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Entertainment Law & Finance
“Potentially Monumental” Ninth Circuit En Banc Decision in Infringement Case Over Led Zeppelin’s “Stairway to Heaven”
Robert W. Clarida and Robert J. Bernstein
For the past five years, the copyright bar and the music industry have carefully followed the many twists and turns of the potentially monumental infringement case that asserted that the opening of the iconic Led Zeppelin song “Stairway to Heaven” was copied from the introduction of a little-known 1967 instrumental “Taurus,” written by the late Randy California. In March 2020, a unanimous en banc panel of the entire Ninth Circuit affirmed portions of a prior three-judge appellate ruling that “Stairway” did not infringe the Spirit song — and in the process resolved some thorny issues involving substantial similarity and copyright scope that will be important for future litigants
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Entertainment Law & Finance
Kozinski Angle In 9th Circuit’s Led Zeppelin Ruling
Scott Graham
Defendants Led Zeppelin and its music labels were the winners in the copyright decision by the Ninth Circuit over the song “Stairway to Heaven.” But the estate of songwriter Randy Wolfe (p/k/a California) wasn’t the only one who got the short end. Among the collateral damage from the ruling was a 2002 precedent written by former Chief Judge Alex Kozinski that endorsed the so-called “inverse-ratio” rule.
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Entertainment Law & Finance
CASE Act Explained
Ryan W. Morris
The Copyright Alternative in Small Claims Enforcement Act is a proposed congressional amendment to the current copyright statute that would create an alternative dispute resolution program for copyright small claims and other legal proceedings.
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Entertainment Law & Finance
A Primer on Rights in Video Game Avatars
Andrea Perez
Recent lawsuits have grappled with the fair use of one’s likeness in video games, attempting to apply established order to a changing field.
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Entertainment Law & Finance
Followup: PBS Wins Verdict In Suit By Fired TV Show Host Tavis Smiley
Katheryn Tucker
It was a trial to remember for Morgan, Lewis & Bockius partner Grace Speights, lead defense attorney for PBS against Tavis Smiley, former long-running…
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Entertainment Law & Finance
Bit Parts
Stan Soocher
Los Angeles Federal Judge Tosses Out Jury’s Infringement Verdict Against Katy Perry in “Dark Horse” Song Case
Sales Agreement for Film Assets of Distributor in Bankruptcy Doesn’t Affect Separate Lender for One of Debtor’s Movies
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Entertainment Law & Finance
Key Provisions in Film Location Agreements
Maxwell Briskman Stanfield
Property owners granting production companies access to their properties seems like a no-brainer — who wouldn’t want their property featured in that next big blockbuster movie or hit television series? However, when filming occurs on private property, a location agreement is a must, from the perspectives of both the production company and the property owner.
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Entertainment Law & Finance
Swedish Music Industry Views: Part Two
Stan Soocher
Among other things, the article discusses the Swedish music industry perspective on the European Union’s Copyright Directive, the growth of multi-country music licensing hubs and the impact of Brexit.
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Entertainment Law & Finance
Exercising the Extraterritorial Limitation on U.S. Copyright Law
Robert J. Bernstein and Robert W. Clarida
A necessary element of secondary liability claims is an underlying infringement of U.S. copyright law by a third party. If the activities abroad are not subject to the law, the predicate direct infringement required for the imposition of secondary liability cannot be established.
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Entertainment Law & Finance
‘Vanicorn’ Lawsuit Filed over Pixar, Disney Film
Scott Graham
A unicorn-loving tattoo artist alleges that Pixar and Disney have tricked her into letting them use her “Vanicorn” in the upcoming film Onward. Her suit accuses the companies of copyright infringement, and violations of state and federal laws protecting artwork.
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Entertainment Law & Finance
Case Study: Swedish Music Industry Views as European Union Countries Work on Drafting Home Laws for Enacting EU Copyright Directive
Stan Soocher
This article is Part One of a two-part article. Part Two will appear in our March 2020 issue.
This article examines the Copyright Directive and music-industry structure issues through the lens of Sweden, which has both a robust music business and a strong technology sector, two divergent perspectives in the development of the directive.
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Entertainment Law & Finance
New Lawsuit Over Meek Mill Documentary
Max Mitchell
A former Philadelphia police officer has alleged she was defamed in an episode of Free Meek, the documentary series that was made available on Amazon Prime last year.
