Entertainment Law Matters

- Michael Moore settles “Sicko” Suit.  The Hollywood Reporter reports that filmmaker Michael Moore settled a copyright infringement lawsuit over the allegedly unauthorized use of third-party footage in his Academy Award nominated documentary “Sicko.”  The plaintiff sued Moore for using a short clip from a video he shot while visiting London without his permission.  Moore received the footage in response to his call for stories on healthcare experiences outside the U.S.  The settlement, for an undisclosed amount, followed plaintiff’s appeal of a federal court decision in Moore’s favor on First Amendment grounds.

- AP reporter sued for blowing the whistle on NBA referee.  Longtime NBA referee Bill Spooner has sued the Associated Press (the “AP”) and one of its reporters over a tweet.  The AP reporter’s tweet said that “Ref Bill Spooner told Rambis he’d ‘get it back’ after a bad call. Then he made an even worse call on Rockets. That’s NBA officiating folks,” implying that Spooner would make amends to Timberwolves coach Kurt Rambis for a bad call.  In his Complaint, Spooner recounts a different story, claiming he did not respond to the coach’s grievances, but merely promised to review the call at half-time.  The referee is asking for an injunction removing the tweet from Twitter.com and for more than $75,000 in damages.

- Lawsuit brewing over use of “Spiral Jetty” on beer label. A Salt Lake City brewery is taking heat from New York-based Dia Art Foundation, a co-owner of the copyright in “Spiral Jetty,” for using a photograph of the earthwork on a beer label.  Built entirely out of mud on the shore of the Great Salt Lake, “Spiral Jetty” is considered to be sculptor Robert Smithson’s most significant work. In its efforts to preserve Smithson’s original vision for the work, the foundation plans to have all images and reproductions of it licensed. While the brewery called the endeavor “ludicrous” because the work has been photographed countless times, it is reportedly open to licensing discussions if the foundation can prove its copyright ownership.

- “Hurt Locker” Filmmakers wave a white flag in a piracy class action. The copyright holders in the film “Hurt Locker” recently dropped their claims against approximately 100,000 BitTorrent users who allegedly pirated the film.  While the plaintiffs’ decision to “desert” the lawsuit remains a mystery, commentators speculate that recent dismissals of similar lawsuits on procedural and jurisdictional grounds may have influenced the move.  Nevertheless, the accused pirates should hold off on their victory lap, because the cases were dismissed “without prejudice” — meaning the copyright holders have the right to re-file their Complaint.

- Featuring Slash may cost you $20M in cash. Celebrated Guns and Roses frontman Axl Rose sued videogame publisher Activision Blizzard for breach of contract because it included Rose’s ex-bandmate Slash in Guitar Hero III: Legends of Rock in contravention of the parties’ agreement.  In his Complaint, Rose alleges that he licensed the use of the G N’R song “Welcome to the Jungle” for the videogame on condition that Slash would not be featured in the game.  Rose also claims that Activision spun a “web of lies and deception to conceal its true intentions” to not only include Slash in the game, but make him a playable avatar. Apparently having exhausted the game’s battle arenas, the two rockers will have to duke it out in court.

- Spinning Charlie Sheen’s catch-phrases into cash-phrases.  It is open season on trademarking Charlie Sheen’s catch-phrases, according to several entrepreneurs who have been sprinting to the U.S. Patent and Trademark Office to trademark his utterances.  Sheen himself is in the running, and he will no doubt coin a few more gems on his “Violent Torpedo of Truth/Defeat Is Not an Option” tour.  Some of Sheen’s most popular quotes at the USPTO are “Winning,” “Tiger Blood,” and the “Defeat is not an Option,” all of which Sheen directed at his former bosses at “Two and a Half Men” who recently fired him from the show.

- Netflix Privacy Suit. Online video streaming giant Netflix faces a class action lawsuit over retaining members’ billing and viewing information after their subscriptions have expired.  In a five-count complaint filed in federal court, former subscribers accuse Netflix of, among other things, violating federal privacy laws by holding onto confidential data and unjustly enriching itself by selling their personal information to third parties.  Plaintiffs rely on the Video Privacy Protection Act, a federal law that requires the destruction of consumer records that are more than one year old.  If this case goes to trial, it may resolve a longstanding legal question of whether the law applies to online video streaming as well as physical video rental.

- Gergana Miteva

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 »

A federal court has rejected the settlement agreement in the six year old Google Books litigation. Judge Denny Chin wrote that “[w]hile the digitization of books and the creation of a universal digital library would benefit many, the [settlement] would simply go too far.” Judge Chin’s main concern: that Google — which has already scanned more than 12 million books — would be able to exploit entire books still under copyright protection without receiving permission from copyright owners. The decision relies heavily on the fact that objections to the settlement “were great in number.” 

