Is an icon’s image too generic to trademark?

Bitter battle by Marilyn Monroe estate to protect her legacy may have unforseen consequences for celebrities

It’s common these days for celebrities to trademark their names and properties attached to them (yes, you Beyonce, and all of you in the Kardashian clan). Her estate has tried to create comparable legal protections for Norma Jean Mortenson, the sliver-screen legend better known as Marilyn Monroe.

But a U.S. District Court in Manhattan has cast a long shadow over the movie star’s intellectual property rights, raising the possibility—not just for her and her estate but for other pop culture icons —that a megastar like Monroe may be too generic for protection.

The issue is far from decided, and, in a 51-page opinion and order, U.S. District Judge Katherine Folk Pailla has observed that, “What began in 2012 as a declaratory judgment action has transmogrified into a sprawling conflict raising issues of trademark, antitrust, and state business law.”  So, as Marilyn herself might aver: Sugar, what’s behind this Monkey Business that could Shock Miss Pilgrim, in which Something’s Gotta Give, some parties don’t seem to be Gentlemen [who] Prefer Blondes, and, the court hopes, won’t turn into a Seven Year Itch?

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Blue film firm keeping up its barrage of suits

 

Malibu Media, LLC., an adult film company, filed 201 copyright infringement lawsuits in February. It also launched 747 cases in 2016, and 1,956 suits in 2015, according to Bloomberg Law data. If that sounds like a lot, here is a mind-rattling statistic: In 2014, the company accounted for up to 40 per cent of all copyright infringement claims in the country.

The company was founded by a husband and wife team in 2009. They have said they aim to upend the industry with a higher quality of erotic films. Malibu launched the site x-art.com and created porn that was more expensive to make than most of its competition. The firm charged a monthly subscription fee of $40 for access.

In 2011, after two years of promising growth, their subscriber base plateaued at around 50,000 users. The company soon determined that 300,000 people were watching pirated versions of the company’s movies each week. Malibu filed its first copyright infringement lawsuit in February, 2012. (more…)

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Court resurrects a killer’s privacy suit over film

He’s the real-life ax murderer who keeps acting like a terrifying character in a Hollywood slasher movie, popping up repeatedly at inopportune times in scary fashion. Yes, he’s baaack: Christopher Porco, convicted of murdering his father and attempting to murder his mother with an ax while the victims were at home asleep in their bed, has just won from prison a New York court ruling that may send some shivers up the spines of movie makers whose works are rooted in reality.

A New York Court of Appeals judge recently reversed the dismissal of Porco’s suit against Lifetime Networks over claims of statutory privacy violations (a tip of the hat to the Hollywood Reporter for posting may key documents in this case online). Four years ago, he sued Lifetime after it produced a made-for-television film based on the public story of his heinous crime. A furious court battle erupted and threatened to prevent the airing of Lifetime’s Romeo Killer: The Christopher Porco Story, starring Eric McCormack, Matt Barr and Lolita Davidovitch. It didn’t.

But, cue the screechy Psycho violins as the soundtrack, and let’s see how this case, some say, menaces the movie business all over again.

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Jurors slash through a gore-flick rights feud

My hat’s off to the jurors who were able to find willful copyright infringement by production company PFG Entertainment Inc. and sales agent Ted Rosenblatt,  ordering them to pay the creator of The Toolbox Murders franchise. PFG and Rosenblatt made a deal to distribute Coffin Baby, a film written and directed by horror make-up artist Dean Jones, whom plaintiffs asserted stole and re-purposed footage from an  earlier, failed project he directed, The Toolbox Murders 2.

Jurors, who awarded $460,000 to Tony Didio, producer and creator of the original The Toolbox Murders, not only had to slash their way through B-movie history—they also lived through the horror of being exposed to some truly gruesome, exploitative films

A part of the due diligence for this post, I thought I should research and watch the Toolbox Murders. I tried to watch the original film, even some of it. I really did. But the nauseating scenes of a man using a drill on a young girl, the jarring editing, and the bad pop music, just stressed me out, man. I already juggle a full-time job and law school. My life is sufficiently complicated that I couldn’t find the stomach to watch graphic depictions of innocents’ slaughter.  So I can’t tell you what the picture’s full story is, though it has to do something with a maniac roaming an apartment building, slaying people, including naked women, in macabre fashion.

Ugh The law and history in the case? That we can review.

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Actors’ ages can be posted online, court says

Is it proper to ask thespians their age? It is, a federal judge in San Francisco says.

U.S. District Judge Vince Chhabria recently ruled on a request for an injunction against it that a California law, which prevents the film and television information website IMDB from posting actor’s real ages, is out of bounds and cannot be enforced.

While the law’s aim was to prevent age and gender discrimination in casting, the judge held that the law likely abridges expression of non-commercial free speech, writing,  “it’s difficult to imagine how AB 1687 [the law] could not violate the First Amendment.” (more…)

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Animators to draw $170 million from studios

Disney, its subsidiaries join major studios in big settlement over visual talents’ claims of anti-competitive personnel practices

Animators, digital artists, and visual effects specialists for industry-leading companies like Walt Disney, Sony Pictures, 20th Century Fox, and Dream Works soon may be walking around with more money jangling in their pocket after the settlement of a sizable class action suit involving these movie-making talents.