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Entertainment Law & Finance
Legal Perspective On Major League Baseball Scandal
Sue Reisinger
Two Major League Baseball in-house lawyers, both former prosecutors, led the investigation into the Houston Astros cheating scandal.
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Entertainment Law & Finance
Jury Award in 'Walking Dead' Stuntman Fatality Suit
Greg Land and Katheryn Hayes Tucker
A Gwinnett County, GA, jury awarded $8.6 million to the family of a stuntman killed during the production of a Walking Dead TV-series episode in 2017.
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Entertainment Law & Finance
Bit Parts
Stan Soocher
California Court of Appeal Finds Film Producer’s Anti-SLAPP Free Speech Argument Is Valid Against Lawsuit By Investor
No Implied Covenant to File Song Cue Sheets for Foreign Broadcast
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Entertainment Law & Finance
How Judges Are Interpreting Supreme Court’s Copyright ‘Registration’ Ruling
Stan Soocher
In Fourth Estate Public Benefit Corp. v. Wall-Street.com LLC, the U.S. Supreme Court held that, under 17 U.S.C. §411(a), “registration occurs, and a copyright claimant may commence an infringement suit, when the Copyright Office registers a copyright” — that is, acts on a registration application, rather than when an applicant delivers the registration materials to the Copyright Office.
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Entertainment Law & Finance
What Would End of Film Studio Consent Decrees Mean?
Karen Hoffman Lent and Kenneth Schwartz
In November, the DOJ asked a federal district court to terminate the Paramount Consent Decrees, a set of rules governing major film studios for the last 70 years. In effect, these rules prohibited movie studios from owning downstream movie theaters and banned a variety of vertical agreements, such as block booking — the practice of bundling multiple films into one theater license.
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Entertainment Law & Finance
Counsel Concerns: 3rd Circuit Decides Lawyers’ Dispute over Video Game Litigation Client
P.J. D’Annunzio
A federal appeals court upheld the dismissal of a Philadelphia lawyer’s suit alleging that Los Angeles litigation boutique Pierce Bainbridge Beck Price & Hecht acted in bad faith by failing to follow through with a $160,000 settlement in a dispute over attorney fees.
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Entertainment Law & Finance
IP Issues and Esports Athletes
Frank Ready
A new esports-centric survey released by the law firm of Foley & Lardner projects that esports revenues will climb above the $1 billion mark this year. But the increased stakes and growing sophistication of the industry will likely not be without their headaches.
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Entertainment Law & Finance
Challenges to Evidence of Copyright Ownership
Stan Soocher
There has been a long-term debate over whether sound recordings can be copyright works made for hire. Sound recordings don’t appear in the list of works for hire set out in §101 of the Copyright Act of 1976, though record labels argue recordings can be deemed so as a “compilation” or a “contribution to a collective work,” per §101.
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Entertainment Law & Finance
Players on the Move
Dan Clark
Copyright Office General Counsel Moves to MPAA
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Entertainment Law & Finance
Film and Music Cases Result in Different Outcomes for Default Judgment Motions
Stan Soocher
Non-payment of monies is an all-too-common complaint in the entertainment industry, with frustrated plaintiffs in many cases seeking default judgments against defendants who fail to respond to lawsuits seeking payment. Two new Central District of California federal court decisions illustrate — after the judges sort through the factors for determining whether to grant a default judgment — how consideration of the amount of money at issue resulted in different outcomes on whether to enter a default judgment.
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Entertainment Law & Finance
Editor’s Note
Stan Soocher
We sadly note the November passing of long-time Entertainment Law & Finance editorial board member Jay Rosenthal.
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Entertainment Law & Finance
Photo Cases Test Copyright Law and Embedded Tweets
Raychel Lean
A New Yorker who settled a copyright lawsuit against several news outlets over a photo he took of star quarterback Tom Brady and Boston Celtics manager Danny Ainge has struck again. This time he’s suing a radio station owner in Florida federal courts in a case that could test the boundaries of an emerging area of copyright law, raising major questions about how media companies incorporate social media posts into online stories.
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Entertainment Law & Finance
A Primer for Forming Loan-Out Corporations
Maxwell Briskman Stanfield
In the entertainment industry, it can take years for actors, musicians and others to reach a point where their efforts begin bringing in a notable return. If and when these types of clients begin to make a consistently significant income, one method that deserves consideration for protecting the hard-earned pay is to organize a loan-out corporation.
