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Entertainment Law Update 028 – Politics, helicopters & Batmobiles




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In this Episode:


  • Political campaigns raise the ire of copyright holders and newscasters
  • A Canadian Lawyer's perspectives
  • MegaUpload
  • Golan v. Holder  ruling
  • Helicopters in video games… need a license?
  • and more

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Show Notes


Gordon P. Firemark
Website:   http://firemark,
Twitter: @gfiremark

Tamera Bennett

Twitter: @tamerabennett


Bob Tarantino

Bob Tarantino

Bob Tarantino is a partner in the Entertainment Law group at Heenan Blaikie LLP and focuses his practice on the interface between entertainment and intellectual property law. Bob has been recognized as one of Canada’s leading lawyers in the area of entertainment law in the 2010, 2011, and 2012 editions of The Best Lawyers in Canada (Woodward/White).  In 2010 he launched Heenan Blaikie's Entertainment & Media Law Signal, a collaborative blog by members of the firm's Entertainment Law group, which was recognized as a co-winner of the Best New Law Blog in the 2010 Canadian Law Blog Awards.




Newt Gingrich’s campaign makes the news twice in a week for claims of copyright infringement of a song.   Rude Music Inc., owned by Frank Sullivan, a co-author of the song “Eye of the Tiger,” filed a copyright infringement lawsuit in federal district court in Chicago for Gingrich’s use of the song on the campaign trail.


The Newt Gingrich Campaign has been using the song, “How You Like Me Now” at campaign events. Third Side Music, a Montreal Record Label that controls the rights to the song sent Gingrich’s team a cease and desist order.

In the US, using a song at the public event requires securing a valid public performance license from ASCAP, BMI, or SESAC. Beyond that, an artist does not have the ability to restrict the use of their song at a political event.

In Canada, the Canadian Copyright Act gives authors moral rights.

The author of a work has the right to the “integrity” of the work which is ingringed if the work is, to the “prejudice of the honor or reputation of the author, distorted, mutilated or otherwise modified; or used in association with a product, service, cause or institution (Section 14.1, Section 28.2).”

Thus, here, the use of the song in association with a cause (the campaign) prejudices the honor or reputation of the author and infringes his moral rights.

Third Side Music is the Canadian music publisher that controls the rights to the song.
Bob’s blog post at Entertainment Media Signal:


NBC’s lawyers have asked Romney to take out any reference to the network’s journalism in any other ads as well, but the campaign said it believes it falls under the fair-use doctrine and was reluctant to take the ad off.

Megaupload Drops Lawsuit Against Universal Music Group





The Supreme Court has handed down a long awaited decision. In a 6-2 decision, the Supreme Court held that Congress had the right to enter into the Uruguay Round Agreement which was an international treaty that allowed foreign rights-holders to claim copyright protection on some works that were previously in the public domain.

EA Invokes First Amendment For Video Games

THR Esq:

Video game juggernaut Electronic Arts has filed suit against defense conglomerate Textron in California court.  At issue is EA’s right to depict three of Textron’s helicopters in the video game military simulation Battlefield 3.  Textron was allegedly threatening their own suit over trade dress infringement and dilution claims, which prompted the pre-emptive action by Electronic Arts.  EA is seeking a declaratory judgment allowing them to depict the three aircraft (the AH-1Z Viper, the UH-1Y transport helicopter, and the V-22 Osprey) on Fair Use and First Amendment grounds.

Compare: Use of “fictional car brands” in video games.

Velvet Underground Sues Andy Warhol Foundation Over Famous Banana Album Cover


UK Judge Orders Accused Copyright Pirate Extradited to US


Richard O’Dwyer, a 23-year old British resident has been ordered for extradition to the United States to face charges of copyright infringement for running a website that links to free films and tv shows.  Mr. O’Dwyer made thousands of British Pounds in advertising on the site.

The UK judge ruled that although the UK authorities are declining to litigate, the US authorities still have a right to try Mr. O’Dwyer in their jurisdiction.

Just How Egregiously Must a Trademark Plaintiff Act Before a Court Awards Attorneys' Fees to the Defendant?–1-800 Contacts v.

Technology & Marketing Law Blog:
Link to case:

Section 1117 of the Lanham Act allows for recovery of attorneys’ fees in “exceptional” cases of trademark infringement.  On such case is 1-800 Contacts v. 1-800 Contacts sued their competitor in the Central District of Utah for infringement by competitive keyword advertising.

Kim Kardashian v. The Gap:


A while back, Kim Kardashian filed suit against the Gap, the clothing retail giant which is the parent company of Old Navy, for using a supposed ‘Kim Kardashian look-a-like in one of the Old Navy commercials. Kardashian sued for $20 million claiming that the commercial “created confusion in the marketplace and violated her rights to her name and likeness.”

Now, The Gap is fighting back, arguing that Kardashian’s reputation was not actually damaged by the commercial.

Batmobile Design IS protectable by copyright.  Not a “Useful Article”

Last year, DC Comics, a subsidiary of Warner Bros., sued Mark Towles, who operated a business called “Gotham Garage,” which sold imitation batmobiles. DC, accused Towles of violating its copyright and trademark and confusing the public into thinking that his cars were authorized products.

U.S. District Judge Ronald Lew, rejected Towles’ argument that a BatMobile is a useful article, not protected by copyright.

BATMOBILE CASE:  Order denying Defense Motion to Dismiss

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