Biederman Blog - The Latest in Entertainment and Media Law
The Biederman Blog is an academic activity of law students at the Biederman Entertainment and Media Law Institute at Southwestern Law School. It posts about timely, intriguing developments in Entertainment and Media Law.
In our ‘Oh, Really?’ feature, the Biederman Blog’s editors — voracious consumers of all matters pop culture — cast a curious, skeptical, fanciful, fun, and smart end-of-the-week eye on popular productions, sharing their keen observations about legal matters these raise.
Bob’s Burgers, Fox’s facetious American sitcom created by Loren Bouchard, continues to be one of TV’s funniest animated shows, even now in its eighth season.
The show revolves around the Blecher family — parents Bob and Linda, and their three children: Tina, Gene, and Louise. The clan owns and manages a burger joint on Ocean Avenue. Despite enjoying a gaggle of loyal customers, success does not seem to come easy: The business leaves the family with barely enough to live on. Every episode depicts a new dilemma facing the struggling restaurant, with outside, personal issues peppered in, too.
And as the Blechers’ struggle, the show veers from legal reality — whether on child labor law violations, public indecency, or health and safety violations. In, season six, episode eight, aka Sexy Dance Healing, the Blechers also fall prey to their attorney’s ethical violations. This might be more than a laughing matter, as this comedic set-up also offers legal issues worth consideration.
After Jairo (voiced by Jon Glaser) causes Bob (voiced by H. Jon Benjamin) to slip and fall on a massage oil slick that he created on the sidewalk, Bob finds himself in a predicament requiring an attorney. Bob has injured his should and will need $6,000 in surgery. He can’t afford his operation, if he can’t use his arm to sling burgers. He hires Tom Innocenti as his lawyer to collect medical fees from Jairo.
Innocenti? He’s oleaginous from the onset. But two specific legal lapses illustrate how this fickle counsel, outside the confines of this fictitious realm, likely would face serious real world consequences: professional discipline for committing ethics violations.
Lapse 1: Attorney fees
At the initial consultation, the lawyer proposes to the Blechers that they jointly sue Jairo for damages, lost wages, and pain and suffering. Innocenti dubs this his “deluxe package.” He says he will seek $300,000 but will settle for $200,000. Flabbergasted by such figures, the Blechers explain that Jairo doesn’t have that kind of money. Their lawyer changes tone, and suggests his hourly rate would better suit this case. Here’s how they discuss the fees, though:
Bob: It seems like you’re talking slower since you started charging by the hour.
Attorney: (slowly) No … this is… the speed… I talk. But that reminds me of a funny story.
Bob: No, no, no, let’s not tell stories. We should go. We’re off the clock. Thank you, bye.
Hmm. This tactic to boost billable time witha client may seem laughable, but what might be an actual outcome from this excessively cunning ploy?
Rule 1.5 of the ABA Model Rule of Professional Conduct discusses attorney fees, and counsels that “a lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses.” This rule’s Comment 1 also informs that lawyers must charge fees reasonable under the given circumstances.
Is slow talking and slow walking a client’s case, including with off-point yarn spinning, an acceptable billing tactic, as it appears Innocenti would try it? A Bar disciplinary agency likely would deem it dubious, finding fees derived from it unreasonable, precisely because the dawdling aims just to squeeze out as much money as possible from the client Blechers.
Lapse 2: Conflict of interest with a current client
Partly because Jairo wants to avoid legal fees, and partly because it is just in his charismatic nature, he urges Bob to let him use his holistic powers to fix his shoulder. He enters into an agreement with Bob: He will pay for a surgery if he can’t make the shoulder good in 10 treatments. These include Jairo encouraging Bob to make major life changes to lower his stress. Jairo’s therapies seem to be working.
But Bob’s family rebels, and the kids conspire to get rid of Jairo, who at one point ends up moving into the family’s basement after his landlord evicts him (!). They send Jairo a phony cease-and-desist letter on Bob’s behalf, threatening the healer with “death by scrunchy” (it’s an inside joke because Jairo rewards Bob with a different colored hair scrunchy after each appointment).
But Innocenti bursts into the burger stand to confront Bob about the nasty missive. Why? It turns out he also represents Jairo. The lawyer reveals this surprise to Bob, nonchalantly calling Jairo “my client.” Under questioning, he explains that in Bob v. Jairo he is Bob’s lawyer; in Jairo v. Bob, however, he is Jairo’s lawyer.
He asserts this is acceptable because he’s counsel in two totally different cases.
Let’s give him a blast from the Bar canons, shall we? Model Rule 1.7, deals with “Conflict of Interest: Current Clients,” and it states that: A lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if the representation of one client will be directly adverse to another client.
Here, representation of Jairo is adverse to Bob. Innocenti must prove the reason why Bob is guilty of falsifying documents and threatening Jairo, factors that all fall back on the lawsuit Bob has filed against Jairo for medical expenses.
