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In this Episode:
- Follow Ups
- UMG v. Augusto
- Brill v. Disney
- New CRB Royalty Rates
- Josh Groban sings Kanye’s tweets
- Right of Publicity cases and the Constitution
- Record Labels to pay $47.5 Million
- Defamation in Copyright Registration
- Presley Estate Sues Chrysalis
GET CLE CREDIT for this episode.
Shepard Fairey settlement, etc.
The case involved an artist who created a work of poster-art based on a photo belonging to AP. He claimed it was a fair use, and things were getting interesting, when allegations that Fairey had lied and spoiled evidence muddied up the waters. This settlement takes all of that out of the equation… but
AP is still going after other defendants who’ve produced products, etc., bearing the Fairey Artwork. Those defendants are claiming it’s a Fair Use… so we’re still watching this case.
His lawyer briefed the 1st Circuit that “This case presents a gross distortion of the traditional understanding of copyright law. The damages are so disproportionate to the offense because the statute was never meant to apply to not-for-profit individual consumers like Tenenbaum. Statutory damages exist to solve provlems of proving significant harms difficult to quantify — not to authorize in terrorem punishment.”
The latest episode at issue in the lawsuit in U.S. District Court in New York is the Las Vegas Hard Rock’s Dec. 30 agreement to pay $650,000 to settle a state Gaming Control Board complaint that said its employees and managers were involved in drug sales and providing a nightclub restroom for sex.
Hard Rock Cafe complained in the lawsuit that the now-canceled “Rehab” reality TV show at the Las Vegas hotel-casino was degrading the Hard Rock brand by portraying “drunken debauchery, acts of vandalism, sexual harassment, violence and criminality.” The lawsuit demanded the Las Vegas property stop using the Hard Rock name.
The Vegas hotel fired back in a counterclaim, claiming the trademark lawsuit was part of a campaign of business harassment by Hard Rock Cafe against the Las Vegas company.
In a brief opposing a motion for dismissal of its trademark lawsuit, Hard Rock Cafe attorneys on Friday wrote the Las Vegas drug and sex incidents amount to violations of the cafe’s trademark rights and breaches of the Hard Rock license agreement — including a “best efforts” clause in which the parties are supposed to use their best efforts to protect the brand.
(this is presenting PR problems for the Hard Rock Brand, operates restaurants and hotels in other places)
CASES & OTHER ENTERTAINMENT LAW NEWS:
UMG v. Augusto
Augosto acquired promo CDs (Cutouts) from various sources like used record shops, and the like.
These are CDS that were sent out by the record label to promote sales. They were not solicited by the recipients. They DID include a label that indicated they were for promotional use only – not for sale, and some purported licensing language… but there was no mutuality and no real “agreement” by the recipient.
At the District Court level, Augosto argued that the First Sale doctrine covered the situation.
The First Sale doctrine allows the purchaser to transfer (i.e., sell or give away) a particular lawfully made copy of the copyrighted work without permission once it has been obtained. This means that the copyright holder’s rights to control the change of ownership of a particular copy ends once that copy is sold, as long as no additional copies are made
The District Court agreed, and granted the Summary Judgment, stating that because UMG didn’t require the materials to be returned, no license was created.
The 9th Circuit affirmed, but based its decision on other factors.
Transfer of the CD constituted a transfer of title, not a license.
Cds were “unordered merchandise” under the postal statute 39 U.S.C. § 3009.
Mark Brill is a stock race car driver who drives a red race car with a yellow 95 on the car. Brill sued Disney, Pixar and a consultant for violation of common law and statutory right of publicity, as well as trademark infringement and deceptive trade practices. Brill claimed that the character Lightning McQueen from the movie Cars, which is a red race car with a yellow 95, constitutes misappropriation of his likeness.
An Oklahoma state trial court granted defendants’ motion to dismiss for failure to state a claim, and the appeals Court affirmed.
“the state common law right of publicity is limited to the appropriation of “the name or likeness of another” and the statutory right of publicity protects “against the unauthorized use of certain features of a person’s identity – such as name, likeness or voice – for commercial purpose.”
