Podcast: Play in new window | Download | Embed Subscribe: Android | RSS Approximate Running Time: 01:07

CLE CREDIT COMING SOON!

Record Date:  November 16, 2009, 2:15pm PDT

SHOW NOTES

TOPICS:

• Quick Takes:
  • Noonan v. Staples –  Jury: Truthful E-Mail Sent About Fired Staples Manager Wasn’t Libelous
  • Disney settles with Luxo over the Luxo Jr. Lamp – .http://www.thresq.com/2009/11/pixar-luxo-lamp-settlement.html
  • Carly Simon is suing her record label & starbucks over poor marketing of record – http://www.nytimes.com/2009/10/12/arts/music/12simon.html?
    • Response from Starbucks http://news.starbucks.com/article_display.cfm?article_id=283
  • FTC Guidelines for Bloggers
    
    • http://www.nytimes.com/2009/10/06/business/media/06adco.html?_r=3&em

    • • Revised Endorsement and Testimonial Guides: http://ftc.gov/os/2009/10/091005revisedendorsementguides.pdf
      • FEDERAL TRADE COMMISSION, 16 CFR Part 255, Guides Concerning the Use of Endorsements and Testimonials in Advertising: http://www2.ftc.gov/os/2009/10/091005endorsementguidesfnnotice.pdf

    • Regs
    • More helpful links:
      • http://www.ftc.gov/opa/2009/10/endortest.shtm
    • Bottom line: if a blogger/celebrity has a relationship with a company, then she/he must be upfront about the relationship.  To be safe, disclose the connections you have.  If they sent you samples, tell your audience.  Think about what protects the consumer.
      

• • Vent v. Mars Snackfood U.S., LLC

    • M&M Mars not liable in idea submisson case surrounding ‘addams family’ characters/cross promotion
    • Entertainment Broker did not establish that there was a confidential or fiduciary relationship arising from her submission of idea to Mars.  Under  New Jersey Misappropriation of Idea Statute, plaintiff  mustshow that (1) the idea was novel; (2) it was made in confidence to the defendant; and (3) it was adopted and used by the defendant in connection with his own activities.. The district court granted defendant’s motion to dismiss because Vent’s idea was not novel and because she did not convey it in confidence.
    • The court also rejected Vent’s argument that it is customary in the entertainment and marketing industries for a pitch to be confidential; as the court noted, Mars is not in the entertainment or marketing industries and thus cannot be expected to know or abide by such standards.

• • The Weinstein Co. v. Smokewood Entertainment Decision reached in “Push” case – emails do NOT satisfy the statute of frauds requiring written assignment of copyright interest, and did not suffice as evidence of agreement
    • http://www.schwimmerlegal.com/2009/11/oral_contract_n.html
    • http://www.scribd.com/doc/22155496/Decision-Twc-Oral-Copyright
    • http://www.thresq.com/2009/02/lionsgate-moves-first-to-dismiss-weinsteins-push-suit-.html
    • http://latimesblogs.latimes.com/entertainmentnewsbuzz/2009/09/inside-the-battle-for-precious.html

• • Jon Gosselin has countersued against TLC, on grounds that his contract is ILLEGAL – citing child labor violations, among other things
  • (TLC is suing Gosselin for breach of contract exclusivity by appearing on other TV shows, engaging in celebrity endorsements, etc.

• California’s new anti-paparazzi statute  –The amendment to the 11-year-old law which made it illegal for photographers to trespass, both physically and constructively, with the intention of photographing celebrities engaged in personal and familial activities in a “manner that is offensive to a reasonable person” – now allows plaintiffs to file suit against any media organization that sells, transmits or publishes an image knowing it was obtained through such illegal trespass.
  • Prior Statute: (1998)
    • http://www.firstamendmentcenter.org/news.aspx?id=11029Beatles MP3s –
  • 2005 version http://www.hollywood.com/news/Arnold_Schwarzenegger_Approves_Tough_New_Paparazzi_Law/2445824
  • 2009 law
    • http://blogs.wsj.com/law/2009/10/14/will-californias-new-anti-paparazzi-law-unleash-a-torrent-of-law-suits/
  • Hollywood Reporter, others question constitutionality

• Side-note – The New York City government has announced that the public will no longer be able to visit the Office of Film, Theater and Broadcasting to leaf through the city’s film shoot permits. Instead, those who are interested in figuring out where celebrities will be on any given day, will be forced to file a request under the Freedom of Information Act. The Mayor’s office says it isn’t making the change to stifle paparazzi, but rather because of budgetary considerations.

