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Let the games begin

Originally posted 2009-09-29 23:36:13. Republished by Blog Post Promoter

Yahoo! News reports:

Media conglomerate Viacom Inc. sued Google Inc. and its Internet video-sharing site YouTube for more than $1 billion on Tuesday in the biggest challenge yet to the Web search leader’s strategy to dominate the online video market.

The lawsuit accuses Google and its popular online video unit of “massive intentional copyright infringement,” threatening its ambitions to turn YouTube into a major distributor of entertainment and outlet for advertising.

This is going to come down to the old question that we wrestled with — without resolution — in the online auction context: Whether or not “trying really hard” to avoid copyright (or in the case of auctions, typically trademark) infringement is enough to get website such as YouTube (or eBay) off the hook.

Ironclads battle

In the case of eBay, where the issue is trademark, they have replicated the notice-and-takedown provisions of the copyright law and were tested on whether this helps — there is no safe harbor provision for trademark infringement — only by Tiffany, in a case that evidently never went anywhere.

Here there really is a legislative safe harbor under the Copyright Act. But why should an entire business model premised, at least in part, on profiting from copyright infringement get the benefit of a safe harbor? Viacom will argue that it shouldn’t.

UPDATE: Good analysis by Allahpundit and Google Watch. Meanwhile, when you’re a carpenter, every damned thing looks like a nail, doesn’t it!  Also, Evan has the complaint and a sharp rundown on it.

UPDATE BUT GOOD:  Settled in March 2014:

The settlement ends seven years of litigation that drew wide attention from Hollywood, the music industry and Internet companies, and which tested the reach of a federal law designed to thwart piracy while letting people find entertainment online.

“This settlement reflects the growing collaborative dialogue between our two companies on important opportunities, and we look forward to working more closely together,” Google and Viacom said in a joint statement.

Terms were not disclosed. No money changed hands, a person close to the matter said. The person was not authorized to discuss the settlement’s terms.

Grumpy cat. This is huge.

You need me for this?

Ok. Let’s take a swing at it. Per Eriq:

Grumpy Cat, the feline who became an Internet sensation in 2012, has retained one of Hollywood’s most notable litigators in an intellectual property battle against a beverage company marketing such products as a branded iced-coffee beverage called “Grumpy Cat Grumppuccino.”

On Friday, attorney Marty Singer filed a lawsuit on behalf of Grumpy Cat Limited in California federal court. It begins, “Ironically, while the world-famous feline Grumpy Cat and her valuable brand are most often invoked in a tongue-and-cheek fashion, Defendants’ despicable misconduct here has actually given Grumpy Cat and her owners something to be grumpy about.”

According to the complaint, Grenade Beverage entered into an exclusive licensing agreement in 2013 to license the cat’s copyrights and trademarks for coffee products. Grumpy Cat was to get royalties as well as an advance, and the lawsuit alleges that additional product offerings would require further negotiations and approval.

But then came new “Grumpy Cat” branded roasted coffee ground products.

“Although, as required by the License Agreement, Defendants sought Plaintiff’s approval of use of the Licensed Properties in connection with the proposed roasted coffee ground product, Plaintiff never approved such use,” states the complaint. “Rather, Defendants were repeatedly told by Plaintiff (both in writing and verbally) that the Licensed Properties could not be used in connection with a roasted coffee ground product.”

I had Internet in 2012.  Grumpy the Cat was a sensation?  No, sorry.  The Grumpy Cat.

Grumpy, the Cat.

This sounds really serious, and would explain why you would get a really notable litigator on the case.  Read More…

Reality is stranger than… something

Originally posted 2011-07-12 17:46:52. Republished by Blog Post Promoter

The horror.

Larry Zerner does it again with his uniquely unique (if too infrequent — that’s a free tip, Larry) content.  This time it’s an article called, “5 Horrible Provisions You Might Find In A Reality Show Contract.”  A perfectly pleasant explanation, followed by a horrible example:

For those people who hear the siren’s song beckoning them to a reality show, I would caution them to be very careful.  Especially if you are already pursuing a career in the entertainment industry, there are many provisions in the reality show contract which can hinder your career, make your life miserable, or both.  Reality television show producers realize that so many people are desperate for a chance to be on television, they can make the contract completely lopsided. . . .

The reality show contract . . . contains a provision that allows the producers to present you in any way they want, even if it is completely untruthful, and you cannot sue them for that.  In theory, if the producer wants to edit the footage to make it look like you are a racist psychopath who gets his greatest pleasure from killing babies and raping nuns, they can do so, and there is nothing you can do about it.  So if you think that your appearance on the program will make you look good, keep in mind that you don’t control the footage, the producer does.

