‘Empire’ strikes back in City of Brotherly Love

U.S. judge in Philly becomes latest of several to reject claims about originality of hit TV series

Rome not only wasn’t built in a day, it also took centuries and legions of soldiers to defend its expanding glory. TV’s Empire, it turns out, is requiring its own formidable legal forces to fend off its attackers.

And Lee Daniels, the hit Fox series’ ceasar, may be singing Philadelphia Freedom after shaking off the latest assault with a federal district court in Pennsylvania dismissing a copyright infringement suit by former actor Clayton Prince Tanksley.

Tanksley lacked much brotherly affection for Empire, which he claimed copied his TV drama Cream. How did his suit, and several others, curdle, legally speaking? (more…)

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Court sorts out rights tiff in a mod, mod world

U.S. judge denies summary judgment in video gaming dispute, in which he dissects unitary vs. collective works and their implications for copyright, infringement claims

With a cast of characters rivaling a Tolstoy novel, and almost as many iterations and spin-offs as Pride and Prejudice, a recent video game dispute involving modification or modding has come down to concepts that underlie a good old-fashioned night at the movies. These led U.S. District Judge Charles R. Breyer in San Francisco to deny summary judgment in a suit by video game maker uCool against distributor Valve for copyright infringement of its characters. (A tip of the hat to the Hollywood Reporter for posting the ruling).

What lessons can makers and distributors in the red hot 21st century video gaming industry draw from the practices of the likes of Johannes Gutenberg and Cecil B. DeMille? (more…)

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As star marks abound, are they too ordinary?

With billions of dollars at stake, celebrities’ lawyers have been beating down the door at a surprising government office in hopes of advancing clients’ economic interests by staking exclusivity claims on everything from dolls to dresses to perfumes. That gold rush-style boom, not in copyright requests but rather in mark applications to the U.S. Patent and Trademarks Office, (shown right) also keeps bumping against some hard realities that may make some female stars, especially, and their counsel rethink the supposed advantages of marks versus copyrights.

Although conventional wisdom among barristers may hold that marks may be the better way to build a brand because they permit legal protections for phrases that aren’t exactly unique, it may be that some names, words, sayings, and coinages are just too common or close to material that Uncle Sam already has allowed to be stamped with the signature TM.

This legal speed bump may be especially timely and pertinent for Entertainment Law practitioners to ponder in the wake of the recent decision by a federal court in Manhattan, asking if the intellectual property rights of screen legend Marilyn Monroe, for her estate, may be too generic for protection. Other celebs also have hit some TM woes worth noting.    (more…)

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Appeals court, at least, sees talent act clearly

U.S. Ninth Circuit judges reject managers’ attack on California law but disputes keep surfacing over representation, commissions

Saunter down the street in Des Moines or Poughkeepsie and ask the first passer-by about who engages in the “procuring” business and be glad not to get a punch in the nose for asking about something that sounds like it’s part of the world’s oldest profession. But at least in Hollywood, and for especially for those in the entertainment industry, this practice—part art and part commerce—is so common that it should be legally plain and it is clearly understood, the U.S. Court of Appeals for the Ninth Circuit has declared.

The judges in the appellate court for the stars have upheld the dismissal of a suit by the National Conference of Personal Managers, a group aggravated by still controversial state statute(s) that they argue keeps clients from showing them the money—the California talent agencies act. The appellate judges concurred with a lower court ruling rejecting the managers’ claims, and finding that the act does not violate due process, equal protection, or free speech of talent managers in the entertainment industry.

The law says that only state-licensed agents may procure work for clients—the legions in Los Angeles of actors, directors, writers, and, yes, wannabes. The problem with the half-century old talent sections of the state labor code is that they also bar non-agents, including managers, attorneys, and the unlicensed from obtaining work for clients. This can and has created ned in the Biz, sparking significant protests before. The personal managers’ complaint provides a timely reminder that the griping about the act not only isn’t going away, it provides a recurring reason to keep re-examining the historic but also changing representation of talent in the Golden State. (more…)

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Shooter’s infringement claim fails to develop

Art student, school find fair-use shield for photo used in class assignment and posted on Flickr

Andy Warhol, Jeff Koons, Damien Hirst. These artists, and many others, have famously exploited existing images in their own works. While such “appropriation” operates in a gray area of copyright law, iconoclastic pop-artists remain undeterred.  And as aspirants follow their role models, it’s unsurprising that challenges arise—notably and recently in an an art class at the Watkins Institute.

Students at the Nashville school were given photos and asked to create a mock product ad. So, très, Warhol, right, and are legal eagles already seeing the court case brewing?

Fortunately for the school and the student, both of whom ended up as defendants in the recently decided copyright infringement case Reiner v. Nishimori, some sorta ivy tower defenses came to their rescue. Let’s focus on academic fair use and its role in this visual controversy, shall we?

(more…)

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EU court details tech, profit infringement perils

Copyright violations can occur too readily and for makers’ improper advantage when razzle-dazzle TV tools make it too easy to access protected content—with, and without rights owners’ OK, court warns

The sale of multimedia players that permit users to effortlessly stream illegal content to a television screen can be the kind “communication to the public” that is illegal under the European Union’s Copyright Directive, the Court of Justice recently decided.