• Beatles music catalog finally available online.. but is it legal? (EMI v. Bluebeat)
  • The Complaint: http://www.scribd.com/doc/22140566/Capitol-Records-v-BlueBeat-Complaint
  • http://latimesblogs.latimes.com/music_blog/2009/11/meet-the-beatles-usb-drive-emi-files-suit-against-bluebeat-for-selling-beatles-downloads.html
  • Bizarre legal defense after EMI sues over Beatles MP3 sales – Ars Technica
  • Defendant Bluebeat claims IT is the author of those recordings, because they were made using  ‘psycho-acoustic simulation’….
  • http://arstechnica.com/tech-policy/news/2009/11/judge-hits-beatles-mp3-seller-with-restraining-order.ars

• Radio Station liable for wrongful death of woman in “Hold your wee for a wii” case
  • • The tab for Entercom Sacramento LLC came to $16,577,118 in the water-intoxication death of Jennifer Lea Strange in a contest put on by radio station KDND “The End” (107.9 FM).
  • See Weirum v. RKO General, Inc. (1975) setting forth the idea that radio station can be held liable for unlawful or negligent actions of its listeners participating in a contest. (foreseability)
  • $16.57 million verdict in hold your wee for Wii case – what are the FCC implications and what should broadcasters learn?
  • Sacramento jury awards $16.6 million for mom’s death in Wii radio contest
  • Jury Says Radio Station Must Pay $16.6M in Woman’s Water Intoxication Death | ABA Journal – Law News Now

• ASCAP’s claims re ringtones and “preview” in iTunes
  • ASCAP Argues Ringtones are Public Concerts, and Loses « JETLawBlog: The Official Blog of the Vanderbilt Journal of Entertainment and Technology Law
  • Order:  http://www.jdsupra.com/post/documentViewer.aspx?fid=bc198b72-5e21-4600-92f7-35d74bb52b53
  • Music publishers: iTunes not paying fair share

• Copyright Termination of Transfers – starting to get interesting.
  • Termination rights: music to artists’ ears–The Hollywood Reporter | Esq. | Entertainment and Media Law
  • Disney Faces Rights Issues Over Marvel
    • Copyright Act of 1976 – § 203(a)(3)-(5): Termination of transfers and licenses granted by the author³
      • 2011(?): first year holders of sound-recording copyrights can take advantage of this provision from recordings in 1978
        • “By 2013, artists will be able to effectuate their termination notices, but thanks to quirks in copyright law, the window to send notices on songs made between 1978 and 1984 will be closing soon.”
    • This isa complicated web of rules:
      • During 35-40 years after the execution of the grant (or date of publication), <– termination window
      • termination of the grant may be effected
      • by the author(s)/heir(s) that have at least 51% of the termination interest
      • by serving an advance notice in signed writing
      • no less than 2 years or more than 10 years before the stated effective date of the termination.<– window for NOTICE of termination
      • Finally, a copy of the notice must be recorded in the Copyright office before the effective date of the termination.
    • Conditions:
      • applies to works on or after 1/1/78
      • *excludes work made for hire, derivative works made before the effective date of termination, and transfers by will
      • takes priority/preempts any other agreement to the contrary
      • termination reverts all rights in the (c) to the author(s)/heir(s)

        • happens even if opposed by minority % parties in (c)
        • THB article on termination: http://www.jdsupra.com/post/documentViewer.aspx?fid=918f6a4f-cb74-4837-8512-4503028c10ac
        • http://williampatry.blogspot.com/2008/07/lassie-rescued-again.html Lassie Rescued Again
        • http://www.vincemanapat.com/index.php/archives/37 Steinbeck estate issues