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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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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Appellate court gives boot to video game claims

If plaintiffs aren’t clever enough to present the courts with the basics, notably the materials that they assert that others exploited and owe them money for, then judges have no choice but to dismiss their royalties and copyright infringement claims, the U.S. Court of Appeals for the Ninth Circuit has reminded a complaining party smart enough to help create a best-selling video game.

Unfortunately for Robin Antonick, the appellate judges recently blocked his attempt to recover royalties from Electronic Arts Inc. for his claimed work on the industry giant’s top-selling product, the John Madden Football video game.

Antonick was the coder who created the first Madden football vide game in 1988. It was played on the Apple II computer. After the immediate success of that debut version, EA asked Antonick in 1989 to jump on a second version, which would be played on the Sega Genesis and Super Nintendo systems.

But in the middle of 1990, the company told him to stop his work because EA said it had decided to go in a different direction with the amusement. Then, in November, 1990 EA Sports released Madden II, and from 1992 until 1996, the company continued to release regular installments of the game each year for both the Sega and Super NES systems.

Now, more than two decades after creating the celebrated and highly profitable game with its cult following, Antonick sued EA, seeking royalties he claims he was owed on the Sega and Super NES console versions of the game under the contract he signed with the company. (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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Ollivierra, Lind named Institute co-directors

biederman-leadersSouthwestern Law School has announced that faculty members Neil Ollivierra and Robert Lind will serve as the new co-directors of the nationally recognized Biederman Entertainment and Media Law Institute.

Lind is a Southwestern icon, renowned entertainment law expert, prolific author of preeminent texts and treatises, and a mentor and champion of students and alums alike. Prior to his appointment at Southwestern,  Ollivierra served as in-house counsel to various motion picture and television studios at the highest level of business and legal affairs, including Lionsgate Entertainment (The Hunger Games, The Twilight franchise, Orange Is the New Black, Mad Men) and EuropaCorp (Lucy, Taken, The Fifth Element, La Femme Nikita).

Together, their combined expertise, experience, passion and industry affiliations will help to ensure the continued success and growth of the Institute in the spirit of its beloved namesake, Donald E. Biederman. He was a highly admired teacher, scholar, and pioneer in the world of entertainment and media law and the Institute’s founding director. (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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Legal ink’s not dry on copyright for tattoos

UntitledFor centuries, the human race has shown an affinity for body art, often capturing works of art onto the human “canvas.” From tribesmen to notable celebrities today, tattoos have persisted in culture as a personal identifier. Skin art has, of course, become an obsession of contemporary pro athletes in the NFL, boxing, UFC, soccer, and basketball. As they have taken even stronger and wider hold in pop culture, tattoos have become a focus of entertainment and sports industry insiders and legal departments needing to clear rights for creative projects.

But can tats get copyright protection? Unfortunately, for Entertainment lawyers who are asked to weigh in on this question, answers are scant in this area of law and the merits of issue appear yet unresolved.  As one law firm has posted on its blog, celebrities and public figures may have rights of publicity, which give them certain sway over, “commercial exploitation of their images and likenesses.” But “when tattoos enter the picture, the issue is complicated; currently there is nothing in the U.S. Copyright law that bars tattoo artists from the same right to control and benefit from their art.”

The popular press has explored concerns for companies about jocks, brands, copyright, and tats, suggesting loops and hoops all concerned might need to traverse. The issue has prompted at least one detailed law review article. A case involving boxer Mike Tyson that many thought might provide clarity settled out, instead, though there is a new filing against Take Two, the creators of popular basketball video game series NBA2K. Meantime, athletes, sports leagues, video game makers, and Hollywood studios are proceeding warily. What makes them fret about their skin in the game?


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Barbs over ‘safe’ arrows raise legal quivers

The movie studios, television networks, video game makers, and big-time music businesses on both coasts may wish to take note of a curious case playing out in the nation’s heartland. It’s raising some novel issues about how small defendants soon may fund and sustain themselves in lawsuits with powerful plaintiffs over a range of IP disputes, including contested copyrights, trademarks, and patents.

The defendant in this peculiar matter has taken to, a popular online crowdfuding source, to raise money for his case. Is this a new way to level the playing field between corporate IP Goliaths and David defendants? Could this create a new way for IP suits to make it to trial rather than settling out? Or could crowdfunding become a way for attorney’s to take on challenging cases–while ensuring they’ll get paid? And what are the ethics of fund-raising for lawsuits?

The controversies have gotten sufficiently acute that the Electronic Frontier Foundation, which calls itself the “leading nonprofit organization defending civil liberties in the digital world,” has asked to enter the case, particularly over questions it may raise about litigants’ First Amendment rights. What case could parties to take arms in such noisy fashion? This one, no kidding, involves safe arrows and fans who like to play fantasy games with them. So come, shall we, upon a quest to discover this new source of magical power?


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Filmmakers’ win with a First Amendment blast

With everyone from Hollywood producers to video game makers poring over the headlines for compelling people stories to convert into hot properties or products, California’s right of publicity law long has sought to: recognize that an individual’s identity holds economic value; and protect celebrities and average folk alike, so they can control and profit from their name and likeness. The Golden State has been joined by others in crafting publicity rights that have protected notables like Michael Jordan  and Aretha Franklin.

But the U.S. Court of Appeals for the Ninth Circuit has just clarified what happens when state publicity rights clash with First Amendment claims, especially in an instance involving a transformative retelling of the life of an ordinary individual thrust into great events of the time.

The case involved Jeffrey Sarver, a onetime master sergeant, bomb disposal expert, and Iraq war veteran. He claimed that the main character in The Hurt Locker, as played by Jeremy Renner, was based on his life. As The Washington Post reported: “Sarver sued, claiming the film violated his ‘right of publicity’—his right to control the commercial use of his identity (here, not his name or likeness but elements of his life story).”

The appellate court disagreed, finding the First Amendment barred Sarver’s claims because the Oscar-winning film was transformative and did not just piggyback on his story nor its economic value.  As federal judge Diarmuid O’Scannlain wrote for the appellate court: “[i]n sum, The Hurt Locker is speech that is fully protected by the First Amendment, which safeguards the storytellers and artists who take the raw materials of life — including the stories of real individuals, ordinary or extraordinary — and transform them into art, be it articles, books, movies, or plays.”

How did the appellate court come to blow up Sarver’s claims?


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Second City’s new tax fails to amuse netizens


This guest post was written by Travis J. Sabaitis, a student in the Entertainment Law and Web 2.0 course at Southwestern Law School. 

It isn’t even Halloween yet, but already for those in the entertainment industry, a chill gust is blowing across the lake in Chicago: That’s because the cash-strapped Windy City has said it will adjust its amusement tax, which previously had been collected on items such as tickets to sporting events and live concerts.

The administration of fiery Mayor Emmanuel Rahm has decided to impose a new nine percent levy targeting those who access online “entertainments,” especially those who use popular cloud-based streaming websites; legal analysts say they know of no other local government in the U.S. that has pursued such a tax.

Consumers of television broadcasts, online video, sports programming, games, music, and any other entertainment content delivered electronically soon may have to fork over more money for their every day services. Companies like Netflix and Hulu will be subjected to the taxes on streaming services they offer and they say they will pass on directly these charges in the form of increased rates for consumers (according to a Netflix spokesperson).

It also may become more costly for Second City consumers to access their subscription-based news sites as a result of this tax, which some angry users already have challenged. (more…)

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