‘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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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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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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ISP denied preemptory shield on rights claims

An internet service provider, weary of hearing complaints from a music rights-management organization, tried to get a federal court in Manhattan to stop in advance what it felt was the group’s sing-song whining about improper online postings of copyrighted songs. But the judge decided the request by Windstream Services for a preemptive declaratory judgment against BMG was way out of tune.

The court found Windstream’s request “un-tethered” to any specific claim of copyright infringement and said it could be construed to absolve the ISP of not only past but also future actions. That, like performing in the wrong key, can’t be allowed, the court said in a case that offers some important reminders about parties following procedures detailed in the Digital Millennium Copyright Act. (more…)

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‘Blurred Lines’ and a + path for ‘Photograph’

A costly infringement case may be pushing songwriters to consider legal options, adding credits and sharing royalties rather than litigating. Is it stifling creativity, too?

Have legal concerns grown so Thicke that songwriters find it’s easier now to just get Happy and + colleagues who seek credit because their works sound sort of similar?

Ed Sheeran—the singer, songwriter, actor, guitarist, and record producer—may have sent the music industry a strong message with his recent settlement of a copyright infringement suit over his hit song Photograph. In answer to 2016 claims by songwriters Martin Harrington and Thomas Leonard that they should be awarded $20 million from him because they say his song infringed on their composition Amazing (as recorded by Matt Cardle, the 2010 winner of The X Factor reality series), Sheeran, legendary for his mathematically signed albums, effectively replied: —  .

He then apparently decided not to be ÷, and to just × the number of folks credited on his tune.

What’s going on—and was this part of a potentially −legal trend? Let’s get to the √ of this music industry development. (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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Champs’ publicity-rights claim slapped down

With federal copyright laws holding sway, online sales are acceptable of prized photos of basketball players, their games, appellate judges find

Patrick Maloney, a hot-shooting guard who helped catapult his 2001 team to Catholic University’s first-ever Division III national championship, has become a school legend for his elite decision-making on a basketball court.

But he, teammate Tim Judge, and other Cardinal players made bad calls in courts of law when they and their attorneys sought to contest a decision by their alma mater, the NCAA, and an online vendor, T3Media and its Paya.com website, to allow the public to download pictures of them and their games, especially their now 16-year-old upset victory over William Paterson at the Salem (Va.) Civic Center, a federal appeals court has decided.

On behalf of themselves and other college jocks, Maloney, Judge, and other CU Cardinals had asserted that state right-of-publicity laws gave them a say about the uses of the disputed shots, and, more importantly their likenesses and identities.

But the U.S. Court of Appeals for the Ninth Circuit, in Maloney v. T3 Media, Inc., cried foul, blowing the whistle under First Amendment-protecting anti-SLAPP statutes, and finding that the Federal Copyright Act pre-empted their state publicity rights claim. Here’s an instant replay of how these ballers lost this key round of their legal game. (more…)

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