A movie director (Merkin) did not sign a work-for-hire agreement which stated that the production company (16 Casa Duse) was the sole copyright owner of the film he directed. So Merkin tried to assert that he was the copyright owner and held the raw footage from being released. The resulting court cases and appeal defined legally what it means to be a joint copyright owner, and what kind of creative input into a film is copyrightable.
Be sure to read the note at the end of the article for application of this case to the determination of authorship and copyright ownership of future motion pictures.
Recently, a U.S. Circuit Court of Appeals overturned a New York federal district court decision that said that unpaid interns on the movie "The Black Swan" were actually employees of the production. The reversal hinged on the question of who benefits the most from the intern/production company relationship. In other words, does the production benefit from the labor or does the intern get benefit in exchange for his/her work. The 2nd Circuit came to a different conclusion in the appeal than the NY court did.
A new Florida law may have a significant effect on sites like Bit Torrent where users can illegally download copyrighted work by banning anonymity in site ownership. And the law is not limited to Florida-based sites.
For over fifty years, Trademark office had not issued trademarks for single books, CDs, movies, etc. This is because trademarks are meant to signify the source of a series of creative works, not a description (or title) of a single work. But a recent ruling from the Trademark Trial and Appeal Board seems to change this trend, citing "acquired distinctiveness." What does this mean for intellectual property creators?
The US Copyright Act does not allow a person in a same sex marriage to inherit any copyrights held by his/her deceased spouse. Several members of the U.S. House of Representatives are trying to change that with the introduction of the Copyright and Marriage Equality Act.
The defendant in this copyright infringement case made a t-shirt with an image of the mayor of Madison, Wisconsin, and the result was a ruling that questions the use of "transformative analysis" in the consideration of fair use of copyrighted materials.
LSG, LLC Associate Heather Lieberman co-writes this article about the problem with the lack of copyrights on musical compositions recorded prior to 1972. There is currently a patchwork of state-level laws that deal with these recordings. New technologies and services highlight the need for a federal solution.
The court decided that public domain versions of Sir Arthur Conan Doyle's characters can exist along side protected versions of those same characters. This has implications for current authors' work featuring Holmes and Dr. Watson.
A US Court of Appeals has rule in favor of Michael Jordan in a case involving a congratulatory ad Jewell-Osco ran in a special issue of Sports Illustrated dedicated to covering the famed basketball player. The case pitted Jewell-Osco's claim of First Amendment speech rights against Jordan's right of publicity.
The Federal Communications Commission (FCC) is very careful about enforcing public filing requirements. Make a mistake or fail to report anything and the agency will impose a fine, often of many thousands of dollars. Three Illinois stations were recently fined for violating public filing rules.
During this holiday season, it really warms your chestnuts when one of the largest music publishers on earth, EMI, gets to retain copyright ownership in one of the season’s classic songs: “Santa Claus Is Coming to Town.” Baldwin v. EMI Feist Catalog, Inc., No. 122CV9360 (S.D.N.Y. December 16, 2013). This case shows how important it is for copyright grantors to following each and every one of the termination requirements of the Copyright Act.
Playing music in a workplace can be more complex than turning on a radio or plugging a band in to perform. There are legal implications involving copyrights, permissions, and authorizations, when you're playing music for workers or customers to hear, or even for hold music.
The TV fighting on "The Real Housewives of Atlanta" spilled into the legal world in a copyright dispute over the song "Tardy for the Party" written by Kandy Burruss, Kim Zolciak and others. Read how the court ruled.
Viewers of "The Dr. Oz Show" should take the show's advice with a grain of "rice." A court ruled the show was not negligent when a viewer was injured after attempting a recommended remedy.
The California's Labor Commissioner ruled that a talent representation contract between a Los Angeles TV sports anchor and his attorney is illegal, and that the anchor does not need to pay the attorney a commission.
Aereo is a service by which users can record over-the-air television station signals for viewing on Internet-connected devices. 3 courts have already reviewed copyright claims involved with this technology. Each time Aereo has won. In this latest case, Aereo is accused of putting a Hearst television station's business model at risk.
The Seventh Circuit of the U.S. Court of Appeals referred to a little used part of the U.S. Copyright Act to decide a case involving logo rights. The case had to do with who owned the rights to a logo - the contractor who designed it or the company that commissioned it.
A New Mexico public radio station's "cavalier" attitude toward a public file requirement spurs the FCC to impose a large fine and put a limit on the station's license renewal.
