Episode 48 – Google wins some, loses some, and more.
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The YouTube case (Viacom v. Google) settles after 7 Years of litigation.
- http://www.hollywoodreporter.com/thr-esq/what-viacom-has-show-seven-689347
- http://www.hollywoodreporter.com/thr-esq/viacom-google-settle-long-running-689291
IMP3TUNES CEO Michael Roberson liable for direct copyright infringement. Jury still out on damages.
American Idol Lawsuit Claims Sony Stiffs Carrie Underwood, Kelly Clarkson
19 Recordings Limited v. Sony Music Entertainment (US District Court Southern District NY)
Lawsuit
- 19 Recordings was founded by the creator of American Idol, Simon Fuller, and is now controlled by Core Media Group. 19 owns American Idol. 19 signs the artists who win American Idol.
- After 19 Recordings exercised the right to audit Sony Music’s books pursuant to certain recording agreements, the company sued sued Sony in NY federal court, claiming that Sony has been systematically robbing its artists of royalties.
Utah Federal Court Halts Aereo in Salt Lake City
Hollywood Reporter Follow-Up Article.
- Aereo is a service that captures over-the-air TV signals and transmits them to subscribers' digital devices. The company has been involved in numerous lawsuits over the past several months over the company’s right to retransmit copyrighted programs to the public.
- While Aereo was found to be legal by courts in New York and Massachusetts, a Utah district court recently issued an injunction against Aereo, finding that Fox Broadcasting and other stations were likely to succeed on the merits of their copyright claim and be irreparably harmed by Aereo's service.
‘Innocence of Muslims' Actress Scores Huge Victory at Appeals Court
Cindy Lee Garcia v. Google, Inc. (9th Circuit Court of Appeals)
Hollywood Reporter – Copyright Registration Denied.
The Project
- “Innocence of Muslims” is an online 14-minute anti-Islamic video “trailer” that condemns Islam and attacks the Prophet Muhammad.
- It sparked violence in the Middle East, and many Muslims held the US responsible since an American had produced the video.
- Actress Cindy Lee Garcia was told that she was auditioning for an “adventure” film about ancient Egypt titled “Desert Warrior.” She said that the filmmaker never even mentioned Muhammad or Islam. Instead, Garcia’s performance was used in an anti-Islamic film. The anti-Islamic content was dubbed over her performance.
The Lawsuit
- After Garcia realized that her performance had been used for prejudice purposes and she began receiving death threats over the performance, she applied for a temporary restraining order to get YouTube to take down the video.
- She argued that since she didn’t sign a release, she owned a copyright in her performance.
- The lower court, treating Garcia’s application for a TRO as an application as a motion for a preliminary injunction, disagreed determining that Garcia was unlikely to win her case and thereby rejecting a preliminary injunction.
- 9th Circuit Opinion:
- Judge Kozinski reversed the lower court, determining that Garcia is likely to succeed on her copyright claim, and requiring YouTube to remove the video.
- Google’s Motion for Stay
- Shortly after the 9th Circuit decision came down, Google filed an emergency motion for stay, which Kozinski denied.
- Though another 9th Circuit judge made a sua sponte request to have the circuit reconsider the stay, the 9th Circuit judges voted against a stay rehearing, and so YouTube will still need to remove the video.
- Garcia’s copyright registration denied.
- Garcia, for the past couple of years, has attempted to register a copyright in her performance, but that application was denied in December 2012.
- In her application, she classified her work as a “dramatic performance fixed in tangible medium of expression.”
- After the 9th Circuit ruling, Garcia’s lawyer referred the Copyright Office to the opinion. But, on March 6, the director of registration policy and practices responded that “longstanding practices do not allow a copyright claim by an individual actor or actress in his or her performance contained within a motion picture.”
- Therefore, the U.S. Copyright Office and the 9th Circuit are now conflicting with one another.
- Garcia, for the past couple of years, has attempted to register a copyright in her performance, but that application was denied in December 2012.
