For FilmOn, a sudden, clear, positive legal signal

alkiTVOnline television services have advanced potentially a half step with the recent ruling favoring plaintiff FilmOn, an on-demand enterprise that attracted a lot of attention as part of broader, highly publicized cases involving new technologies. U.S. District Judge George Wu issued his preliminary ruling, finding that, if online television services like FilmOn are subject to the same copyright rules as traditional broadcast stations, then they should be allowed the same compulsory license rights under the Copyright Act.

FilmOn up until now had been tangled up in last year’s much-watched U.S. Supreme Court decision involving Aereo. In that case, the justices decided that online television services were subject to the same copyright rules as over-the-air broadcasters, notwithstanding the elaborate technology arguments–what will lawyers do without figuring whether thousands of tiny antennae really are part of a content pipeline?–made by powerhouse counsel for entertainment mogul Barry Diller, Aereo’s financier and chief advocate.

As the saying goes, if you’re going to give me all the responsibilities of an adult, then give me all the freedoms of an adult. (Or maybe that’s just what I use to tell my dad?) If online services were found to violate the Copyright Act’s transmit clause the same way that over-the-air broadcast programs can, then they should be awarded the same §111 license that cable and other broadcasters may obtain. Right?

The case,  Wu noted, has won such attention and possesses such complexity, significance, and conflict in laws that he effectively left everything in place, his own ruling aside. He said he anticipates appeals to higher courts.

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Q.-&-A.: Bert Fields on post-mortem rights

Bertram FieldsGGcomWhen legendary Entertainment lawyer Bert Fields recently addressed the Harvard Law Association at the Beverly Hills Bar, he, of course, brought down the house, delighting his audience with his comments on an array of topics. His views on a particular subject resonated for the editors of this blog, because it has arisen in posts before (see here and here): Are there legal rights that need protecting for deceased entertainers? Fields was kind enough to answer a few questions posed by email by Biederman Blog Editorial Board member Jessica Villar regarding this topic:

Question—When you spoke recently to the Beverly Hills Bar, you mentioned new kinds of entertainers’ rights, particularly as these might apply to their post-mortem performances as what you called synthespians. Were you specifically addressing the advent of holographic characters performing entertainers’ known works in shows? Or are there other technologies you had in mind?

Answer—I was talking about buying the rights of living performers to use their computer generated images to make new movies or perform in new concerts when they’re too old to do so or after their deaths.  Synthespians are a stage later.  They are computer generated actors and performers who will appear human, but are not.  They never die and when the audience tires of them, we create new ones. (more…)

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Individual copyright claims in films? Nope.

2nd circuit9th circuitIt took a year, two U.S. District Court judges, eleven judges on the U.S. Court of Appeals for the Ninth Circuit, two judges from the U.S. Court of Appeals for the Second Circuit, and officials from the U.S. Copyright office. But, finally, a long-standing copyright standard in film making has been restored, and, at least for now, the legal view, again, is that individuals who are involved in the making of a finished movie may not assert that they have a separate, stand-alone infringement claim.

This stance, of course, not only got a powerful recent en banc ruling in the appellate courts that oversee Los Angeles, the movie-making capital of the world, it also was affirmed by the appeals judges who oversee the nation’s other entertainment hub: New York.

So for now, Google and its mighty YouTube subsidiary needn’t yank a video that caused a global firestorm and the makers of the movie Heads Up will be headed for further court proceedings. How did both go round to get back to what many in the industry have seen as an important copyright standard?


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With infringement claims, appellate discord

Location, location, location. It matters not just in real estate but also for a legal venue, as creative artists Devin Copeland and Mareio Overton were reminded when a federal appellate court overturned a lower court’s dismissal of their case against pop stars Usher, Justin Bieber, (shown in video above) and others, asserting copyright infringement with the pop hit Somebody to Love.

Now fans, composers, lyricists, musicians, and other performers may not find this music to their ears: But the Copeland-Overton-Usher-Bieber case provides a sound illustration of let’s call it jurisdictional discord, with appellate judges in scattered parts of the country ruling off of different, um, scores. Take note, please, that judges have their ears open for some different things when creatives pursue legal claims and this may result for them in judicial harmony or cacophony. (more…)

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Sirius catches sunshine in fight with ex-Turtles

siriusA federal court in Florida has provided a ray of legal sunshine for Sirius XM , in a way that its counterparts in California and New York haven’t: The satellite music company finally has won a legal battle in the public performance war that Flo & Eddie have waged with Sirius over their pre-1972 sound recordings with The Turtles. As this blog has recounted since this case’s outset, musicians and composers have turned to a state by state campaign to protect their rights to classic tunes, finding a gap in federal copyright coverage.