A graphic novelist has sued his literary agent, claiming that the agent did not use his "best efforts" to represent the novelist's work. The court held that only a jury can decide whether "best efforts" were put forth to determine if the representation agreement was breached. So the agent will attempt to prove he really was an effective advocate.
An Illinois federal court recently ruled that a stock photo company does not have a "commercial purpose" in selling image licenses in a case involving Getty Images and the last surviving member of the R&B group, the Chi-Lites.
Actor Michale Keaton has lost in a decision about "breach of contract" in the production of the film "Merry Gentleman" that he starred in. The case highlights the importance of acting quickly on contracts with star talent in motion picture productions.
Word to the wise to employers - have a structured, educational intern program, or pay interns as employees. Lessons learned from Fox Searchlight Picture's "Black Swan" unpaid intern class action law suit.
Imagine a photographic artist takes a photo of your child without your knowledge, includes it in a gallery exhibition that is publicized around New York City using the image of your child, and sells prints of your child's image - and there is nothing you can do about it legally. That's what happened in this case of free speech vs. right of publicity.
A court decision determines that a trademark is not infringed upon when the use is descriptive and does not create consumer confusion. Especially when the copyright involves a well worn phrase such as 50/50 as in a 50/50 chance of something happening.
Fair use, copyright infringement, Faulkner, and a Woody Allen film collide in this intriguing case. Valuable lessons to be learned for copyright owners about when to go after possible infringements.
A case about the enforceability of employment confidentiality, non-compete, and non-solicitation agreements. The decision left many questions unanswered for employers who have such provisions with their employees.
Signing a non-disclosure agreement? Be sure you are aware of every detail in the agreement and follow them to a T. Here's the story of one company that failed to do so, and information they thought was confidential was not.
U.S. Court of Appeals rules that Oprah use of the phrase "Own Your Power" was not fair use of someone elses trademark of the phrase. The differences between using a descriptive phrase, "fair use," and using a trademark for commercial purposes are front and center in this decision.
The U.S. Ninth Circuit court ruled in the case involving a short clip of "The Ed Sullivan Show" that is used in the Broadway Show "Jersey Boys." The owner of "The Ed Sullivan Show" copyright sued for copyright infringement because the stage production uses a clip of Ed Sullivan introducing the Four Seasons on his show. The Ninth Circuit ruled in favor of "Jersey Boys." Read why "spurring creativity" was a factor in the ruling....
At the GRAMMY's On The Hill advocacy day. From left, Sen. Scott Brown (R-MA), Greenberg Traurig's Diane Blagman, Recording Academy Chair Emeritus Jimmy Jam, Recording Academy National Legal Council Chuck Ortner, Recording Academy Chicago Chapter Board Member & LSGA Partner Peter Strand, Recording Academy Vice Chair Christine Albert, and Recording Academy President/CEO Neil Portnow. CLICK for larger photo.
Failing to prepare and publicize required FCC quarterly filing reports could be VERY costly to commercial television and radio stations. Learn from these three stations' mistakes.
In another case regarding the right of publicity statute in Wisconsin, a court considered whether it was legal for Business A to use Business B's name to generate sponsored link results for Business A.
When a Google search for your name turns up results you have no association with (such as for erectile dysfunction medications), can you sue the search engine? One woman did just that.
In a recent decision, a New York court decided that the use of Lindsay Lohan's name in Pit Bull's song lyric was "incidental" - and that Ms. Lohan was being too sensitive about it.
The February 5, 2013 issue of The Chicago Lawyer Magazine includes an article about Chicago entertainment lawyers. All four of LSGA’s partners were interviewed and are quoted extensively in this article about how they came to work and excel in entertainment law, and to build a firm together. To read the full article, click here.
A California federal district court has ruled that the specific sequence of yoga exercises known as Bikram Yoga cannot be copyrighted, despite the fact that they are spelled out in a copyrightable book.
Two African-American men applied to be the bachelor on the ABC reality show "The Bachelor." Neither were cast in the show, and no other African-American man has ever been a "Bachelor." The men sued American Broadcasting Companies in a discrimination suit. A federal district judge ruled that casting can discriminate in this way due to the First Amendment. Read on to find out how the court said it applies.
In a case testing the First Amendment's free press guarantee, pro-wrestler Hulk Hogan was denied a restraining order against Gawker.com. Hogan sought the order to force Gawker to remove excerpts of a sex tape of Hogan and a woman who was not his wife.
