‘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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As star marks abound, are they too ordinary?

With billions of dollars at stake, celebrities’ lawyers have been beating down the door at a surprising government office in hopes of advancing clients’ economic interests by staking exclusivity claims on everything from dolls to dresses to perfumes. That gold rush-style boom, not in copyright requests but rather in mark applications to the U.S. Patent and Trademarks Office, (shown right) also keeps bumping against some hard realities that may make some female stars, especially, and their counsel rethink the supposed advantages of marks versus copyrights.

Although conventional wisdom among barristers may hold that marks may be the better way to build a brand because they permit legal protections for phrases that aren’t exactly unique, it may be that some names, words, sayings, and coinages are just too common or close to material that Uncle Sam already has allowed to be stamped with the signature TM.

This legal speed bump may be especially timely and pertinent for Entertainment Law practitioners to ponder in the wake of the recent decision by a federal court in Manhattan, asking if the intellectual property rights of screen legend Marilyn Monroe, for her estate, may be too generic for protection. Other celebs also have hit some TM woes worth noting.    (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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With tech-streamers’ rise, will law jobs change?

The industry headlines tell a persuasive tale. Netflix: The most feared force in Hollywood? Netflix: The monster that’s eating Hollywood. Netflix is killing it—big time—after pouring cash into original shows.

With cord-cutting becoming  ever more common and broadcast network ratings steadily declining, will Entertainment Lawyers start streaming from traditional industry workplaces in search of Elysian Fields with newer employers working in newer technologies?

It may be a question to ponder, even as the studios and Netflix head to court in a battle over claims the big and growing streaming service poached key entertainment executives

But for lawyers, in particular, there may be more cultural and workplace issues to consider before throwing caution to the wind, polishing up that CV, and seeking to get in the queue for new employment. Yes, Netflix the disrupter of the TV world, the company that’s changing how consumers digest content,  is hiring.

But the company has its own distincitive hiring practices and workplace environment, bringing a holistic, freethinking, Silicon Valley “start-up vibe” to the often provincial and openly combative, kill-or-be-killed culture of showbiz in Hollywood—and to the typically buttoned-up environment of legal departments in some of those entertainment companies.

What’s the brief on working for entertainment-tech hybrids, or at least one of the giants of the day in this area?

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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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A writers’ strike averted, troubling trends persist

When Hollywood gets the sniffles, its lawyers can feel like they’re suffering a major bout of pneumonia. So there was good reason for the collective exhale by many in the industry in recent days as the Writer’s Guild of America—the union to which all working screenwriters are required to belong—reached a contract deal with the studios. A potentially punishing strike was avoided. Productions continue. The disputing parties didn’t get all each wanted.

But did the entertainment business just whistle past some current economic concerns  to kick down the path some big, longer-term issues? As audiences confront increasing programming choices and their entertainment habits transform, have writers (long a vulnerable party in the Hollywood system) served as a harbinger of how industry talent—whether scribes, directors, producers, actors, or lawyers—keeps struggling and may be losing ever more to the tides of technology? (more…)

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‘Oh, Really?’ A ‘Night Of’ ethics, evidence woes

In 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.

The HBO series “The Night Of” has won critical acclaim. In this crime drama, Nasir, a community college student from a working class, Queens, Pakistani-American family heads out with friends to a party one Friday night. He meets a beautiful, mysterious young woman. After a night of drinking and ingesting other substances with her at her place, he blacks out. He awakens the next morning to find her stabbed 22 times.

The rest of the series is “Did he, or didn’t he?” and tracks his attorneys–a weary, down-on-his-luck ambulance-chaser, and the other a wet-behind-the-ears Pollyanna—as they build a defense. Their work is cut in with the hunt of a dogged detective who is “just one case away from retiring.” The series culminates in the young man’s trial, when we learn his surprise fate. The show’s performances are stellar, the direction is spot-on, and the writing —by the masterful Richard Price—is superb. But, really, how about the law in this hit? (Some spoiler alerts ahead, fyi.)