Comment 6 explains Model Rule 1.7’s existence, noting that clients for whom representation is directly adverse are likely to feel betrayed. The resulting damage to the lawyer-client relationship also is likely to impair counsels’ ability to represent clients effectively. The comment also raises the common sense doubt that will poison clients’ minds in conflict situations: Whose best interests is my lawyer acting in, mine or the other gal’s, and whose business is this lawyer most interested in keeping?
The Blechers display the very betrayal the Bar rules describe when their lawyer announces he’s also got Jairo as a client. Linda Bechtel says with dismay: “Your client? But you’re our lawyer!” and Bob follows with the anguished query: “How is that legal?!”
Innocenti pour salt in the restaurateurs’ wounds by telling Jairo, in front of Bob, “You’re my favorite client.” How can the burger flipping bunch trust this lawyer after that?
It’s a comedy, of course, and the protagonists all lack legal “clean hands” in this sleazy matter. The Blecher kids try to fix the family mess by sending yet another phony cease-and-desist letter to the landlord to get him to “reverse-evict” Jairo — that is, to put him back in his former apartment.
The landlord, however, can’t be gulled because, as he explains, he used the bogus document tactic to stop his workers from unionizing. But once the kids know this, they leverage the admission to get the unscrupulous landlord to take Jairo back and out of their house. Meantime, his treatments or no, Bob’s shoulder heals. Everything’s back to normal.
But no consequences for any of the many bad actions? Oh, really?
Although three federal judges have sought to quash some copyright monkeyshines, a fourth and ranking jurist has found their legal logic in doing so to be bananas and unappealing. At least for now, however, the recent decision by the U.S. Court of Appeals for the Ninth Circuit appears to have settled the issue of whether non-human primates possess statutory standing to press infringement suits.
In case you haven’t gotten into the swing of the infamous monkey selfie case, in 2011, Naruto, a seven-year-old crested macaque, took an interest in an unattended camera parked in the wilderness. The great ape, who calls Sulawesi, Indonesia, home, fired off several portraits without the assistance of any human by monkeying around with the shutter button of an at-ready camera.
Photographer David Slater, who owned and had set up the device, went ape over the pictures shot by Naruto and published a series of these selfies.
Four years later, the critter advocacy group People for the Ethical Treatment of Animals, aka PETA, filed a complaint for copyright infringement against Slater on behalf of Naruto. Slater fired back with a motion to dismiss, arguing that the plaintiffs lacked standing under the Copyright Act to sue on the animal’s behalf. Antje Engelhardt, a longtime macaque scholar, initially joined PETA in making the infringement complaint against Slater but she later withdrew from the case.
Friends with legal benefits
PETA, in its suit, asserted it could legally step in to the monkey’s business under the legal status known as “next friends.”
Established by Coalition of Clergy v. Bush, a putative next friend may sue if she can show (1) that the petitioner is unable to litigate his own cause due to mental incapacity, lack of access to court, or other similar disability; and (2) the next friend has some significant relationship with, and is truly dedicated to the best interests of, the petitioner. 310 F.3d 1153, 1159-60 (9th Cir. 2002).
U.S. District Judge William H. Orrick in San Francisco hooted at the PETA argument, and tossed Naruto’s case, which the animal advocacy group then appealed.
The appellate judges upheld Orrick, and stated that PETA failed to meet the “significant relationship” requirement, because it did not claim to have a relationship with Naruto any more significant than to any other animal.
Copyright neither fuzzy nor furry
In their findings, the appellate judges cited several authorities to determine that animals lack standing specifically under the Copyright Act to pursue claims against people like Slater.
The judges, in fact, also referred to the Ninth Circuit’s own ruling in Cetacean Community v. Bush, 386 F.3d 1169 (9th Cir. 2004), a case in which this same appellate court held that, in the absence of any such statement by Congress or the president intending to take the extraordinary step of authorizing animals to sue, the myriad pods of whales in the world’s seas lack statutory standing to sue.
In Cetacean, a self-appointed attorney asserted that he was representing the interests of all of the world’s whales, porpoises, and dolphins in challenging what critics contended are the harmful effects of the U.S. Navy’s low-frequency active sonar program, which booms noisy signals across broad expanses of the seas.
The appellate court refused to monkey around with what would have been a whale of a decision then to allow an animal rights case to advance and to silence what the Navy deemed an important way to protect national security. The judges ruling in Naruto said they could not go ape and upset the Cetacean precedent, unless, perhaps, it is overruled by an en banc panel or by the U.S. Supreme Court.
Horse pucky in a ruling?
It is worth noting that one of the three appellate judges wrote a concurrence to the Naruto dismissal. But U.S. Senior Judge N. Randy Smith saw different reasons to reject not only a simian appeal but the whole hog of the Naruto case. He said to not do so cracks the door to illogic and maybe more legal circuses. As he wrote of what he termed PETA’s “frivolous” suit:
I concur that this case must be dismissed. Federal courts do not have jurisdiction to hear this case at all. Because the courts lack jurisdiction, the appeal should be dismissed and the district court’s judgment on the merits should be vacated.
