Entertainment Law Update Podcast Ep. 39 – Holmes, Zorro and the Tin Man walk into a bar…



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In this Episode:

  • Ed Sullivan intro of Jersey Boys is fair use
  • Kirtsaeng – First Sale has extraterritorial effect
  • Sherlock Holmes copyright questions
  • and more…


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Website:   http://createprotect.com Twitter: @tamerabennett

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Show Notes 



Appeals Court: ‘Ed Sullivan’ Clip in ‘Jersey Boys’ is Fair Use:

(Last discussed in ELU 013, August 2010)

THResq: http://www.hollywoodreporter.com/thr-esq/appeals-court-ed-sullivan-clip-427260

Justia (Decision): http://docs.justia.com/cases/federal/appellate-courts/ca9/10-56535/10-56535-2013-03-11.pdf



Sofa Entertainment, Inc. v. Dodger Prod. – 9th Circuit decision for Dodger Prod. – March 11, 2013





Appellate Court Clears Veoh in UMG Copyright Suit:

(Last discussed in ELU032, July 2012)

Variety: http://variety.com/2013/digital/news/appellate-court-clears-veoh-in-umg-copyright-suit-1200194954/

THResq: http://www.hollywoodreporter.com/thr-esq/appeals-court-hands-veoh-win-428588



UMG Recordings v. Veoh – 9th Circuit decision for Veoh – March 14, 2012 – superseding opinion




Supreme Court upholds first-sale doctrine in textbook resale case:






Kirtsaeng v. John Wiley & Sons – U.S. Supreme Court decision for Kirtsaeng – March 19, 2013




Judge Bans Airing of Lifetime TV’s Chris Porco Movie, Injunction Stayed by Appeals Court:

THResq: http://www.hollywoodreporter.com/thr-esq/lifetimes-chris-porco-movie-banned-429988

THResq: http://www.hollywoodreporter.com/thr-esq/lifetime-wins-right-air-chris-430286



Christopher Porco v. Lifetime – Appeal to NY Supreme Ct., Appellate Division – March 20, 2013




Current paparazzi cases/issues:

AP: http://www.statesman.com/ap/ap/california/hawaii-senate-to-vote-on-steven-tyler-act/nWhN9/

Justia: http://verdict.justia.com/2013/03/19/is-hawaiis-steven-tyler-act-consistent-with-the-first-amendment

Text of the Bill:




California Judge Shoots Down Challenge to Talent Agencies Act:

THResq: http://www.hollywoodreporter.com/thr-esq/california-judge-dismisses-talent-managers-426263

(They plan to appeal – see press release pasted in this doc) – https://docs.google.com/document/d/1dcYiiAS4f7oEcv6guxJl4uPYxR49C_MNBzvNtsC9yQk/edit?usp=sharing



National Conference of Personal Managers, Inc. v. Edmund G. Brown, Jr – Nov. 9, 2012 – Central District of California




Is Sherlock Holmes Still in Copyright?:

THResq: http://www.hollywoodreporter.com/thr-esq/book-editor-doyle-estate-is-421918

Mark Litwak: http://marklitwak.blogspot.com/2013/03/sherlock-holmes-and-case-of-public.html

Create Protect: http://ipandentertainmentlaw.wordpress.com/2013/02/18/sherlock-holmes-elementary-copyright-protection-and-trademarks/




Klinger v. Conan Doyle Estate – Complaint for Declaratory Judgment in N.D. Illinois – February 14, 2013





“Zorro” Rights Challenged as Invalid and Fraudulent:

THResq: http://www.hollywoodreporter.com/thr-esq/zorro-rights-challenged-as-invalid-428561



Cabell v. Zorro Productions – March 13, 2013 – Western District of Washington




“Oz” Evades Copyright Concerns:

New York Times: http://www.nytimes.com/2013/03/03/movies/oz-the-great-and-powerful-disneys-wizard-of-oz-prequel.html?_r=0


Stories we mentioned, but didn’t discuss


Suit over hiring of Michael Jackson doctor to go to trial:

Findlaw: http://news.findlaw.com/apnews-lp/4f991b3055614ec5b3c59d6f866333ab



Katherine Jackson v. AEG – L.A. Superior Court dismissal of all but one claim – Ongoing





  • AEG Live (concert promoter) was promoting MJ’s comeback tour, “This Is It”
  • MJ was struggling making it to rehearsals and preparing for the tour, so Dr. Conrad Murray was hired to care for MJ and make sure he was present and alert for preparations
  • MJ died after Murray administered lethal dose of anesthetic propofol (which was intended to help MJ sleep)

Civil Suit (Katherine Jackson et al v. AEG Live  et al.):


  • MJ’s mother brought suit against concert promoter AEG Live, claiming AEG negligently hired and supervised cardiologist Conrad Murray
  • Plaintiff argues that AEG controlled Murray’s actions and failed to properly investigate him before agreeing to hire him (for $150,000 per month)
  • Claimed that if AEG had investigated Murray, they would have discovered debt problems, which would have been a red flag. Plaintiff claims this financial status created a serious conflict between his responsibility to Jackson and his own financial well-being.
  • Defense argues that Murray was not employed by AEG, but rather was employed by MJ

Status of Lawsuit:


  • Superior Court dismissed claims that AEG could be liable for Murray’s misconduct and breach of duty of care
  • Superior Court sends to trial claim that AEG negligently hired Murray


“Real Calvin And Hobbes” Shut Down By Copyright Claim:

Techdirt: http://www.techdirt.com/articles/20130225/16405822102/copyright-strikes-again-real-calvin-hobbes-shut-down-copyright-claim.shtml




  • Michael Den Beste ran a blog called Real Calvin and Hobbes, in which he would take scenes from the classic comic strip Calvin & Hobbes and place the characters in “real photographs.”

Takedown Request:


  • Calvin & Hobbes’ publisher, Andrews McMeel Universal, responded with a takedown notice, claiming the works were infringing.
  • This is no reflection on the artistic merit of what you’ve done and certainly not a personal condemnation of the pieces you’ve created.

We’re protective of the copyright for a variety of reasons, most importantly it is the express and unwavering wish of the creator that any use of Calvin and Hobbes was limited to work he’d created and in very specific formats.”

Potential arguments:


  • Den Beste has since complied with the takedown request. But he may have a decent fair use claim should he choose to pursue it. The primary issue would be whether replacing the backdrop for the characters adequately transforms the original.
  • But in Lee v. Deck the Walls, the 7th Circuit found that cropping images and placing them on ceramic tile was not transformative enough to render fair use.
  • Another crux would be the amount of work used. Den Beste used only a small percentage of each strip. However, this material was also the focal point of each strip.
  • In Harper & Row, this was the reason the Supreme Court found that a mere 300 words taken from a book several hundred pages long was not fair use. (The Nation had taken a small sampling from Gerald Ford’s biography, but this was seen by the court as the “heart” of the original work)


Animated Calvin & Hobbes:



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