Entertainment Law Update Podcast Episode 045

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In this episode of Entertainment Law Update, Entertainment lawyers Gordon Firemark and Tamera Bennet review the latest cases and controversies in the entertainment industry.

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Show Notes

AEG Not Liable in Michael Jackson’s Death, Jury Finds

CNN.

Katherine Jackson v. AEG Live

Background:

• After Michael Jackson died from an overdose of propofol, his Doctor, Conrad Murray, was convicted for involuntary manslaughter.

• In 2010, Michael Jackson’s mother and his children sued AEG Live asserting that AEG had negligently hired, retained, and supervised Doctor Murray in preparation for Jackson’s “This is It” tour.

• AEG contended that Jackson had chosen Murray, while the Jacksons argued that the hiring decision was AEG’s.

• AEG also argued it wasn’t negligent, since its executives had no way of knowing the Dr. Murray was a risk to Michael Jackson. In fact, Murray was licensed to practice medicine in four states and had never been sued for malpractice.

Ruling:

• The jury decided that Dr. Murray was hired by AEG, but it found that Murray was competent, so AEG was not liable for Jackson’s death.

Anti-Paparazzi Law Passed

The Hollywood Reporter.

Sports and Entertainment Attorney Blog.

Link to the legislation.

Story:

• We have talked a lot, on our podcast, about privacy protections for celebrities.

• Most recently, the California Governor has signed legislation, which will impose tougher penalties on paparazzi and others who take photos and video of children  in a harassing manner and without parental consent.  The legislation will take effect in January.

• This new law not only protects children of celebrities and public figures, but also children of police officers, judges, and other children susceptible to harassment or unwanted attention due to their parents’ occupations.

• The penalty under this legislation is up to a year in county jail and a $10,000 fine. The legislation also provides for civil action against violators resulting in damages and attorneys’ fees.

• The argument against First Amendment challenges is that that law targets the photographer’s conduct, not the act of taking the photo.

Supreme Court to Hear Raging Bull Case

The Hollywood Reporter.

Petrella v. Metro-Goldwyn-Mayer, Inc. (writ of certiorari filed Apr. 30, 2013).

Background:

• Paula Petrella, is the daughter of Frank Petrella who wrote the Iconic film “Ragin Bull” about prizefighter Jake LaMotta.  She  asserts that because her father died before the original term of the copyright grant expired, the rights to Raging Bull reverted to the heirs. They filed the copyright renewal in 1991

• Petrella also claimed $1 million in damages from alleged copyright infringement on the part of MGM and 20th Century Fox, who had profited from DVDs of the famous film.

• In August 2012, the Ninth Circuit handed MGM a victory by saying that a lawsuit brought in 2009 was too late.

Lawsuit:

• According to Petrella's petition for a writ of certiorari, the question to be presented will be whether the defense of laches – meaning an unreasonable delay in pursuing a right or claim – can bar a civil copyright lawsuit within an express 3-year statute of limitations. The petition notes that circuit courts have split on the answer.

EA Settles with NCAA Athletes

The Hollywood Reporter.

O’Bannon v. National Collegiate Athletic Association

Background:

• A group of NCAA athletes, including Ed O’Bannon, Bill Russell, and Oscar Robertson, had sued Electronic Arts, claiming that it had illegally used their likenesses in its football video games.

Settlement:

• A settlement has been reached in this dispute, but the details have not yet been released.

• EA Sports will not be producing its NCAA Football video game next year.

• Well what will happen next?

  • The plaintiff athletes are still pursuing their antitrust claims against the NCAA for forcing them and other NCAA athletes to sign waivers and enforcing group boycotts among its licensing partners. They are waiting for a judgment certifying their class action.

  • It is likely that the athletes could bring claims against broadcasters for exploiting their likenesses without compensation.

Managers File Appeal in California Talent Agencies Act Suit

Deadline.