A mobile app maker sued pop star Justin Bieber claiming its game and chacter "Jousin' Beaver" do not affect Bieber's publicity rights or trademarks. But the jurisdiction of the suit caused problems for the game maker and Bieber won round 1. Read on for the substantive issues that have yet to be decided.
Another case where a radio station did not properly let listeners know about on-air contest rules and received a fine from the FCC. In this situation, the station did not update changes in the prizes for the winner. Read on to learn why it's so important to run a contest following FCC contest rules!
The mother of a teenager who lied about her age and about being a sex addict to get on TV, sued the 'Tyra Banks Show' for invasion of privacy and negligence. Read why the court ruled in favor of the TV show and Warner Brothers.
A previous article on this site summarized an FCC decision which fined a radio station for broadcasting a telephone call without letting the person receiving the call know in advance that that the station would be broadcasting the call. Now, The FCC’s Enforcement Bureau issued two new decisions against a station group owner in cases involving prank phone calls intended for air. The rulings have implications for programming involving prank calls.
TRADEMARK OFFICE REQUESTS COMMENT ON AMENDMENT
The U.S. Trademark Office is requesting comment from the public on a proposed amendment to the federal Trademark Act (the Lanham Act). Currently the Lanham Act requires trademark owners with federal registrations of their mark to file an affidavit between the fifth and sixth year following the date of registration attesting to continued use of the mark. The amendment would require an earlier filing of that affidavit. The amendment would require filing between the third and fourth year following registration. The Office believes this earlier filing requirement will eliminate what it calls “deadwood” trademarks from its files. For the full proposal go to www.gpo.gov/fdsys/pkg/FR-2012-08-16/pdf/2012-20130.pdf.
Ever wonder why radio stations read all the rules to their on-air contests and have all that "legalease" on their website? It's because the FCC requires all the rules be stated and clear. Here's what happens when radio station contest rules aren't so clear.
A case involving an employer accessing an employee's Facebook page without the employee's permission highlights that privacy in social media is not a clearly defined area yet. Decisions are being made on a case by case basis. Status-updater beware: your posting privacy is NOT a given!
Song writer Vince P sent a recording of his song "Stronger" to hip hop record producer John Monopoly. Less than a year later, Monopoly's client and friend Kanye West releases a song called "Stronger" with some lyric similarities. Vince P claimed copyright infringement. Read on for why the court sided with West.
2 cases consider the question of when it is "fair use" for a magazine to use photographs they did not take or commission. Both cases involve the concept of fair use when pictures of celebrities are used for commercial purposes without permission from the copyright owners of the photos. The courts' rulings are words of warning to journalists.
An appellate court ruled in a wrongful termination lawsuit Sheridan brought against Touchstone after they killed off her character in season 5 of "Desparate Houswives," and not renewing her contract for season 6. Sheridan claimed that series creator Marc Cherry hit her and then that Touchstone did not renew her contract in retaliation for complaining about the alleged incident. But is failure to renew the same thing as firing? And is this the end of the dispute? Details and more in the full article!
A case involving 1-800 Contacts and Lens.com helps to define what "use in commerce" means in the context of U.S. trademark law. A trademark must be truly part of the commerce activity of the product or service. See why in the details of the case.
The National Arbitration Forum settles website name (domain name) disputes. The organization recently decided on a case involving Jack Abramoff and a website under his name that he does not control. It also decided in a case involving Craigslist and the practice of "typosquatting," where someone captures web surfers by taking advantage of common misspellings.
When is news "news" and when is it just passing on non "newsworthy" information? A court originally refused to identify a technology info website as a news medium and its writers as reporters. But it reversed itself in a case involving the "shield law" and protecting a source that leaked information about the Motorola Droid Bionic smartphone before its official release.
The designer of 2 well known Harley-Davidson logos can go ahead with his copyright infringement claim against Harley-Davidson, per a federal district court. The designer gave Harley a license to use his logos and claims the company used them past the expiration of that license. Click to see the logos and find out more about the complications surrounding the suit.
While imitation may be "the sincerest (form) of flattery," fashion designers must be able to protect their designs and creations. Here is a guide through beginning to navigate the complex are of trademark and intellectual property (IP) protection for the fashion industry.
