Entertainment Law Matters

- Lady Gaga songwriters in legal scuffle over royalties.  Calvin “Sci-Fidelity” Gaines and Rob Fusari, co-composers of some of Lady Gaga’s mega hits from her album entitled The Fame, are in a $1 million legal battle over royalties and credit for the Lady Gaga songs. The two have worked together since 1997, composing and producing music for Destiny’s Child and Whitney Houston.  But their relationship went sour last year when Fusari purportedly ignored Gaines’s requests to get credit and royalties for the Lady Gaga songs.  In his complaint against Fusari, Gaines claims that Lady Gaga and her production companies have agreed to be bound by the ultimate outcome of the case and compensate him if he comes out victorious.  The Fame has been certified platinum three times and has sold over three million copies in the United States alone.  This is not the first time Fusari finds himself in court over his former girlfriend, Lady Gaga.  Last year, he sued the pop star for $30 million, claiming he discovered her, helped her develop her performance style and came up with her stage name.  The case was eventually settled out of court for an undisclosed amount. 

- Celebrity class action swept under the red carpet. A Los Angeles court dismissed actress Shirley Jones’s right of publicity claims against online celebrity photo licenser, Corbis, finding that she consented to being photographed at red carpet events.   Jones is a well-known stage and film actress (she starred in the filmed versions of Oklahoma! and The Music Man, but perhaps is best known for portraying Shirley Partridge in The Partridge Family, an ABC sitcom about a widowed mother of five who travels with her kids’ pop rock band).  By her complaint, Jones sought to be lead plaintiff in a class action lawsuit, to enable other celebrities whose photos have been displayed on Corbis’s website to join the lawsuit.  The actress accused Corbis of violating her right to control the commercial exploitation of her name, image and likeness, by displaying photographs of her for financial gain.  All of the ten photographs of Jones at issue in the case were taken at high-profile award ceremonies.  The court pointed out that walking on the “red carpet” and posing for photographers is a matter of choice for celebrities, because celebrities are made aware that there are other entrances they can use to avoid the paparazzi.  By making that choice, the court reasoned, Jones effectively consented to the commercial use and exploitation of the images.  The court further noted that a contrary finding would require individual photographers to get express consent from each celebrity.  The decision addresses Jones’s claims against Corbis, but it does not mean that a third party could use her image from one of these red carpet events for commercial purposes.  Any such use could lead Jones to file a new lawsuit.

“A real-life Indiana Jones” accused of being fictitious. Adventurer-turned-philanthropist, Greg Mortenson, is subject to a class action lawsuit accusing him of fabricating his memoir Three Cups of Tea, and of fraudulently styling himself as a “a real-life Indiana Jones” to sell the book.  The lead plaintiff, a Montana lawmaker who read the memoir, questions the facts of the two central narratives in the memoir.  The first is that during a failed attempt to climb K2, Mortenson was inspired by the kindness of the inhabitants of a small Pakistani village to build schools there, which he subsequently did through his charity, Central Asia Institute.  The second is that the Taliban in Pakistan kidnapped him and held him against his will in 1996.  The plaintiff claims the author tricked her into buying a “phony and fictional story,” which she thought was an inspirational memoir, and wrongfully induced her into donating to the Central Asia Institute.  She is asking for disgorgement of the book’s profits and for the book to be marketed as a work of fiction.  This class action lawsuit follows a 60 Minutes exposé on the book, outlining the program’s investigation of its veracity and concluding that Mortenson only visited the Pakistani village a year after he claims to have done so and that most of the schools he purports to have built either do not exist or were built by somebody else.  60 Minutes also broadcasted interviews with Mortenson’s alleged kidnappers who deny belonging to the Taliban and having kidnapped him.  Mortenson has responded to the program on his charity’s website, vehemently denying all accusations.  Three Cups of Tea remained number one on the New York Times best seller list for three years, it has sold over 4 million copies and it has been translated into 47 languages.

 - Gergana Miteva

A federal court in California recently found the central figure in Banksy’s street-art documentary entitled Exit Through the Gift Shop liable for copyright infringement.  The court found that defendant Thierry Guetta, a/k/a Mr. Brainwash, infringed upon plaintiff Glen Friedman’s copyright in his famous photograph (the “Photograph”) of the hip hop music group Run-DMC. 

