An appellate reverse on records law for movies

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The movie industry long has fought any efforts to impose content-based restrictions, with the courts and the law recognizing and giving wide berth to Hollywood’s First Amendment privileges.

But a surrogate sector of movie making–the billion-dollar adult entertainment industry–almost from its start has borne the brunt of efforts to impose government restrictions, also battling in the highest courts over whether blue laws are reasonable or outright censorship. These movies makers scored a win recently when the U.S. Third Circuit Court of Appeals threw out a lower court decision and ruled in their favor on a case involving performers and film-makers’ need to maintain records about them.

Though proponents of the requirements said they provided a deterrent to exploitation of under-age actors and actresses and a tool to combat child pornography, which isn’t constitutionally protected, opponents said the rules edged into the territory of content controls barred by the First Amendment. (more…)

A problematic ruling on password sharing

9th sigThis guest post was contributed by a blog alumna, and a newly graduated Southwestern juris doctor, who notes that she would have weighed in on this topic sooner, except she was studying and sitting for the most recent California Bar exam.

The Internet went into a tizzy early last month when United States v. Nosal came down from the U.S. Ninth Circuit Court of Appeals. Blog after blog (after blog) proclaimed that this opinion made it illegal to use another person’s Netflix account. Earlier this year, this blog posted on this topic so how did the situation change?

Bottom line: the court found that defendant David Nosal violated the Computer Fraud and Abuse Act (CFAA) when he used a former co-worker’s password to access trade-secret information belonging to Korn Ferry, an executive recruiting and human relations company that also was his former employer. He then took this information and used it to set up his own firm in direct competition to Korn Ferry. This would lend credence to the idea that mere password-sharing is illegal.

But it is important to remember that the court made a distinction, differentiating according to the situation. “The circumstance here – former employees whose computer access was categorically revoked and who surreptitiously accessed data owned by their former employer – bears little resemblance to asking a spouse to log into an email account to print a boarding pass,” the appellate judges said. (more…)

Judge maps out where a mark won’t hold

Mention the appellation Westsiders to those who know well the self-proclaimed entertainment capital of the world, and heads nod in knowing acknowledgement: Yes, those who reside in Los Angeles, west of La Cienega Boulevard, are, indeed, a peculiar people. Similarly, the Pet Shop Boys, an English pop duo, scored a 2000 hit by describing the affinities of London’s distinctive “West End girls and Eastern boys.”

But when it comes to residents of a slice of Manhattan, denizens of the Lower East Side or Loisaidas, is that a sort of generic geographical descriptor en Espanol, or is it a name of a group of people, say, a band, that can be trademark protected by a “urban bachata” duo hailing from the neighborhood? And, more key, if a film mentions Loisaidas repeatedly, including in its title, is that a trademark infringement?

No, a federal judge in New York decided recently,  dismissing a lawsuit against Kanye West, Damon Dash, and various corporate entities associated with Dash. The court found that Loisaidas, the film series by West and Dash, has artistic relevance and is protected by the First Amendment. (more…)

400,000 reasons to stop a dubious ‘Loca’ lawsuit

A federal judge in New York sent a punishing message to persistent litigants seeking to prolong claims that have proved without merit: Just stop now. And, by the way, he told them, pay up for attorney fees for opposing counsel.

U.S. District Judge Alvin K. Hellerstein has ordered Mayimba Music Inc. to fork over $400,000 in legal fees and nontaxable expenses resulting from its curious copyright infringement case against Sony/ATV Latin Music Publishing LLC and Sony/ATV Discos Music Publishing LLC over pop star Shakira’s hit song Loca. The court found that Mayimba had presented dubious evidence and failed to prove infringement. (more…)

Judge finds foul play in royalties for ‘Foul Play’


Although it may be fashionable to criticize screenplays from days past as quaint and almost cliche in how their plot complications tied up so neatly, a judge in Los Angeles has provided a tidy $6.8 million curtain-closer to a lawsuit over disputed right payments for some older films. In doing so, Superior Court Judge Elihu Berle has agreed with plaintiffs that there really was foul play over sums owed to the estates of Foul Play screenwriter Colin Higgins and others.

Berle recently approved a $6.8 million settlement of a class action lawsuit against Paramount Pictures Corp.  by Colin Higgins Productions. The suit disputed video royalty payments, and was one of several legal actions filed against Hollywood studios, and now slowly coming to resolution. (more…)

It’s in vogue: an appellate rift over sampling

The Material Girl, when using a .23-second horn blast in her mega-hit Vogue, didn’t infringe on a record company’s copyrights, the U.S. Ninth Circuit Court of Appeals has ruled.