Smith contends that his colleagues — Orrick below and Carlos T. Bea and Eduardo C. Robreno with him for the Ninth Circuit — took a wrong turn by misreading Cetacean as somehow implying that Article III of the U.S. Constitution gives animals standing to sue at all:
[T]he Cetacean court seemed to conclude that animals may have Article III standing, and then examined the statutory standing questions before it. 386 F.3d at 1174–79. The Cetacean court did not (though it most certainly should have) examine whether it was appropriate for a ‘self-appointed attorney’ to bring a case on behalf of the ‘Cetacean Community’ and articulate ‘their’ interests. Id. at 1171–72. There can be no reasonable argument that the lawyer in Cetacean spoke to, and received instructions from his client, the ‘Cetacean Community.’ Rather, he functioned as a purported next friend, arguing that certain Navy sonar technology injured the members of the ‘Cetacean Community.’ Id.
But Smith continued, if animals lack Article III standing, both precedent from the U.S. Supreme Court and the Ninth Circuit preclude consideration, then, of creatures great and small also then getting “next friend” support. So, have the appellate judges left PETA and other animal advocates new threads to swing another appeal or case on?
Illustration: Google maps and Naruto public domain via Wikipedia
Along with major media and online information enterprises, millions who merrily apply a feature of one of the planet’s leading social media platforms fast could find themselves on the wrong side of the law, potentially deemed to be infringers on copyrights of visual creatives — all due to a post-Valentine surprise by a federal judge in Manhattan.
But the controversial protections accorded some online visuals in a Feb. 15 ruling by U.S. District Judge Katherine Forrest already have sparked such an outrage as a legal outlier that major media organizations more recently have sought and won the court’s permission for speedy appellate reconsideration of the case revolving round the embedding of Tweets in news reports.
The case turns in part on existing laws and rulings that an image shown on one website but stored on another website’s server can be found to infringe an owner’s exclusive display right, as protected by federal copyright laws. It stems from the 2016 media frenzy that erupted when NBA superstar Kevin Durant decided to exit the Oklahoma Thunder, and sports writers internationally worked themselves into a lather about where the high-scoring, lanky superstar would land. (Hint: He signed with the Golden State Warriors, and helped lead them to a lucrative and coveted NBA Championship.)
But back a few months ago, fans found a photo of Boston Celtics general manager Danny Ainge (himself once an gnarly NBA guard) and New England Patriots quarterback Tom Brady in the Hamptons, where the team had scheduled a parley with Durant, fueling speculation that the NFL superstar somehow was assisting the Celts in recruiting the NBA star.
The peculiarity of this case stems from the origin of the Brady photo. Photographer Justin Goldman snapped Ainge, Brady and others on the sidewalk, and then posted his picture to his Snapchat story, shared privately, with the exception of authorized users. But the photo quickly also was shared among others on Twitter and Reddit, ultimately finding its way to Yahoo, Breitbart and other online sites, including those operated by news organizations, including Gannett and the Boston Globe. The photo, embedded in Tweets, was used in online and news articles speculating about Durant’s relocation. As a result of the Twittter distribution of his photo, Goldman sued under §106(5) of the Copyright Act, asserting the defendants violated his exclusive right to display the photo.
The ‘Server Test’
The defendants unsuccessfully sought a ruling favorable to them on a motion for partial summary judgment. They argued that under the “Server Test,” they should not be held liable because the image displayed on their web pages was not downloaded into their systems but was part of the Twitter feature. They turned to a 2007 case, Perfect 10. Inc. v. Google Inc., 508 F.3d 1146 (9th Cir. 2007), in which the U.S. Ninth Circuit Court of Appeal held that “full size images, which were stored on third-party servers” and accessed by “in-line linking” — which works, like embedding, based upon the HTML code instructions — were not infringements. In Perfect 10, the defendant operated a search engine where a user had to click on an image before it was displayed. The Ninth Circuit refused to hold search engines directly liable for in-line linking where users were seeking information. Moreover, when users looked up information they engaged in direct connection, whereas in the Goldman case sports fans did not actively engage in clicking a picture of Brady.
Forrest, in her Feb. 15 ruling, sided with Goldman, the shooter and plaintiff, with the judge stating both that: the Server Test leads to incongruous results with the Copyright Act; and even if the judges above her, those on U.S. Second Circuit Court of Appeals, were to find the Server Test consistent with the Copyright Act, it would not apply to these facts.
The internet erupted over word of the decision favoring Goldman, with the Electronic Freedom Foundation, an online advocacy group, objecting, saying: “We hope that today’s ruling does not stand. If it did, it would threaten the ubiquitous practice of in-line linking that benefits millions of internet users every day.” The tech publication Wired, quoted a news media advocacy group, and wrote: “Judge Forrest’s ruling is noteworthy because it could serve to legally complicate what has become a commonplace aspect of the internet. It also might start immediately changing how publications operate. ‘What media companies are going to do is they’re going to embed tweets with media without the media,’ says Peter Sterne, a senior reporter at the Freedom of the Press Foundation.”
