment for Morazzini, since he will almost certainly need Justice Kennedy’s “swing” vote to win the case.  But he gamely soldiered into the breach, responding that California’s goal was to start building “that consensus” (effectively conceding that it doesn’t already exist).

Are Video Games Different?

Several Justices questioned whether there was a principled basis for limiting such regulations to video games.  In other words, if states can regulate video game content, what prevents them from regulating similar content in books, films, television, or music?

“How do you cut it off at video games?” Justice Ginsburg asked. “What about films? What about comic books?”  Despite Morazzini’s rejection of Ginsburg’s parade of horribles, it was obvious that California’s rationale could extend to other forms of expression.  Even Chief Justice Roberts, who was more sympathetic towards the statute, wasn’t taken in by Morazzini’s answer: “I think that misses Justice Ginsburg’s question, which is: Why just video games? Why not movies?”

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•    Band Members Say “We Ran With the Gang Too”: Three former members of the Bay City Rollers are suing Arista Records and six other band members claiming they are owed royalties from album sales.  The popular 1970s Scottish band (pictured below) went through numerous personnel changes over the years.  The six band members named as defendants in this case filed their own lawsuit against Arista in 2007 seeking unpaid royalties.  That action is still pending in New York federal court.  If you’re in the mood for some nostalgia, watch the band perform “We Sang Shang-a-Lang as we Ran with the Gang.”

•    New Zealand to be Renamed “Middle-Earth”: Well not exactly.  But after weeks of wrangling, New Zealand has passed a labor law designed to keep film production for the “Hobbit” in the country.  The legislation characterizes film and video game workers as independent contractors rather than employees, thereby preventing them from engaging in collective bargaining.

•    Mark. Trade Mark: The Trademark Trial and Appeal Board (“TTAB”) has approved trademark registration of the gun carried by James Bond.  According to the decision, gun manufacturer Carl Walther GmbH demonstrated that the gun “has acquired distinctiveness” for product design under Section 2(f) of the Trademark Act.  The TTAB rarely approves product design trademarks, leading some commentators to attribute the result to the gun’s cinematic fame.

•    How America Gets its Publicity: Author Charles Harris is suing Oprah Winfrey for copyright infringement in Pennsylvania federal court, alleging she read aloud portions of his booklet “How America Elects Her Presidents” on her television show in 2008.  Harris claims he sent Winfrey ten copies of the booklet in an attempt to drum up publicity.  The lawsuit may not survive a Fair Use defense, but it is finally getting Harris some of the media attention he was seeking.

•    Real Gay Journalist Sues Fake Gay Journalist: Mike Skiff, a self-described “gay journalist,” is suing actor-comedian Sacha Baron Cohen for civil rights violations based on an incident at a pro-gay marriage rally.  Baron Cohen attended the rally as flamboyant fashion journalist, Bruno, the title character from his 2009 film.  Skiff claims he was filming Baron Cohen when members of the Bruno film crew confronted him and “roughed him up.”  Skiff has posted footage of the altercation on YouTube.

•    Lost in Translation: Egyptian author, Alaa al-Aswany, is claiming an unauthorized Hebrew translation of his book “The Yacoubian Building” constitutes “theft” and “piracy.”  A group called the Israel/Palestine Center for Research and Information is reportedly offering a Hebrew translation of the book, despite the author’s refusal to allow the book to be translated and sold in Israel.

•    Updates: We have an update to our Disturbia post concerning a new lawsuit filed by the The Abend Trust.   Also, on Tuesday, November 2, the Supreme Court will hear oral argument in the video game case Schwarzenegger v. Entertainment Merchants Assn.  We will continue to provide updates on both cases.

- Nicole Hyland

• Let’s Play Fair: Video game developer, Blizzard, is suing hackers who created and sold cheating programs for StarCraft 2, an online real-time strategy game.   Blizzard has been aggressively battling alleged cheaters by banning thousands of players who use third-party programs to gain an advantage over their online opponents. The lawsuit claims the defendants, who go by the handles “Permaphrost,” “Cranix,” and “Linuxawesome,” infringed Blizzard’s copyright and induced others to do the same. Blizzard argues defendants’ programs lead to customer dissatisfaction and lost sales.