“Facebook Said I Could” Defense Fails to Justify Digital Millennium “Trademark” Notice
Trademark and Copyright Law Blog.
Background:
- CrossFit is a popular fitness training company that licenses its trademarked name and goodwill to about 8,000 affiliates worldwide at $3,000 a year per affiliate.
- Jenni Alvies is a non-affiliate who began posting on Facebook under the name “Crossfit Mamas” (selling exercise apparel bearing the same name), and CrossFit felt Alvies was infringing its mark.
- Following Facebook’s policy for the removal of infringing materials, CrossFit sent Facebook a takedown notice pursuant to the Digital Millennium Copyright Act, demanding that all materials related to the trademark infringement be removed. Facebook complied and suspended the page.
Lawsuit:
- CrossFit later sued Alvies for trademark (and not copyright) infringement in the Northern District of California.
- Alvies responded with a counterclaim for damages under Section 512(f) of the DMCA (which imposes civil liability [including damages and attorneys’ fees] on a party whose DMCA takedown notice “knowingly materially misrepresents” that copyright infringement has occurred). According to Alvies, CrossFit never accused her of copyright infringement, so purporting to issue a takedown notice under the provisions of the DMCA was a knowing material misrepresentation.
- CrossFit moved to dismiss the counterclaim, stating that Facebook policy allows both copyright and trademark violations to be reported and taken down.
- But Judge Samuel Conti disagreed, saying the Facebook-said-I-could defense is a non-starter. “Whether CrossFit may have been able to convince Facebook to remove Alvies’ page on some other ground has no bearing on CrossFit’s compliance with the DMCA.”
Dumb Starbucks Coffee Shop Opens in Los Feliz
Life of the Law.
Story
- A few weeks ago, pop-up store, Dumb Starbucks Coffee, appeared in Los Feliz. The store parodied the design of Starbucks.
- Everything was the set up to mimic Starbucks
- The same shop sign
- The same menu
- The same coffee cup design
- And so forth
- Everything was the set up to mimic Starbucks
- The coffee and pastries offered were free, and next to the non-functioning cash registered, CD’s entitled “Dumb Nora Jones Duets” and “Dumb Jazz Standards” among others were available.
- Although the coffee shop is functioning, “for legal reasons” the storefront was categorized as a work of parody art, in which the coffee shop is an art gallery and the coffee is actually the art.
- Who was behind the parody? Nathan Fielder, the Comedy Central comedian.
- The store was shut down the day after it opened by the LA Health Department.
Legal Issues.
- Starbucks didn’t and is not taking any legal action and the pop up shop has been dissolved, so this discussion is purely hypothetical.
- Dumb Starbucks argument
- The use of Starbucks trademark is fair use.
- They are able to use the Starbucks trademark because it is being used to make fun of Starbucks and is considered “a work of parody art”
- The key questions
- Does “dumb” before the word “Starbucks” make clear that the store is making fun of Starbucks and is not associated with Starbucks?
- However, it wasn’t just the words used, but the fact that the entire store was dressed to look just like Starbucks.
- Does Dumb Starbucks “dilute” Starbucks’ brand?
- Does “dumb” before the word “Starbucks” make clear that the store is making fun of Starbucks and is not associated with Starbucks?
Sony Wants to Put the Brakes on a “Ricky Bobby” Saloon
Background:
- Rick’s Cabaret International is a publicly-traded corporation that owns a number of restaurants and entertainment venues worldwide. Among these is a Texas sports bar calling itself “Ricky Bobby Sports Saloon & Restaurant,” stylized after the 2006 Will Ferrell comedy Talladega Nights: The Ballad of Ricky Bobby.
- The sports bar is now the subject of lawsuit by Sony Pictures for trademark infringement.
Lawsuit:
- Sony’s complaint is based primarily upon the case that Rick’s Cabaret is misleading consumers about the source of origin for the Ricky Bobby Sports Saloon. Sony points to several similarities:
- A full-size car similar to the Chevrolet Monte Carlo race car driven by the Ricky Bobby character in the Picture as his ‘Me’ comeback car.
