‘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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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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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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Q-&-A: Prof. Kane on fashion and copyright

With the U.S. Supreme Court recently deciding in the Star Athletica v. Varsity Brands case that graphic elements on cheerleading uniforms can be protected under Section 101 of the Copyright Act, a conversation has emerged among designers and fashion experts, wondering how the ruling may impact the ever-growing industry. Hillary Kane, an adjunct associate professor of law at Southwestern Law School and Of Counsel at altView Law Group LLP,  discusses the concerns of many about this case and its connection to Entertainment Law in this Q-&-A:

Question—Based on your expert knowledge, which segments of the fashion industry do you believe will be most affected by this ruling? What are the positive and negative effects of the decision?

Answer—I am very resistant to lumping cheerleading uniforms into what most of us consider fashion. Fashion at its finest involves high levels of training, creativity, innovation, and passion. A cheerleading uniform? Not so much. It is very likely that the designs in questions will not be sufficiently original to qualify for copyright protection after they are “imaginatively separated” from the uniform using the new test.

The many attempts to expand copyright protection to fashion design have failed.  The Supreme Court was very careful to emphasize that its ruling was not extending copyright protection to clothing. Maybe we should just accept this and move on? All the Varsity ruling does is establish the test all courts should apply to determine if the design elements on a uniform are copyright worthy independent from the garment.

Next fall, I will be substituting Conceptual Separability with Imagined Separability and working through the new test in my Fashion Law course. I am not sure the result in this case would be different applying another one of the prior nine to 12 tests, now superseded.

The fashion industry segment most likely to be affected is cheerleading uniforms, and perhaps other types of uniforms.  Now, instead, of being well-settled that there is no copyright protection for any uniform elements, companies have a new basis on which to sue each other. It may get incredibly complicated. What happens when a university claims it has trademark rights in a design Varsity tries to copyright? (There is a U.S. Fifth Circuit Court of Appeals trademark case that speaks to this: Louisiana State University v. Smack Apparel Co.)

It is great material for a law school exam, but not likely to lead to anything other than lawsuits in real life. (more…)

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‘Ironman’ infringment claims stripped down

 

Court tosses lawsuit over suit but keeps alive tiff over movie poster

When a super hero upgraded from spandex and metal to hard-core gear, that spawned a lawsuit over a suit. But almost two years after Horizon Comics Productions, Inc. (“Horizon”) sued Marvel Entertainment, LLC (“Marvel”) for copyright infringement, a federal judge has unzipped the claim that one of the planet’s leading character-based entertainment companies stole the body armor design for Iron Man from two comic book artists.

U.S. District Court Judge J. Paul Oetken scrapped most of the suit by Horizon and onetime Marvel artists Ben and Ray Lai, finding iron-clad dissimilarities between Ironman’s ever-evolving garb in a $318 million-dollar movie and the attire of  the protagonists in a 2001 comic book series “Radix.”

But the judge also left a glimmer of possibility for the Lais and Horizon, allowing their claims to go forward that the Iron Man movie poster may have infringed on their intellectual property. How did this suit clang its way into court for so long? (more…)

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Behind a fun festival season, legal lines in sand

For Coachella and other lucrative live music events, there’s no fiddling around in enforcing protections for brands, merchandise

Summer’s quickly approaching, and that means the music festival season soon will be rocking and rolling in its full glory. But there’s more than meets the eye in staging successful—read that highly lucrative—events, besides getting throngs out in Mother Nature’s splendor for a splendid series of hot performances by top artists of the moment.

For Entertainment Law counsel, protecting a festival’s name, brand, intellectual property, and associated merchandise can require a lot of non-musical movements, year-round overtures in copyright and trademark enforcement. They’re playing a big score, with events and goods representing a sizable part of pop music’s revenues these days.

That’s the prelude for this post, now on to seeing some of how it’s done, with a sampling of the legal fugues performed by a major player, the Coachella Music Festival LLC:

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Justices zip up a fashion copyright case

High court, in novel 6-2 ruling, extends legal protection to stripes, chevrons, zig-zags that adorn a major makers’ cheerleader uniforms

The three women donned dapper black for the colorful discussion. Their four male colleagues also appeared in sober, knee-length, noir-dominated attire. After weeks of chatter no doubt about stripes, chevrons, zig-zags, the sculpture of Marcel Duchamp, and multi-dimensionality in design, justices of the highest court in the land recently had their final hurrah in a battle over cheerleader gear, copyright, and fashion.

The U.S. Supreme Court has ruled 6-2 that graphics elements on uniforms designed by Varsity Brand Inc. (“Varsity”) can be protected under section 101 of the Copyright Act. Sis, boom, bah: That means Varsity now gets to pursue its infringement claim against Star Athletica, Inc., (“Star”). But who else might be cheering or jeering (in Bronx fashion) this decision, unusual even at a court that this term also has pondered the rights of kids and Wonder dogs. (more…)

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Polish tiff translates into $3 million in penalties


Do widzenia i powodznia!* Telewizja Polska, S.A. (TVP), may be saying to $3.06 million in its bank accounts. That’s because U.S. District Court Judge Tanya S. Chutkan in Washington, D.C., has found, under American law, that the Polish national television network infringed on the copyrights of Spanski Enterprises, Inc. (SEI), a Canadian content-distributor of Polish television programming.

Chutkan ruled that TVP got itself in quite a ogórek kiszony** over the rights to show dozens of episodes broadcast on an international Polish-language broadcast channel, TVPolonia.com, which touts itself as airing “Polish news, current affairs and information programs, sitcoms, mini series, soap operas, movies, programs for children, entertainment programs and much, much more.”

Co oni walczą o?Słuchaj.***

*Goodbye and good luck! **dill pickle ***What were they fighting about? Listen up.
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A King of Comedy clobbers an old claim

Steve Harvey, the original king of comedy himself, will get the last laugh in his long dispute with Joe Cooper, a  videographer.

A federal court in Dallas has tossed Cooper’s lawsuit, seeking $50 million, and asserting that Harvey had breached a contract with him for recording 120 or so hours worth of the comedian’s stand-up routines at Harvey’s Dallas club back in 1993.

It turns out that the joke two decades later is on Cooper, as jurors, after just hours of deliberation, found that he and Harvey had not entered into a valid contract. Instead, Harvey’s counterclaim that Cooper invaded his privacy due to misappropriation of the comedian’s name and likeness prevailed. Cooper learned the hard way that posting YouTube videos can have their legal peril. (more…)

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Judge clips VidAngel’s naughty wings


A streaming company that has tried to seize a higher ground, taking Hollywood movies from discs and “cleaning” the films of pornography, nudity, and violence and then providing them online to its customers, has itself acted in naughty, naughty fashion, a federal judge has found.

In Los Angeles, U.S. District Judge Andre Birotte Jr. ruled that VidAngel Inc. has infringed copyrights held by Disney, Warner Bros., and Twentieth Century Fox after failing to get appropriate licensing from them, which resulted in an order that the company stop all editing and streaming of the studios’ films.

Since the ruling, VidAngel has flapped its corporate wings and claimed technical issues in complying with the federal injunction – then flouted it. Who wouldn’t want to zap the sleaze straight out of a flick like Fifty Shades of Gray? But the company is finding that it can be costly to be righteous. Poking Hollywood in the nose and telling a federal court judge that “we’re right and you’re wrong” landed VidAngel in contempt of court. (more…)

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