Entertainment Law Matters

Blizzard, creator of the popular online game World of Warcraft (WoW), recently suffered a setback in its litigation against MDY Industries, which sells Glider – a software “bot” that automatically plays some of the early levels of the game.  The Ninth Circuit reversed a $6.5 million judgment for Blizzard, finding no liability for secondary copyright infringement.  A party may be liable for secondary infringement if it either (1) intentionally induced another person’s direct infringement (known as “contributory infringement”) or (2) had the right and ability to control another’s infringing activities and derived a financial benefit from those activities (known as “vicarious infringement”).  In either case, direct infringement must be established before secondary liability can attach.

To establish secondary infringement against MDY, Blizzard had to show that Glider users infringed Blizzard’s copyright by violating a Terms of Use (ToU) provision that prohibits the use of “cheats, bots, ‘mods,’ and/or hacks.”  The appeals court held that WoW players who used Glider in violation of the ToU did not infringe Blizzard’s copyright.  Thus, MDY could not be secondarily liable for infringement.

The decision was a mixed bag of good news and bad news for the parties – as well as their customers.  Although the court exonerated MDY for copyright infringement, it found the “bot” maker liable for violations of the Digital Millennium Copyright Act (DMCA).  In addition, the court ordered a trial on Blizzard’s claim that MDY tortiously interfered with Blizzard’s user agreements.  While WoW players may be happy with the ruling that license and ToU violations do not necessarily constitute copyright infringement, they might be surprised to learn they do not actually own their copies of the WoW software program, according to the court’s decision.

WoW Users Do Not “Own” Their Software:

Before determining whether Glider users committed copyright infringement, the court had to ascertain whether they were “owners” or “licensees” of the WoW software.  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 »

Photo: Metropolitan Museum of Art

A recent suit involving a Paul Cézanne painting raises questions about what responsibilities art museums have in investigating the provenance of works during their acquisitions process. 

On Tuesday, Pierre Konowaloff, a French engineer, commenced an action in federal court in Manhattan against the Metropolitan Museum of Art.  The suit alleges that Madame Cézanne in the Conservatory (1891) was stolen from his great grandfather, Ivan Morozov, in 1918 following the Bolshevik takeover of Russia.  He claims that the Met, which obtained the work in 1960, failed to properly investigate the provenance of the work during its acquisition process and must return the work to him. Continue reading »

Let’s pause for a moment in our reporting of  current developments in entertainment law to pay homage to Leslie Nielsen, who died this past weekend.  People who are not obsessed with issues like fair use and parody (i.e., normal people), know Mr. Nielsen as an actor who transitioned from serious roles in motion picture and television dramas to become one of the leading comedic actors of our time.  Nielsen played the consummate straight man in comedies such as the classic Airplane! and the Naked Gun series of films.

But intellectual property lawyers see Nielsen in another role – his role at the center of two of the leading cases in the not very crowded field of copyright infringement litigations in advertising where defendants successfully asserted parody as a defense.  Continue reading »

On November 22, 2010, Judge Colleen McMahon of the United States District Court for the Southern District of New York issued a decision that could ultimately affect the ownership of some of the world’s most treasured comic book superheroes, including The Fantastic Four, The X-Men, Iron Man, Spider-Man, The Incredible Hulk, Thor and The Avengers.

At issue is whether 45 copyright termination notices issued by the four children of famed comic book author Jack Kirby were valid in light of Marvel’s claim that the copyrights were created as a work-for-hire.  Last month, the court refused to dismiss the Kirbys’ termination claim.  Given the value of the property at issue, prior case law addressing similar claims by comic book authors and a compelling story by the Kirby family, this is definitely a lawsuit worth following. Continue reading »