- A picture inside the restaurant with the phrase “If you ain't first…,” an apparent reference to Ricky Bobby’s lifelong mantra “If you ain’t first, you’re last.”
- Drink items including “Talladega Punch” and “Comin' at Ya Like a Spider Monkey,” which is a character's line in the movie.
- Waitresses known as “Smokin’ Hotties,” a reference to Ricky Bobby’s “Smokin’ Hot Wife”
- Sony is seeking an injunction, the restaurant's profits, forfeiture of web domain names and unspecified punitive and exemplary damages.
- Rick’s Cabaret has not yet responded to Sony’s complaint.
Quentin Tarantino Sues Gawker Over Revelation Of Movie Script
Quentin Tarantino v. Gawker Media, LLC (US District Court Central District of CA)
Hollywood Reporter – Procedural Issues.
Hollywood Reporter – Gawker's Motion to Dismiss.
Background
- Gawker posted direct links to download Quentin Tarantinos unproduced script for the project “The Hateful Eight.” The post was titled “Here Is the Leaked Quentin Tarantino Hateful Eight Script.”
Lawsuit
- Tarantino is suing Gawker for contributory copyright infringement for linking to the site that is being sued for direct copyright infringement of the script.
- The Complaint argues that Gawker “crossed the journalistic line by promoting itself to the public as the first source to read the entire Screenplay illegally.”
- Gawker is claiming no contributory infringement when readers read the script, and alternately, fair use (on somewhat tortured interpretation)
Michael Jordan v. Jewel Food Stores: The Seventh Circuit Explores the Boundaries of Commercial Speech
Jordan v. Jewel Food Stores, Inc., — F.3d — (7th Cir. Feb. 19, 2014).
- Jordan sued Jewel for false-endorsement under the Lanham Act and for false publicity under state law for Jewel’s use of his identity in an ad run in Sports Illustrated special issue.
- Jewel asserted immunity from suit under the First Amendment, arguing that the ad was fully protected noncommercial speech. Jordan maintained that the ad was commercial speech, entitled to lesser constitutional protection.
- Commercial speech is generally defined as “speech that proposes a commercial transaction.” Bd. of Trs. of State Univ. of N.Y. v. Fox, 492 U.S. 469 (1989).
- The district court sided with Jewel, mainly because it did not seek to have readers enter into any specific commercial transaction.
Ruling:
- The 7th Circuit reversed, framing its analysis with three guideposts: (1) whether the speech is an advertisement, (2) whether it refers to a specific product, and (3) whether the speaker has an economic motivation for the speech.
CNN Gets First Amendment Victory
Lawsuit
- A deaf group called GLAAD (Greater Los Angeles Agency on Deafness) sued CNN under the California Unruh Civil Rights Act and the California Disabled Persons Act, claiming that CNN had violated their rights by refusing to immediately put closed-captioning on videos uploaded to the CNN website.
- CNN filed an anti-SLAPP motion to dismiss the suit on the basis that it is frivolous.
- Anti-SLAPP motions protect against frivolous suits that target defendant’s conduct that exercises free speech rights
- Lower Magistrate Court
- CNN did not show that refusing to close-caption videos was a freedom of speech.
- judge determined that the deaf group wasn’t asking CNN to alter its message, but rather to make it accessible to those who are deaf.
- The 9th Circuit Ruling
- The 9th Circuit determined that CNN’s decision was “editorial,” and CNN had made the requisite prima facie case of showing that the suit targeted an act in furtherance of CNN’s free speech right to report the news.
- The court was careful to note that this ruling was limited to allowing an anti-SLAPP motion to be heard where an action directly targets the way a content provider chooses to deliver, present, or publish news content on matters of public interest.
- Where do we go from here?
- Now, the burden shifts to GLAAD to show that it is probable that it will prevail on the merits of the case. If it does not meet the burden, then the case will be dismissed
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