Which would explain why, from what I gather (I’ve never watched a reality show), no one really looks particularly good on a reality show.

Caveat Animator (guest post by Brozik)

[A woman] has filed a lawsuit claiming that Disney’s animated film about [a princess, her magical sister, and their talking snowman] took elements from her 2010 autobiography…. Court documents [include] a list of 18 “Frozen” elements that [the woman] claims were plagiarized directly from her book. These include both stories having two sisters, a village, betrayal, open doors/gates, and a “moon setting.” – CNN Money

I’m afraid that this woman is going to lose her lawsuit. I say this as not just an attorney once admitted to practice law in two states and before four federal district courts and the U.S. Supreme Court, but also someone who has sued Disney five times for the same thing, to wit: blatant mining of my personal experiences for material to use in their wildly successful movies without asking my permission or compensating me in any way. To date, I have yet to win a lawsuit, or to have my professional license reinstated, but as long as Disney keeps using my life as inspiration for its animation, I will keep demanding satisfaction—and injunctive relief—in court.

It’s partially my own fault, I’ve been told. In or about 1988, when I finished writing Book One of my memoirs—A Tearjerking Volume of Startling Brilliance—I mailed a photocopy of the unpublished manuscript to Disney’s then-president Jeffrey Katzenberg, although I confess that I don’t remember why. But imagine my surprise when I first saw The Little Mermaid in 1989. On the very first page of my work, I mention that I am a Pisces (the Fish), that for religious reasons I don’t eat crabs, and that I like to sing in the shower (that is, under water)!

It was immediately obvious to me that I was singlehandedly responsible for the start of what would become known as the “Disney Renaissance.” According to one source, The Little Mermaid had total international box office earnings of $211 million, of which I got not a penny. Instead, I had to shell out some of my own money to seek justice, which I also did not get. Read More…

Heck of a trademark suit

Bat out of HellChunky rocker Meat Loaf is suing his one-time collaborator, Jim Steinman, over the latter’s recycling of the title of his one good album.

UPDATE:  I want to sue.  I need to sue.  But there ain’t no way I’m ever gonna win this.  So don’t feel sad — two out of three ain’t bad.

The Future of “Happy Birthday” Might Be a Present to Us All, Because of Its Past.

Happy Birthday lawsuitAs a rule—specifically Federal Rule of Civil Procedure Rule 8(a)(2)a pleading that states a claim for relief must contain… a short and plain statement of the claim showing that the pleader is entitled to relief. Moreover, each allegation must be simple, concise, and direct. In other words, when drafting a federal complaint—say, for relief related to copyright law—get to the point, and quickly. You don’t have to go into excruciating detail when you set forth the facts that underlie your claim; indeed, some judges will be glad if you don’t.

[NB:  Sound familiar?  See the previous LOC post on a very related topic. This is a complete coincidence; Matthew and I do not coordinate posts and in fact barely speak since he forgot my birthday last year. No excuse, either—it was in the public domain. –RDC]

But sometimes setting forth the facts in extremely excruciating detail can have a powerful psychological effect. And if you’re going to provide the court—and, in turn, the public—with a comprehensive recitation of facts that start way back in 1893, a terrific way to marshal those facts is to produce a documentary movie, in the course of which you seek to use a song that everyone in the world knows, only to be told that you have to pay to license it for use in your movie, which advice prompts you to sue for declaratory judgment by way of a putative class action on behalf of yourself and all others similarly situated.

mdbheadshotfinalUnless you’ve been off-planet this past week, you know that I’m referring to the lawsuit filed on June 13 in the United States District Court for the Southern District of New York by Good Morning To You Productions Corp. seeking a declaration that defendant Warner/Chappell Music, Inc., despite what it claims, does not hold the copyright to the most popular song of the 20th century (according to a 1999 press release by ASCAP, which was released a year early, it would seem): Happy Birthday to You. And the reason why Warner/Chappell does not own the copyright—and have the prerogative to license its use—is because…

…well, no, you really should read the complaint. It’s a good story, told in just under 100 simple, concise, direct paragraphs. The gist of it is that the song as we know it came together in pieces, each of which entered the public domain long ago.

Accordingly, Warner/Chappell has been demanding and collecting fees to license something it doesn’t own. Because we own it. You and I and everyone we know.

