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In 2016, Take-Two, a video game company that is the creator of the NBA 2K series of video games, was sued by Solid Oak Sketches, a company who owns the copyright in several NBA players’ tattoos. Solid Oak argued that the video game series, which seeks to simulate the NBA, infringed on their copyright because the tattoo designs were featured in the game without their consent. These tattoos appear on players like LeBron James, whom the plaintiff argued doesn’t have the authority to grant Take-Two permission to use their designs in the game. This case is still pending in New York federal court.

On April 18, 2018, Take-Two was hit with another tattoo-related lawsuit, this time over their inclusion of professional wrestler Randy Orton’s tattoos in the WWE 2k game. Plaintiff Catherine Alexander argues in her complaint that these tattoos, which contain a bible verse design, a dove, a rose and skulls, are original and expressive and easily recognized by members of the public. In 2009, Alexander contacted WWE about their use of Orton’s tattoos on merchandise they were selling. The WWE offered Alexander $450 “for extensive rights to use and reproduce the tattoo designs on WWE products,” but Alexander refused. Since then, Alexander argued that the WWE 2K video games have reproduced Orton’s tattoos in their games. Though Alexander only registered the tattoos in 2018, she argued in the complaint that Take-Two “knew or should have known” that the tattoos were “copyrighted works” of “original authorship.”

Alexander’s argument will likely hinge on the whether or not Take-Two actually copied her tattoos in their WWE 2K games. The court will have to determine if there is substantial similarity between Orton’s tattoos and the tattoos as they appear in the game. As these games are supposed to represent real players, its likely that these tattoos were reproduced in a way to “make them seem as close to real-life as possible.

Previously, a judge has ruled that tattoos are copyrightable, and furthermore, NFL players are now advised to get copyright waivers or licenses from their tattoo artists. Take-Two, however, will likely argue, as they did in the NBA 2K Lebron James tattoo litigation, that their use of the tattoos is protected by the fair use doctrine, or the “de minimis” use doctrine, “which allows for a tiny amount of work to be legally used.”

Image: Megan Elice MeadowsRandy Orton at Wrestlemania XXXCC BY-SA 2.0

Adele Zhang is the Online Content Chair and an Entertainment Highlight Contributor for the Harvard Journal of Sports and Entertainment Law and a current first year student at Harvard Law School (Class of 2020).

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Law360 reported a Texas rock band’s representatives, Platinum Jack Entertainment Inc., filed suit against Chick-Fil-A Inc. and ESPN Inc. in Texas federal court on Tuesday. The suit alleges that the pair of companies stole a song from Dallas rock band Drayter for in the background of two commercials the companies released featuring the well-known Chick-Fil-A cow mascots and sports anchors.

Only one of the two commercials giving rise to the suit could be found online, but it can be viewed here. The commercial is titled “ESPN: Hafftime Reeport” and features ESPN anchors Adnan Virk and Joey Galloway hosting a sports highlight show with talking points that center around chicken. A rock song is playing in the background throughout the commercial but it does not feature any vocals. The song that has been alleged to have been stolen is “Best I Had” by Drayter, which you can listen to here. Despite the lack of vocals in the commercial, the background song does have some resemblance to “Best I Had.”

Platinum Jack Entertainment is basing its claim on copyright infringement and requesting an injunction preventing ESPN and Chick-Fil-A from continuing their alleged usage of the song. Platinum Jack is also seeking “all profits of defendants attributable to their infringement” and attorneys’ fees for the suit.

LJ Sanchez is a Sports Highlight Contributor for the Harvard Journal of Sports and Entertainment Law and a current first year student at Harvard Law School (Class of 2020).

Image: Mark Turnauckas, Chick-fil-A in Fairlawn, Ohio – panoramioCC BY-SA 3.0

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Taraji P. Henson, Star of 20th Century Fox’s Empire

In 2015, Empire Distribution Inc., a record label, sued Twentieth Century Fox for trademark infringement. The lawsuit revolves around the television show Empire, a “primetime drama based around a fictional [record label] of the name.” Both the real-life record label and the fictional record label predominantly release hip-hop songs.