Following up from an April article on EA's use of Bell helicopter imagery in the game "Battldefield 3." Bell and its intellectual property holding company claimed that EA's use of names such as "Viper," "Venom," and "Osprey" violated their tradmarks. EA tried to get the trademark claims dismissed based on the First Amendment and the Rogers test. Recently, the court denied EA's motion to dismiss the claims and the Rogers argument.
How a court case involving the trademark "Fred and Ginger" relates to a case questioning whether title of the movie "50/50" starring Seth Rogan and Joseph Gordon-Levitt, violates a registered trademark.
Did the USA Network breach a contract with Darth Vader? Tove and Hayden Christensen (the latter of Star Wars fame) pitched a show to USA called “Housecall” about a doctor who got fired for treating patients who could not pay who then moved to Malibu becoming a concierge doctor for the rich. Years later, USA produced and aired the series “Royal Pains” about a doctor was fired for treating patients who could not pay then moved to the Hamptons to become a concierge doctor to the rich. Decisions about copyright violations and arguments about in-fact contracts flesh out this interesting case.
Fans of "reality" TV have noticed the similarities between the 13-season Big Brother on CBS and the new ABC show The Glass House. CBS noticed, too, and attempted to get a temporary restraining order on The Glass House based on copyright infringement and trade secret misappropriation lawsuit. Read on to find out how CBS production documentation sitting on the internet hindered CBS's ability to protect Big Brother from imitation.
A new fine ruling from the FCC against a public radio station parses the difference between an underwriting sponsorship and an advertisement. LSGA partner Jerry Glover had personal experience in this area and thus a unique take on this situation.
A recent FCC decision that resulted in a fine imposed on a radio station emphasizes how important it is for broadcasters to protect the privacy rights of people who call into their stations.
This case gives official documentation to the fact that registering a work with the Writer's Guild does NOT give the registrant copyright-like protections. Read the details to discover why - and then get a "real" copyright on your hard work!
If you saw a liquor bottle with dripping red wax sealing the neck, what kind of liquor would you assume was in the bottle? What manufacturer comes to mind? A trademark case involving Maker's Mark bourbon, Jose Cuervo and the functionality of sealing wax on bottles of spirits has been decided. As the bottles in question cost around $100, the details of the case matter.
The co-writer of 33 songs made popular by the Village People, such as “YMCA,” “In the Navy,” and “Go West,” wants to get out of a grant of rights for these songs – without terminating the rights grants of his co-authors. The question is if “a single author may alone terminate his separate grant of his copyright interest in the joint work or whether a majority of all the authors is necessary to terminate that grant.” Read on to find out how the court ruled.
TWO BIG FCC RULES AND REGULATIONS STORIES
The FCC has been busy issuing and considering new rules for television and radio stations to follow. Check them out below:
Since 1965 all television and radio stations have been required to keep a physical “public file” at their station that anyone can show and request to look at. This information includes all info about a station's ownership, community activity and more INCLUDING the rates charged for political ads. Now the FCC is requiring stations to post these files online where they are more easily accessed. Stations object because it makes their ad rates more easily available to their competitors. Read on for the details of what is required by the FCC.
Should public radio and TV stations be allowed to ask for donations for other non-profit corporations? Should there be limits on what kinds of non-profits? How about how many hourse a year they can ask for such donations? The FCC wants YOUR input on these questions and more as it ponders relaxing bans on public stations devoting any airtime to raise funds for third party not-for-profits.
A case involving Twitter, the brand Hanes, and NFL player Rashard Mendenhall of the Pittsburgh Steelers, a court left open the question of whether Mendenhall violated an endorsement contract "morals clause" when he tweeted about the death of Osama Bin Laden. Click to read why the court could not yet make a judgment.
When a documentary film is not just a hobby: For the first time, to our knowledge, the U. S. Tax Court has decided in favor of a documentary filmmaker and her right to make certain expense deductions on her federal tax return related to the production of her documentary. The film, about the 1960's group Up With People, was deemed more than just a "labor of love," despite the film-maker's husband being one of the subjects of the film. Read on to discover all the factors weighed in the decision, all of which are relevant to other film documentarians.
If the plaintiff's copyrighted material gets posted in the exapansive internet "forest," does it make a sound that James Cameron can hear? The first decision in one of multiple copyright infringement lawsuits involving the movie "Avatar" was all about "access."
When you signed up for Facebook, or any other online app, service, etc., did you really read those Terms of Service before you clicked on the button that said you did? Many of the arguments in a lawsuit against Facebook came down to the details in the site's TOS.
