Aereo decision: a ‘narrow textual analysis?’

July 8th, 2014 by Brittany A. Stone

grimesProfessor Warren S. Grimes, who helped write an amicus brief in support of defendant Aereo in American Broadcasting Cos. et al v. Aereo Inc., kindly  followed up on his recent Q-and-A with  Biederman Blog editor Brittany A. Stone about the U.S. Supreme Court ruling in this much-watched, much-discussed case:

BB: I understand you were involved in filing an amicus brief in the Aereo case, on the side of Aereo.  Were you surprised at the result?

WG: As part of the Southwestern Amicus Project headed by Prof. Michael Epstein, I assisted third-year law student Andrew Pletcher in drafting an amicus.  Pletcher was the primary draftsman, but he received guidance from me, from Prof. Epstein, and from others. [See video below] 

We were disappointed in the result, but there is never any certainty in litigation, particularly in a hotly contested case of this sort.  One surprise for me was that in the 6-3 decision, the three justices who dissented were [Antonin] Scalia, [Samuel] Alito, and [Clarence] Thomas, justices that I would not necessarily have predicted would side with Aereo.  Both the majority and the dissent, however, were focused on a narrow textual analysis of copyright legislation, not on the broader competition and policy issues addressed in our amicus brief. Essentially, the majority opinion conceded some ambiguity in the statutory language, but sought to discern what Congress would have intended had they confronted the precise issue raised in the Aereo case.  The dissent took a narrower view of the language, with Scalia suggesting that what is not expressly addressed in the statute is not covered.   Read the rest of this entry »

Posted in Copyright, Intellectual property, Technology, Television

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Pay that funky law bill, appellate court decrees

June 27th, 2014 by Brittany A. Stone

A botique Seattle law firm that provided considerable legal representation for musician George Clinton now also has brought the funk, winning an appellate decision that will see masters of the song writer’s recordings sold to satisfy big debts he owes to his one-time counsel.

After long battles among Clinton, Hendricks & Lewis, and Warner Bros. Music, the U.S. Court of Appeals for the Ninth Circuit has affirmed a ruling allowing for the sale of the masters, resolving one of the main issues in the case: the decision to allow works made-for-hire to be sold to pay debt.

This was permitted only because the copyright had been voluntarily transferred by Warner Bros. prior to this battle. Because Hendricks & Lewis showed that Clinton owed $1.7 million, the firm asked the court to force the sale of his recordings: One Nation Under a Groove, Hardcore Jollies, Uncle Jam Wants You, and The Electric Spanking of War Babies, to pay up his account.

The appellate judges obliged this, reckoning that it might not have under others circumstances. Appellate Judge Morgan Christen, writing for the three-member panel, allowed the sale under Section 201(e) protection of U.S. copyright law, deeming a work that previously has been voluntarily transferred is not accorded protection of involuntary transfer of protected works. Further, because Clinton wrote these pieces while working for Warner Bros., the company, in fact, is the initial author and owner of the work, making Section 201 protection unavailable to Clinton, the appellate court said.

What does this mean for work-for-hire copyright law? This created a newly carved out realm of litigation for entertainment lawyers, copyrighted properties usually cannot be forcibly transferred. But considering the works made-for-hire may have been transferred once already, this may affect future lawsuits by artists who have copyright to their works transferred to them at some point in their career. Where will that leave the industry now, as this landmark decision could change many future cases regarding the sale of copyrighted properties?

Posted in Copyright, Music, Procedural

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‘Beasties’ win battle to preserve a legacy

June 22nd, 2014 by Brittany A. Stone

beastiesThe Beastie Boys recently won a $1.7 million lawsuit against Monster Energy drinks for the company’s 2012 use of a mash-up consisting of five Beastie Boys songs. DJ Z-Trip gave Monster permission to use his mix, which contained the copyrighted songs. Although there have been many music infringement cases that specify how many bars can be “borrowed” legally (which really is not accurate, and the higher the similarity, the more likely an infringement will be found), this litigation boils down to a key fact: DJ Z-Trip had no authority to sell a mix of copyrighted material without consulting the band for permission to use their music further.