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Entertainment Law & Finance
Can Video Game Companies Be Liable for Users’ Money Laundering?
Frank Ready
Criminals are hoping to use video game platforms to score more than just points. By using ill-gotten gains to purchase in-game currency that can then be exchanged for real cash, bad actors have found a way to launder money that is difficult for both gaming providers and the authorities to track.
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Entertainment Law & Finance
How Will NCAA’s New Policy on Endorsements By Athletes Play Out
Sue Reisinger
University general counsel and sports lawyers across the country have been trying to figure out their next steps in the controversial world of marketing student athletes.
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Entertainment Law & Finance
Trial to Start in Suit over Walking Dead Stuntman Death
Katheryn Hayes Tucker
The trial over a death on the set of the Walking Dead zombie drama will hinge on one key question: What happened in the moments before a stuntman plunged off a balcony and missed an airbag 20 feet below.
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Entertainment Law & Finance
Filers Beware: No Expedited Discovery in Copyright Suits
Charles Toutant
Litigation tactics employed by frequent filers of copyright infringement suits may face heavy criticism in light of a recent ruling by a federal judge in New Jersey.
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Entertainment Law & Finance
Bit Parts
Stan Soocher
Alleged Verbal Agreement For Promotion of Concerts Found Unenforceable
“Chapel of Love” Singer’s Niece Fails to Show Court in Royalties Dispute Had Personal Jurisdiction over Defendant
Fair Use Defense Can Be Raised Under California’s Sound Recording Misappropriation Statute
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Entertainment Law & Finance
Some Guidance on Federal Securities Law and Film Financing Disputes
Stan Soocher
Disputes over film financing agreements are common, but there are few court decisions that address film financing dustups involving §10(b) of the federal Securities Exchange Act. Now the U.S. District Court for the Middle District of Florida has issued a ruling that addresses the pleading requirements for alleging a §10(b) violation, in litigation between an investor and a film production company.
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Entertainment Law & Finance
‘Weinstein’ Clauses In Acquisition Agreements
Michael S. Poster
The purpose of a Weinstein clause is to provide assurance that the target company (including its officers and executives) is not a hotbed of sexual harassment or a ticking time bomb of claims waiting to explode. This article on drafting and negotiating Weinstein clauses should help entertainment and media deal teams balance these risks.
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Entertainment Law & Finance
Sparks From En Banc Arguments In Song Suit Against Led Zeppelin
Scott Graham
There was much harmony along with a few discordant notes as an en banc panel of the U.S. Court of Appeals for the Ninth Circuit took up the copyright case involving Led Zeppelin’s “Stairway to Heaven.”
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Entertainment Law & Finance
Cultural Icons Spawn Lawsuits Worth Close Looks
Michael F. Snyder
The ownership of intellectual property rights can be at the core of legal disputes involving pop culture icons. Considering the goodwill, effort and money spent in building a brand, character or commercial impression, it is not surprising that parties to intellectual property agreements find themselves revisiting their arrangements over time. That is what is happening in two recent federal lawsuits, one in New York involving a beloved figure in Philadelphia sports and the other in California focused on the Old Spice cologne commercial jingle.
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Entertainment Law & Finance
Players on the Move
A look at moves among attorneys, law firms, companies and other players in entertainment law.
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Entertainment Law & Finance
Bit Parts
Stan Soocher
Sixth Circuit Agrees Non-Party Interview Quotes Are Inadmissible Hearsay for Purpose of Establishing Direct Evidence of Copying in Infringement Case over Classic Rock Song “Gimme Some Lovin’”
Transformative Use Defense Defeats Hard Rock Hamilton Persona Suit over Gears of War Character
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Entertainment Law & Finance
Upcoming Events
TexasBarCLE 29th Annual Entertainment Law Institute
Annual Entertainment, Sports & Media Law Institute
Copyright Year in Review
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Entertainment Law & Finance
Analysis of Warhol Art Fair Use Ruling
Robert W. Clarida and Robert J. Bernstein
The U.S. District Court for the Southern District of New York held that a series of silkscreen paintings and prints by Andy Warhol based on a photograph of music legend Prince taken by Lynn Goldsmith constituted a transformative fair use.