National Conference of Personal Managers, Inc. v. Brown (9th Cir., brief filed Oct. 8, 2013).

• The National Conference of Personal Managers is again seeking to have the Talent Agencies Act declared unconstitutional.

• Seven months ago, a district court judge tossed the Conference's original lawsuit, first filed in November 2012. That lawsuit sought to overturn the state’s ban on managers “procuring” employment, with the organization claiming the ban has cost its members more than $500 million in compensation since it was first introduced in the late 1970s.

• The mangers are now appealing that decision in a brief filed with the Ninth Circuit, saying “[t]he District Court’s premature dismissal of the Complaint disregarded serious constitutional questions and the compelling public policy issues presented in this case.”

• They're asking for the Ninth Circuit to reverse the District Court’s Order by finding that the TAA is facially unconstitutional or in the alternative to remand the matter to the District Court to allow the Conference the opportunity to amend its Complaint.

Harper Lee Sues Hometown Museum for Exploiting ‘To Kill a Mockingbird'

The Hollywood Reporter.

Lee v. Monroe County Heritage Museum (S.D. Ala., filed Oct. 10, 2013).

• Harper Lee, author of To Kill a Mockingbird is back in court. You will recall that She had recently resolved a dispute with her former agent, Samuel Pinkus, over the copyright to the novel.

• Now she is suing a museum in her hometown of Monroe County, Alabama, for exploiting her trademark and personality rights.

• According to the complaint, “The town’s desire to capitalize upon the fame of To Kill a Mockingbird is unmistakable: Monroeville’s town logo features an image of a mockingbird and the cupola of the Old County Courthouse, which was the setting for the dramatic trial in To Kill a Mockingbird.”

• Lee also objects to claims that the mission of the Monroe County Heritage Museum is historical, saying, “Its actual work does not touch upon history. . . . Rather, its primary mission is to trade upon the fictional story, settings and characters that Harper Lee created in To Kill a Mockingbird, and Harper Lee's own renown as one of the nation's most celebrated authors.”

• The museum’s executive director, Stephanie Rogers, said regarding the complaint, “I have not read it and [have] not been served. . . . The museum has been doing what we always have done. We honor her here. We don't sell anything with her name. We sell memorabilia to those who come to see a production of To Kill a Mockingbird that we secure dramatic rights to. Everything we do is above board. I’m shocked by this.”

Disney Sues over Musical Featuring Its Characters

The Hollywood Reporter.

Lancaster Online.

Disney Enterprises Inc. v. Entertainment Theatre Group (E.D. Penn., filed Sept. 24, 2013).

• Entertainment Theatre Group (dba American Music Theatre) is a Pennsylvania-based theater company that recently put on a show called Broadway: Now & Forever.

• The show was advertised as a “larger-than-life theatrical compilation of unforgettable music from the hottest new blockbusters to all-time favorite classics.” It included references to Chicago, Mamma Mia, CATS, Billy Elliot, Les Misérables, Evita, and many more.

• Disney was upset about the inclusion of Mary Poppins, The Lion King, and Spider-Man (specifically “Chim Chim Cher-ee,” “The Circle of Life,” and a choreographed dance routine in Spider-man costumes). Disney sued the theater for copyright infringement, trademark infringement, unfair trade practices, and unfair competition.

• Disney is seeking at least $1.65 million in monetary damages for willful infringement, saying that the defendants had refused to stop the show even after being warned, once in April and again in August. The show ended its scheduled run on October 12.

• The defendants say the theater has been questioned about its performances before, but never sued. Lawyers for the theater are preparing a response to the lawsuit.

Central Park Five – Journalist Privilege protects documentary raw footage

Entertainment Law Digest.

Reporters Committee for Freedom of the Press.

McCray v. City of New York, et al. (S.D. of New York filed December 8, 2003)

Background:

• 24 years ago… Five black and latino teenagers, now known as “The Central Park Five,” were wrongfully convicted for gang-raping a Central Park jogger.