The Court held that as a matter of law, Defendants’ use of the talking car character, Lightning McQueen, isn’t an unauthorized use of Brill’s likeness for commercial purposes and thus, not a violation of Brill’s statutory or common law right of publicity.
Brill also failed to demonstrate ownership of a valid trademark, rejecting Brill’s assertion that “number + color = trademark,” and there was no indication of intent to mislead or trade on Brill’s identity to support his deceptive trade practices claims.
Commercial rates see a Slight increase to $0.0019 per play, increasing to .0025 by 2015.
minimum per-channel or per-station fee should be set at $500, subject to a cap of $50,000 for any single webcaster, and (2) the section 112 statutory rate for the making of ephemeral copies (server copies) should be bundled with the section 114 performance license and should represent 5% of the total royalty.
Josh Groban Sings Kanye West’s Tweets on TV
Josh Groban, an American singer-songwriter known for his operatic pop-like music, had been a follower of Kanye West on Twitter for almost all of 2010. On Monday, January 3, 2011, Josh Groban performed a skit on ABC’s Jimmy Kimmel Live that soon became a viral Internet sensation. Groban selected several tweets made by Kanye West and performed them in song as a preview to a fictitious album memorializing 752 of West’s tweets in song. Entertainment Weekly interviewed Groban after the show aired. When asked how he chose each tweet he responded by saying, “When it comes to Kanye’s tweets, it’s like, how do you pick the prettiest child? They’re all gems” Groban noted that the response to the skit has been “cool” and even Kanye West retweeted the skit. Groban says that he would be willing to make music in the future with West, and finds him to be “an unbelievably brilliant musician.”
Kanye West seemed fine enough with Josh Groban’s skit, and even “retweeted” it on his own Twitter page, however potential copyright infringement may have occurred when Josh Groban used Kanye West’s tweets. First we need to know if tweets are “original” enough to be protected by copyright—and if they are, are the properly fixed so that Kanye West has ownership in the copyright of his tweets? (17 U.S.C. § 102). Twitter’s Terms of Service states that users retain all rights to any content that they post.
The question of whether each separate tweet is capable of its own copyright protection, or whether the tweet is just a portion of the copyrighted page is relevant when considering the fair use argument Josh Groban would want to raise. Fair use evaluate fours factors: (1) the purpose and character of the use (whether it is commercial in nature or non-commercial), (2) the nature of the copyrighted work (fictional works being more protected than facts); (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole (again, whether a tweet is a whole or a piece would affect this factor); and (4) the effect of the use upon the potential market for or value of the copyrighted work (the potential market being consumers who buy Kanye West’s album).
Also Groban could raise the argument that his use was solely to make a parody, and parodies were held to be “presumptively fair” in 1994 by the U.S. Supreme Court in Campbell v. Acuff-Rose Music, Inc. The court reasoned that gaining permission to make fun of, or critique, someone’s work would be highly unlikely.
Interview with Josh Groban on the Kanya Tweets
Right of Publicity cases
the Davis estate and co-plaintiff CMG Brands didn’t include any trademark or unfair competition claims… and are instead relying primarily on California’s publicity rights statute for an alleged infringement of the deceased celebrity’s name and personality.
Can a dress violate someone’s personality? It’s not the dress, it’s the NAME being used to sell it.
What about the old song: “Bette Davis Eyes”? Would the analysis be different than here?
Meanwhile, in the state of Washington, A federal judge is looking at the constitutionality of that state’s law that grants dead celebrities generous protections against the exploitation of their names, images and likenesses.
The Jimi Hendrix estate s suing a vendor called HendrixLicensing.com which sold t-shirts, posters, lights, dartboards, key chains bearing Hendrix’ name and likeness
This is preocedurally interesting because it was originally a Trademark type of claim, but then WA passed a Right of Publicity statute in 2008, so the defendant asked for a declaratory order Hendrix’ publicity rights weren’t applicable to the dispute.
