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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‘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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‘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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‘Oh, Really?’ Yes, ‘Vinny’ still a hit after 25 years

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.

How’d that happen? Has it really been 25 years since a low-budget, gentle comedy about two New York youts—Bill (Ralph Macchio) and Stan (Mitchell Whitfield) and how they get into deep hot water in Dixie, only to be rescued by a Brooklyn wise guy—sneaked into theaters nationwide, became a hit, then a cult classic?

My Cousin Vinnyexperts note, not only has charmed audiences for awhile now. It also has earned a special spot in many lawyers’ hearts and minds because of its attention to telling truths. Its director holds a Cambridge law degree. It has been deemed by a respected legal publication as one of the 25 greatest legal movies, and it has been written up in legal textbooks and online sites.

The eminent jurist Richard Posner has written that the film is “particularly rich in practice tips: how a criminal defense lawyer must stand his ground against a hostile judge, even at the cost of exasperating the judge, because the lawyer’s primary audience is the jury, not the judge; how cross-examination on peripheral matters can sow serious doubts about a witness’s credibility; how props can be used effectively in cross-examination (the tape measure that demolishes one of the prosecution’s eyewitnesses); how to voir dire, examine, and cross-examine expert witnesses; the importance of the Brady doctrine … how to dress for a trial; contrasting methods of conducting a jury trial; and more.

Vinny has a notable fan at Southwestern Law School, too: Prof. Norman M. Garland (right), an expert on constitutional criminal procedure and evidence. Garland, who has served as the Irwin R. Buchalter Professor of Law and the Paul E. Treusch Professor of Law, offered a few observations about the film and its long and high-standing among legal practitioners: (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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Oh, no, you don’t: Infringement claims revived

Appellate judges say trial, facts needed to determine if web service’s claim for ‘safe harbor’ undone by ‘volunteers’ moderating celebrity content

Celebrity content has sprouted online on gossipy sites like spring wildflowers after California’s heavy winter rains. But will the courts douse the untrammeled enthusiasms for these enterprises by finding that businesses that host and support such web venues may have limits to “safe harbors” they might seek from infringement claims in the Digital Millennium Copyright Act?

The U.S. Court of Appeals for the Ninth Circuit has fired a warning shot to online service providers about the limits of their legal protections, particularly when people connected with them play roles in moderating stories or pictures about famous folks of the moment.

In a closely watched case, the appellate judges gave new life to infringement claims by Marvix Photographs, a company specializing in celebrity gossip (i.e., paparazzi) images, and potentially other content creators. This ruling raised big questions about the content practices of online platforms, notably LiveJournal, Marvix’s defendant and a blog-hosting powerhouse. The case also wraps in elements like editorial judgement and revelations about a diva’s pregnancy. What’s the hot legal scoop here?

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Web services catch a break on older music

Justices decline case contesting net providers’ ‘safe harbor’ protections for pre-’72 music recordings, infringement claims

Where the justices of the U.S. Supreme Court decline to go can matter as much as where they do.

The lesson has played out anew with the high court’s recent refusal to take up a much-watched Entertainment Law dispute involving pre-1972 sound recordings and online service providers.

That has left the services, the music industry, and judges in courts across the country with some complex copyright issues hanging more than a little bit. For now, performers may have been dealt a setback,  while the providers look like they won a victory rooted in the Digital Millennium Copyright Act’s “safe harbors.”

This controlling case may have executives at the online video service Vimeo sighing in some relief after they were sued in 2009 by Capitol Records for copyright infringement.

A federal district judge hearing the case ruled the video site liable for infringement where pre-1972 recordings had been uploaded without license to Vimeo’s site.

But the U.S. Court of Appeals for the Second Circuit overturned that judgment, finding the lower court’s exempting older recordings from the DMCA’s safe harbors would “defeat the very purpose Congress sought to achieve in passing [it].” The appeals court refused to reconsider the case in August, leading the record industry to appeal in December to the U.S. Supreme Court. But the high court declined to hear the case, leaving the Second Circuit judgement in place, especially since it was joined by another appellate circuit.

What’s this dispute about and why does it matter?

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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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‘Ironman’ infringment claims stripped down

 

Court tosses lawsuit over suit but keeps alive tiff over movie poster

When a super hero upgraded from spandex and metal to hard-core gear, that spawned a lawsuit over a suit. But almost two years after Horizon Comics Productions, Inc. (“Horizon”) sued Marvel Entertainment, LLC (“Marvel”) for copyright infringement, a federal judge has unzipped the claim that one of the planet’s leading character-based entertainment companies stole the body armor design for Iron Man from two comic book artists.

U.S. District Court Judge J. Paul Oetken scrapped most of the suit by Horizon and onetime Marvel artists Ben and Ray Lai, finding iron-clad dissimilarities between Ironman’s ever-evolving garb in a $318 million-dollar movie and the attire of  the protagonists in a 2001 comic book series “Radix.”

But the judge also left a glimmer of possibility for the Lais and Horizon, allowing their claims to go forward that the Iron Man movie poster may have infringed on their intellectual property. How did this suit clang its way into court for so long? (more…)

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