Looking for “Peace of Mind” (BOSTON 2)

You might recall this previous post, addressing the nascent lawsuit brought by a corporate music publisher/exploiter and its principal (plaintiffs Next Decade Entertainment, Inc. & Paul Ahearn) against songwriter Don Scholz, a member of the band BOSTON. In case you don’t want to go back and refresh your recollection, here’s the very skinny: Scholz had written (in 1975 and 1976) six songs for BOSTON’s first album (released in 1976) and another six for the band’s second album (released in ’78). Scholz had assigned his copyrights in the twelve compositions to Ahearn (for simplicity’s sake) prospectively in an agreement executed in 1975. Recently, Scholz gave notice to Ahearn of the termination of that transfer, to become effective in January 2015. Scholz’s notice asserts that the 1975 agreement (and specifically, relevantly, the grant of copyright rights therein) was superseded by a 1978 agreement. This is the linchpin of the copyright case.

After my prior post, a spirited discussion took place on Facebook. Another man who evidently knows quite a bit about copyright law and I spun out some possible scenarios, and I expect that he, like me, has been eager to see what would appear in Scholz’s answer. That answer was finally filed this week, and the answer to the question of what’s in it is: not all that much, really. Mostly it’s the usual denials and denials of knowledge and information….

But there is one revelation. According to Scholz, in 1978, at the time of execution of the new agreement, Ahearn acknowledged expressly that the termination circumstances, as provided  by the Copyright Act, were changing. Scholz alleges that Ahearn said, “I am giving up fifty-six years for thirty-five years, but in thirty-five years who’s going to care about BOSTON anyway?”

mdbheadshotfinalFifty-six years? Thirty-five years? What now? Well, remember that there are actually two termination provisions in the Act: Section 203 governs transfers of rights effectuated on or after January 1, 1978, providing that the transfer may be terminated in the five-year period starting after 35 years has passed. Section 304 deals with transfers executed before January 1, 1978, of works with copyright subsisting as of January 1, 1978; such transfers may be terminated during the five-year period that begins after 56 has elapsed from the date of the original securing of copyright in the work or January 1, 1978, whichever is later. (Maybe Congress should have put this provisions closer together in the law?)

So, indeed, if Ahearn acknowledged this change (even if he doubted the shelf life of BOSTON), then he was acknowledging the substitution of the 1978 agreement for the 1975 agreement, with the legal effect (as Scholz maintains) that all twelve songs may be reclaimed by him, Scholz, under Section 203, in 2015. Additionally/alternatively, Scholz argues, even if the 1978 agreement did not constitute a superseding grant, because the six songs on the second album weren’t fixed until 1978, Section 203 governs regardless.

Doubtless, there’s a motion for summary judgment on the horizon. After the [ahem] Foreplay.



Barney, Barney, is your mother from Killarney?

Speaking of ugly fights implicating extinct species, Joseph Scott Miller reports on his Fire of Genius blog — no, he’s not the only one, but he reports it real good — that the EFF lawsuit against Barney and, kind of, his lawyers has been settled.

I feel a little bad about that, because I’m of counsel to the firm involved and, well, I wrote the original cease and desist letters and used to be in charge of the Barney campaign, if you must know. More than this, I cannot say.

But I don’t feel that bad about it because what better than a singing dinosaur with a person inside it and a bunch of crack IP-enforcement lawyers seeking only to do his bidding could provide better blog fodder? Nothing, I tell you.

Except that I have to say, it’s pretty obvious that the EFF spun the hell out of this outcome. Consider: They got far less than they spent on lawyer time — a piddling $5000 — and a motion to dismiss was pending and, most of all, they didn’t get an opinion making the world safe for jejune parody sites or even an injunction against a land war in Europe or even an admission of fault. So no, I don’t feel that bad at all.

The Potential Hazzards of Putting up Yer Dukes


So many strands of America in our time converge in this story, regarding which I predict some sort of IP dustup:

“Cooter” was evidently the name of a character on the old Dukes of Hazzard television program involving a pair of friendly redneck do-gooder cousins. There was a pretty girl featured in the program as well — this becomes relevant. Cooter (the person, not the critter) was played by an actor named Ben Jones. Jones followed what has become a fairly common success story, parlaying the arbitrary and capricious (wow, now that would be a good name for a law blog!) fame of Hollywood into high elective office. Sometimes this path results in epoch-making greatness or at least very interesting entertainment; but if this privilege is abused, the evil is repaid quickly and mercilessly. In Representative Jones’s case, it was a short apogee; he was quickly unseated and replaced by a local history professor who would go on to greater things himself.