In 1985, Mr. Friedman took the Photograph of Run-DMC’s three members.  The iconic image depicts the three artists standing shoulder-to-shoulder wearing black stetson hats. 

Guetta first appears in the Banksy film as a compulsive amateur videographer who shot numerous graffiti artists at work under cover of night.  As the film progresses, Guetta himself transforms into a street artist, operating under the moniker “Mr. Brainwash.”  In 2008, he hosted a Los Angeles art show entitled Life Is Beautiful to showcase his work.    

In the copyright infringement lawsuit Friedman brought against him, Guetta admitted downloading the Run-DMC Photograph from the internet, and also that he created four categories of artworks that incorporated aspects of the Photograph.  For example, Guetta combined an image of two of the three artists from the Photograph with a photograph of a 19th century couple.  For another work entitled “Broken Records,” Guetta eliminated the Photograph’s background, leaving the image of the trio.  He then projected the image onto a large piece of wood, painted on the wood, and glued 1,000 pieces of LPs onto the wood.  In another series of works, Guetta made a stencil from a copy of the Photograph and spray painted the stencil image onto canvases with different backgrounds. Continue reading »

A legal battle begins between the Metropolitan Museum of Art, a famed gallerist and a group of collectors over the rights to Mark Tansey’s painting entitled The Innocent Eye Test (1981) (the “Painting”), a painting of a cow gazing at a painting of two cows.  The case began after a collector accidentally sold the Painting, which he previously pledged to the Met.

According to court filings, sometime prior to June 1988, contemporary art dealer and collector Charles Cowles acquired the Painting.  In June 1988, Mr. Cowles agreed to donate the Painting to the Met.  He gifted a 1% interest in the Painting to the museum, and pledged that he would donate the remaining 99% of the Painting in the future.  Continue reading »

- False authorship lawsuit hits West Publishing in the pocket parts.  Recently, two law professors successfully sued West Publishing (Thomson Reuters Legal) for defamation after the publisher falsely attributed to them authorship of a pocket part treatise update.  While Professors David Rudovsky and Leonard Sosnov had in fact authored the treatise and several annual updates after that, they had refused to write the update in question because West had reduced their compensation.  After a jury trial, the plaintiffs each received $90,000 in damages and $2.5 million in punitive damages.  A Pennsylvania district court subsequently denied West’s motion notwithstanding the verdict, but did reduce the punitive damages award to $110,000 each because there was no jury finding that West acted with malice.  The court order requires West to choose between either accepting the revised award, or pursuing its motion for a new trial, but not both.

- ASCAP appeals to Supremes for review of “public performance” decision.  The American Society of Composers, Authors and Publishers (“ASCAP”) petitioned the Supreme Court to review the Second Circuit Court of Appeals’ ruling that downloading musical works over the Internet does not constitute public performance under the Copyright Act.  The Second Circuit concluded that the Act’s “public performance” factor requires “contemporaneous perceptibility” of the work, such as Yo-Yo Ma “draw[ing] the bow across his cello,” while downloading a song is merely transmitting music to a potential listener.  The court drew a distinction between a download and a streaming transmission over the Internet, explaining that the latter is a public performance because the user perceives the song simultaneously with the transmission.  Further, the download itself does not play the file and the user must take additional action to experience the work.  In its petition for cert., ASCAP argues that downloading a music file amounts to public performance for which the author is entitled to additional compensation (artists already collect royalties for copies created by the download).  ASCAP maintains that the Second Circuit’s interpretation of the Act was inaccurate because a public performance can occur even if listeners receive it “at different times” and that the Circuit court had created an “unworkable and inequitable statutory scheme that fails to account for emerging technologies.”

- BMG faces class action lawsuit over digital royalties.  Rob Zombie, Whitesnake, and other music performers are leading a federal class action lawsuit against UMG Recordings, Inc., claiming the world’s largest record company is shortchanging them on royalties from digital downloads and cell phone ringtones.  The musicians estimate they have been underpaid by tens of millions of dollars per year and seek restitution and declaratory relief entitling them to future royalties.  According to the complaint, UMG arbitrarily labels digital music downloads from online music providers like iTunes as a “sale” rather than a license and pays the artists a lesser royalty than the standard 50% payable in connection with a license to a third party.  The class action follows a Ninth Circuit ruling that UMG underpaid Eminem and other performers for digital music download royalties.  Rob Zombie’s lawsuit is based on the same grounds, which tips the scales in the musicians’ favor, especially after the Supreme Court refused to review the Eminem decision.  As the New York Times predicted in the wake of that ruling, its implications may indeed prove life changing for many aging musicians.

