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In this Episode:
- PROTECT IP /SOPA
- CROWD FUNDING BILL
- Ghost Hunters – Cert Denied
- Rob Zombie Class Action moves toward class certification
- Viacom/ YouTube case sees extraordinary order
- Grooveshark sued by UMG
- Sound Recording Copyright Terminations begin
- Who owns “La Dolce Vita”
- Does Eastland records have a 50/50 chance in court?
- Car Freshner v. Getty Images – attack of the little trees
GET CLE CREDIT for this episode.
Peter practices in the fields of film, television, music and intellectual property. He is an Arbitrator for the Independent Film and Television Alliance, and a member of the Academy of Television Arts & Sciences. He is also a frequent speaker in the United States and abroad including USC’s School of Cinema Arts, CeBit – Germany, the Atlas Film and TV Finance Conference and the Los Angeles County Bar Association’s yearly symposia on entertainment law. Mr. Kaufman is the former chair of the Intellectual Property and Entertainment Law Section of the Los Angeles County Bar Association.
Ars Technica, Proposed Law: http://static.arstechnica.net/2011/10/26/SOPA.pdf
Warner Bros. response: http://torrentfreak.com/warner-bros-admits-sending-hotfile-false-takedown-requests-111109/
Brief Summary of the Proposed Law
PROTECT IP Act (short for Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act of 2011) was introduced on May 12, 2011 by Senator Patrick Leahy. It is a rewriting of the Combating Online Infringement and Counterfeits Act (COICA). The House version of the bill, the “Stop Online Piracy Act” (SOPA) was proposed on October 26, 2011.
- Create a private cauise of action against sites that are “dedicated to the theft of U.S. Property”
- Allows the DOJ stop payments and advertising on such sites.
- Bars search engines from linking to those sites, as well as ordering domain name services to de-list the sites.
- Grants immunity to those who report such infringing sites
Warner Bros. has admitted to abusing its DMCA takedown rights in another context… what’s to stop them and others like them from abusing this law’s mechanism to take down entire sites?
CROWD FUNDING REGULATIONS
On November 3, 2011, the U.S. House of Representatives passed the Entrepreneur Access to Capital Act, H.R. 2930. The bill will allow an SEC registration exemption for crowd-funding, whereby entrepreneurs could raise up to $2 million in equity from individual investors, but must provide audited financial statements if the total money raised exceeds $1 million.
FOLLOW – UPS
SUPREME COURT NIXES GHOST HUNTERS CASE
The U.S. Supreme court has denied the defense’s petition for cert on the question whether Copyright law pre-empts state law breach of implied contract and breach of confidence claims. Earlier this year, the 9th circuit ruled that it does NOT. So…The case now heads back to the district court for trial.
UNIVERSAL MUSIC LOSES BID TO DISMISS CLASS ACTION OVER DIGITAL REVENUE (ROB ZOMBIE/RICK JAMES)
UMG claims that digital downloads and ringtones should be classified as “sales,” garnering the artist a 10-20 percent royalty rate. Rob Zombie, etc. claim that they should be classified as “licenses,” which would be closer to a 50/50 split.
THREsq: http://www.hollywoodreporter.com/thr-esq/youtube-viacom-appeal-lawsuit-258734; http://www.hollywoodreporter.com/thr-esq/viacom-youtube-interpretation-copyright-law-260192
The 2nd Circuit now hearing the case issued an extraordinary order asking both sides to comment further on the “red flag” provisions in the DMCA.
CASES TO WATCH
Direct Link to Complaint: http://www.digitalmusicnews.com/uploads/b9/82/b9829ebb37bd5f1a25fc839df6ea6db7/grooveshark.pdf
UMG contends that Grooveshark is a “pirate website” that streams unauthorized copyrighted material to its users (reportedly 600 million minutes a month to 30 million unique users).
The interesting twist in this case is that UMG also accuses Grooveshark employees, by name, including the CEO and other senior executives, of uploading over 113,000 unauthorized songs to the site.
Chart detailing the alleged song uploads by Grooveshark employees –
First Sound Recording Copyright Termination Suit Filed
Practice Point: If you have a client who is a legacy songwriter or recording artist and who signed an agreement in 1978 or shortly after, now would be a good time to review those prior agreements and catalogs and serve notices of termination under the U.S. Copyright Act. Failure to do so may result in the loss of valuable reversion rights.
PARAMOUNT SUES FOR OWNERSHIP OF LA DOLCE VITA
Paramount filed a complaint in California federal court against International Media Films, who also claims to be the valid copyright owner of La Dolce Vita. Both claim ownership through a convoluted chain of title. The outcome of the Golan v. Holder case might make Paramount’s claim moot. If the Supreme Court restores copyrighted works to the public domain, including La Dolce Vita, then no one actually would have a valid copyright in the film and it would be in the public domain.
MUSIC LABEL SUES DEMANDING ‘50/50’ DISTRIBUTORS CHANGE FILM TITLE
Eastland Music Group filed the federal lawsuit in Illinois claiming it has been using the 50/50 mark since 2000 in connection with entertainment services and products. As evidence, they point to its website, phifty-50.com (fifty spelled with a “ph”), which currently has a sign post on its front page adorned with “50/50” (fifty slash fifty like the film title).
They are demanding a permanent injunction against use of the title, the destruction of all products where “50-50” is affixed, and an award of all of the film’s sales and revenues as a result of the alleged infringement.
CAR FRESHNER TRADEMARK INFRINGEMENT CASE:
Link to decision: http://www.scribd.com/doc/67629206/Decision-Tree-Freshner-Getty
The Car Freshner Corporation, maker of that tree-shaped, rear-view mirror hanging car air freshener is suing Getty Images for trademark infringement over a number of images in its stock photo inventory that include a tree-shaped air freshener.
Getty filed a motion to dismiss but in late October 2011, the court denied that motion. The opinion reads: “after reviewing the images on Defendants’ website containing the Tree Marks, the Court finds plausible the allegation that a purchaser and/or user of Defendants’ images could be confused as to the source of origin of the images, believing incorrectly that ‘they originate from, are sponsored by, are approved by, or in someway are affiliated with Plaintiffs.’”
NEW FILINGS TO WATCH OUT FOR
Jason Pascal, VP of The Orchard, brought our attention to this complaint, filed in the SDNY. The former manager of David Bowie, Mick Ronson and others seems to be taking the position that anyone meeting what he deems to be a co-author has a right to non-exclusively license the whole master. Consequently, via his relationship with the Ronson estate, he digitally released Pin-Ups by David Bowie, American Fool by John Mellencamp, Bad Company by Bad Company, Transformer by Lou Reed, and several others. All of these titles had performances by Mick Ronson and the defendant is claiming he is a co-author. The record labels finally sued.
TAYMOR v. Eight Legged Productions, LLC
Playwright and Director Julie Taymor, who earlier this year was replaced on the beleaguered production of Spiderman, has filed suit against the shows’ producers and her co-writer alleging breach of contract unfair competition, and copyright claims relating to the show’s use of material she created in subsequent productions and tours without her approval, and for failure to pay royalties due.
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