HendrixLicensing.com points out that Zacchini wasn’t a dead person and that the Washington law does the opposite of what the Supreme Court intended when it blessed publicity rights in the interest of spurring creative activity
They argue that the Washington Publicity Rights Act does exacty the opposite of what it intended. It Stifles creativity and expansion of the arts. Pulling back Jimi Hendrix’s and others right of Publicity from the Public Domainand eliminating photographers rights to sell their legally obtained pictures , and so on. Read more from the Seattle Trademark Lawyer’s Blog on the Hendrix case.
After a more than 1 Billion dollar judgment against Limewire, the Record labels are seeking to disqualify Limewire’s law firm, Willkie Farr & Gallagher, from continuing to represent the file-sharing service.
The case seems to turn on whether Jeffrey Korn has an irreconcilable conflict of interest. He apparently switched firms from the plaintiff’s firm (Cravath, Swaine & Moore) where he was allegedly a “core member of the team representing plaintiffs”to the Defense firm in 2007.
Plaintiffs are now asking a judge to disqualify the firm as a whole due to ethical conflicts and to ensure that confidential information is not passed along.
Record labels to pay $47.5M to songwriters – Money (Canadian case)
Sony Music Entertainment Canada Inc., EMI Music Canada Inc., Universal Music Canada Inc. and Warner Music Canada Co. will pay the plaintiffs in this class action for copyright infringement and failure to pay royalties.
The suit alleges that the record companies “exploited” music owners by reproducing and selling in excess of 300,000 song titles without securing licenses from the copyright owners and/or without paying the associated royalty payments.
Apparently, the record companies did little to locate the rights holders to the songs in question, and may have simply kept a so-called “pending list” of unlicensed reproductions, and set aside a $50 Million fund to deal with this kind of lawsuit if it ever arose.
The settlement also includes a mechanism to assure this doesn’t occur again in the future.
The defamation claim is in the form of a counterclaim in Morris’ copyright infringement suit….
“Margaret Morris wrote and represented to the United States Copyright Office, under penalty of perjury, that “A contract for this ghostwritten book was offered and my agent Atchity concealed it and allowed it to be illegally signed.”
So, we have an author who registers a claim to a work that she thinks she owns… so she files a competing registration claim that “defames” or “slanders the title” of the first claimant.
(does it also slander the MAN, Ken Atchity?) (does it matter?)
Since registration is required by law as a prerequisite to commencing suit in federal court, aren’t any statements in the registration subject to absolute judicial immunity (subject to the limits of that doctrine)
(of course, Copyright Registration is an administrative function of an administrative agency, but since it’s a requirement precedent to filing a lawsuit, weve got an interesting question here…)
The District Court denied the cross defendant’s Summary Judgment motion on this… so it’s headed to trial. Order
Presumably the parties will have a further chance to brief the Court on the issue.
Ray Dowd, over at the Copyright Litigation Blog has a good discussion of the case and the issues…
Presley Estate v. Chrysalis Music Group
Elvis Presley Enterprises—owner of 50% interest in Presley’s compositions—is suing Chrysalis Music Group for breach of a world-wide Music Publishing Administration Agreement. EPE is claiming as much as $5 million in owed royalties. In a lawsuit filed January 7, 2011, EPE says that Chrysalis improperly co-mingled funds with other accounts, and an audit conducted by EPE has identified “significant and troubling problems,” such as lack of internal control and documentation, foreign withholding taxes alleged to be improperly deducted without taking advantage of exemption and reductions, and not ensuring that compositions were properly registered with performance-rights organizations.
The complaint also alleges that the parties have been in communication over this for the last five years without any satisfactory results. The Complaint makes for interesting reading and lays out the history of Elvis Presley’s songwriting career.
Links to latest court filings: http://www.courthousenews.com/2011/01/10/Elvis.pdf
Thanks to Aaron Morgan for bringing a useful website to our attention.
Loren Wells, with assistance from Washington University has created a website for entertainment personnel, whether they be attorneys, musicians or simply the interested public. Within the website one may search caselaw, both federal and state, by keyword, case character, categories and sub-categories, etc.
Check it out at www.thediscography.org