Even as consumers have focused ever more on the prospects of “cord cutting” — ditching pricey monthly cable fees for a carousel of online, cheaper services — a hush had settled over a potential mega media merger, this all occurring since back in October when the Federal Communications Commission (FCC) paused the unofficial 180-day clock on the review of the proposed merger between Comcast and Time Warner Cable. A federal appeals court, however, recently blocked the FCC from ordering the public disclosure of programming contracts. As part of the U.S. government’s review of the Comcast Corp. takeover of Time Warner Cable Inc., the FCC claimed it needed the media companies to publicly release such information showing fees paid by cable providers to the media companies that provide programming. CBS Corp. and other media companies sued in Washington, and the FCC’s disclosure was put on hold pending court review. The court sided with the media companies that such making such information publicly available would put media companies at a disadvantage, stating that “the agency has access to the relevant documents at issue in this matter and can continue to evaluate the proposed merger during the stay.” Meantime, the review of the Comcast-Time Warner merger continues.
You paid a nice chunk of change and you do own that Entertainment-related intellectual property, right? It may sound familiar to fans of digital music who sought to resell their “used” collections through the online marketplace ReDigi, but a new battle has erupted regarding some of the coolest video games — products that these days have become as big an Entertainment cash-register ringer as the movies. Many video game publishers increasingly require their customers-buyers to connect into publishers’ servers to unlock a game for playing. But here’s the twist: publishers often take those servers offline as soon as they are no longer economical to run. The Electronic Frontier Foundation says this leaves gamers unable to play the lawfully purchased video game. In response, the EFF has petitioned the Copyright office and Librarian of Congress seeking an exemption to the Digital Millennium Copyright Act’s (DMCA) anti-circumvention provision. This exemption would allow video gamers to circumvent the authentication checks and connections to the servers so that they could continue playing their games after they officially end. (more…)
It’s suddenly legal deja vu all over again:
Another legal defeat for SiriusXM, a win for Flo & Eddie
- SiriusXM has received another adverse ruling for its unauthorized public performance and reproduction of The Turtles sound recordings, and specifically their ever-popular and hit song “Happy Together.” As mentioned in a previous post, the two artists of the Turtles, Flo & Eddie, sued Sirius in California and were grated summary judgment. Then, last week a federal judge in New York also denied Sirius XM’s motion for summary judgment in a second lawsuit brought by Flo & Eddie, who are suing in different states because state laws protect sound recording authored before 1972. The rulings suggest that pre-1972 sound recordings include an exclusive right to publicly perform the song, so the artist has the say if these services such as SiriusXM or Pandora want to stream their music.
Ninth Circuit to reconsider ‘Innocence’ ruling en banc
- The U.S. Court of Appeals for the Ninth Circuit has agreed to meet en banc to reconsider an earlier, 2-1 decision involving the now-infamous Innocence of Muslims movie. As an earlier post describes, the appellate decision ordering Google to yank all copies of the film, including from YouTube, was greeted with legal consternation. Yes, the film itself proved to be a notorious, and some say blasphemous, mess, linked to mass protests globally and the deaths of several dozen people. But actress Cindy Lee Garcia got a twin surprise — she asserted she was duped into starring in the film, then, to the shock of many legal analysts, the appellate court found that an actor’s fixed performance may be copyrighted if it meets a minimum level of creativity and rejected the possibility that Garcia’s performance was a work for hire. The case has attracted sufficient attention so that the Ninth Circuit not only is reconsidering the matter, it also has created a special web page for those tracking this case.
Appellate court will re-review artists’ rights case en banc
- And while the judges in the Ninth were in the mood or mind: The appellate court also has agreed to meet en banc to reconsider a case that has the art community abuzz. It’s all complicated and involves fees that artists under state law are entitled to collect on resale of their works. There are some big names involved, including the art auction houses Christie’s and Sotheby’s, and the estates of Sam Francis, a renowned California abstract painter and printmaker, and Robert Graham, a California sculptor. Whether the so-called droit de suite allowed under California law is enforceable outside the Golden State, got the appellate judges in a twist that led to legal appeals and the reconsideration.
Southwestern Law School has honored three attorneys for their contributions to the entertainment and media industries, the legal profession and legal education at the Donald E. Biederman Entertainment & Media Law Institute Awards Reception. Daniel M. Petrocelli ’80 received the award for Outstanding Alumnus in Entertainment and Media Law; Jared Jussim was recognized as Outstanding Adjunct Professor in Entertainment and Media Law; and the late Ed Hookstratten ‘57 received the Donald E. Biederman Legacy Award. The reception was hosted by the Biederman Institute and Southwestern’s Entertainment and Intellectual Property Alumni Association. Sponsors included O’Melveny & Myers LLP, Warner Bros., and Early Sullivan Wright Gizer & McRae LLP and Howard Kurtzman ’79.
“This year’s slate of honorees is a testament to the superb quality and extraordinary accomplishments of our alumni and our adjunct faculty,” said Professor Steven Krone, Director of the Biederman Institute. “Dan and Jared have both risen to the highest levels in their professional career while finding time to also contribute mightily to the profession and the community at large, as did Ed before his passing. We are very proud to have them as members of the Southwestern family.”
