Entertainment Law Matters

Victor Willis, the former lead singer and songwriter for the famed 1970’s group The Village People, filed an action on April 25, 2011 in New York federal court against the band’s original publisher, Can’t Stop the Music, Inc.  The complaint alleges that the publisher breached several publishing and recording agreements by under-accounting for royalties earned by the group.  He seeks over $1.6 million in damages.  The Village People are responsible for such hits as Y.M.C.A., In the Navy, Go West and Macho Man.  Although recorded over thirty years ago, these songs are still recognized today and continue to generate significant revenue.  Judge Shira Scheindlin is assigned to the case.

-  Jeremy Goldman

Have you ever walked into a neighborhood bar and wondered whether the owners of the place paid to license the music playing in the background?

Section 106 of the U.S. Copyright Act clearly prohibits the unauthorized performance of musical works in public (which would includes bars), but do small bars and restaurants actually comply with this law?  Do any of them ever get caught and what happens when they do?  Are there droves of rock stars roaming from town to town on some kind of copyright enforcement bar hop to make sure that their songs are not being played without permission? Continue reading »

- When life serves you LimeWire…  The record industry may finally be enjoying some lemonade after a Manhattan federal court decidedthat damages may be awarded per infringed song in its lawsuit against peer-to-peer file sharing software LimeWire.  In 2006, thirteen record companies sued LimeWire for hosting as many as 11,000 of their copyrighted sound recordings.  Last year, the labels scored their first major win in the case when the judge agreed that LimeWire indirectly infringed on their copyrights by inducing users to download pirated content.  While the actual award will be determined by a jury next month, the ruling that both albums and single songs constitute infringed “works” threatens to bump up the damages to billions of dollars.

- Viacom/YouTube lawsuit.  The Hollywood Reporter is reporting that the two giant media companies have exchanged appellate briefs. Viacom is appealing from a ruling that YouTube postings of copyrighted Viacom content qualified for the Digital Millennium Copyright Act’s “safe-harbor” exception.  This holding places the burden on copyright owners to police YouTube for infringing material.  A New York federal court had ruled that YouTube could invoke the “safe harbor” because it had no way of knowing whether a video is licensed by the owner or that the owner objects to its posting.  In its brief, Viacom argues that placing the duty on copyright holders frustrates anti-pirating efforts because it allows newsworthy videos to be up long enough to satisfy viewers’ interest and compete with Viacom’s own content providers.  The media conglomerate further maintains that YouTube’s business model is based on actively attracting infringing content and “intentionally blind[ing] itself” by disabling its monitoring software.  YouTube counters that its service is entirely based on “legitimate origins,” providing a platform for aspiring artists, human rights causes, political information, etc., and that only Viacom is in a position to distinguish between clips that it uploaded itself for promotional purposes and pirated videos, claiming that even some clips in Viacom’s complaint were posted by Viacom itself or its agents. 

- Reality show Catch 22: To pitch or not to pitch? A Manhattan federal court recently handed down an opinion which is likely to make aspiring reality show producers think twice before pitching their ideas to a network.  In Castorina v. Spike Cable Networks, Inc., the plaintiffs sued Spike TV, claiming that its 2006 reality show Pros vs. Joes ripped-off their show Two Left Feet, which they unsuccessfully pitched to the network in 2004.  The Second Circuit Court of Appeals ruled that while both shows pit professional athletes and amateurs against each other, the similarities end there.  The court deemed most ideas for Two Left Feet to be “stock elements” that flow naturally from the very concept of amateur versus professional sports competitions in basketball, hockey, baseball, and football: “Indeed, it is difficult to fathom a sports reality program designed for the American television market that, instead of featuring these sports, would instead pit amateur Americans against professional camel jockeys, cricketers, and haggis hurlers.”  The judge acknowledged that the Two Left Feet concept could not have been too detailed because the reality show genre leaves specifics to the participants.  But under established law, only unique, particularized expressions of an idea can be copyrighted, leaving open the question whether reality show content enjoys less copyright law protection.

- “Muppet Workshop” in royalties squabble.  Former executive producer for Married with Children, Russel Marcus, is suing Disney, Jim Henson Co. and The Muppets Studio, claiming he is owed royalties for coming up with the idea for in-store customer-designed Muppets.  Marcus says that in 2000, Disney bought the rights from him to develop a workshop in its stores offering customers the opportunity to create their own Muppets from a generic Whatnot Muppet.  Reportedly, when Marcus contacted Disney to seek his share of the profits, the company replied that the endeavor has not been financially profitable, though a 2008 New York Times article quotes a Disney store manager rejoicing that “overnight, the workshop went from a soft opening to a global phenomenon. . . . .”

- Gergana Miteva

- Gere/Sarandon film in pre-production legal clash.  The writer and director of Arbitrage, Nicholas Jarecki, and the film’s former producer, Michael Ohoven, have each filed complaints against one another over who owns the production rights to the film.  The two collaborated on the screenplay without a written contract for months, casting Richard Gere and Susan Sarandon and securing the film’s budget.  It is now up to the courts to determine whether an option agreement for Ohoven to acquire rights in the production was ever executed.  The Hollywood Reporter reports that the sticking point was Jarecki’s insistence on shooting the entire film in New York, while Ohoven sought a more budget-friendly state like Louisiana.  Jarecki was the first to file a complaint, asking a New York federal court to declare him sole owner of the copyright.  Last week, Ohoven, through his production company, Infinity Pictures, hit back in California state court.  He claims Jarecki used his reputation (he produced Capote and other critically acclaimed films) as a “stalking horse” to lure prominent actors.  This off-stage drama sets a promising backdrop for the thriller, for which production is scheduled to begin this month.