Eric Goldman, a respected Santa Clara University law professor, told Courthouse News Service that Forrest’s ruling was “shocking” and “far reaching,” noting in a blog post that the judge appeared to “eliminate a bright-line rule that many internet actors rely upon.” He argued the ruling could upend prima facie liability: if Twitter infringed a copyright in a photo, any other website linking to that photo would then be on the hook, writing, “A single infringing upload by a Twitter user potentially virally contaminates everyone else — potentially thousands of people — unwittingly using the embed feature, exposing all of them to financially crippling copyright litigation.”
Photographer Goldman has stuck by his guns, arguing the media rush to get a speedy appellate review of Forrest’s decision was unwarranted. He also asserted that Forrest decided the case correctly, that his photo never entered into a public use, and that online sites’ profit-seeking and not their wish to protect press freedoms pushed their opposition to his copyright claims. There have been cases before in which the courts have slapped media outlets for infringing copyrights with Twitter, notably an incident involving the award of more than $1 million in damages to a news photographer over news outlets’ improper use of images he sent on an emergency basis via social media from quake-ravaged Haiti.
On March 19, the court certified the Feb. 15, 2018 Forrest decision for interlocutory appeal, stating that the current finding has created tremendous uncertainty for online publishers where the impact of the case may change the landscape of the way current social media is used. Interlocutory appeal assures “prompt resolution of knotty legal problems.” Weber v. United States, 484 F.3d 154,159 (2d Cir. 2007).
Tom Brady photo credit: Andrew Campbell, Creative Commons
While legions of fans will focus with zeal and dread to see if LeBron James can lead the Cleveland Cavaliers through the NBA playoffs and back to a championship, agents, lawyers, and others representing the basketball superstar — as well as those who play similar roles for a host of celebrities and athletes — may be fixating, instead, on his super-sized guns, and most specifically the ink on them.
Modern tech-based challenges — from embedded tweets to programming interface code — have reshaped copyright law. But the dispute over tattoos looms large and personally for tat artists and their subjects, as these decorations dating to ancient times cover not only more athletes and celebrities but also broader expanses of their epidermis.
Tats have become as common as chiseled physiques for pro athletes in the NBA, NFL, boxing, UFC, and soccer. Musicians, whether stars of hip-hop and rap or hard rock and country, adorn their skins wildly. Tinsel Town stars and starlets glom on to tats’ glam sooner it may seem than they can nab a mid-century modern house in the Hollywood Hills.
Lest anyone doubt the centrality of skin adornment to contemporary celebrity life, just consider how the internet blew up when the New Yorker, a renowned and popular magazine for elites and intellectuals, tried to read the tea leaves about a possible midlife malaise of A-lister Ben Affleck based, yes, on a tat crawling over the lumpen-looking star’s backside.
But how will their popularity play out in protecting tats with copyright? That’s the inky question facing U.S. District Judge Laura Taylor Swain, who denied video game publisher Take-Two’s motion to dismiss a lawsuit seeking millions of dollars over the reproduction of tattoos in the NBA 2K video game franchise.
In Feburary, 2017, Solid Oak Sketches sued Visual Concepts, LLC, 2K Games, Inc., and Take-Two Interactive Software, asserting they infringed the copyright to tattoos emblazoned on NBA stars Lebron James, Kobe Byrant, Kenyon Martin, DeAndre Jordan, and Eric Bledsoe. The firms were accused of wrongfully reproducing the skin designs in NBA 2K16 without authorization.
To the best that lawyers can find, no judge has firmly declared that tattoo designs can be copyright protected. In the dispute between a tattoo artist and Warner Bros. over Hangover 2 over boxer Mike Tyson’s face design, the parties settled. Another case between a tattoo artist and video game publisher THQ for a UFC fighter’s tattoo was determined not by copyright but in bankruptcy court.
To be clear, Swain declared it premature to rule if the depiction of tats by Take-Two and the other named defendants amounted to de minimis or fair use. That’s why the judge denied Take-Two’s motion to dismiss and allowed the case to proceed to trial, where a lot of folks, in movies, video games, and advertising and promotion no doubt will be watching closely to see what effective defenses, in action and law, might avert tat suits.
Flashes and fair use
Take-Two has argued, as part of its fair use copyright defense, that the athlete tats displayed in its video game were “observable only fleetingly.” But Solid Oak has countered that, depending on features in the game, “the overall observability of the subject tattoos can be fairly significant.”
The court has found it difficult to determine if substantial similarity is present when the game at issue uses interactive software that allows for game play variety. “At this stage of the proceedings, there is no objective perspective as to how the defendants’ video game is generally played, or to what extent certain game features can be or are actually utilized, that would allow the court to make determinations about the choices and subsequent observations of the ‘average lay observer,’ or about the observability and prominence of the Tattoos,” Swain wrote.