Beside infringing on the Boys’ music, the energy drinks’ music video at the end projected an image that said “RIP MCA,” looking very similar to Monster’s logo, which the band felt qualified as an endorsement by the late artist. But  Adam “MCA” Yauch in his will specified that his name could not be used for promotional purposes. His following was great and his legacy was cherished by many. Two members of the band, Adam “Ad Rock” Horovitz and Michael “Mike D” Diamond filed suit for $1 million each in damages as well as $1 million for the purported endorsement. Read the rest of this entry »

Posted in Copyright, Intellectual property, Music

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It’s elementary, Sherlock, claim’s too quixotic

June 19th, 2014 by Brittany A. Stone

basil_rathbone_2Modern lore, especially courtesy of movies and television, is filled with many different depictions of that famed Baker Street detective Sherlock Holmes and his Boswellian companion, Dr. John Watson. And while actor Nigel Bruce may have fleshed out Watson as a flabbier character than an army medic recently returned from the rigors of campaigns in India or Afghanistan, cinephiles, especially, would be hard pressed to envision a portly Sherlock. So were lawyers for the Estate of Sir Arthur Conan Doyle, creator of these classic characters, in trouble already in arguing before one of the famed appellate jurists of this day about a “round” late-career Holmes and Watson, deserving of more than a century’s worth of copyright protection? Yup.

In his typically crisp and acerbic fashion, U.S. District Judge Richard Posner, writing for the U.S. Court of Appeals for the Seventh Circuit, has just shredded a novel argument that copyright on a literary creation should be extended just because characters change and develop over time. This keeps the Sherlock Holmes canon, of course, in the public domain.

The judge, whose opinions are oft-cited and are known for their sharp prose, dipped into his legal lexicon to describe the defendant-appellant’s legal theory in this copyright case with the same term he used to describe the war on drugs, dubbing both “quixotic.” Ouch. He also remarked about counsel’s futile attempt to persuade by drawing large circles in the air with his arms. There was lots of flailing in the case and here’s why. Read the rest of this entry »

Posted in Copyright, Film, Intellectual property

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Hollywood’s sky-high over shot at drone filming

June 5th, 2014 by Brittany A. Stone

drones-for-film-productionWhat’s the buzzing high above? It may be unmanned aircraft systems aka drones skittering around or it also  just may be the rising film industry chatter about prospects for using the high-tech devices in new ways in Hollywood — this all triggered by statements from the Motion Picture Association of America and and the Federal Aviation Administration that seven media companies formally have requested federal approval to shoot television and movie footage from the air with the craft that earned their wings, so to speak, on recent and distant battlefields. (Thanks to variety.com for the drone image.)

What’s with the sudden whoosh of activity in this sky-high film making regulatory area? Strap on those seat belts and watch this monitor: Read the rest of this entry »

Posted in Film, Procedural, Regulations, Regulatory matters, Technology, Television

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In EU, anti-terrorism act runs afoul of privacy

May 7th, 2014 by Karen Hao

metadataThe European Court of Justice has ruled that the Criminal Justice (Terrorist Offences) Act 2005, which required all telecommunications providers to retain telephone and Internet metadata, violated the privacy rights of individuals. The court, the European Union’s highest judicial body, sought to balance the act’s legitimate law enforcement and anti-terrorism purposes against the fundamental privacy rights of individuals; the judges said the act violated the principle of proportionality and was insufficiently circumscribed to ensure interference was limited to the strictly necessary. Read the rest of this entry »

Posted in International, Privacy, Regulations, Regulatory matters, Technology

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‘Tango & Cash’ skirt miffed Texas teen’s suit

May 5th, 2014 by Valerie A. Roque

What’s in a name and a little cross-dressing? Well, neither may not be a successful source for litigation in Texas. A federal court in Austin has dismissed Gabriel Seale’s complaint against Warner Bros Entertainment, asserting that the studio’s Tango & Cash movie, specifically the character Gabriel Cash, defamed, libeled and slandered Seale because they share the same first name. (Thanks to entlawdigest.com opinion here.)

