Entertainment Law Matters

Sexual harassment cases are always complex. But the legal question of what constitutes offensive conduct in the entertainment industry is especially hazy. For example, what if you work in a company where the editorial staff must discuss the latest celebrities who had their breasts cosmetically enhanced? Or you work at a production company that regularly films scenes where performers make sexually offensive jokes? In these work settings, it may be difficult to determine what behavior is appropriate or inappropriate.

Defining the hostile work environment

There are two forms of sexual harassment: Continue reading »

• 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

Recently, Advocate General Pedro Cruz Villalón advised the European Court of Justice (“ECJ”) that national courts in Europe should recognize injunctions stopping infringement of community trademarks issued by judges in other member states. Community trademarks, as opposed to national trademarks, give protection across all 27 member states of the European Union (“EU”).

In an opinion last week, Villalón said that, in principle, an order from a court in one member state barring an infringer’s use of a registered community trademark should have effect across the whole EU. The powers of a national court, however, do not extend to the enforcement of an order outside its country’s borders. If the court order is not obeyed and financial penalties are appropriate, the burden of enforcing it falls on each country’s own court, Villalón said. However, Villalón opined, if other national courts take up an issue currently litigated elsewhere, those states must recognize any penalties issued by the other EU member state as binding.

Villalón had an opportunity to consider this issue when a court in Paris ruled in favor of Chronopost, a French shipping company who sued DHL France for using its registered community mark, but restricted the ruling’s application to French territory. On appeal, Chronopost argued that restricting the terms of the order to DHL’s activity in France was wrong since a community trademark was at issue. That’s when the French court asked the ECJ for its thoughts on the ruling and Villalón provided his views on the topic. Though Villalón’s advice is non-binding, the ECJ usually rules in line with the recommendations of advocate generals, such as Villalón.

-Lisa Herbert

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.

Continue reading »

• It’s Just a Movie: Canadian filmmaker and Special FX artist, Remy Couture, is being prosecuted in Canada for obscenity because his graphic horror films are so realistic they are “morally corrupting” viewers. Couture – who has pled not guilty – is being supported at his trial by hordes of zombie fans (pictured below).  As one zombie bride pointed out “To lose our freedom of expression is death.”

• Canadian Public Radio Turns Down Free Music: Canada’s Public Radio Station, CBC, has decided to stop using Creative Commons music in its podcasts.  CBC initially cast the decision as a cost-cutting measure, but later clarified the move: Because much of CBC’s content is offered on commercial platforms (such as iTunes), it could violate provisions in many Creative Commons licenses that prohibit “commercial use.”

• Judge Says Hold onto Your Wii: A federal judge in Colorado has dismissed a class action lawsuit against Nintendo over its Wii controllers. Plaintiffs claimed the wrist straps attached to their controllers failed to prevent them from flying out of plaintiffs’ hands and smashing into their television sets. Although the Judge conceded that plaintiffs “might plausibly assume . . . the strap was intended to prevent a controller, inadvertently released by the player during vigorous activity, from hurling towards the player’s television set (or towards another player) and causing damage,” she found it equally plausible that the strap was merely intended to make the controller “easier to retrieve” so the “game would not be disrupted.”

• Steinbeck’s Descendants Lose Battle For More Royalties: A federal appeals court has dismissed claims by John Steinbeck’s son and granddaughter against the heirs of Steinbeck’s third wife, Elaine, over royalties and control over some of the author’s later works. The court rejected claims that a 1983 agreement granting control over Steinbeck’s works to Elaine also created a fiduciary duty towards Steinbeck’s descendants. Although Steinbeck’s descendants are entitled to receive some royalty payments, those rights are limited and they have no control over Steinbeck’s works.

• Dog Bites Lawyer: Duane Chapman, aka “Dog, the Bounty Hunter,” is suing his former lawyers in California state court for legal malpractice and breach of fiduciary duty. Chapman claims his lawyers, Myman, Abell, Fineman, Greenspan & Light, simultaneously represented Chapman’s talent agent and producer, Boris Krutonog, and negotiated illegal royalties and commissions on Krutonog’s behalf. California’s ethics rules prohibit lawyers from representing clients with conflicting interests without getting an informed conflict waiver.