That’s because Walt Disney Co.—including its subsidiaries Pixar, and Lucas Films— this month became the last major players to agree to a deal to resolve legal claims, with zero admission of wrongdoing, that they had a “no poach” agreement among themselves over hiring the animators and others, including sharing pay information on them. The workers had asserted these all were antitrust violations that reduced competition in the market  and kept down salaries. Disney and its subsidiaries agreed to settle the claims for $100 million.

DreamWorks Animation, Sony Pictures Animation and 20th Century Fox’s Blue Sky Studios had settled with the animators earlier for roughly $70 million, sending the combined tab for Hollywood to draw to a close this labor action to nearly $170 million. (more…)

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New chair zaps FCC changes on set-top boxes

Out with the old, in with the new: Ajit Pai, President Trump’s new chair of the Federal Communications Commission, has reversed course,  revoking reports and investigations launched under previous leaders. Pai has criticized his predecessors’ “midnight regulations,” saying there were issued with little notice and discussion. But critics were quick to point out his revocations occurred in much the same way. 

Ignoring the politics, some of what Pai swept away will affect entertainment content, specifically access issues involving set-top boxes that consumers must rent—at much-criticized costs of hundreds of dollars annually—to get cable and satellite programs. The Obama Administration had wanted third-parties to provide the units, lowering their price and potentially opening more robust content options, such as through apps and streaming services.

Consumers, especially millennials, have been revolting against this technology, cutting the cord on the hefty costs of cable and satellite service. “Over-the-top content” from Netflix, Amazon, HBO, and others—as well as new technologies to deliver it—have made this possible. But the hope that consumers soon might be liberated from renting set-top boxes has been put off for who knows how long.

Streaming content sources typically have not included live sports, nor were network television shows available on streaming devices. But now, a content shift is under way. And the options, made available directly to streamers, especially through proprietary apps and subscription online services, are solid, including new shows and movies (please see HBO’s Game of Thrones  or its Westworld if you have been living under a rock).

What does this mean for the entertainment industry? As more content moves toward streaming and away from old-line cable and satellite providers, entertainment lawyers may need to be cutting new media deals for clients to adjust. As older content gets re-purposed for stand-alone channels, many licensors are confronting contracts that fail to address major technological changes. And what about advertisers? How will they approach their deals when “over the top” content lacks ads or permits consumers to fast-forward past them?

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Talent agency, casting workshops charged

LA City Attorney files raft of Krekorian Act cases

Delores White, an Inglewood mom, thought her daughter, “Mia B.,” had star potential. White started working with Network International Models and Talent, a Beverly Hills firm that she hoped would boost her child’s career. After signing a one-year contract with Patrick Arnold Simpson and Paul Atteukenian of the firm, White paid $700 them for pictures of her daughter to develop her “portfolio.” The two men then got the family to pay them upwards of $8,000, in advance, to allow the daughter to participate in a modeling conference in New York.

But mother White got suspicious of the mounting upfront fees and contacted authorities. They have confirmed her worst worries. Officials led by Los Angeles City Attorney Mike Feuer (at lectern in photo right) have filed seven criminal charges against Simpson, 48, and Attekeunian, 51, accusing them of violating California’s Krekorian Act  by charging a client up-front fees and falsely representing Network International Models and Talent as a licensed talent agency. They were charged with petty theft, attempted grand theft, and criminal conspiracy. If convicted, each could face up to four years in jail and $33,500 in fines.

Authorities followed on the Network International case with charges in a separate Krekorian Act prosecution against 28 defendants, including 18 casting directors, associates or assistants who were guest “instructors” at five  casting workshops, which officials asserted were “pay to play” businesses barred under the act. 

These were the seventh and eighth sets of publicly announced prosecutions by the City Attorney’s Office under the act. It serves as a reminder that Los Angeles, while a star-making capital, also can be rife with dubious ways to develop talent. The existence of the Krekorian Act, and its recent updates, also serve witness to key ways that aspiring stars and their supporters can avoid scams—by watching out for anyone who wants to take money up front from them and being wary of promises that sound too good to be true, and, now that are carried by modern means like social media or the Internet. (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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Can ‘Axanar’ offer model for studio, fan peace?

In what once was the final frontier, the actions of some one-time loyalists started to raise huge concerns among the rulers of the Great Empire of Hollywood. They feared that rebel forces had aligned and had started to take advantage of technological advances that might threaten imperial products, trade, and treasuries. Forces amassed, threats were exchanged.

Fortunately, a battle has been averted. So now some die-hard fans of the half-century-old Star Trek franchise legally can push ahead with their scaled-back, online production of a mini-film they have dubbed Axanar, which they now can’t use to fund-raise. And for now, Hollywood will keep the peace with its throngs of ticket- and merchandise-buying aficionados, while also setting, its lawyers hope, some relatively easy-to-follow red-line legal bounds on increasingly professional, not-for-profit, crowd-sourced fan films.

The Axanar skirmish may be telling — a lot — about not only Hollywood’s unceasing struggles with change but also, perhaps, key shifts in some of its legal strategies with assaults on its intellectual property.

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