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Calif. tosses angry actor’s talent-act claim

Star’s manager prevails in beef over commissions, representation

Thomas Gibson‘s acting career, launched at age 10, has taken him through Julliard, the Broadway stage, and Hollywood, where he starred in the CBS TV hit Criminal Minds for a dozen years. But the unsmiling 55-year-old has seen a highly lucrative career take a rough turn recently, including his 2013 arrested for a DUI (for which he lost use of his license) and his highly publicized tussles and firing in late 2016 from the crime procedural show that had made him one of the industry’s top-paid performers.

While he battles to restore his reputation, actions by Gibson, his longtime manager, and a recent ruling by the California Labor Commission won’t stop the negative turn. The state’s Talent Agencies Act isn’t always the easiest regulation for performers and their managers to navigate, as recent prosecutions have affirmed. But a state labor commissioner found clearly that problems Gibson may have encountered and complained about were on his side, not his manager’s. Let’s dig in to this critical but tempestuous situation. 

Photo: Cliff Lipson©CBS 

 

 

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Appellate court rejects cable license for FilmOn

In its long-running bid to transform broadcasting, controversial firm fails to persuade judges to extend protections granted to cable companies. TV networks complained high-tech company’s through-air, content “capture,” and re-transmissions constitute infringement.

FilmOn boasts that it provides its customers through its website with an impressive access to “600 free live TV Channels” as well as “45,000 complimentary movies.” While Internet streaming services like Hulu and Netflix often say they have been forced to raise their prices to cover expensive content-licensing fees how, then, can FilmOn offer online such a wide, no-cost offering of copyright protected entertainment?

The answer—or so FilmOn thought, at least—rests in Section 111 of the Copyright Act. It allows bona fide cable systems to secure licenses that permit them to re-transmit a “performance or display of a work” previously broadcast by others—but without securing consent of the material’s copyright holder. Cable systems are protected against infringement claims, provided they pay fees to the U.S. Copyright Office, as spelled out by statute.

For FilmOn, which has become something of a broadcast copyright bad boy, Section 111 was a key legal step to advance the company’s controversial ambitions to transform broadcasting. But the U.S. Court of Appeals for the Ninth Circuit has pulled the plug on yet another aspect of its complex, continuing technology-based arguments in its battle with competitors and the TV networks. The appellate judges in Pasadena, Calif., recently ruled in favor of Fox, NBC, ABC, CBS and other broadcasters, finding that FilmOn can’t qualify as a cable system and thereby can’t obtain federal licenses allowing it to re-transmit copyrighted material from the networks.

Are we near the end of the long-running battle over what happens with free signals pulled from the air by thousands of tiny antennas at a central site, then sent onward? Hasn’t the highest court in the lands settled the contentious “Aereo” argument? (more…)

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Oh, Sheldon, go ahead, sing the darn cat song

Court swats away suit over Warm Kitty, as sung on Big Bang Theory

Actor Jim Parsons has turned the misanthropic, mischievous, and often malevolent character of Sheldon Cooper, uber nerd and brilliant physicist, into not just an Emmy winner but also a million-dollar-an-episode recurring star part in a prime time network smash. Fans obsess about the adventure of Sheldon and his pointy-headed pals. But, hello, kitty, a federal judge in Manhattan has told Big Bang Theory aficionados they can rest easy about one of Sheldon’s signature musical quirks.

U.S. District Judge Naomi Reice Buchwald has dismissed a cat-and-mouse game of copyright infringement against the show. It had been hit with a suit by the holders of the rights to the lyrics of Warm Kitty. That’s a tune the two sister-plaintiff’s asserted their nursery school teacher-mom wrote decades ago, then protected in 1937. Eccentric Sheldon, whose idiosyncratic behavior often alienates him from friends and foes alike on the TV show, often sings a version of Kitty to himself to self-soothe.

His lyrics aren’t a carbon copy of the plaintiff’s song. But the sisters argued that the show failed to secure their permission to use the song and the lyrics were substantially similar enough to sue. What gave the judge paws about this cat scratch legal tiff?

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