• There’s a Trademark for That: Apple has trademarked its famous tagline “There’s an app for that.”  The USPTO approved the trademark for “retail store services featuring computer software provided via the Internet and other computer and electronic communication networks” and “retail store services featuring computer software for use on handheld mobile digital electronic devices and other consumer electronics.”

• USPTO Joins the Fight Against Bullies: No, not schoolhouse bullies, or internet bullies. Trademark bullies. The USPTO is requesting public comments about “experiences with litigation tactics, especially those involving an attempt to enforce trademark rights beyond a reasonable interpretation of the scope of the rights granted to the trademark owner.” One interesting question is whether “the USPTO has a responsibility to do something to discourage or prevent trademark bullying” and if so “what should the USPTO do?”  Comments are due January 7, 2011.

- Nicole Hyland

Alexander Calder, famous for pioneering the “mobile” art form, once asked: “Why must art be static?”  Now, one of his former clients, Sears, is asking a similar question about the Universe, a Calder mobile that has occupied the lobby of Chicago’s Willis Tower (formerly, Sears Tower) since 1974.  In July, Sears notified the building’s current owners that it intends to repurchase the Universe under a 1994 buy-back agreement.  The owners have asked a judge to block the purchase, arguing the buy-back agreement terminated years ago.  Notwithstanding Calder’s belief in the mobility of art, removing the gigantic installation could cost roughly $250,000, according to plaintiffs.  Although Sears denies any specific plans to remove the mobile, this lawsuit certainly raises that specter, creating concerns that Chicago – and the public at large – could lose access to an important piece of art.

Universe

The lawsuit highlights a fundamental dilemma about “public” art – much of it is, in fact, privately owned.  Nevertheless, members of the public often view these works (particularly long-standing installations) as an immutable part of the environment.  Many New Yorkers, for example, would have trouble envisioning a cityscape that isn’t dotted with Calder sculptures, such as the brightly-colored Saurien a few blocks from our firm’s office.  While laws such as the Visual Artists Rights Act give artists some protection against destruction of their artwork, that statute doesn’t prohibit the removal of public installations, nor does it grant any rights to the public.

Saurien

A community’s identification with its art may not be legally enforceable, but owners of “public” artworks who overlook those considerations may do so at their peril, particularly if they are concerned about avoiding negative publicity and maintaining good will.  Indeed, the plaintiff lost no time appealing to Chicagoans’ civic pride, arguing the Universe should not be moved because it “is part of the building and part of Chicago.”  On the other hand, some might consider that statement ironic in view of the decision to rename the iconic Sears Tower despite public opposition.

We will continue to follow this case with interest.

- Nicole Hyland

Last Thursday, Scherba Industries, Inc. (“Scherba”), a company that designs inflatable items to be used in advertising campaigns and promotions, sued Google, Inc. (“Google”) for copyright infringement in connection with Google’s use of an inflatable gorilla in at least two magazine advertisements for Google AdWords, Google’s flagship advertising product.

The complaint, filed in the U.S. District Court for the Northern District of Ohio, claims that the blue gorilla used by Google is actually one of Scherba’s most successful inflatable advertising products known as Gorilla Inflatable, which Scherba copyrighted in 2000. Google is accused of using Gorilla Inflatable in AdWords advertisements published in at least two magazines, including Entrepreneur and Crain’s Cleveland Business.

The three-count complaint seeks injunctive and declaratory relief, in addition to compensatory damages for lost profits and damage to Scherba’s reputation. Scherba asks the court to award either its actual damages or the maximum allowed under the federal statute because Google’s infringement of Scherba’s copyright was allegedly willful.

A Google spokesperson said the claims are meritless and Google will defend against them vigorously.