The ruling by the EU’s high judicial body in Luxembourg could be key as technology continues its unchecked advance.

The case arose when Stichting BRIEN,  a Dutch anti-piracy group, filed legal action against Jack Wullems, the creator of the multimedia device known as Filmspeler. Wullems installed third-party add-ons to his creation to permit customers easy access to protected works on streaming websites operated by third-parties. Some of these sites allow access to digital content—both with and without copyright holders’ permission.

The EU high court characterized the Filmspeler as akin to “a pirate … Apple TV,” and noted that Wullems had advertised the device as such. Those promotions played a  large part in how the court ruled because it helped show that Wullems aimed strictly to profit from the device, which many customers had purchased. But how did this case prove to be digital double-Dutch in the Netherlands and across the Continent? (more…)

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With tech-streamers’ rise, will law jobs change?

The industry headlines tell a persuasive tale. Netflix: The most feared force in Hollywood? Netflix: The monster that’s eating Hollywood. Netflix is killing it—big time—after pouring cash into original shows.

With cord-cutting becoming  ever more common and broadcast network ratings steadily declining, will Entertainment Lawyers start streaming from traditional industry workplaces in search of Elysian Fields with newer employers working in newer technologies?

It may be a question to ponder, even as the studios and Netflix head to court in a battle over claims the big and growing streaming service poached key entertainment executives

But for lawyers, in particular, there may be more cultural and workplace issues to consider before throwing caution to the wind, polishing up that CV, and seeking to get in the queue for new employment. Yes, Netflix the disrupter of the TV world, the company that’s changing how consumers digest content,  is hiring.

But the company has its own distincitive hiring practices and workplace environment, bringing a holistic, freethinking, Silicon Valley “start-up vibe” to the often provincial and openly combative, kill-or-be-killed culture of showbiz in Hollywood—and to the typically buttoned-up environment of legal departments in some of those entertainment companies.

What’s the brief on working for entertainment-tech hybrids, or at least one of the giants of the day in this area?

(more…)

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Congress takes aim at nation’s copyright chief

Lawmakers advance measure to strip Librarian of Congress of power to appoint copyrights Register, giving authority, instead, to the president, with congressional assistance

Congress is sending a rebuke to the bureaucrats who run a system that’s critical to Entertainment Law: The House has passed and sent to the Senate a proposal to strip The Librarian of Congress of the power to appoint the Register of Copyrights, giving that authority, instead, to the president.

HR 1695, the Register of Copyrights Selection and Accountability Act,  has passed the House Judiciary Committee in a 27-1 bipartisan vote, and it has advanced out of the House in a 378-48 vote. It now rests with the Senate Rules and Administration Committee.

Whether it goes beyond, it has become the legislative equivalent of baseball’s brush-back pitch, with lawmakers expressing some degree of displeasure with the nation’s copyright administrators—and creating a colloquy over how this potential change might affect innovators and creators.

How did this tussle blow up? (more…)

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Princely legacy includes court time for heirs

Artists may relish that copyrights last for decades. But do they consider sufficiently their wishes for who will nab their royalties after they are gone and other key estate planning issues?

Although some experts have urged Entertainment lawyers to consider a new field of performers’ post-mortem rights, the continued legal tussling over the works of superstar Prince Rogers Nelson may suggest to some practitioners that not only must they consider long-lived intellectual property concerns like copyrights lasting almost a century, they also just may need greater depth and expertise in dealing with wills, trusts, and estates.

Consider that days before the recent, one-year anniversary of Prince’s death, his lawyers were in a Minnesota district court, filing a complaint that audio engineer George Ian Boxill, a former collaborator,  sought to release unheard music of the iconic entertainer without the authorization of Paisley Park Enterprises. State Judge Wilhelmina Wright moved quickly, issuing a temporary injunction to block the release of a six-song EP. Prince recorded the work, titled Deliverance,  between 2006 and 2008 with Boxill.

Fans briefly partied like it was 1999, as Deliverance’s lead song, a track featuring a fierce blues riff, was made available for streaming via iTunes and Apple Music. The EP also was online for early download on princerogersnelson.com for $6.99 or $19.99 depending on audio quality.  But Prince’s estate countered with its own version of Let’s Go Crazy, ensuring that Boxill could not release unauthorized tracks, which lawyers argued violated the producer’s recording agreement with Prince.

Streaming sites have yanked down the disputed works. How did the late legendary songwriter find himself in a legal state that might even make doves cry—and why is this condition not unique among famed creatives? (more…)

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A writers’ strike averted, troubling trends persist

When Hollywood gets the sniffles, its lawyers can feel like they’re suffering a major bout of pneumonia. So there was good reason for the collective exhale by many in the industry in recent days as the Writer’s Guild of America—the union to which all working screenwriters are required to belong—reached a contract deal with the studios. A potentially punishing strike was avoided. Productions continue. The disputing parties didn’t get all each wanted.

But did the entertainment business just whistle past some current economic concerns  to kick down the path some big, longer-term issues? As audiences confront increasing programming choices and their entertainment habits transform, have writers (long a vulnerable party in the Hollywood system) served as a harbinger of how industry talent—whether scribes, directors, producers, actors, or lawyers—keeps struggling and may be losing ever more to the tides of technology? (more…)

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