The Lanham Act, the main law that government trademark use in the US, “prohibits [the] use of another’s trademark that is likely to cause confusion among the public.” However, the Ninth Circuit has found that the First Amendment constrains the application of the Laham Act on expressive works that contains an allegedly infringing use. The rationale for this constraint is twofold. First, expressive works usually implicate the right to free speech under the First Amendment that must be weighed against the “public interest in avoiding consumer confusion”. Second, consumers are less likely to be confused by trademark use in the context of an expressive work; when a trademark is being used in a TV show, consumers are less likely to assume that the trademark signifies a “sign of association, authorship or endorsement.” The Ninth Circuit applies a two-part test in Rogers v. Grimaldi, established by the 2nd Circuit in 1989, to determine if a trademark use in an expressive work generates liability under the Lanham Act. If the allegedly infringing use of the trademark has some artistic relevance to the expressive work and is not being used to explicitly to mislead consumers, then there is no liability under the Lanham Act.
The Ninth Circuit ruled in November 2017 that Fox did not infringe upon Empire Distribution’s trademarks because of the First Amendment. As long as the author did not use it for a completely irrelevant purpose, or used it explicitly to mislead consumers, trademarks can legally be used in “expressive works” like TV shows. Furthermore, the Ninth Circuit held that the First Amendment also protected the use of a trademark on commercial goods and services that are sold to promote an expressive work.
In April 2018, Empire Distribution filed a petition for certiorari to the Supreme Court. Empire Distribution claims that the Ninth Circuit ruling had extended the First Amendment protections too far, “undercutting the confusion-preventing goals of the Lanham Act.” Empire Distribution argues that the Ninth Circuit, by extending free speech protections to promotional goods, a TV show called “Apple” about a technology company, could use the Apple name and sell tablets and smartphones labeled Apple, in direct competition with the real-life Apple brand. In this case, both the fictional and real-life Empire labels sell marketing related merchandising (t-shirts, hats, cups etc.) bearing the “Empire” name. Fox uses the Empire mark on “musical releases, CDs, and music video” which Empire Distribution also uses for their musical works. Empire Distribution alleges that both their use and Fox’s use of the Empire mark “is virtually identical.” Furthermore, the petition alleges that the record contains evidence of “actual confusion among both consumers and recording artists” as to the use of the Empire mark when it comes to selling music from the TV show as opposed to music from the real-life record label. Though Fox did not use “Empire” to explicitly mislead consumers, the fact that Fox’s Empire is the same type of record label as the real-life Empire does generate consumer confusion. This is especially true if Fox, in an effort to promote Empire the show, engages in essentially the same business as Empire Distribution; both are record labels selling hip-hop songs under the same name.
The petition further argues this case is of “exceptional importance” to industries, such as entertainment and technology, that are heavily concentrated in the Ninth Circuit. As such, the Ninth Circuit’s decision will have “outsized effects from that court’s incorrect interpretation.”
Adele Zhang is the Online Content Chair and an Entertainment Highlight Contributor for the Harvard Journal of Sports and Entertainment Law and a current first year student at Harvard Law School (Class of 2020).
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This past week, Law360 reported that U.S. Soccer Federation (USSF) executives filed a motion to dismiss in the North American Soccer League’s (NASL) suit in New York state courts. NASL filed suit in February alleging a breach of fiduciary duty and a purposeful scheme by USSF executives to undermine NASL while promoting the other major American soccer leagues, Major League Soccer and the United Soccer League. Part of the basis for the motion to dismiss was that there is a similar case already underway in the New York federal courts between NASL and the USSF.

This case expanded the case already in New York federal courts and named more than one dozen USSF executives as defendants. The major action this suit arises from is that the USSF demoted NASL from D-II to D-III prior to this year. Many of NASL’s sponsorship deals and players’ contracts require league to maintain a D-II standing for the contract to be enforced. This decision put all of these contracts, and the league as a whole, in jeopardy. The executives defended their actions in the memorandum that accompanied the motion to dismiss, stating that “[p]romoting soccer at all levels in the United States would be impossible if every decision to devote resources to one area of the game could prompt a lawsuit from another.”

At the end of February, NASL canceled its 2018 season following the Second Circuit’s decision not grant injunctive relief in NASL’s parallel antitrust suit. NASL was requesting an injunction be granted to reinstate the league’s D-II status for the 2018 season. As the case moves forward, the future of the league looks bleak.

LJ Sanchez is a Sports Highlight Contributor for the Harvard Journal of Sports and Entertainment Law and a current first year student at Harvard Law School (Class of 2020).

Image: Adidas Soccer Balls, Josh Hallett, CC BY 2.0

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The Allocation for Music Producers (AMP) Act was recently introduced in the Senate. If signed into law, this bill will create a way for producers and engineers to receive direct payments from SoundExchange instead of relying on the artists to fulfill their contractual obligations for payment.