- Lisa Herbert

• The Center for Democracy and Policy issued a report finding that overly aggressive take-down notices under the Digital Millennium Copyright Act (“DMCA”) have stifled political speech. According to the report, “Broadcasters, concerned about the reuse of their news and public affairs footage in political advocacy, sometimes turn to the mechanisms created by the DMCA to force the removal of online political ads that contain such footage. Yet the incorporation of brief clips of news footage into campaign ads is highly likely to be fair use and thus non- infringing under copyright law.” Last week’s dispute over a political ad in the Ohio Governor’s race illustrates this issue.
• In Stalyart v. Yahoo!, the Seventh Circuit affirmed dismissal of Beverly Stalyart’s Lanham Act claim against Yahoo! because she failed to establish her name had commercial value. Stalyart’s complaint alleged that Yahoo! search results for her name had produced pharmaceutical ads and explicit materials, which she claimed constituted “false endorsement.” The court held plaintiff’s “scholarly” Internet postings did not constitute commercial activity that would support a Lanham Act claim.
• The Second Circuit Court of Appeals reinstated entertainment reporter Claudia DiFolco’s lawsuit against her former employer MSNBC for breach of contract, defamation and New York Labor Law violations. The court disagreed with the district court’s ruling that emails sent by DiFolco repudiated her employment contract. Read the decision here.
• Caitlin Sanchez, who voiced the title character on the hit children’s show “Dora the Explorer,” sued Nickelodeon last week claiming she was rushed into signing an “unconscionable” contract.  The fourteen-year-old Sanchez contends that she was given 22 minutes to sign a contract, which denied her residuals and merchandising revenue. Nickelodeon has denied the allegations, and claims that “Caitlin’s contract was extensively negotiated through her agent and in compliance with her union.”
• Two courtroom sketch artists sued ESPN, the Associated Press and other media outlets for publishing their sketches without consent. Read more here.
• The U.S. Department of Commerce is seeking public comments on “the challenges of protecting copyrighted works online and the relationship between copyright law and innovation in the Internet economy.” Comments are due by November 19, 2010. You can read the notice here.
• A California federal court denied a request by Edge Games, a California video-gaming company, to enjoin gaming giant, Entertainment Arts (“EA”), from marketing the “Mirror’s Edge,” a highly successful first-person shooter gaming franchise. Edge Games claims EA’s use of the word “Edge” infringes its trademark. The parties agreed to dismiss the case a week later and the Trademark Office was ordered to cancel Edge Games’ trademarks.
• We reported this week on two important First Amendment cases on the Supreme Court’s docket. For the first time, the Court is making audio recordings of its oral arguments available online.

- Nicole Hyland

Several television networks, including NBC, CBS, Fox and Disney are suing FilmOn.com (“FilmOn”) a subscription-based website that streams television shows airing on U.S. and international channels.  The complaint in New York federal court alleges FilmOn “captures the signals of the Stations in their local markets, transmit [sic] those signals to defendant’s servers, and then streams those signals over the Internet to customers.”  The broadcasters contend FilmOn’s activities continue to cause the “loss of control over the distribution of plaintiff’s broadcast signals and copyrighted programming,” threatening the networks “with substantial irremediable losses.” They are asking for an order barring FilmOn from streaming the shows.

The FilmOn lawsuit follows on the heels of a similar action filed against iviTV.com (“iviTV”), a Seattle-based website that also streams television shows over the Internet.  iviTV tried to preempt the lawsuit by asking a federal court in Washington to rule that its streaming activities are legal.  The iviTV Complaint alleges iviTV’s activities are permitted under Section 111 of the Copyright Act, which authorizes “secondary transmissions of copyrighted works embodied in primary transmissions.”

Although iviTV distinguishes itself from illegal file-sharing websites, such as Napster or KaZaA, it is now clear those services forced the music industry to rethink its business model.  In a similar way, websites that offer high-quality streaming television arguably respond to a consumer need left unfulfilled by traditional media.  It will be interesting to see if the parties can find a way to collaborate on a service that television viewers have been clamoring for or if they get bogged down in litigation.

- Nicole Hyland

Astronaut Bruce McCandless has filed a complaint in the United States District Court for the Central District of California, claiming that a photograph on the cover of Dido’s 2008 album “Safe Trip Home” (shown left) violates his right of publicity.

He is suing the record company, Getty Images and Flourian Cloud De Bounevialle O’Malley Armstrong, a/k/a Dido.

How can you tell it’s McCandless in the photograph?  He alleges that, among other things, he is identifiable by “the distinctive red stripes on his pressure suit, as well as a mission patch on the chest of his life support system,” which NASA used to “visually distinguish” him from other astronauts, and “a distinctive over-the-shoulder Nikon camera, which has not been used on any other shuttle mission.”  He also alleges that the defendants have used his name to promote the album, and on bonus materials.  A copy of the complaint is available here.

- Jessie Beeber