Court order a sharp arrow for fading Aereo

aereoAlthough 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, 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.

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IP protection overseas not easy, experts explain

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.

faermanA 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.

robertelutz00Lutz (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.

chris reedReed (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.

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For animators in TV work, a new labor accord

sag-aftra-new-logoWhile 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…)

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Will millions curb Calif.’s runaway film trade?

brownWhile California, specifically Hollywood, is the legendary film and television capital of the planet, productions have been fleeing to shoot in other states. New York, Louisiana, Georgia — to name but a few competing states — and other countries abroad not only have coveted but they’ve snatched Hollywood’s runaway business, arguably in some measure due to more attractive tax credits for filming. New York, for example, offers about $400 million annually in such lures, four times the amount now offered by the Golden State. Gov. Jerry Brown (right, in Damian Dovarganes, AP photo), of course, recently signed AB1839, which will triple the annual tax credits available to movies and television shows produced in California, so that clattering sound audible may be word processing equipment in law offices all across Southern California churning out applications for the credits, which Brown says of the law he signed, “will make key improvements in our film and television tax credit program and put thousands of Californians to work.”  AB1839 kicks in, in fiscal 2015 and proponents argue it will draw back business to California, making it easier for the state to compete with other states and countries. The Motion Picture Association of America, for example, underscores the economic significance of the industry and its chief has been an outspoken proponentNaysayers? Yup, there’s criticism aplenty that for taxpayers, this is an expenditure that doesn’t return what it’s supposed to, especially in jobs.

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Hollywood’s 1st with legal drones in U.S. skies

As the blog has reported earlier, Hollywood has been sky-high about the possibility that the Federal Aviation Administration would grant exemptions for the use of commercial unmanned aircraft systems (aka drones) for movie, television, and video productions. And the FAA made it official recently, allowing six firms to go ahead and to fly the craft — the first time a private companies legally can do so in the United States. The decision has huge implications for a broad range of industries. Some claim the decision opens the FAA floodgates for many companies and industries to seek drone approvals, similar to those granted to Hollywood. The FAA, meantime, has taken shots for dragging its feet by not green-lighting the movie, television, and video production by drone sooner. Many movie makers, including those who put out a James Bond thriller, had taken to shooting with drones in foreign countries (as shown in the clip below). Even as it allowed Hollywood production crews the legal exemption to fly drones, the FAA set down strict safety and compliance rules on shooters, aiming for safety and noninterference with commercial aviation. Fans already are filling up YouTube channels with drone vids but the feds, including national park service officials, have made clear that the craft won’t be allowed to zip, buzz, and fill the air overhead like mosquito swarms — witness the Danish tourist who got stung with a $3,200 fine for failing to comply with Uncle Sam’s rules. By the way, if you’re a cineaste with some immunity to vertiginous viewing, check out the sites and videos from some of the firms granted the FAA exemptions here, here, here, here, and here.

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Will Turtles’ win be a rights game-changer?

Who says the old guys can’t rock still? The not always so happy Flo & Eddie have sent a tremor rolling through digital radio land recently, winning on summary judgment against Sirius XM Radio for broadcasting and streaming their music without permission. Flo & Eddie is a corporation owned by the two founding members of the music group The Turtles, best known for once crooning about the pleasure of their shared company (see above).

Flo & Eddie sued Sirius for the unauthorized (1) public performances and (2) reproduction of its sound records by broadcasting and streaming content to end consumers and operating its satellite and Internet radio services. After considering both arguments, a federal judge in Los Angeles granted Flo & Eddie’s motion for summary judgment for all claims pertaining to Sirius XM’s public performance, but not the reproduction claims.

This is an important case because it shows how the courts will treat copyright claims pertaining to pre-1972 works as their copyright protection periods expire, and the work falls into the public domain. The court ruling will likely bring more litigation from performers like The Turtles. Moreover, similar rulings may encourage SiriusXM, Pandora, and other similar companies to lobby Congress for new copyright laws covering pre-1972 music.

Though this is a decision in just one case, analysts have pointed out that the Turtles’ judgment provides important insight as to how courts might resolve unanswered questions about the pre-1972 copyrights and whether federal or state law holds sway, and there’s another closely watched case in the dockets involving similar arguments involving Capital Records and Pandora. It’s also unclear whether the judge’s ruling could be viewed as broad enough to affect not just digital radio but also good old AM-FM.

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Why do U.S. TV networks kick up the costs for the rights to World Cup, other global sports?

grimesmugAs faculty adviser to Southwestern’s International Law Society, Professor Robert E. Lutz (right and below) has encouraged a fun discussion for students, faculty and practicing attorneys called Stammtisch, which is German for “main table” and connotes an informal, friendly group meeting held regularly. At the Sept. 17 Stammtisch, Professor Warren S. Grimes (left) of the law school sparked an invigorating discussion on his work concerning the cost of FIFA’s World Cup viewership rights internationally.