- Online post of entire copyrighted article deemed fair use.  Copyright crusader Righthaven suffered its second defeat in federal court to a non-profit organization which published on its Web site a Las Vegas Review-Journal story about the local police’s relationship with immigrants.  As a copyright enforcer for the newspaper, Righthaven had sued the Portland, Oregon-based immigration organization for copyright infringement, but federal judge Hon. James Mahan ruled that the charity’s publication was “fair use.”  In a rare application of the fair use exception to exploit an entire copyrighted work, Judge Mahan said Righthaven’s use of the copyright was afforded lesser protection because its objective was to litigate rather than to protect the creative work, and it gave the non-profit no opportunity to remove the story before resorting to legal action.  Further, the non-profit posted the article online for non-commercial educational purposes and targeted a different audience than the newspaper.  Since last year, according to Paid Content, Righthaven has filed roughly 250 lawsuits against various Web sites and blogs and recently lost a similar case on fair use grounds (though that case involved only partial use of copyrighted work).  While it is early to speculate, this decision may have significant implications for non-profits and publishers everywhere. 

- OK for Oprah to read from presidential trivia booklet.  The Hollywood Reporter is reporting on the dismissal of  a $100 million copyright infringement lawsuit against the talk show queen for allegedly using material from a presidential trivia booklet without permission.  The author, Charles Harris, claims Oprah read content from the booklet on air, asking kids questions about presidential facts, one of which called for the name of the heaviest U.S. president – identified as William Howard Taft at 354 pounds.  Oprah said Harris failed to register his booklet as a compilation, which, as the court noted, is the one circumstance where historical facts are afforded copyright protection.  The court reiterated that facts are not copyrightable unless presented in some original form and that, while the booklet had “some hallmarks of originality,” in its essence it was a “piece of raw data,” rather than a creative work.

- Online store thrilled to pay $950,000 for Beatles copyright infringement.  Online music store BlueBeat.com has settled its $1 billion lawsuit with EMI – for less than $1 million.  EMI, owner of the copyrights in many Beatles works, sued when BlueBeat offered the entire Beatles catalog on its Web site at the “unreasonabl[y] low” price of 25 cents a song, without permission.  By the time BlueBeat took down the infringing music, it had already sold 67 million Beatles songs.  EMI won the first battle when a federal judge refused to indulge BlueBeat’s unusual argument that the infringing music files were “psycho-acoustic simulations” of the songs and scheduled a trial to determine damages.  To BlueBeat’s delight, the settlement agreement came just a day before the trial.  “I felt that was sort of an acknowledgement on their part that they don’t have the damages they claimed,” said a BlueBeat lawyer. Before BlueBeat stepped in to offer Beatles music online, EMI had elevated the online product to cult status by withholding it for years; indeed, only last year did iTunes add the Fab Four to its catalog.

- Hungry for Howard Stern’s Porky’s sequel? Prepare for an extended fast.  Just as controversial radio host Howard Stern was rolling up his sleeves to produce the next installment of the 1982 raunchy teen comedy, Mole Entertainment went to a Los Angeles Superior Court to claim that it owns the rights to the franchise.  In 2001 the rights holder Lontano Investments granted Mole Entertainment the exclusive option to make a Porky’s sequel within a certain number of years.  Apparently to retain its Porky’s remake rights, Mole produced a speedy sequel in 2009 named Pimpin’ Pee Wee, but did not distribute it.  With no knowledge of the sequel, Lontano went ahead with another Porky’s follow-up with Howard Stern.  Lontano maintains that to exercise its option, Mole would have had to put up a minimum budget of $10 million (it had only expended $1 million).  On the bright side, the temporarily derailed Howard Stern sequel is still on track to begin production.

- Gergana Miteva

Recently, a federal judge held famed “appropriation artist” Richard Prince and his gallerists liable for copyright infringement for Prince’s use of another’s photographs in his works.  The decision is a blow to Prince and his gallerists and may lead to a chilling effect on so-called “appropriation art.”

In 2008, photographer Patrick Cariou sued Prince and his gallerists, Gagosian Gallery, Inc. and Lawrence Gagosian (collectively, “Gagosian”).  Cariou is a professional photographer who took portraits of Rastafarians in Jamaica over the course of six years, which he published in a book entitled Yes Rasta.  In his Complaint, Cariou alleged that Prince committed copyright infringement by including images from Yes Rasta in Prince’s series of paintings entitled Canal Zone (2007).  Cariou alleged that Gagosian infringed his copyrights by displaying, advertising and selling the Canal Zone paintings.  

Twenty eight of the twenty nine paintings in the Canal Zone series include images from Yes Rasta.   Some of the paintings consist largely of images taken from Cariou’s book, which Prince collaged, enlarged, cropped, tinted and/or over-painted.   Other paintings incorporate smaller portions of the photos as collage elements and also include original painting and photos taken from other sources.  

After discovery, both sides moved for summary judgment.  The defendants sought a determination that Prince’s use of Cariou’s photographs constituted fair use under the Copyright Act.  Cariou sought summary judgment in his favor on the issue of liability for copyright infringement. 

On March 18, 2011, United States District Judge Deborah A. Batts ruled on the parties’ cross-motions.  She held that: (i) Cariou’s photos were entitled to copyright protection and (ii) the defendants’ infringing use of the photographs was not fair use.   Continue reading »