What is an artist worth? Well everything, if one is trying to profit off her intellectual property, as Entertainment lawyers well know. Taylor Swift has reminded the music industry of the artistic preminum by pulling her music off Spotify — a reported $6 million move. This sent a message to streaming services, some analysts contended, that songwriters have the right to do what they want with their intellectual property and the services must value their creations, not the other way around. (more…)
Pharrell Williams, Robin Thicke, and Clifford Harris, Jr. (a/k/a T.I.) have taken Marvin Gaye’s family to court after receiving threats from the family that the hit song Blurred Lines was a knockoff of Gaye’s Got to Give It Up. The contemporary crooning trio filed a motion for summary judgment hoping this would settle the dispute. But U.S. District Judge John A. Kronstadt has written that he is likely to deny the motion, finding genuine issues of material fact that the songs were substantially similar as to protected elements. The ruling is not a full-on defeat, and it is unclear if the case proceeds to trial, though Kronstadt also has ruled on other case motions to compel further responses. The case has attracted considerable attention, with both sides using musicologists and mashups to debate copyright law. Gayes’s family accuses Thicke of having a “Marvin Gaye fixation.” What’s at legal issue? Give a listen and compare the songs in dispute:
In a world in which consumers can access movies in multiple ways — including with on-demand streaming services like Netflix or through cable or satellite providers and on an array of devices and locations –movie theaters will continue to thrive for now, despite some troubling long-term audience and revenue trends, a panel of experts told a recent, major gathering of Entertainment Law practitioners. (more…)
Although Aereo has said it is taking “just a pause” from providing customers Internet-based streaming of broadcast television — a service that has relied on the notion that thousands of tiny antennas are each dedicated to capturing and singularly transmitting a live public signal to customers — a federal judge in New York has issued a preliminary injunction that many industry analysts see as a potential legal terminus for the company and its vaunted high-tech end-around copyright laws. U.S. District Judge Alison Nathan in Manhattan issued the order last week barring Aereo from “streaming, transmitting, retransmitting, or otherwise publicly performing any Copyrighted Program over the Internet (through websites such as aereo.com), or by means of any device or process throughout the United States of America, while the Copyrighted Programming is still being broadcast.” He effectively shut the door on Aereo’s latest gambit to deem itself akin to a cable company and to seek to pay providers for their content. Aereo had claimed it did not need to fork over broadcast fees because its novel technology pulled in publicly available programming and it should be free, in keeping with copyright laws. In June, the U.S. Supreme Court rejected that argument, finding the Aereo service violated the Copyright Act of 1976’s Transmit Clause. The High Court remanded the case back to the lower federal court in New York. Based on the case’s current trajectory, Nathan said he could issue his injunction because the broadcasters who sought the order likely would prevail in the case.
How do companies or individuals protect their intellectual property overseas? This has been the topic for robust discussions among content producers, providers, and distributors in the entertainment industry for some time. Complications exist in protecting IP rights abroad in countries such as China. The various international agreements do not always provide seamless protection of IP across boarders, as they do not always conform to the laws in each member country.
A distinguished group of experts tackled issues of international Intellectual Property for an audience of JD candidates at Southwestern Law School recently, with the speakers including: Professor Robert E. Lutz, recently honored as “International Lawyer of the Year” by the State Bar of California International Law Section; Professor Silvia F. Faerman, (right) author of many scholarly articles concerning international trademark and patent protection with a focus on Argentine law; and Chris Reed, Senior Counsel of Content Protection Policy with Fox Entertainment Group and formerly Senior Adviser for Policy to the Register of Copyrights at the United States Copyright Office.
Lutz (left) discussed how the United States signed the Trade-Related Aspects of Intellectual Property Rights (TRIPS) accord as a non-self-executing agreement. That is, he explained, typical of these kinds of agreements with respect to the U.S.: A non-self executing treaty does not become judicially enforceable within a country until its provisions have been further implemented by legislation. So even though countries may agree to sign these various international accords, the countries’ citizens may not be able to invoke provisions of the treaty; it takes additional implementation by a specified government to confer domestic enforcement responsibilities on governmental agencies or on civil society.
Professor Faerman explained how intellectual property laws in the civil-law countries focus more on protecting the author rather than the corporate owner of copyright. For instance, those countries provide moral rights protection to the authors atop economic rights. Unlike the economic rights on a copyrighted work, moral rights cannot be assigned and waivers are unenforceable. By contrast, the United States recognizes moral rights on a very limited type of works, and those rights may be waived by the author.
Reed (right) spoke about the national and international protection of content, such as movies, television shows; he explained how the entertainment industry uses technological protection measures, afforded legal protection by certain international agreements, to offer content on different platforms, at different times, often at different price points, thereby advancing consumers’ interests.
While many of the Entertainment Law matters that dominate the daily headlines involve litigation, a number of Entertainment’s legal issues also get settled through private negotiations outside the media glare: Just this weekend, for example, SAG-AFTRA’s Executive Board ratified new contracts –the TV Animation Agreement and Basic Cable Animation Agreement. Negotiations that led up to these accords lasted three days. The agreements address pay raises, increased contributions to Pension & Health/Health & Retirement Funds, and reduction in unpaid free streaming, as well as a new, residual from free, on-demand viewing through cable boxes. (more…)