Take-Two’s dismissal brief warned that “it would be illogical to allow Solid Oak to seek rents each time that a player bearing one of its tattoos commercializes his likeness, or worse, appears in public, and therefore arguably ‘publicly displays’ the Tattoos under copyright law.” Solid Oak fired back that this is an inappropriate stage of the proceedings for the court to consider fair use.
Swain agreed, stating that “the difficulties inherent in conducting a side-by-side comparison of the video game and the tattoos, further evidence must be considered in connection with the fact-intensive question of the applicability of the fair use defense.”
De Havilland prides herself on refusing to engage in “typical Hollywood gossip about the relationships of other actors,” she has said. But she argued that the FX portrayal of her tarnished her reputation by creating the impression that “she was a hypocrite, selling gossip in order to promoter herself at the Academy Awards.” The Washington Post reported that de Havilland took major exception to a Feud scene in which her character calls Joan Fontaine, an actress and her sister, an expletive, when “in reality she had called her a “dragon lady.” De Havilland also objected to a joke her character tells about Frank Sinatra’s heavy drinking.
In response to her complaint, FX filed a motion to strike, based on several counts, including that de Havilland could not prevail on her right of publicity claim. The defendants told the courts they had to rule against the double-Oscar winning star of 60 films — including The Adventures of Robin Hood (1938), To Each His Own (1946), The Snake Pit (1948), and The Heiress (1949) — as a matter of constitutional protection for the First Amendment rights of the show and its creators, as well of public interest.
As the judges ruling in this case —Anne Egerton, Lee Smalley Edmon, and Halim Dhanidina — wrote:
Feud is speech that is fully protected by the First Amendment, which safeguards the storytellers and artists who take the raw materials of life — including the stories of real individuals, ordinary or extraordinary — and transform them into art, be it articles, book, movies, or plays.
In that case, Rudolph Valentino’s nephew sued a television program for a “fictionalized version” of the actor. The court in Guglielmi held that readers or viewers — and not the courts — were the ultimate arbiters as to whether the broadcast portrayal was accurate or a “mere fantasy,” and that entertainment is entitled to the same constitutional protection as the exposition of ideas.
Courts in California and at the federal level since have made Guglielmi a legal standard, citing it multiple times, including, the appellate judges noted, for: Comedy III, supra, 25 Cal.4th at pp. 396-398, 401-402,
406; Winter v. DC Comics (2003) 30 Cal.4th 881, 887-888, 891 (Winter); Tamkin v. CBS Broadcasting, Inc. (2011) 193 Cal.App.4th 133, 145 (Tamkin); Dyer v. Childress (2007) 147 Cal.App.4th 1273, 1280; Polydoros v. Twentieth Century Fox Film Corp. (1997) 67 Cal.App.4th 318, 324-325 (Polydoros) [and]
Sarver v. Chartier (9th Cir. 2016) , supra, 813 F.3d at p. 905, fn. 9.
The California appellate judges also noted that First Amendment claims had trumped assertions about violations of publicity rights, for example, with civil rights pioneer Rosa Parks’ depiction in books, movies and a plaque. The case cited here was The Institute v. Target Corp. (11th Cir. 2016) 812 F.3d 824, 826.
That case also extended to the judiciary itself, such that the creatives who depicted Los Angeles Superior Court Judge Lance Ito’s in The People v. O.J. Simpson: American Crime Story did not need to acquire his rights.
This case was expedited due to de Havilland’s age, and it attracted considerable legal attention, with friends of the court or amicus roles taken up by the: Motion Picture Association of America, Netflix, A&E Television Networks, Discovery Communications, Imperative Entertainment, Urban
One, Inc., Critical Content, Reporters’ Committee for Freedom of the Press, and First Amendment Coalition, the Electronic Frontier Foundation, Wikimedia Foundation, International Documentary Association, and the Screen Actors Guild-American Federation of Television and Radio.
De Havilland’s lawyer has spoken of appealing the case.
Photo credit: 1939 studio publicity still for Olivia de Havilland as Melanie Hamilton in Gone With the Wind
There are far fewer blurred lines now for Robin Thicke and Pharrell Williams after the U.S. Circuit Court of Appeals for the Ninth District told the talented duo they’ve got to give it up and concede that they infringed on copyrights held by heirs to the soul legend Marvin Gaye.
After more than 4.5 years of litigation, the divided appellate panel upheld the lower court ruling that Thicke and Williams were in the wrong with their 2013 international chart-topper Blurred Lines and how it dealt with material from Gaye’s song Got to Give It Up.
In 2015, jurors found that Williams, Thicke, and More Water from Nazareth Publishing infringed rights held by Frankie Christina Gaye, Nona Marvisa Gaye, and Marvin Gaye III, and awarded the Gaye heirs $5.3 million in damages and a running royalty of 50 percent of future revenues from Blurred Lines.