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Entertainment Law & Finance
Lawyers Win Contingency Fee Fight Against Estate of Blues Icon’s Son
Stan Soocher
There have been disputes over rights to the two existing photographs of blues icon Robert Johnson as well as over who was his rightful heir. The latest court decision involves a contingency fee agreement originally entered into by a law firm hired by Johnson’s son, who died in 2015. The case offers an example of what rights counsel may gain from such an arrangement following the death of the signatory client.
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Entertainment Law & Finance
9th Circuit Says End Steinbeck Copyright Fight
Alaina Lancaster
In a nearly half-century-long legal dispute over the rights to John Steinbeck’s works, the Ninth Circuit affirmed a district court‘s $5 million compensatory damages award against the author’s daughter-in-law but vacated punitive damages against the heir.
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Entertainment Law & Finance
Book Publishers’ Lawsuit Against Amazon’s Audible
Dan Clark
A coalition of publishers has sued Audible, the Amazon-owned audiobook company, over a new feature announced last summer that will display the text of a book to listeners while it’s read to them by their device.
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Entertainment Law & Finance
Star Athlete’s Trainer Loses Commission Bid
Zach Schlein
A lawsuit alleging a former trainer was entitled to a portion of tennis star Naomi Osaka’s lifetime earnings is out of play, after a Broward County, FL, Circuit Court judge dismissed the case.
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Entertainment Law & Finance
Security Worries for Online Video Game Companies
Victoria Hudgins
Fortnite video game developer Epic Games Inc. isn’t just dodging digital adversaries — now it’s been slammed with a class action lawsuit over a data breach.
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Entertainment Law & Finance
Bit Parts
Stan Soocher
Texas Court of Appeals Won’t Let Former Lawyer for Matthew Knowles Use State’s Anti-SLAPP Statute to Dismiss Knowles’ Cross-Claims in Legal Fees Dispute
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Entertainment Law & Finance
The Interaction of International Law and U.S. Copyright–Assignment Terminations
Stan Soocher
That U.S. copyright-assignment termination issues are among the most complex in the copyright field becomes even more apparent when attempts to reclaim copyrights involve aspects of international law. Few courts have ruled, however, on the impact of international law on U.S. copyright-assignment terminations. The most recent to do so is the U.S. Court of Appeals for the Second Circuit in Ennio Morricone Music Inc. v. Bixio Music Group Ltd.
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Entertainment Law & Finance
When Boilerplate, Customized Clauses Collide in Media Merger Deals
James H.S. Levine and Douglas D. Herrmann
Some contract provisions will necessarily be customized for use in the particular agreement, while others will be boilerplate. But the intersection of those provisions in a merger agreement involving the acquisition of Cablevision Systems Corp led to a serious dispute— and cautionary tale for the merger-laden entertainment and media industries — about interpretation of the agreement, requiring a Delaware court to determine the impact of potentially conflicting language.
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Entertainment Law & Finance
Limit in Supreme Court Striking Down Ban On ‘Scandalous’ Trademarks
Brian R. Michalek
In the U.S. Supreme Court’s ruling in Iancu v. Brunetti, Justice Sonia Sotomayor’s dissent cautioned that the decision is likely to pave a path to a “coming rush to register [vulgar, profane, or obscene] trademarks.” The reasoning stems from the court’s majority finding that a portion of 15 U.S.C. §1052 — which had previously prohibited the registering of “immoral” or “scandalous” trademarks — is unconstitutional. Practically speaking, however, this “coming rush” will likely not be the case, even via the entertainment industry.
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Entertainment Law & Finance
11th Circuit Sides With Attorney Sued Over Prince Concert Snafu
Greg Land
The U.S. Court of Appeals for the Eleventh Circuit upheld the dismissal of a lawsuit claiming a Florida lawyer failed to follow through on a $75,000 deal to land the late mega-musician Prince for a 2012 gig.
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Entertainment Law & Finance
Players on the Move
A look at moves among attorneys, law firms, companies and other players in entertainment law.
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Entertainment Law & Finance
CA Appeal Ct. On Defamation Claims Against Bill Cosby
Suzette Parmley
The California Court of Appeal, Second Appellate District, ruled in favor of actress and former supermodel Janice Dickinson in her 2015 suit against comedian Bill Cosby over comments his then-attorney Marty Singer made to the press.
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