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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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.

(more…)

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Experts to focus on entertainment’s ‘crazy year’

As the digital age makes it easier than ever for anyone to generate original and derivative works while expanding the reach of such creations, how do artists protect their intellectual property? How do producers set up strategic distribution deals with international markets and deal with censorship and other adaptations that may need to be considered? How does the entertainment industry keep pace with the internet and contend with liability matters?

These issues will be the focus of Keeping the Beat in a Crazy Year: Blurred Lines and Border Crossings, the 14th Annual Entertainment and Media Law Conference presented by Southwestern Law School’s Donald E. Biederman Entertainment and Media Law Institute and the Media Law Resource Center (MLRC). The conference will be Jan. 19 at the Los Angeles Times Building. (more…)

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Podcasts? Here are 3 on entertainment law

If you’re looking for a way to stay up to date in easy, convenient fashion with key developments in entertainment and media law, why not try a novel, different technology: Podcasts, which hit big in the early 2000s then seemed to fade a decade or so later, have reemerged to become all the rage again. We’re talking Serial, This American Life, Fresh Air, and the many offerings available through National Public Radio and Apple.

There also are at least a trio of Entertainment Law podcasts worth considering for some reasons described below: It’s a subjective call, and there may be options to add.

But in the upcoming downtime connected to the holidays, it may be worth devoting some moments to: the Entertainment Law Update Podcast, Laws of Entertainment with Lisa Bonner, and the Fordham Intellectual Property, Media, and Entertainment Law Journal Podcast. Here’s why, for those with long commutes or the need for informative diversion, to listen up! (more…)

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‘Oh, Really?’ Pokemon chased by legal reality

508800-pokemon-goIn our ‘Oh, Really?’  feature, the Biederman Blog’s editors and alumni— voracious consumers of trendy matters — cast a curious, skeptical, fun and smart end-of-the-week eye on popular culture and its entertaining products, sharing their keen observations about legal matters these raise.

Who knows how many millennials and youngsters spent the long Labor Day holiday chasing Pikachu, Eevee, and Jigglypuff? Who knows how many will race out this weekend to pursue Squirtle, Bulbasaur, and Charmander? And where’s Tauros or Mr. Mime?

“Gotta catch ‘em all, Pokémon!” rang out the ’90s theme song every Saturday morning on the cartoon show iconic to a  generation fully coming into its own. Now, history is repeating itself, as  kids, teens, and, yes, some adults repeat that tune as they zip around trying to “catch” Pokémon on the hot smartphone game app Pokémon Go.

To hear fans of Pokémon Go tell it, its rising technology–augmented reality (AR)–promises everything from mesmerizing new diversions  to innovative ways to present information and content to 100 percent Bar pass rates. But AR, as happens with many novel entertainment technologies, also has run smack into legal reality. (more…)

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An appellate reverse on records law for movies

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The movie industry long has fought any efforts to impose content-based restrictions, with the courts and the law recognizing and giving wide berth to Hollywood’s First Amendment privileges.

But a surrogate sector of movie making–the billion-dollar adult entertainment industry–almost from its start has borne the brunt of efforts to impose government restrictions, also battling in the highest courts over whether blue laws are reasonable or outright censorship. These movies makers scored a win recently when the U.S. Third Circuit Court of Appeals threw out a lower court decision and ruled in their favor on a case involving performers and film-makers’ need to maintain records about them.

Though proponents of the requirements said they provided a deterrent to exploitation of under-age actors and actresses and a tool to combat child pornography, which isn’t constitutionally protected, opponents said the rules edged into the territory of content controls barred by the First Amendment. (more…)

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A problematic ruling on password sharing

9th sigThis guest post was contributed by a blog alumna, and a newly graduated Southwestern juris doctor, who notes that she would have weighed in on this topic sooner, except she was studying and sitting for the most recent California Bar exam.

The Internet went into a tizzy early last month when United States v. Nosal came down from the U.S. Ninth Circuit Court of Appeals. Blog after blog (after blog) proclaimed that this opinion made it illegal to use another person’s Netflix account. Earlier this year, this blog posted on this topic so how did the situation change?

Bottom line: the court found that defendant David Nosal violated the Computer Fraud and Abuse Act (CFAA) when he used a former co-worker’s password to access trade-secret information belonging to Korn Ferry, an executive recruiting and human relations company that also was his former employer. He then took this information and used it to set up his own firm in direct competition to Korn Ferry. This would lend credence to the idea that mere password-sharing is illegal.

But it is important to remember that the court made a distinction, differentiating according to the situation. “The circumstance here – former employees whose computer access was categorically revoked and who surreptitiously accessed data owned by their former employer – bears little resemblance to asking a spouse to log into an email account to print a boarding pass,” the appellate judges said. (more…)

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Judge finds foul play in royalties for ‘Foul Play’


Although it may be fashionable to criticize screenplays from days past as quaint and almost cliche in how their plot complications tied up so neatly, a judge in Los Angeles has provided a tidy $6.8 million curtain-closer to a lawsuit over disputed right payments for some older films. In doing so, Superior Court Judge Elihu Berle has agreed with plaintiffs that there really was foul play over sums owed to the estates of Foul Play screenwriter Colin Higgins and others.

Berle recently approved a $6.8 million settlement of a class action lawsuit against Paramount Pictures Corp.  by Colin Higgins Productions. The suit disputed video royalty payments, and was one of several legal actions filed against Hollywood studios, and now slowly coming to resolution. (more…)

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It’s in vogue: an appellate rift over sampling

The Material Girl, when using a .23-second horn blast in her mega-hit Vogue, didn’t infringe on a record company’s copyrights, the U.S. Ninth Circuit Court of Appeals has ruled.

But in holding for Madonna, aka Madonna Louise Ciccone, the appellate judges in California also locked horns with their federal brethren in Nashville over what’s legally acceptable and what’s not when it comes to “sampling,” the practice of musicians taking snippets of others’ work.

The dispute over de minimis v. “bright line” sampling–or not–may be left to the U.S. Supreme Court to resolve.

The case started when VMG Salsoul, a recording company, sued Madonna and others in July, 2013, asserting she and producer Robert “Shep” Pettibone violated copyrights by sampling a “horn blast” from the 1976 song Love Break. (more…)

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