The industry has always been plagued by complaints of delayed payments. Unfortunately, artists commonly suffer delays in payment for a stream or a download of their song for over a year.  If it takes this long for Spotify to get money to a label and then a label to pay its artists, how much longer will it take an artist to get money to their producers and engineers?

Now, the industry has already come up with a solution to this problem in the form of Letters of Direction (LODs), where the artist directed SoundExchange to pay a producer directly. But producers were dependent on artists to voluntarily fill out the right paperwork and submit it. The AMP Act codifies into law this long-standing industry practice and makes it the norm of all artist-producer relationships.

The bill is part of several music and copyright-related bills, sometimes being referred to as a “music-bus” bill, which consists of the CLASSICS Act, the Music Modernization Act, and the AMP Act. These bills enjoy industry and bipartisan support generally and are expected to pass.

Image: 3V Photo, 7 sound equipmentCC BY 2.0

Dallin Earl is an Entertainment Highlight Contributor for the Harvard Journal of Sports and Entertainment Law and a current first-year student at Harvard Law School (Class of 2020).

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Laurie Dhue, a former Fox News anchor from 2000 to 2008, is the fourth woman to bring a defamation suit against Bill O’Reilly. All four women had previously reached settlement agreements with O’Reilly over allegations of sexual harassment. In the settlement agreement with 21st Century Fox, the parent company for Fox News agreed to pay Dhue $1 million for sexual harassment allegations made against Bill O’Reilly as well as Roger Ailes, the founding chairman. According to the New York Times, the settlement agreements regarding Bill O’Reilly total $45 million, and these are only the ones known to the public.

In her defamation suit filed in the U.S. District Court for the Southern District of New York, Dhue is now claiming that O’Reilly defamed her character after the settlement agreement by insinuating that she was lying about the sexual harassment, that she was politically motivated, and that he only paid the settlement to avoid the emotional toll of litigation on his family instead of admitting to the underlying crime. The lawsuit goes on to say that these comments are specifically directed at Dhue’s character and trustworthiness, two things important to her new job as an advocate for addiction recovery.

In response, O’Reilly’s lawyer, Fredric Newman, said that “Mr. O’Reilly has never mentioned Dhue, and any attention she has received has been the result of her own actions.” Additionally, he has recently filed a motion to dismiss the other defamation lawsuit brought by the three women mentioned previously. Newman, as O’Reilly’s spokesperson, believes that all of these suits are “frivolous” and have “absolutely no merit.” Dhue’s attorneys, however, are asking for a jury trial and punitive, reputational, and compensatory damages.

Jenna El-Fakih is an Entertainment Highlight Contributor for the Harvard Journal of Sports and Entertainment Law and a current first year student at Harvard Law School (Class of 2020).

Image: Justin Hoch, BillOReillySept2010CC BY 2.0

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On Monday, March 19th, the U.S. Department of Justice faced off against Time Warner and AT&T in what is called the Antitrust Trial of the century. With the rise of direct-to-streaming companies such as Netflix and Amazon, Hollywood has seen aggressive content consolidation, such as Disney’s proposed purchase of 21st Century FoxThe Hollywood Reporter has reported that the outcome of this lawsuit could greatly impact the future of Hollywood.

In the brief filed by the U.S. government in early March, the Department of Justice alleged that the outcome of the case “will chart the course for the future of video-content delivery in the United States.” The case involves AT&T’s attempt to vertically integrate with Time Warner, a content company that owns the likes of HBO, Warner Brothers, CNN, and Turner. Though AT&T does not produce substantial content by itself, it owns DirecTV, which serves to distribute content to consumers. The DOJ argues that if AT&T is allowed to acquire Time Warner, this new conglomerate would own too many content properties, and would allow AT&T “the ability an incentive to substantially lessen competition” by withholding content and raising the price for subscribers.

The government argues that this impact subjects the proposed merger to the Clayton Act, which states that “[n]o person … shall acquire [assets] … where in any line of commerce … or in any section of the country, the effect of such acquisition may be substantially to lessen competition, or tend to create a monopoly.” The government contends in their brief that they just need to prove that the effect of the merger “will likely be anticompetitive.”

The government alleges that AT&T will either raise the cost of licensing out content like Game of Thrones to its competitors, as a way to lure subscribers to DirecTV, or stop licensing Games of Thrones altogether and then raise their subscription price. Because “the vast majority of American households still subscribe” to some form of cable and/or satellite access, this would have a widespread impact. Furthermore, the brief argues that with two vertically integrated conglomerates in the media space (the Comcast/NBCUniversal merger was approved by the government in 2011), AT&T/Time Warner and Comcast/NBCUniversal would coordinate their activities in order to block out emerging virtual rivals, like Dish Sling or Playstation Vue.