Jurors also decided that Clifford Harris Jr. (Rapper TI), who contributed a verse to the track, and the Interscope Parties were not liable for infringement.
In 2016, the defendants appealed. More than 200 songwriters, composers, musicians, and producers joined their argument in an amicus brief telling the court how fundamental and key its for musicians to be allowed to refer and “borrow” from one another’s works. These appellant legal “friends” included members of Earth, Wind & Fire, John Oates, Jennifer Hudson, and Linkin Park.
On appeal, the parties led by Thicke and Williams argued that Gaye’s copyright enjoys thin protection. The majority opinion (read here) by U.S. Circuit Judge Milan D. Smith Jr. rejected that argument, finding broad protection, instead. Musical compositions “are comprised of a large array of elements, some combination of which is protectable by copyright,” wrote Smith.
Limits in the decision
The appellate judges also accepted the lower court’s ruling, under the Copyright Act of 1909, to limit the Gaye copyright to tune’s deposit copy alone — and not extending to sound recordings. The appellate judges affirmed that the defendants could not after a full trial overturn the early decision by the judge below to deny summary judgment. The federal judge also was upheld in his ruling to deny a new trial.
As for the key decisions as to how the lower court ruled on rights and the Gaye music itself, “There was not an absolute absence of evidence of extrinsic and intrinsic similarity between the two songs,” Smith stated. He said was true, even though testimony expressed similarity in many areas, including “the songs’ signature phrases, hooks, bass melodies, word painting, the placement of the rap and ‘parlando’ sections, and structural similarities on a sectional and phrasing level.”
A large portion of the appellate ruling takes aim at the actual damages awarded to the Gaye heirs, notably 50 percent of publishing revenues for Blurred Lines. The court found that the $3.2 million award was not based on undue speculation but rather on an expert’s reliable assessment of the two songs. Further, the court upheld the awarded profits of $2.1 million.
The appellate judges reversed the lower court, in part, finding the district court erred in overturning the jury’s general verdict in favor of Harris and the Interscope Parties. The appellate judges said they did so because the Gaye heirs waived any challenge to the consistency of the jury’s general verdicts by not objecting to it prior to dismissal of the panel’s members. The appellate judges found no duty to reconcile the verdicts, and ruled the district court erred in finding Harris secondarily liable for vicarious infringement.
A finding too far?
Critics closely watched this case, warning that a ruling unfavorable to Thicke and Williams would expand copyright to cover a general musical style. That argument held some sway with Jacqueline Nguyen, one of the appellate judges who offered a sharp dissent. “The majority allows the Gayes to accomplish what no one has before: copyright a musical style,” Nguyen declared. “The majority establishes a dangerous precedent that strikes a devastating blow to future musicians and composers everywhere.”
The appellate majority, eventually addressing the concerns of many in the musical community, fired back that the dissent’s “conjectures are unfounded hyperbole. Our decision does not grant license to copyright a musical style of ‘groove’… nor does it upset the balance Congress struck between the freedom of artistic expression, on the one hand, and copyright protection of the fruits of that expression, on the other hand.”
According to Law360 the Gaye heirs called the ruling “a victory for the rights of all musicians.”
Rearden, a high-powered computing company that has sought to establish its creative reputation in the movie industry with its special-effects work on some well-known films, now wants to become a legal innovator, too. It’s doing so by pursuing a complex lawsuit, a case that began when Rearden first sought to protect its legal rights over what it claimed was an unauthorized use of its technology by a Chinese-owned company, Digital Domain, aka DD3.
A federal judge recently ruled that DD3 behaved “fraudulently,” and ordered it to return disputed movie-making technology to Rearden (click on the photo above to play a TED video, in which a DD3 exec explains how the disputed system works).
In essence, the company broadly claimed its technology’s contribution was so substantial that it almost was akin to Microsoft saying it had rights to every document created in its Word software.
However, the court rejected the plaintiff’s assertion, finding a plausible claim that both actors and directors make huge contributions to movies, even in their role in special-effects created with Rearden tech. Without these creative contributors, the computer program would not be able to “take inputs and turn them into outputs,” the court said.
The company hopes now to persuade the courts about how much special-effects software can be protected not just by the usual method of a patent but also by copyright.
Because its claims of infringement — of patents, copyright and trademark — could have big effects on high-tech movie special-effects used in some big-money productions, lawyers may want to turn their minds inside out more than Benjamin Button reverse-aged to consider what Readen and its counsel are up to, especially because they already have shown they can get a court to buy in to a complex argument about how others have tried to pilfer their product.
In the amended complaint, Rearden asserts that the Contour program itself is an original literary work of authorship, and, thus a proper subject of copyright protection. Rearden further now argues that Disney MPG is vicariously liable for DD3’s infringement because the studio had a substantial and continuing connection to DD3’s unauthorized use of Rearden technology.