Judge Chin had preliminarily approved the proposed settlement in 2009. But after receiving notice of the proposed settlement, “hundreds of class members objected;” more than 6,800 class members opted out; the U.S. Department of Justice expressed antitrust concerns; and friends of the court submitted a variety of opinions pro, con, and somewhere in the middle. While the decision notes that the settlement mechanism governing the exploitation of unclaimed books “is a matter more suited for Congress than this Court,” it concludes by giving the parties another chance to revise the settlement – urging adoption of an “opt in” rather than an “opt out” approach. The court will hold a status conference on April 25th. Meanwhile, it’s back to the drawing board for the litigants in this epic battle over copyright and fair use — Marc Handelman

A film production company’s bankruptcy proceeding has become the backdrop for an important ethics opinion on conflicts of interest.  As most lawyers know, under Model Rule of Professional Conduct (“MR”) 1.9, a former lawyer is disqualified from representing a party adverse to her former client if she either has confidential information about “the same or a substantially similar matter” or if she actually imparts confidential information to the new client.  Under MR 1.10(a), that former lawyer’s conflict of interest is generally imputed to other lawyers “associated in” the former lawyer’s new law firm.  In In re Thinkfilm, the Court addressed the question of whether the same imputation rule applies to the former lawyer’s co-counsel on the new, adverse representation. Continue reading »

Last week, the Associated Press (the “AP”) and Obey Clothing, the exclusive licensee of apparel featuring artist Shepard Fairey’s work, including the Barack Obama “Hope” image, settled their high-profile copyright infringement suit. 

In that case, the AP claimed that Fairey and Obey Clothing infringed its rights by using an AP photograph of Obama in the “Hope” poster Fairey created and the apparel Obey Clothing manufactured without crediting or compensating the AP.  In January, the AP reached a settlement with Fairey whereby the parties agreed to share the rights to make posters and merchandise bearing the “Hope” image.   The case against Obey Clothing remained pending and was scheduled for a jury trial commencing March 21, 2011.

On March 16, 2011, the AP announced that it had reached a settlement with Obey Clothing, which resolved the parties’ claims in the litigation. Continue reading »

Last week, the Associated Press (“AP”) sued Urban Outfitters, Nordstrom and Zumiez, a company that sells sportswear in stores and online.  All three actions against these retailers are pending in federal court in New York.  By selling clothing bearing Shepard Fairey’s iconic Obama “Hope” poster design, the AP alleges these retailers violated the AP’s copyright in the now-famous 2006 photo of Barack Obama taken by AP photographer Mannie Garcia.  

We previously reported on the “Hope” poster litigation here and here.  In brief, the AP is a litigant in a related lawsuit which has been pending since 2009 in federal court in New York.  In that case, the AP claimed that Fairey infringed its rights by using Garcia’s photograph of Obama in the “Hope” poster Fairey created without crediting or compensating the AP.  Fairey claimed that he did not appropriate any copyrightable material from the photograph and that his use of the photograph constituted fair use under copyright law.  In January, the AP reached a settlement with Fairey whereby the parties agreed to share the rights to make posters and merchandise bearing the “Hope” image.  The case did not settle entirely, because the AP still has copyright infringement claims against One 3 Two, Inc. d/b/a Obey Clothing (“Obey Clothing”).  That company is the exclusive licensee of apparel featuring Fairey’s work, including the “Hope” image.  Last week’s lawsuits represent the first time the AP has gone after Obey Clothing’s customers — the retailers that have sold merchandise bearing the image.  

It is unclear why the AP is just filing these cases now.  However, AP spokesperson Paul Colford stated that the AP is obligated to protect its copyrights in its photos.  He added: “When a commercial entity such as these retailers, or the company that sold the shirts to them, gets something for nothing by using an AP photo without credit or compensation, it undermines the AP’s ability to cover the news and devalues the work that our journalists do, often in dangerous locations where they may literally risk life and limb to cover a story.”

AP’s case against Obey Clothing is set to go to trial later this month.

 - Amelia Brankov

- “Baby Gaga” ice cream better switch to formula. Lady Gaga recently threatened Icecreamists, a London ice-cream parlor, with a suit over an ice cream made of human breast milk called “Baby Gaga.”  Lady Gaga’s lawyers sent a cease-and-desist letter demanding that the shop change the name of the ice cream, or a trademark infringement suit would follow.  The pop star accuses the parlor of trying to get a free ride on her “reputation and goodwill” and alleges that the product is “highly detrimental” to her image because it may be “unsafe for human consumption (owing to the risk of it carrying such viruses as hepatitis).”  The Icecreamists shot back blogging  that Lady Gaga cannot claim ownership to the word “gaga” since it “has been one of the first discernable phrases to come from a baby’s mouth.”  The Icecreamists placed the cherry on the top of this “delicious” legal battle by daring Lady Gaga to “bring her legal team, we will bring our ice cream.” 