However, AT&T alleges that because of the economies of scale that would be garnered by this acquisition, it will actually lower subscription prices for consumers. Because AT&T no longer has to pay to license HBO shows, consumers will see a reduction in the prices they have to pay. Furthermore, AT&T contends that it would actually be against the interest of AT&T to limit their content on their platform. Content needs far more promotion to attract people than cable and satellite companies, and limiting Game of Thrones to DirecTV would hurt the popularity of the show. Lastly, on the question of coordination with Comcast/NBCUniversal, AT&T argues that Time Warner currently “receives substantial affiliate fees and advertising revenue” from the emerging virtual rivals. It is therefore in the interest of AT&T/Time Warner that consumers sign up for Playstation Vue over “non-network-based services like Netflix” that would not pay AT&T/Time Warner any fees.

The U.S. government has rarely blocked vertical integrations, but Hollywood has had a history with antitrust cases of this nature. In United States v Paramount Pictures, the Supreme Court in 1948 ruled that the major entertainment studios had to “divest themselves of ownership of movie theatres.” The Court found that these “giant producer-distributors” had too much control over the movie industry, and could control what films were played in the theatre, what prices the theatres were charging and pushing out independent producers from the industry. If the government prevails and the merger is blocked, it could raise questions of whether Comcast and NBC should be broken up, or if Disney should divest itself of its ownership in Hulu. More generally, tech companies like Amazon have adopted an aggressive vertical integration strategy (Amazon’s acquisition of WholeFoods is one example), and this decision could affect the technology sector moving forward.

Adele Zhang is the Online Content Chair and an Entertainment Highlight Contributor for the Harvard Journal of Sports and Entertainment Law and a current first year student at Harvard Law School (Class of 2020).

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Last Friday, a California federal judge, Judge Fitzgerald, handed a win to Taylor Swift and her team when he dismissed a copyright suit against the singer with prejudice. This follows from a ruling in mid-February, where the judge granted a motion to dismiss for Swift’s team, but giving plaintiffs Sean Hall and Nathan Butler one chance to amend their complaint by February 26th. When the plaintiffs chose not to amend the complaint and instead asked the judge to dismiss the suit without prejudice, the judge granted Swift’s request to dismiss the case with prejudice.

The core issue of the case is to what extent can the lyrics of a song be protectable. The plaintiffs, Hall and Butler, wrote a song in 2001 called “Playas’ Gon’ Play” that was a part of an album that got platinum certification. The complaint does not make any allegation of Swift’s team copying the underlying musical composition. Instead, the plaintiffs alleged that the lyrics “Playas, they gonna play/ And Haters, they gonna hate” in the song “Playas’ Gon’ Play” is sufficiently similar to Swift’s lyrics, “[T]he players gonna play, play, play, play, play and the haters gonna hate, hate, hate, hate, hate” from her 2014 hit “Shake It Off.” The plaintiffs argued that despite other artists using phrases similar to the one at issue in this case, such as “playa haters hate” or “haters hate”, their lyrical combination of “playas, they gonna play/ And Haters, they gonna hate” was original unique work and thus deserved protection.

It is not disputed that Hall and Bulter owned the song, or if Taylor Swift and her team had access to the song.  Nevertheless, the judge ruled that the lyrics in this case do not get protection under the Copyright Act. First, Judge Fitzgerald found that by 2001, American pop culture had already pushed the concepts of players and haters to the forefront, such that they were not unique creations but rather general archetypes of characters. Secondly, he said “the concept of actors acting in accordance with their essential nature is not at all creative; it is banal.” Thus, because players by their very definition are “going to play”, stating that they will be “playing” in a song lacks the originality and creativity required for copyright protection. Nevertheless, the judge ruled that the plaintiffs get one more chance to amend the complaints, before dismissing the case.

When the songwriters refused to amend the complaint, Swift’s team asked the judge to dismiss the case with prejudice, arguing that a voluntary dismissal or a dismissal without prejudice would allow for the plaintiffs to refile or appeal the case. Fitzgerald agreed and dismissed the case with prejudice.

Adele Zhang is the Online Content Chair and an Entertainment Highlight Contributor for the Harvard Journal of Sports and Entertainment Law and a current first year student at Harvard Law School (Class of 2020).

Image: Taylor Swift by Eva Rinaldi is licensed under CC BY-SA 2.0.