Seale watched the cop-bro flick in 1990 with a group of friends, in Modesto, Calif., at age  16 and claimed his reputation was harmed. He says he was teased by friends because he shares the same first name as the protagonist Cash (Kurt Russell) who in the film dresses as a “woman with lipstick, a woman’s miniskirt, and woman’s high heel shoes.”

Let’s see how the court decided to tell this plaintiff to take a powder:

Read the rest of this entry »

Posted in Film

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With infringing rap game, elusive damages

April 30th, 2014 by Karen Hao
4MM's Def Jam Rapstar

4MM’s Def Jam Rapstar

So you’re a Entertainment Law litigator and you get a case in which the facts seem on your side and the monetary damages that might follow could sound, well, juicy. As a recent case involving a rap song video game shows, however, litigants should not count their money in a lawsuit before all the ink’s dry on all the papers.

Consider: What seemed like a copyright infringement lawsuit in New York with a potential $8 million payoff, well, honey, a federal magistrate and a U.S. District Court judge shrank that award.  (Online decision posted, courtesy of Courthouse News.) And, combined with a no-show defendant, that led counsel, figuratively, to whistle in the air and wonder about, is it leprechauns and their booty at the end of rainbows?

Let’s look at what happened, starting in 2009, when 4MM, a video-game developer and publisher of Def Jam Rapstar, approached Capitol Records to license recordings for a rap song game with an agreement that 4MM never paid. Read the rest of this entry »

Posted in Copyright, Intellectual property, Music, Video Games

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Film’s free speech KO’s killer’s publicity rights

April 27th, 2014 by Kasia Campbell
Image credit: Aceshowbiz.com

Image credit: Aceshowbiz.com

The true life story of Chris Porco, a University of Rochester student convicted of killing his father and attempting to kill his mother, seemed like something out of a movie. The story was so horrific that it drew national attention. And soon followed a Lifetime Television film, Romeo Killer: The Chris Porco Story, depicting the notorious protagonist’s criminal investigation, trial, and conviction. Once Porco learned of Lifetime’s plans, however, he sued the cable network for violating his publicity rights under New York law and sought to enjoin the company from airing the movie. A New York state court ruled in Porco’s favor, banning Lifetime from airing and promoting its film.

Now an appellate court has reversed that decision in a case that reminds about the conflicts when constitutional and individual (publicity) rights collide. Read the rest of this entry »

Posted in Film, Intellectual property, Right of publicity, Television

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MP3tunes loses a $41-million copyright case

April 23rd, 2014 by Karen Hao

Screen Shot 2014-04-15 at 4.58.42 PMA New York jury has ordered Michael Robertson, founder of MP3tunes.com, to pay an estimated $41 million in damages for infringement of copyrights owned by EMI Group. MP3tunes was best known for its cloud music service that allowed users to store music in online lockers, which could be downloaded through any internet device. MP3tunes.com is still online, offering cloud storage but no longer offering music to download.

In 2007, EMI sued MP3tunes, and, in 2012, MP3tunes filed for bankruptcy. The judge originally granted summary judgment to EMI, holding that MP3Tues and Robertson were liable for direct infringement for personally uploading some songs and there were issues of “willful blindness” and “red flag knowledge” regarding other songs on the site. In 2012, the U.S. Court of Appeals for the Second Circuit addressed the Digital Millennium Copyright Act’s safe harbor in Viacom v. YouTube, and as a result, the judge in MP3Tunes withdrew his prior summary judgment ruling.

While Robertson tried to argue that his infringements did not rise to a level of what is “objectively obvious” to a reasonable person, however it was ultimately up to the jury. The jury came back with a ruling that MP3tunes was willfully blind, leading to an estimated $41 million damages verdict including $7.5 million in punitive damages. This late March ruling was celebrated by the entertainment industry’s copyright advocates may have inspired Hollywood Studios to sue Megaupload in addition to suing Megaupload founder, Kim Dotcom.

Posted in Copyright, Intellectual property, Music, Technology

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About Biederman Blog

This site is an academic activity of law students at the Biederman Entertainment and Media Law Institute. Founded in 2000, the Institute takes full educational advantage of Southwestern Law School's location in Los Angeles and its long history with and deep connections to the entertainment industry.