- Polo wears Ralph Lauren.  The United States Polo Association (“USPA”) will not be able to place the word “Polo” next to its Double Horsemen logo on a new line of perfume for men because a New York court ruled that such use infringes on Polo Ralph Lauren’s (“PRL”) trademark.  Federal Judge Robert Sweet found that USPA’s logo featuring two men on horses swinging polo sticks (PRL’s features one player in a similar posture) used in conjunction with the word “Polo” is likely to cause consumer confusion with the clothing designer’s perfumes.  USPA initially filed the suit in 2009 seeking a declaratory judgment that its logo does not infringe PRLs’ trademark.    The court denied USPA’s request and instead granted PRL a permanent injunction against USPA’s use of the logo.  In its ruling, the court relied on PRL’s consumer survey showing confusion in 27.8% of the participants.  The court also determined that PRL’s trademark is inherently distinctive and said that the USPA’s choice of colors and wording on the product suggested that they “intended to capitalize on PRL’s reputation and goodwill-instead of building their own.”  

- Gergana Miteva

Yet another “appropriation artist” has come under fire for alleged copyright infringement.  In 2007, Sarah Morris – an internationally recognized painter and filmmaker – debuted her “Origami Series,” which consists of almost 40 paintings.  She has publicly stated that they are based on origami diagrams, or “crease patterns,” which represent the folds needed to create three-dimensional origami sculptures. 

Recently, six origami artists filed suit against Sarah Morris in the Northern District of California for copyright infringement.  The complaint identifies 24 of Morris’s paintings that are allegedly “strikingly similar” to plaintiffs’ crease patterns.  Continue reading »

- 70’s Rat on Fire novel ignites copyright dispute. Acclaimed author George V. Higgins’s widow, Loretta Cubberley, filed a complaint against the Fund for Theatre and Television (“FTT”) to halt its production of a film based on Higgins’s novel Rat on Fire.  Cubberley charges that FTT lost the book’s exclusive motion picture rights it acquired in 1979, after sitting on them for over thirty years.  Higgins, who had a successful career as a Boston prosecutor, authored 25 books focusing on Boston’s criminal underworld and is considered one of the masters of the crime-novel genre.  He initially wrote Rat on Fire as a manuscript for a PBS television miniseries, which was never produced, and subsequently released it as a novel.  Cubberley speculates in her complaint that the miniseries project never came to light because PBS deemed the content inappropriate for public television (the book drew attention to some professional arsonists’ practice to set rats on fire and release them in targeted buildings).  She further contends that FTT dusted off the novel, in part, because a Brad Pitt film based on another Higgins book is in production.

- Harley-Davidson’s Brando boot starts off on the wrong foot. The iconic actor’s brand licensing entity, Brando Enterprises, is suing Harley-Davidson Motor Company for launching a line of boots called The Brando without authorization.  Brando’s estate is seeking an order to bar the sale of the product, plus punitive damages and any profits on the boots’ sale.  According to the Associated Press, the boots look similar to those the late actor wore in the 1953 film classic The Wild One, and although Harley-Davidson does not currently offer them, they can still be purchased through some online retailers.  A number of high-profile brands have licensing partnerships with Brando Enterprises, including Triumph motorcycles, MasterCard, and Dolce & Gabbana.

- Disney cedes Seal Team 6 trademark to the Navy. The Walt Disney Company announced recently that it is abandoning its application for the Seal Team 6 trademark “out of deference to the Navy,” following a competing application for the trademark by the Navy.  Two days after the Navy Seals overpowered Osama Bin Laden, Disney applied in the U.S. Patent and Trademark Office to trademark Seal Team 6.  Had it acquired the trademark rights, Disney would have been able to sell a branded line of products like toys, video games, Christmas stockings, and Christmas-tree ornaments bearing the Navy team’s name.  The Navy’s application for the trademark, filed ten days later, had the potential of blocking Disney’s bid if the media conglomerate had not voluntarily withdrawn it (the Navy already owns the trademark for “Navy Seals”).  There are currently three Navy Seals-themed films in production, including one by Hurt Locker director Kathryn Bigelow.

- Gergana Miteva