Louis Vuitton and its trademarked design on luxury goods (known as the “toile monogram”) is famous throughout the world. No one can deny that—not even two companies that Vuitton recently sued for infringing on that mark: Warner Brothers and Hyundai.
In a potentially controversial ruling, a federal appeals court ruled that public TV and radio stations still cannot run commercial advertisements, but they CAN now air paid for policital and public issue ads. The decision came down to the concepts of free speech and the impact commercial vs. political/issue ads could have on public broadcasting content.
A pair of lawsuits involving video game maker EA and helicopter producer Textron involve the concept and implementation of "fair use" of trademarks. EA's “Battlefield 3” is described by EA as a “first-person military combat simulation.” The game allows players to “fly” the helicopters as the player chooses. Pictures of the helicopters as used in the video game look identical to actual Textron helicopters and these images are used in trailers for the game. So, is this fair use or trademark infringement?
In 2007, YouTube was sued by copyright holders, most famously Viacom, for various forms of copyright infringement. Today, the U.S. Court of Appeals for the Second Circuit weighed in on the case, the Digital Millenium Copyright Act (DMCA) and the definition of "safe harbor" for ISPs. The decision hinges on whether the ISP is aware of the infringing material on the system or network, speed of removal once notified, and whether there is financial benefit to the infringing activity for the ISP. Internal YouTube emails were key to determining the outcome of this case. Read on for details.
Justin.tv is a service that allows users to stream live videos (as opposed to YouTube’s pre-recorded videos) to people in over 250 countries. Each user who posts live video on Justin.tv is given a “channel”; each user is designated a “broadcaster.” It has been reported that people watch more than 300,000,000 live streams every month on Justin.tv. But when some Justin.tv users streamed a love broadcast of a UFC bought, it caused a copyright issue.
If you’ve ever used an on-line dating service like match.com or eHarmony.com you may have had a feeling that you really don’t know with whom you’re chatting. Is this person really who he/she says? Well, the Illinois legislature is considering two bills that may give you a little peace of mind (or scare you to death), at least if you’re concerned about whether the person you’re chatting with has a criminal past.
In a test of the idea of "fair use" where trademarks are involved, a woman who provide “a personal brand of self-awareness and motivational communications services nationally” sued Oprah - and lost.
E-books are growing in popularity, but are a relatively recent phenomenon. Publishing contracts for physical books, written before the advent of e-books, do not specify e-publishing rights. But do the contracts cover them anyway? A recently filed lawsuit tests the ownership of publishing rights for e-books will hinge on the definition of "book form." Details and more HERE!
A new Illinois law created the Illinois Live Theatre Production Tax Credit. This tax credit is based on and is similar to the IL film tax credit - with one major difference. Here are all the details on this new tax plan, created to bring more pre-Broadway and other productions to the state.
Do you sometime post in the comment sections of articles published by online newspapers? If you want to keep those comments anonymous Be aware of the terms of service and details of this Indiana court's findings.
Did you see the Travel Channel show about Chicago's Weiner's Circle, the hot dog restaurant as famous for its dogs as the insults & swears slung by its employees? One of those employees says she did not consent to be filmed for the show and filed a class action lawsuit. Click to read about the ruling in the case.
The distinction between an advertisment and a "tribute" to a public figure makes all the difference in defining commercial speech vs. free speech, per this February 13, 2012 decision regarding the use of Michael Jordan's jersey number in magazine displays. Click to read why and see the images in question.
On February 6, 2012 the Federal Communications Commission denied a claim by an individual, Randall Terry, wanting to buy ad time on Chicago’s NBC affiliate, WMAQ, during the Super Bowl. Terry claimed he was running for President. WMAQ refused the ad buy. Read the full article to learn why and what happened.
In 2009, Chicago radio station WLS (AM) broadcast program matter on behalf of Workers Independent News (“WIN”). 11 of the 45 ninety-second spots that aired during the program identified the name of the organization, WIN, and the name of the narration but they did not state that the program publicized in each spot was sponsored, paid for or furnished by WIN. A complaint was filed with the FCC.
One thing newbie producers forget to do is make sure the title for their film/television series is not already being used by someone else for similar products or services. The importance of clearing a title was recently emphasized by a federal court in Washington State....
When producing a competition-style reality shows, you will need a number of different documents for contestants. Here are some of the many key documents you (along with a lawyer) will need to create.