The 112-page amended complaint itself illustrates the complexities of Rearden’s case, as it seeks to: outline the relationships among the parties (including DD3 and its overseas owners, as well as between Rearden and its onetime employees who then went to DD3); how the disputed technology works, including ample photographs of equipment (like the gear shown above) and actors prepped for software transformation; the timeline of the dispute; and the claims against the defendants, with details of the parties’ contested actions. (A tip of the hat, by the way, to the Hollywood Reporter Esq. for posting the suit online).
The courts will have plenty of material to chew over in this case, including Rearden’s assertion that, as a copyright protected item on a fixed medium (CDs, computer hard drives and more), its product was infringed each and every of the myriad times the studios flipped on and open its special-effects software. That damage claim, if accepted by the court, could add up, fast and big time.
As Hollywood keeps using special-effects more and more while also trying to slash costs, in part by off-shoring work and fueling runaway production, the Rearden case will be closely watched. It also may keep studios and Entertainment lawyers busier than ever in the clearance process, drilling down now on licenses and rights attached to underlying software used in movie production, especially special effects. And, will the floodgates be thrown open to more litigation over studios potential liability for vicarious or contributory copyright infringement for unauthorized technology in their movies?
Let’s start with a tough data point for a business that lives and dies by what its fans do: The 90th Oscars were the least-watched in at least a decade, with viewership of the prime-time Sunday broadcast dipping 20 percent to 26.5 million viewers. Combine that stat — yes, it was affected by streaming and the academy’s wish to honor not just hugely popular films but also those with distinctive high artistic achievement — with 2017’s box office bad news: U.S. movie ticket sales were the lowest in 25 years, though grosses were buoyed by increased prices.
California lawmakers, responding to pressure from unions (SAG-AFTRA) and actresses’ complaints that such disclosures fosters ageism in Hollywood, had passed Assembly Bill 1678 requiring IMDb to remove performers’ ages from its site, if asked. But U.S. District Judge Vince Chhabria struck down that law.
Amazon.com-owned IMDb had sued the state of California two months after Gov. Jerry Brown signed AB1678 into law in 2016. Chhabria in 2017 had granted IMDb’s motion for preliminary injunction preventing enforcement of the law until the Amazon suite could be heard.
IMDb assailed Secretary of State Xavier Becerra and SAG-AFTRA over their contention that AB1678 served a compelling government interest in combating age discrimination in the entertainment industry. Chhabria agreed, ruling that California failed to show its law could withstand strict scrutiny, that is it was not too narrowly tailored but rather both under- and over-inclusive.
The judge also found the law sought to solve the wrong problem, writing, “The defendants describe this as a problem of ‘age discrimination.’ While that may be accurate on some level, at root it is far more a problem of sex discrimination.” The court granted IMDb’s motion for summary judgment, stating that “Regulation of speech must be a last resort.”
Hollywood’s sexism, racism, and ageism
Still, the industry’s woes won’t go away, even as recognition of the scope of its problems grows.
On the same day as Chhabria ruled, USA Today published eye-popping results of its survey of 843 women in the entertainment, with a whopping 94 reporting they had experienced harassment or assault during their Hollywood careers.
Actress Susan Sarandon, as head of the jury at Australia’s short film festival Tropfest, commented in recent days on Hollywood’s future, if it does not deal with racial, gender, and age discrimination. The Hollywood Reporter said Sarandon attributed the industry’s corporate takeover for “why we have so much sexism and racism and ageism in Hollywood.”
The USC Annenberg Media, Diversity, & Social Change Initiative has reported that the scant presence of female speaking characters in films, along with the percentages of black, Hispanic, and Asian characters has stayed unchanged since 2007. Of 100 top action films in 2016, only 34 depicted a female lead or co-lead, and, of those works, three female actors were from underrepresented racial groups and eight were at least 45 or older.
But across the city, UCLA’s annual report on Hollywood diversity has argued that movies with diverse casts and creators pay off of the industry’s bottom line: Black Panther “smashed all of the Hollywood myths…that you can’t have a predominantly black cast and [have] the film do well…. But it’s too early to tell if Black Panther will change business practices or it’s an outlier.”
It’s a meritorious contractual option that many will dissect in the days ahead. But it’s also clear that, yet again, Hollywood will ask its few, most gifted, and empowered women and people of color to do the heavy lifting, legally speaking, to help rectify a situation that dollars and cents and a rapidly changing world outside already should force industry leaders to address.
Gerald Wolkoff, a building owner in the New York borough of Queens, in search of what he might have thought was his picture-perfect ending to an escalating dispute with neighborhood artists, did more than rub out what some might consider walls covered with graffiti. He also rubbed the wrong way a federal judge, federal jurors, and a corps of “aerosol artists,” destroying dozens of artistic creations with legal protections, described in a court document as the nation’s “largest collection of exterior aerosol art.”