• They served their complete sentences, and then

• After they served their sentences, the true perpetrator came forward and confessed.  That confession was affirmed by DNA testing.

• The Central Park Five then sued the DA's office, the interrogators and the prosecutors in 2003. This is finally going to trial.

• In preparation for trial, the defendants subpoenaed Florentine Films to turn over footage used in its documentary by Ken Burns, Sarah Burns and David McMahon based on the story of the Central Park Five.

The Law and Court Ruling:

• Interviews and sources are typically protected under a journalistic privilege.  Therefore, Florentine Films contended that it was protected by the journalistic privilege from turning over the documentary footage into evidence.

• However, the defendants argued that the filmmakers couldn’t establish the independence necessary to evoke the protections of the journalistic privilege laws.

  • [Chevron Corp. v. Berlinger, 629 F. 3d 297 (2nd Cir. 2011) held that the journalistic privilege applies with full force only to reporters acting independently of the subjects of their journalism]

• Existing case law:

  • Joseph Berlinger had made a film concerning a multibillion-dollar legal battle between Chevron and Ecuadorean natives in the Amazon.  Berlinger had lost his independence when he edited out a scene at the request of lawyers for the Ecuadorean natives, and therefore lost the journalistic privilege.

  • Andrea Reynolds was the mistress of an alleged wife-killer.  She wrote a book, and the court found she did so because it was the only way to shield the information that she had gathered about the incident. Therefore,  the court denied a journalistic privilege in that case.

• In the Central Park Five case, the Judge found that those two scenarios were distinguishable from this case and so the journalist privilege applied in this instance.

  • Though one of the filmmakers, Sarah Burns, had researched the case in college as a paralegal for the law firm representing the Central Park Five, the Court found that this relationship was “too attenuated” to extinguish independence.

    • The material sought by the subpoena was all gathered after she had left the firm.

  • The judge ultimately held that the defendants failed to present the Court with a “concern so compelling as to override the precious freedom of speech and the press.”

How a Fox News Lawsuit Might Impact the Future of News

The Hollywood Reporter.

Fox News Network, LLC v. TVEyes, Inc. (S.D. of New York filed July 30, 2013)

Background:

• TVEyes is a media monitoring company, which records and indexes television and radio stations around the world servicing users like the US Department of Defense, the UN, members of Congress, the NY Times, Time Warner Cable, sports teams and other political organizations.

  • TVEyes is used for PR and marketing purposes and to quickly surf the news

Hot News Doctrine: ELU Episode 22

• 1918 Ruling- The Supreme Court held that news was “quasi property,” so there should be some consideration of the news organization’s input of labor, skill and money into making the news.

  • In the 1918 case, International News Service v. Associated Press, two competing news services were reporting news on WWI.

  • The International News Service was barred from using Allied telegraph lines to report news, which shut down their WWI reporting after unfavorably reporting British losses.

  • Thereafter, the International News Service continued to publish news about the war by gaining access to the Associated Press through bribery then rewriting the news and publishing it as their own.

  • The Associated Press sued to enjoin International News Service from copying its news.

  • The Court found for the Associated Press, based on the fact that the news was “quasi property” of the Associated Press.

• 2011 Ruling- The 2nd Court of Appeals held that a firm’s ability to make news doesn’t give rise to a right for it to control who breaks the news and how.

Lawsuit:

• Fox believes that TVEyes is engaging in unfair competition. Fox alleges that users who would typically watch Fox News telecasts and use Fox’s websites and other services to retrieve the news are using TVEyes instead.

• So, Fox has sued TVEyes for copyright and hot news misappropriation.

  • Fox argues that the expense of producing the news programming and its time-sensitive nature gives rise to the hot news doctrine.

  • The basic argument is that TVEyes “free-riding” will reduce Fox’s incentive and ability to make the necessary investments and expenditures to produce the news. The end result will be a lesser quality and quantity of news for the public.