But in holding for Madonna, aka Madonna Louise Ciccone, the appellate judges in California also locked horns with their federal brethren in Nashville over what’s legally acceptable and what’s not when it comes to “sampling,” the practice of musicians taking snippets of others’ work.

The dispute over de minimis v. “bright line” sampling–or not–may be left to the U.S. Supreme Court to resolve.

The case started when VMG Salsoul, a recording company, sued Madonna and others in July, 2013, asserting she and producer Robert “Shep” Pettibone violated copyrights by sampling a “horn blast” from the 1976 song Love Break. (more…)

Prenda firm’s ‘trolling’ draws appellate fire

Have the pernicious copyright-related practices of the Prenda law firm finally come to an end? Judges on the U.S. Ninth Circuit Court of Appeals have bench-slapped  the firm as sternly as can be, with a recent decision affirming U.S. District Judge Otis copyright-trollWright’s sanctions against the Prenda lawyers.

This tawdry tale includes some strange twists: Wright, a Southwestern Law alum and Star Trek fan, wrote a scathing decision  that was one of several decisions from judges nationwide, calling out the Prenda lawyers for their copyright trolling. Judges have termed firm actions to be “legal shakedowns,” and abusive of the judicial system.

Just to remind: The now infamous Prenda lawyers created a commercial business targeting those who liked to download adult videos. The lawyers had, TechDirt says, “sketchy copyright trolling practices that appeared to include Team Prenda uploading their own content to torrent sites, [and] tracking who downloaded them.” Then the firm, on behalf of its dummy corporation that “owned” copyrights on the blue videos,  would sue rafts of down-loaders claiming infringement; rather than risk the embarrassment of public exposure of their naughty hobby, defendants agreed to relatively small settlements that soon added up to significant sums. (more…)

Legal phasers fired to protect Klingon language

vubpu’ jon nuchpu’. jonbe’ tlhInganpu. That translates to “Cowards take hostages. Klingons do not.” The Language Creation Society, based in Ridgecrest, Calif., has declared war. The group, as Randazza Legal Group PLLC, has filed an amicus brief to speak up on behalf of the Klingon language, which is under fire as part of the lawsuit Paramount Pictures Corp. v. Axanar Productions Inc.

The brief, liberally sprinkled with the language spoken by characters like Commander Worf (actor Michael Dorn) from the long-running hit TV and movie franchise, Star Trek, essentially argues that no one can copyright a language, even one that has been entirely artificially created.

In their continuing mission to explore strange new worlds and protect their copyrights, CBS and Paramount sued Alec Peters and his crowdfunded production Axanar late last year in a Los Angeles federal court. The studios seek damages for direct, contributory and vicarious infringement as well as an injunction to stop production.

Let’s translate what’s going on here–minus the requisite insults, (as described in the video above by a German lecturer on Klingon in a promotion for a video game): (more…)

A legendary rock dispute finally rolls to trial

A federal district judge has put Led Zeppelin on the stairway to a jury trial, denying the legendary rock band’s motion for summary judgment on a copyright infringement claim against it over the classic tune Stairway to Heaven (a tip of the hat to Courthouse New for posting the judge’s ruling).

The trial has been scheduled for May 10, and if the trust for rocker Randy Craig Wolfe (aka Randy California), of the band Spirit, is victorious, it could force Led Zepplin to reliquinish part of the song’s profits. Those are estimated to amount to at least $562 million between royalties and record sales. The trust, as part of its lawsuit, also is seeking a songwriting credit for Wolfe.

The dispute over this song has been as long and almost as legendary as the iconic tune itself, with the court noting the controversy’s roots dating to the late Sixties. So, besides listening and comparing the two songs in videos (above), how this case finally gotten to trial? (more…)

Are 6-second Vines ‘too minimal’ to infringe?

vine-micro-video-app-smart-phone-ios-androidVine, a social media website acquired by Twitter, is a popular technology among millennials. They like it because it lets them create looping six-second videos, which are easy to view and to share quickly and widely, often virally. Vine also is gaining traction with brands for marketing, and that is creating issues for intellectual property owners

Vine has steered away from infringement claims, so far, because of Twitter’s prompt compliance with take-down notices under the Digital Millennium Copyright Act; those take-down requests also have been rarely contested by user-posters.

But is the brevity of Vine’s core product also prophylactic–does it provide a de minimis defense? That notion has come under fire in Britain with a recent court ruling from a judge, who found that “fair dealing” failed to apply to Vine snippets showing key moments of an original cricket broadcast. How might the legal thinking cross the seas and be seen in U.S. courts that share a common law tradition?

(more…)