Entertainment Law Matters

- Float like a butterfly, sting like a lawsuit.  Muhammad Ali Enterprises (MAE), owner of the famed boxer’s intellectual property and publicity rights, is suing Canadian digital reading device manufacturer, Kobo Inc. (“Kobo”), for using Ali’s slogan “Float like a butterfly, sting like a bee,” without permission.  In its complaint, MAE accuses Kobo of making unauthorized commercial use of its registered trademark for the slogan in a New York Times advertisement.  MAE claims that Kobo featured the phrase as its “attention getter” by making it “the most prominent wording on the page.”   To establish Ali’s and his slogan’s recognition, MAE quotes a 2011 study which ranked the boxer as first among all athletes in familiarity among 12-64 year-old Americans.  MAE further describes its highly selective licensing process for the phrase, listing Gatorade, Epson, and Intel as prominent companies which have licensed it for use in various commercial campaigns.  MAE is seeking an injunction against further use of the advertisement, as well as damages.

- Latin Jazz musicians sue the Grammys for cutting their category.  Four Latin Jazz musicians filed a class action lawsuit in state court in New York after the organizer of the Grammy awards, the National Academy of Recording Arts and Sciences, eliminated the Best Latin Jazz Album award category.  “The concern is [that] by lumping several categories together, it makes it much easier for larger record labels and those artists who have already gained recognition to dominate,” one of the plaintiffs said.  In their complaint, the musicians accuse the academy of harming their career by depriving them of the opportunity to be nominated for or win a Grammy.  According to the complaint, the category was started in 1995 to bestow “a long-overdue recognition to the highly-regarded artistic work of musicians who blended the improvisatory leaning of jazz with the native music and cultures of the Caribbean and Central and South America.”  The musicians are seeking class action status and are hoping that more artists will join them.  The recording academy has issued a statement  describing the lawsuit as “frivolous” and “without merit.” 

- Judge allows athletes’ publicity rights suit to proceed.  A federal judge rejected Electronic Arts’ motion to dismiss antitrust claims alleged against it in a class action lawsuit filed by former college basketball and football stars.  The athletes alleged that the NCAA and its licensing arm, the College Licensing Company, conspired with Electronic Arts (EA) to fix prices on student athlete compensation, preventing plaintiffs from the ability to control and profit from the use of their publicity rights.  According to the plaintiffs, the NCAA and CLC licensed out the athletes’ images, likenesses, and names to EA and included in the contract a provision setting athletes’ compensation at zero.  Although EA’s video games identify the athletes only by number, they permit players to upload rosters containing the athletes’ names and statistics.    Rejecting EA’s motion to dismiss, the federal judge pointed out that EA agreed to go beyond the NCAA’s rules against current student athlete compensation by not offering compensation to former student athletes.  Trial is set for March 2013.

 - Gergana Miteva

A federal court recently issued a preliminary injunction prohibiting a website operator from displaying the only available photograph of a painting entitled Salvator Mundi, which was recently attributed to Italian Renaissance painter Leonardo da Vinci.  The decision is a win for the owner of the photograph, who licensed it to museums and publishers for exhibitions, prints and other art merchandise. Continue reading »

Marvel Worldwide, Inc. v. Kirby, No. 10 Civ. 141 (CM) (KNF), 2011 WL 3207793 (S.D.N.Y. July 28, 2011).

On July 28, 2011, Judge McMahon of the Southern District of New York granted summary judgment in favor of Marvel and against the children of famed comic book creator Jack Kirby, who passed away in 1994.  As reported in our earlier blog post, Marvel filed the action for declaratory judgment against the Kirby kids after they issued 45 notices to Marvel purporting to terminate, pursuant to Section 304(c) of the U.S. Copyright Act, their father’s assignment of his copyrights in several prized comic books published by Marvel between 1958 and 1963, featuring the adventures of Spiderman, The Fantastic Four, Thor, The Incredible Hulk and The X-Men, among others.  Continue reading »

- John Grisham’s The Firm in a real-life legal drama.  CBS filed a lawsuit against one of its writers, Lucas Reiter, claiming he illegally re-sold to NBC a 2008 TV series pilot script based on John Grisham’s legal thriller The Firm.  Reiter is a freelance writer who has also authored episodes of legal drama series Boston Legal and The Practice.  In its complaint, CBS claims it paid Reiter $250,000 for the exclusive rights to the script, but the writer licensed a “cut-and-paste” version of it to NBC for its upcoming series The Firm, with identical dialogue, plot details, and even camera direction: “[Reiter] expressly acknowledged CBS’s rights to this material and went so far as to ask CBS’s permission to take the project elsewhere.”  CBS is suing the writer for breach of contract and tortious interference with contract.   NBC’s upcoming series is scheduled to premiere later this year and it is rumored to pick up where the 1993 film The Firm, starring Tom Cruise, left off.

- Accused ChrisFarley.com cybersquatter keeps domain name.  A National Arbitration Forum arbitrator has denied an anti-cybersquatting complaint that was brought against the current owner of the chrisfarley.com domain name.  Make Him Smile, Inc. claimed that after the actor’s tragic death in 1997, his family transferred all of its intellectual property rights to it, including the “Chris Farley” mark.  In its complaint, Make Him Smile, Inc. accused the Bahamas-based owner of chrisfarley.com of registering the domain name in “bad faith” – to commercially exploit the comedian’s celebrity by redirecting internet traffic to unrelated commercial websites.  The arbitrator agreed that Chris Farley would have had common law rights to use the “Chris Farley” mark, but that Make Him Smile, Inc. did not establish that Farley’s family transferred the rights to it or that its use was sufficient to establish common law rights.  Farley is best remembered for his roles on Saturday Night Live and Tommy Boy.

- Happy Days cast not appeased by modest checks for multimillion dollar lawsuit.  Lawyers for the four Happy Days cast members, who are suing CBS for over $10 million in unpaid royalties, reported that the actors have received checks between $6,000 and $6,500 each as “payment in full” from the network.  The iconic sitcom’s cast filed a lawsuit in April seeking a cut of the network’s revenue from licensing the actors’ videos, images and voices for merchandise ranging from slot machines to lunch boxes.  “In our view the checks were issued as a PR move so that CBS could say, ‘We paid the actors something,’” the cast’s attorney Jon Pfeiffer said, “The checks will have no impact on the cast’s resolve to obtain what they feel is owed to them, and will continue to pursue their case.” 

- Gergana Miteva

At least when it comes to trademark and false advertising cases, reader comments to blog posts may not be worth much more than the “paper” on which they are written.  Affirming the Delaware district court’s decision, the Third Circuit Court of Appeals stated that user comments, as a general matter, were insufficient to establish consumer confusion, a crucial element of deceptive advertising claims under state and federal law.   Such comments, the court explained, are difficult to authenticate, easy to manipulate, and do not necessarily indicate the opinions of the relevant universe of consumers. Continue reading »

To what extent will a U.S. court entertain copyright claims involving a foreign defendant and its activities abroad? A recent federal district court decision examines this question. In Rundquist v. Vapiano SE, Swedish photographer Ewa-Marie Rundquist alleged that Vapiano, an international restaurant chain, was using her photographs without permission as a “central décor element” in its restaurants around the world and on its website, giving rise to claims of copyright infringement under the laws of the U.S. and fifteen foreign countries. Continue reading »