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Gibson Brands Inc., the 100+ old iconic guitar maker, faces possible bankruptcy in the next few months. Sparking concern for the guitar manufacturer is the departure of the company’s chief financial officer, Bill Lawrence. To meet its financial obligations coming due in July, Gibson is selling its Baldwin piano brand and has left its long time warehouse in Nashville.

Henry Juszkiewicz, CEO and majority shareholder, blames music store retailers for much of its woes. “There are problems with the guitar retail industry,” he said. “All of the retailers are fearful as can be; they’re all afraid of e-commerce, with Amazon just becoming the second largest employer in the U.S., and the brick and mortar guys are just panicking. They see the trend, and that trend isn’t taking them to a good place, and they’re all wondering if there will be a world for brick and mortar stores for much longer. It’s a turbulent world to be a retailer, and many of our retail partners are facing that same issue.”

Beyond the issue of failing retailers, Gibson has had to deal with a number of public relations problems in the recent past. Back in 2012 Gibson paid steep fines associated with criminal allegations for violating the Lacy Act, as a result of a raid on their warehouse, where the FBI found illegal shipments of wood from Madagascar. Responses to the latest of Gibson’s latest guitar models have not helped boost their credibility, either.

Although Gibson vintage guitars may sell for extraordinary sums—like $550,000 for a 1960 Les Paul Standard—the company’s P&L statement sees little benefit from these transactions. With annual revenues over $1 Billion, it’s a matter of whether Juszkiewicz will be able to convince investors that Gibson isn’t just a company of the previous century—the clock is ticking.

Dallin Earl is an Entertainment Highlight Contributor for the Harvard Journal of Sports and Entertainment Law and a current first year student at Harvard Law School (Class of 2020).

Image: IMG_0195 by Chris Devarajs is licensed under CC BY 2.0.

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On Tuesday, February 27, a 2-1 split Ninth Circuit panel rejected a copyright suit against Nike Inc. alleging the athletic company’s “Jumpman” logo infringed on a photographer’s copyright. The court ruled that the logo was not substantially similar enough to Jacobus Rentmeester’s photo of Jordan from a 1984 issue of LIFE magazine. Rentmeester originally had the idea to take the photograph of retired all-time great basketball player Michael Jordan performing a leaping pose that resembled a grand jeté. This photo served as the inspiration for Nike’s recreation of the photograph with a different backdrop and slightly different limb positions. “While the photos embody a similar idea or concept, they express it in different ways,” the majority opinion said.

This ruling is the culmination of a suit filed against Nike by Rentmeester in January 2014, accusing Nike of unlawfully replicating the image he took of Jordan. The company then used this recreation to create the now world-famous “Jumpman” logo on all Jordan branded Nike apparel. After the 1984 LIFE magazine was released, Nike approached Rentmeester looking to license the photo for certain promotional purposes. In 1985 the two sides reached an agreement totaling to $15,000 for a two-year license of the image, but, as the suit alleges, Nike continued to use the silhouetted image after the licensing agreement ended.

In June 2015 a district court judge dismissed the case, finding that the images were not similar enough to embody infringement. That September, Rentmeester appealed the ruling to the Ninth Circuit, arguing that the dismissal was premature since the parties hadn’t been allowed discovery.

During oral arguments, Rentmeester’s attorney presented two arguments. First, that the similarities of the two images outweighed the differences between the logo and the photograph. Secondly, that the court should have applied the Ninth Circuit’s inverse-ratio rule, requiring courts to apply lower standards for similarity between two artworks if a plaintiff can prove that the defendant had easy access to the plaintiff’s work. The court rejected these arguments on Tuesday, stating that the two photographs were not substantially similar and that Rentmeester could not copyright a pose. On the inverse-ratio rule, the court stated that it did not apply to the issue on appeal and thus did not help Rentmeester’s argument.

The lone dissenter in the case, Judge Owens, dissented on the grounds that the dismissal was too early in the life of the case and should be reserved for a motion for summary judgment. He did agree that claims specifically regarding the “Jumpman” logo could be tossed due to its thin copyright protection. As could be expected, representatives from Nike considered the ruling a “true victory” for the logo. Rentmeester’s counsel did not immediately respond to requests for a comment.

LJ Sanchez is a Sports Highlight Contributor for the Harvard Journal of Sports and Entertainment Law and a current first year student at Harvard Law School (Class of 2020).

Image: Steve Lipofsky at basketballphoto.comJordan by Lipofsky 16577CC BY-SA 3.0

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