• TVEyes has filed a motion to dismiss for failure to state a claim.  TVEyes claims that Fox hasn’t identified which particular time-sensitive facts were taken.  TVEyes merely delivers keyword results to customers using its indexing and organizing. This is not the same underlying news reported by Fox.

• Now, Fox is going to need to respond.

Asian-American Band Fights to Trademark Name ‘The Slants'

NPR.

Oregon Public Broadcasting.

Background:

• A Portland-based Asian-American rock band that performs under the name “The Slants” has been duking it out with the Patent and Trademark Office over the past four years because of its name.

• The PTO had refused the band’s trademark applications, saying that “slants” is a disparaging term for people of Asian descent. The band had argued that “slant” has many meanings and that it's not necessarily derogatory in every context. The band claimed that the name is a reference to musical chords.

• But the PTO didn’t buy it. “The intent of an applicant to disparage the referenced group is not necessary to find that the mark does, in fact, disparage that group.”

Lawsuit:

• Now the band plans to take their case to a federal circuit court, and they're trying a different strategy: they're arguing that the denial of the trademark violated their First Amendment rights.

• “It’ll be slightly different in a federal court than in the trademark because we can bring some of the . . . other types of legal arguments that the USPTO doesn't consider . . . such as [the] First Amendment,” Tam, the band’s founder, said.

• “I think it’s . . . ludicrous Asian-Americans are almost the only people who can’t use the term,” Tam said. “Almost 800 applications have gone before the trademark office for the term ‘slant’. Never . . . have they said it was a disparaging term until an Asian applied.”

Van Halen Sues Drummer's Ex-Wife over Commercial Use of Last Name

http://www.hollywoodreporter.com/thr-esq/van-halen-sues-drummers-wife-648979

ELVH, Inc. v. Kelly Van Halen  (C.D. of California filed October 10, 2013)

• Van Halen, the famous rock band, is named after the members of the band: Eddie, Alex, and Wolfgang Van Halen.  The band owns the mark “Van Halen.”

• Alex’s Ex- Wife, Kelly (Carter) Van Halen, has also been using the famous mark as the designation for her construction and interior design company.  The couple divorced almost two decades ago.

  • More specifically, Kelly has filed two trademark applications on “Kelly Van Halen” for products including chairs, children’s blankets, bathing suits, building construction, and interior design services.

• The band is suing, and asserts that the name is confusingly similar to the band’s mark, which dilutes the mark, and that goods in the apparel and fashion space are identical or closely related to goods sold by the band.

• Now, the court is faced with two competing interests:

  • On the one hand, the owner of a trademark certainly has an interest in the use of that mark.

  • On the other hand, the Supreme Court has long held that “A man’s name is his own property, and he has the same right to its use and enjoyment as he has to that of any other species of property.” Brown Chemical Co. v. Meyer, 139 U.S. 540 (1891).

• In this case, the court will need to determine whether “senior family name users” can enjoin “junior family name users” from using a last name in trade, which doubles as a famous trademark.

http://anticounterfeiting.foxrothschild.com/luxury-goods/courts-dont-allow-gucci-family-members-to-profit-from-their-famous-name/  See a history of the “Gucci” family lawsuits over the us of their name

Lawyer Drops “Dumb” The Oatmeal Lawsuit

Lawyer Drops “Dumb” The Oatmeal Lawsuit – EntlawDigest

Arstechnica.

Back in episode 32, in July of 2012. We told listeners about a peculiar lawsuit…

• Charles Carreon, lawyer for FunnyJunk.com, had sued Matthew Inman of “The Oatmeal” online comic strip, demanding $20,000 over comments Inman had made about FunnyJunk's habit of hosting Inman's cartoons.

• The legal battle that followed greatly lowered Carreon's reputation online, leading Carreon to regret ever suing.

• Now, he's dropped his suit.