- Lens off my poker face.   Lady Gaga stirred another controversy by pushing the limits on publicity restrictions at her performances. According to the network station TBD, Lady Gaga required all photographers to sign a Press Release Form at her recent Verizon Center concert in Washington, D.C., automatically transferring all copyright ownership in the concert photographs to her. Reportedly, print media photographers were handed a less restrictive form, suggesting that the measure was mostly targeted at controlling the online distribution of the concert photographs.  

 - You’re cramping my Bold and Beautiful hairstyle.  The Bold and the Beautiful’s principal hairstylist filed a lawsuit against the show’s producers and its senior supervisor for allegedly defaming him in a performance review memo, calling him “lazy, incompetent and uncaring” and recommending his dismissal. The stylist, Carlos Pelz, reportedly claims emotional distress, anxiety, embarrassment, shame and humiliation and is seeking an unspecified amount of damages. Citing the show’s two consecutive Emmy awards for creativity, the coiffeur maintains in his Complaint that the show’s actors do not become bold and beautiful by accident.

- Copyright to World Cup Promo Song Lost in Translation.   A Florida federal judge tossed a copyright infringement suit against Coca-Cola over a World Cup 2010 marketing song.  The songwriter, Rafael “Rafa” Vergara Hermosillo, sued Coca-Cola for royalties and recognition in the song’s credits.  Based on an email negotiation exchange between Rafa and Coca-Cola, whereby Rafa agreed to adapt another song’s lyrics and translate some of the words into Spanish for the hefty sum of $1, the judge found that the songwriter had unequivocally assigned his copyright in the song to Coca-Cola and that the question of royalties was not relevant to the infringement claim before the court.     

 - Gergana Miteva

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.

Continue reading »

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

- The $50 million headline.  Katie Holmes slapped Star Magazine with a $50 million dollar defamation lawsuit over headlines claiming she is a drug addict.  The Complaint alleges that Star libeled Holmes with headlines stating: “KATIE DRUG SHOCKER” and “ADDICTION NIGHTMARE.”  The tabloid based its story on Holmes’ use of a device called an “e-meter” in Church of Scientology counseling sessions, which allegedly may trigger a person’s body to release endorphins causing a feeling of euphoria.  According to Holmes, exercising produces the same effect.  Star, of course, did not fail to mention the other half of TomKat in reporting further that the proclaimed addiction is “the reason she can’t leave Tom [Cruise].”

 - Creator of Betty Boop did not retain copyright: The Ninth Circuit Court of Appeals affirmed a lower court ruling that the creator of the Betty Boop cartoon did not hold a valid copyright in the character.  During the 1930s, Max Fleischer created the animated Betty Boop character, known for her distinctive appearance – a combination of big-eyed childishness and sophistication.  Years after Fleisher sold the intellectual property rights for the character, the Fleischer family attempted to repurchase them and later sued A.V.E.L.A., whose products included dolls, t-shirts and handbags featuring Betty Boop’s image, alleging copyright and trademark infringement. The court dismissed the copyright claim for lack of evidence that the Fleischer family owned the copyrights in and to the Betty Boop character.  In striking down the trademark claim, the court deemed A.V.E.L.A.’s use of Betty Boop’s image a “functional product” not likely to be associated with the plaintiff and thus not infringing on the trademark.

 - A shot at a lawsuit with Tila Tequila. A Los Angeles court ruled that Tila Tequila’s defamation suit against her former photographer may proceed. The MTV reality show star sued her former employee, Garry Sun, for allegedly defaming her on a celebrity gossip web site.  Sun countersued for defamation and intentional infliction of emotional distress, alleging that Tequila called him a “crazy paparazzi” that “needs to be put in jail.”  In addition to working for the reality star in various capacities, Sun had a romantic relationship with Tequila that concluded with her obtaining a three-year restraining order against him last November.  The judge found both sides’ allegations to be unclear and directed them to file amended complaints and “get this right” within 10 days.

 - Will Hulk “Bodyslam” Another Adversary?  Hulk Hogan, a professional wrestler and pop culture icon, is suing a car dealership for allegedly using his characteristic catch-phrases in a TV commercial. The complaint contends that the ad exploits Hogan’s celebrity identity when it warns consumers “tired of wrestling for a good deal” against getting “body slammed” with bad deals.  Hogan also cites the ad’s use of the catch-phrase “brother” when the ad characters address one another, as well as referring to biceps as “guns” and to fans as “Hulkamaniacs.” This suit comes as another installment in a series of similar lawsuits where Hogan has, in fact, succeeded in “body slamming” his adversaries and obtaining large settlements.

 - Too good to be false. The author of the critically acclaimed and commercially successful novel “The Help” filed a response to a former domestic employee’s lawsuit which contends that a character in the book was based on her.  The plaintiff, who seeks $75,000 in damages, claims she was humiliated by the novel because the character speaks in a thick ethnic vernacular and is subjected to racial slurs.  The author maintains the novel is entirely fictional and that the character is loosely based on a different maid that she had as a child.  So far, “The Help” has sold millions of copies and according to The New York Times, a film based on the novel is scheduled to be released this summer.

 - Gergana Miteva