Congressman Cooter then went back to the life-giving well and eventually set himself up — quite rationally, considering how hard it is to make an honest living actually working — in the nostalgia business, setting up the definitive (though hardly the only) Dukes of Hazzard fan website, Cooter’s Place. If you look at Cooter’s place, you will find the lack of attention to IP issues somewhat odd. Jones seems to make liberal use of what you would think are IP assets (mostly trademarks) associated with the Dukes of Hazzard program, and as far as I could tell there is no disclaimer, acknowledgment or rights or other lawyer-type boilerplate addressing the issue. (Not that he’s alone.)

Now comes 2005 and that every-giving horn of plenty, Hollywood, is dredging the very bottom of the not-so-golden pond for sunken treasure it can salvage and refit into feature movies, and of course the Dukes of Hazzard, having run for a few years and made some money, is an obvious choice for full-length cinematic treatment. There is a girl in this one, too, a real rock star who — not surprisingly — is put front and center in a big, big way. This turns out to have more than a little to do with the next episode:

Turns out Congressman Cooter is no crass commercial clod, however. He saw the movie and didn’t like one bit what he saw:

In the last few years I reckon I’ve done many hundreds of interviews around the country on radio and television and for dozens of newspapers. I always tell them that ours is a classic family show with positive values, great action, wonderful slapstick comedy, mighty fine country music, and a very gifted cast who had great chemistry. America could tell that we were clearly enjoying what we were doing and for that hour folks could forget their troubles and just have fun along with us. It is exactly the kind of entertainment that families crave right now.

Lately most of the interviewers want to know my opinion of the “movie” version that is coming out in August. I’ve always tried to be candid with my opinions, and when it comes to this film, I think it would be a mistake for me to pull the punches. Like you, I haven’t seen the film, but I have read the script, I’ve talked to a lot of people who worked on the set, and I’ve seen the raunchy t.v. commercial. Frankly, I think the whole project shows an arrogant disrespect for our show, for our cast, for America’s families, and for the sensibilities of the heartland of our country.

Unless they clean it up before the August 5th release date I would strongly recommend that true blue Dukes fans hold their noses and pass this one up. And whatever you do, don’t take any youngsters to see it. As plain as I can put it, the only thing this movie shares with our show is the title. Oh, they do have the General Lee flying through the air, although according to the New York Times, they didn’t even use stunt drivers.

Sure it bothers me that they wanted nothing to do with the cast of our show, but what bothers me much more is the profanity laced script with blatant sexual situations that mocks the good clean family values of our series. Now, anybody who knows me knows that I’m not a prude. But this kind of toilet humor has no place in Hazzard County. Rather than honoring our legendary show, they have chosen to degrade it.

That’s just an excerpt. I don’t know what the issues are here besides the mere Jessica Simpson-ness of it all; the movie must be awful, considering that there don’t seem to be any pre-release reviews out ther for me to figure out what’s going on. But we know what Hollywood’s all about and always has been, so guessing shouldn’t be too hard.

Give the man credit; it stands to reason that a resurgence in interest in the Hazzard boys — and their darlin’ li’l sister — would do wonders for his career and website, even if they’ve been left on the outside looking in on the movie, by choice or otherwise. (Not everyone has! There’s your IP angle!)

But Cooter is nothing if not a politician. It’s certainly interesting — especially considering “where this story is going” and his call for fidelity to antebellum days — that the site features (not only on the home page, but throughout) — pictures of an all-but-Confederate-flag-free General Lee that was the star of the original show, as required by modern political-racial sensibilities (and with which, in this case, I am not unsympathetic, though I see the other side of the argument). The movie didn’t airbrush the Rebel flag out of the Hazzards’ history, even though they significantly downplay and tiptoe around its appearance in the picture. So does Cooter. I don’t really have a problem with that.

My angle? Count the hours, not the days, before the Honorable Cooter gets a cease-and-desist from Warner regarding his use of all that Dukes IP on his website. Chilling effect, and all that. Jones has done Warner Brothers no harm (far from it) by stimulating Internet and other discussion by virtue of his stand, but neither will their spinning off some more with a trademark threat.

And I could be wrong, too, but I have my own agenda: I was originally cast as Boss Hogg. The Jewish partner.jpgTypecasting all the way, I know. But they wouldn’t pay me what I was worth, and went with this guy instead, who I heard takes scale. Ned Beatty couldn’t be reached.