Cameo Clips

A documentary producer's unlicensed use of video clips, photographs and music in the 16-hour documentary “The Definitive Elvis” was likely not a fair use, and thus the sale of the documentary should be enjoined, the U.S. Court of Appeals for the Ninth Circuit ruled. Elvis Presley Enterprises Inc. v. Passport Video, 02-57011. Affirming by noting that it “might view this case as closer than the district court,” the appeals court affirmed on the ground that the lower court hadn't abused its discretion. The appeals court emphasized that the documentary incorporated substantial portions of Elvis's appearances on “The Steve Allen Show,” “The Ed Sullivan Show” and “The 1968 Comeback Special.” Under the fair use test, the appeals court found that Passport's use of the plaintiffs' copyrighted materials wasn't “consistently transformative.” Rather, the court noted that “many of the film clips seem to be used in excess … and instead are simply rebroadcast for entertainment purposes that Plaintiffs rightfully own. This comes as no surprise to the viewer since The Definitive Elvis advertises as much on its external packaging. … If this type of use became wide-spread, it would likely undermine the market for selling Plaintiffs' copyrighted material.” But demonstrating how it might rule had it considered the case ab initio, the Ninth Circuit pointed out, “This conclusion, however, does not apply to the music and still photographs. It seems unlikely that someone in the market for these materials would purchase The Definitive Elvis instead of a properly licensed product.”

An executive adequately stated a claim that he was fraudulently induced into leaving a lucrative entertainment job to head up the defendant's new entertainment division, a Manhattan federal district court held. Stamelman v. Fleishman-Hillard, 02-8318. Peter Stamelman claimed that after he left his position as vice-president of TBWA Entertainment Co. to work for Fleishman-Hillard, a public relations and marketing firm, the defendant failed to give him the support he needed to build an entertainment practice. The district court found that Stamelman initially demonstrated Fleishman's alleged motive and opportunity ' and thus scienter ' by luring him “to gain access to, and to exploit, Stamelman's contacts within the entertainment industry for the benefit of Fleishman's consumer marketing practice.” This included: arranging a telephone conference with TV producer Norman Lear; helping to determine whether actor Jackie Chan was available for a public service announcement on saving endangered Asian tigers; and initiating discussions for Creative Artist Agency clients Sally Field, Sidney Poitier and Robert Redford to work with the AARP. Stamelman also sent entertainment industry contacts the resumes of children of Fleishman-Hillard colleagues. Noting that these allegations may prove through discovery to be examples of Stamelman's job requirements, the district court nevertheless concluded that, “Fleishman benefited from its use of Stamelman's contacts, and even retained and expanded some of those contacts subsequent to his termination.”

A guest on the “Maury Povich Show” can proceed with her claim of negligence, based on being raped by a limousine driver, the Supreme Court of New York, New York County, ruled. Craver v. Povich, 114946/02. The TV show contacted the family of 14-year-old Sheila Craver, who was emotionally troubled, for a segment on “out-of-control” teenagers. Craver's mother and grandmother accompanied her to New York for the taping, where show staff allegedly requested that Craver make herself look sexier. In the presence of “Povich” personnel, a man allegedly introduced himself to Craver as “Maury's limo driver” and promised to show her around New York City at night. Craver claimed that the driver later raped her in the limousine. Describing the suit as “what appears to be the first New York case falling into an emerging category of 'Talk Show Torts',” the trial court distinguished it from the case in which a Michigan court ruled that the “Jenny Jones Show” owed no duty to a guest who was murdered by another guest several days after a taping. Graves v. Warner Bros., 253 Mich. App. 486, 656 N.W.2d 195 (2002), app. denied 469 Mich. 853, 666 N.W.2d 665 (2003), reconsideration denied 669 N.W.2d 552 (2003). Instead, the New York trial court stated, “The [Craver] complaint describes an active relationship between the Show and the plaintiff at the time of the claimed rape, in that the plaintiff was subject to the Show's travel, care and chaperone arrangements at the very time of the assault. Further, the Show is described as having a continuing bargained-for future obligation to provide plaintiff with counseling, to send her to a remedial camp, and to return her to her home State. … [D]efendants' contention that the involvement of the plaintiff's mother and grandmother insulates them from liability is unavailing.” The trial court then denied dismissal of a negligent hiring and retention claim pending discovery of “the role and status of each moving defendant ' and, indeed, of the alleged limousine driver and rapist ' within the Show's organization and structure.” The court did dismiss Craver's claims for intentional and negligent infliction of emotional distress.