They were painted over even as 21 artists collectively had sued Wolkoff and his companies, asking a court to grant them a preliminary order to prevent the demolition of one the warehouse buildings emblazoned with their art. But before the court could rule on a possible TRO, Wolkoff ordered crews to paint over the works. This task was done in inconsistent fashion but damaged the artwork, so that none of the pieces could be saved.
The court conceded that aerosol or graffiti art, “given its general ephemeral nature,” might be tough to protect. But the judge allowed plaintiff artists to pursue claims against Wolkoff for damaging their work.
Their suit was pursued under the distinctive area of copyright law covered by VARA or the 1990 Visual Rights Act.
1990 Visual Artists Rights Act (VARA)
VARA expanded copyright law to protect authors of visual art, if they were “one of recognized stature,” and if this stature is “recognized” by some artistic community. As the act, 17 U.S. 106A(3)(a), states, the author of a visual art work shall have the right :
To prevent the intentional distortion, mutilation, or other modification of that work which would be prejudicial to his or her honor or reputation, and any intentional distortion, mutilation, or modification of that work is a violation of that right, and
To prevent any any destruction of a work of recognized stature, and any intentional or grossly negligent destruction of that work is a violation of that right.
To establish their artwork as one of recognized stature, each artist must present folios filled with their achievements and recognition of their “technical and artistic mastery and vision.”
Besides their own portfolios, artists and experts from various backgrounds from the “most prestigious art schools to the self-taught” around the world supported the 5Pointz plaintiffs’ claims, testifying to the importance of the works and the harms due to their loss.
The boldly emblazoned spaces had attracted notice in the poor and run-down area. Wolkoff’s buildings attracted not only artists of note in this visual specialty, the expansive walls of art had become a prominent space pulling in the eyes of commuters and foot traffic. Jonathan Cohen, an accomplished aerosol artist, was designated as the area’s curator, establishing a system of rules for both the creation and curation of the art.
Failing to see eye-to-eye with creatives
But Wolkoff didn’t see eye to eye with this burgeoning creative adventure, arguing that the outdoor aerosol artists had to know that one day the buildings they worked on would be torn down. His lawyers also argued that VARA should not apply to temporary works.
Ultimately, the court in Brooklyn found that 45 of the 49 works at 5Pointz were protected by VARA.
Dean Nicyper, an art law specialist, has said this decision is the first to find that graffiti and graffiti artists were protected by VARA. The intentional whitewashing of these painting despite a pending Court opinion was “an act of pure pique and revenge for the nerve of the plaintiffs to sue to attempt to prevent the destruction of their art.” The willful mutilation of the artwork heavily factored into the high statutory damage award $6.7 million that the artists received.
The notorious criminal Henry Hill, as played by actor Ray Liotta, once summarized a key wiseguy ethos, observing in a scene in the film Goodfellas: “If anyone complained twice, they got hit so bad, believe me, they never complained again.”
So will Frank Sivero, the actor known for his portrayals of organized crime family members like Genco Abbandando (Godfather II) and Frankie Carbone (Goodfellas), take a cue and leave off his beef over the legendary Fox Television cartoon show The Simpsons — this after just receiving a second hard legal anti-SLAPP from a California appellate court?
Sivero had sued Fox in 2014, asserting The Simpsons misappropriated his likeness and more with its mobbed-up, minor character Louie (click on photo above to see clips of him in action). Sivero claimed that two of the writers for the animated series, living next to him in the Los Angeles suburb of Sherman Oaks, knew he was developing a hoodlum character for Goodfellas, the movie that would be an Oscar-winning hit for director Martin Scorsese and stars Liotta, Sivero, Joe Pesci, Lorraine Bracco, and Paul Sorvino.
But it was Sivero who took legal umbrage at Louie and the Simpsons’ satire of his criminal characters, suing Fox and others with claims for: 1) common law infringement of the right of publicity; 2) misappropriation of name and likeness; 3) misappropriation of ideas; 4) interference with prospective economic advantage; 5) unjust enrichment.
Los Angeles Superior Court Judge Rita Miller earlier had granted Fox’s motion to strike on the basis of California’s anti-SLAPP statute, rejecting the lawsuit along with Sivero’s $250-million demand. She found that Sivero had little chance of prevailing in his action, which the court could toss under the anti-SLAPP laws as a potential harm to the defendants’ exercise of their First Amendment rights, including to satirize public figures.
A three-judge panel for California’s Second Appellate District reviewed Sivero’s appeal and upheld Miller.
The court reiterated that the Simpsons character Louie offered more than a mere likeness or literal depiction of Sivero, it distorted his characters for purposes of parody. Finding Fox’s use of Sivero’s likeness in the television show transformative, the court granted Fox First Amendment protection.
Notably, Sivero admitted in his suit that his likeness had been “Simpsonized,” which, according to the appellate opinion, means he had conceded effectively that it was “transformed by the creative and artistic expressions distinctive to The Simpsons.”
The appellate judges found that Fox’s transformative use defense blocked completely Sivero’s claims for infringement of his right of publicity and for misappropriation of his name and likeness.