• Negative Assessment: The Ansel Adams Trust claims that film negatives being marketed as the iconic photographer’s “lost” works were actually taken by Earl Brooks, aka “Uncle Earl.”  The Trust is suing Rick Norsigian who found the negatives at a garage sale 10 years ago and has been hawking prints and posters online under the Ansel Adams name (example above). In papers filed with the court yesterday, the Trust introduced expert evidence that the negatives are “virtually identical or strikingly similar” to prints by Brooks. The similarities between Brooks’s prints and the “lost” negatives led one of Norsigian’s experts, Robert Moeller III, to reverse his findings. When asked why he had been so definitive in his original assessment, Moeller responded: “Maybe I kind of wanted them to be Ansel Adams.”

• Order in the Court: Former Law & Order star, Benjamin Bratt, is suing Screen Media Ventures (“SMV”) over distribution of his film “La Mission.” Bratt and his colleagues at 5 Stick Films, which produced the film, claim SMV failed to make timely bonus payments of $400,000, which were tied to the film’s gross box office receipts. Not surprisingly, the parties disagree over interpretation of the payment terms.

• You Won’t Like Us When We’re Angry: Marvel is suing power tool manufacturer, Airbase Industries, over its line of industrial and home equipment sold under the “Hulk” brand name.  Marvel claims the green shade used in Airbase’s marketing literature is “confusingly similar” to the green shade sported by Marvel’s superhero, the Incredible Hulk, and the defendant’s logo is “nearly identical” to Marvel’s Hulk logo. Marvel is reportedly planning a new television series based on the Hulk character.

• Reversion Wrong? Plaintiffs in Golan v. Holder filed a Petition for Certiorari with the Supreme Court challenging the constitutionality of the “Uruguay Round Agreements Act,” which restored copyright protection to certain foreign works that U.S. Copyright law had placed in the public domain.  These works include Tolkien’s “Lord of the Rings” trilogy, Picasso’s “Guernica,” and Fritz Lang’s “Metropolis.”

• News From the Irony Department: A Swiss company is accusing Warner Brothers and others of stealing the idea for a special film print that combats – you guessed it – movie piracy.  A federal court ruled the claims must be heard in New York, rejecting defendants’ motion to transfer the case to Los Angeles.

• No Show: Actor Randy Quaid and his wife Evi were arrested in Canada after missing a court hearing in Santa Barbara on October 18.  They face felony charges for squatting in the guest house of their former home. They were reportedly seeking asylum in Canada from “Hollywood Star Wackers.”

• Slam Dunk for Anti-SLAPP Statute: Statutes that prohibit “strategic lawsuits against public participation” or (“Anti-SLAPP Statutes”) are frequently used by media defendants, like Michael Moore and Sacha Baron Cohen, to protect their First Amendment rights by getting weak cases dismissed at an early stage. On October 18, an Illinois appeals court rejected arguments that the state’s Anti-SLAPP statute is unconstitutional. The case arose out of a defamation lawsuit filed by former basketball coach, Steve Sandholm, over online and radio comments criticizing his coaching style.  SLAPPed Again: Three days after the Sandholm Decision, the Illinois Supreme Court ruled that a Chicago Alderman’s statements to a reporter were immunized by the state’s Anti-SLAPP statute, reversing a lower court’s ruling.

• Updates: We have updates on two of our previous posts concerning the F.B.T. v. Aftermath royalty decision and the Maverick v. Harper music downloading case.

- Nicole Hyland

Last week, Broadway star Marty Thomas asked a New York state court to order Twitter, Inc. (“Twitter”) to reveal the identity of “bwayanonymous,” a Twitter user who allegedly defamed Thomas with a tweet suggesting Thomas contracted a sexually-transmitted disease from an “Avenue Q” cast member.

This is not the first time a celebrity has been in court over an allegedly defamatory tweet. Last year, a fashion designer sued Courtney Love over an allegedly libelous tweet wherein Love ranted about how the designer billed her for custom clothing. Unlike Love’s case, however, Thomas’s case involves an anonymous tweet, requiring the courts to balance an internet user’s First Amendment right to speak anonymously against the right of an injured party to seek redress for the user’s misconduct.

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