ESPN_Logo_CLR_PosNBC_2014_Indent_StyleIn the 2014 World Cup, the United States television networks, specifically, ABC/ESPN and Univision, paid roughly $212.5 million for broadcast rights. This compares to an estimated $205 million to $246 million paid by the German networks and $150 million paid by the French networks. It is estimated that for the next two World Cups, U.S. networks will pay an average of more than $500 million for broadcasting rights. The U.S. will be paying 2.3 times the former amount and likely will be the highest paying nation for broadcasting rights, by a wide margin. These high payments by the U.S. are not unique to soccer, as, for the last few Olympics, a U.S. network (NBC) has paid on average twice as much per resident as Canadian broadcasters. ‬

robertelutz00During the Stammtisch, the group discussed why the process leads to overpayment by U.S. networks, and how that cost is passed on to TV viewers in the form of cable fees and advertising. One likely reason for the high cost is American cable bundles provided by TV programmers, which force U.S. consumers to pay the cost of many channels they may not wish to watch. For those interested, Grimes has published in the Journal of International Media and Entertainment Law, The Distribution of Pay Television in the United States: Let an Unshackled Marketplace Decide, 5 J. International Media & Entertainment Law 1 (2014). He also has a forthcoming piece with particular reference to the World Cup in the Southwestern Journal of International Law. And if you are interested in joining ILS, please email


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Netflix urges FCC to block net mega-merger

Comcast-and-Time-WarnerNetflix-LogoMergers are like marriages and sometimes all the related parties do not agree with the union. Since Comcast and Time Warner announced their proposed merger early last year, Netflix has publicly opposed this deal, calling the Comcast-Time Warner merger “anti-competitive.” Netflix has recently taken a more official step by submitting a Petition to Deny with the Federal Communications Commission (FCC). Also, sixty-five other organizations representing consumers and content producers have submitted similar notices of opposition.

In its petition, Netflix — which many industry watchers note already has created its own revolution in the broadcast world — argues that the merger would provide the proposed giant company monopolistic power with control over half the U.S. broadband in households. The proposed merger, Netflix also contends, would allow the new company to dominate the cable television industry, turning “a consumer’s experience into something that more closely resembles cable television.”

Moreover, Netflix says that streaming services (including it), will lose their negotiation power to pay for better streaming quality for its subscribers. Netflix is already engaged in contracts with the four biggest Internet Service Providers  including Comcast, Verizon, and AT&T, and recently a new deal was signed with Time Warner Cable for faster streaming after a kerfuffle over slowing of streaming content. But, Netflix claims the merger will allow the ISPs to impose higher prices for better Internet speeds.

Comcast and Time Warner, of course, have their own view about how their union would be favorable, arguing on a tailored corporate website that the joining of the two giant firms will bring customers “faster Internet speeds, a more reliable and more secure network, net neutrality protection, low-cost Internet access, and programming diversity to millions of new customers across the country.”

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Eminem raps are OK but Facebook posts aren’t?

EminemThe world has heard an earful from Marshall Bruce Mathers, the recording artist also known as Eminem aka Slim Shady. Since he broke out in the rap and hip hop scene as a pale poet from Motown with lots to say, Mathers also has done his share of aggravating audiences with his pointed and profane views, which women and gays have found hateful and offensive. Look online and it’s also clear that Eminem’s lyrics lean far out on themes of violence and harm to others. As with others in his genre, however, no one has ever suggested stuffing a sock in his utterances, legally speaking, no matter how disturbing his words. It’s music and free speech and protected, right? Well, what happens when those very same lyrics get put to page, on Facebook specifically, and they’re thrown in with other messages targeted at an individual? What happens then? That issue has made its way through an appellate court and heads to the U.S. Supreme Court this fall. (more…)

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In limbo: ‘Ohio Players’ financial legacy

The entertainment scene seems to feed a tabloid-style world enmeshed in divorce, bankruptcy, and scandal — and the complicated, troubling nature of the scene may be underscored when its business heads to the court room: The U.S. Court of Appeals for the Fifth Circuit recently reversed a federal bankruptcy court’s decision favoring debtor Lisa Ann Galaz over her  former husband Raul, who had worked with music producer Julian Jackson and eventually created a Texas limited-liability company  to collect royalties from the music of the famed funk band, the Ohio Players. During the couple’s marriage, the royalties did not generate any revenue. But as soon as they divorced, the royalties began to tally again, totaling nearly $1 million. Lisa Ann Galaz sought her share, and recently filed bankruptcy, hoping this would help her collect. However, rapidly evolving case law has limited bankruptcy courts’ jurisdiction, the appellate court noted. Raul Galaz appealed the decision, which the appellate court vacated and remanded for further proceedings involving both the U.S. district court and bankruptcy court that had handled the matter earlier. Meantime, the royalties for the Ohio Players’ remain in limbo — a sad state for a pioneering group, most of whose members are deceased and whose seven, No. 1 single hits include, Fire. In case the flashy clothes and deep bass groove don’t hit a familiar note:

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