The courts holding sway over America’s two Entertainment capitals have viewed the creatives’ cause favorably but the Sunshine State, a judge in Miami has said, has no common law basis for a similar sunny view. What’s this cloudy Dixieland difference? (more…)

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Canadians in TV case can’t elude jurisdiction

hollwoodAlthough some entertainment industry types may belittle Los Angeles and insist that they can do business on their own terms elsewhere, all too many paths lead to and through what boosters blushingly have dubbed the Entertainment capital of the world (yes, even you die-hard Seattle grungers need to recognize that Nirvana’s iconic Nervermind was recorded in Van Nuys).

So it wasn’t exactly a surprise when U.S. District Court Judge Ronald S.W. Lew ruled recently that LA, California, and the United States had powerful legal pull, aka jurisdiction, over some far northern business interests, specifically Canadian resident David Fortier and Canadian incorporated Temple Street Production Incorporated. Govern yourselves accordingly, out of towners, as to whether you think you can elude a legal challenge if it plops on your doorstep: (more…)

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Judge carves up claims in ‘New Girl’ case

New GirlHollywood can be a small town, particularly when it comes to Entertainment Law practitioners at a certain level. This can cut both ways for potential clients, as plaintiffs Stephanie Counts and Shari Gold learned when U.S. District Judge Stephen V. Wilson in Los Angeles tossed a big section of their suit, rejecting claims of idea theft and breach of contract over the popular Fox television program New Girl

The judge–who had previously found their suit problematic–pointed out to Counts and Gold that, despite their complaints to him, they had been fully informed by their initial counsel of a potential conflict of interest before entering into talks about a potential settlement, which they rejected. Wilson found their attorneys were not “incapacitated” by the potential conflict, nor did they act in bad faith. Meantime, he reminded them that they had exceeded the statute of limitations for their action and, he, thus, granted defendants’ motion to dismiss part of their claim. How did this case get in such a muddle?


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In big-dollar publicity rights bid, athletes lose

college sports

Onetime college athletes seemed to have gotten a big win over broadcast networks and video game makers last year when a federal judge in California ruled that the NCAA could not keep athletes from licensing their own names and images. But a different legal play hasn’t scored in similar fashion with a federal court in Memphis.

There, a group of Tennessee athletes argued that they had publicity rights under common law and should be compensated for playing in televised games. Wrong call, said U.S. District Court Judge Kevin Sharp, who ruled that the players failed to present any valid theories about their publicity rights under Tennessee common law. State law prohibits use of a person’s name or likeness for advertising purposes but  allows their use for sports broadcasting.

The athletes had brought both state and federal claims but the broadcasting defendants, including ESPN, ABC, CBS, and NBC, were granted their motion to dismiss. With the stakes so high,  it’s worth a little play-by-play in the running contest among jocks, broadcasters, and video game makers. (more…)

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‘Wild Thing?’ He’s not golden in the legal ring

Steve “The Wild Thing” Ray, the popular professional wrestler with the shoulder-length golden locks, has gotten thrown out  of the legal ring, again. The U.S. Court of Appeals for the Eighth Circuit of Appeals has tossed the appeal of the onetime Universal Wrestling Federation star’s loss against sports broadcasting powerhouse ESPN.

Ray brought state claims against the network, for re-telecasting bouts from his early years of wrestling professionally. Although ESPN acquired the films of him legally, Ray said the broadcasts undercut money he might make from broadcasts of his UFW fights. He claimed in his Missouri case that the global TV and satellite channel had invaded his privacy, misappropriated his name, infringed on his publicity rights, and interfered with his prospective economic advantage from broadcasts of his fights.

ESPN got the case moved to federal court and a district judge granted its motion to dismiss for failure to state a claim; that decision was upheld by the federal appellate court, which said his state claims were preempted by the federal Copyright Act. While the appellate judges threw no chairs across the ring, didn’t slap the plaintiff in a headlock, nor did they twist his arm, just in case anyone’s unfamiliar with Ray’s entertainment skills:

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For ‘The Slants,’ an appellate trademark coda

Call this a surprising coda for an Asian-American dance rock band involved in a long-running effort to secure a federal trademark registration for its name:  The Slants. A federal appellate court has taken it on its own accord to reconsider en banc the three-judge ruling that just recently reafirmed the Trademark Trial and Appeals Board decision to deny mark registration to the founder of the Asian-American band.

While a certain pro football team can take the field in the nation’s capital and give wide offense, many say, to Native Americans, Simon Tam, the dance rock band’s founder,  twice was refused mark registration for his group’s name. On both occasions, the examining attorney refused to register it, finding it “disparaging to Asian Americans.” The case went up on appeal, here’s how it came down, then turned around–a little like watching a Washington linebacker running in circles in downfield. (more…)

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