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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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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Behind a fun festival season, legal lines in sand

For Coachella and other lucrative live music events, there’s no fiddling around in enforcing protections for brands, merchandise

Summer’s quickly approaching, and that means the music festival season soon will be rocking and rolling in its full glory. But there’s more than meets the eye in staging successful—read that highly lucrative—events, besides getting throngs out in Mother Nature’s splendor for a splendid series of hot performances by top artists of the moment.

For Entertainment Law counsel, protecting a festival’s name, brand, intellectual property, and associated merchandise can require a lot of non-musical movements, year-round overtures in copyright and trademark enforcement. They’re playing a big score, with events and goods representing a sizable part of pop music’s revenues these days.

That’s the prelude for this post, now on to seeing some of how it’s done, with a sampling of the legal fugues performed by a major player, the Coachella Music Festival LLC:

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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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‘Oh, really?’ Early awakening’s murderous?

Passengers posits that rousing a space crew member early from a suspended state is tantamount to murder. How on earth might that be true?

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.

In the movie Passengers,  travelers on a swanky spaceship must trek for 120 years to reach and colonize Homestead II, a planet in a distant galaxy. To survive their journey, they’re all put into a suspended state, to be awakened just months before reaching their destination. But when the ship veers through an asteroid belt, Jim Preston (Chris Pratt) accidentally awakens only 30 years into the trip. He grows depressed and isolated, confronting his  certain death in the 90 years before he reaches his planned new home.

Then, he notices Aurora Lane (Jennifer Lawrence) in her suspension pod. He falls for her. He struggles with his choice but wakes her, also nine decades too soon. When conscious, she is devastated that she will die before anyone else aboard besides Jim awakens, especially because she planned to stay only briefly on Homestead II before returning to Earth to write a book about her experiences.

Jim leads her to believe her rousing to consciousness was an accident. They grow close. Then an android, the bartender at one of the couple’s favorite spots on the ship, spills the beans to Aurora: Her amorous interest intentionally woke the sleeping beauty.

When another crew member Gus (Laurence Fishburne), a Chief Deck Officer, is accidentally awakened, Aurora fights with Jim. She insists to Gus that Jim has murdered her. Did he?  This flick raises an ethical or moral dilemma. But, really, murder? What might be legal considerations for such a claim, other than an angry lover’s recriminations about how a partner may have affected her longevity?

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YouTube’s service terms just can’t be ignored

Federal judge tosses suit over music video that was pulled down, then re-posted, and had its view count reset

Performers who leap on to YouTube may be visually savvy, marketing smart, and outstanding early adopters of cutting-edge social media platforms. But besides promoting themselves zealously in cyber space with online services, they also need to step up and master an old legal fundamental: It pays to read the fine print before consenting to any agreement in ink and paper or electrons, as a federal judge in San Francisco has reminded an unhappy plaintiff.

To be sure, the overwhelming majority of YouTube users likely would fail a quiz on the service provider’s terms of service (TOS) agreement before assenting to it. But if the too blithely check off a box on an online page and move ahead with understanding their legal situation, they then also can’t gripe to courts and seek relief when YouTube removes, relocates, and resets the view count of their posted music videos. That was the beef in Darnaa, LLC v. Google Inc.

Plaintiff Darnaa was a limited liability company, an independent music label promoting and producing the works of artist Darnaa. The LLC in March, 2014, uploaded to YouTube the artist’s music video Cowgirl as part of an advertising campaign to promote sales of the song recordings in online digital music stores. But, yippee-ki-yay, YouTube made that ditty mosey where Darnaa didn’t expect on the great cyber free range. Why didn’t the judge corral YouTube, the online video giant? (more…)

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