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October 2011 Archives

October 3, 2011

EASL Fall Program: Anatomy of a Hit Reality TV Series


Anatomy of a Hit TV Reality Show Series, and Other Things We Think You
Should Know

Wednesday, October 19, 2011
Concierge Conference Center
780 Third Avenue(between 48th and 49th)
New York, NY 10022

7.5 MCLE Credits (2.0 in ethics)

Our 2011 annual Fall Program begins with a morning breakfast and two
seminars hosted and inspired by EASL's Young Entertainment Lawyers: the
first will offer an expose of the history of the creation and operation
of one of the most successful reality shows, A&E's "PAWN STARS,"
presented by the actual production team behind the show. Equally
fascinating is the next panel which will discuss the video gaming
industry and the First Amendment challenges currently at issue. The
segment will be presented by a leading author on the subject along with
in-house counsel at one of the most prominent video gaming creators. The
afternoon sessions include an overview of the law in New York regarding
minors, followed by a case-oriented ethics seminar and lively audience
participation. Each of the panels is comprised of some of the most
experienced and respected practitioners in the field.

This full-day program, while geared toward the experienced entertainment
law attorney, will be of interest to attorneys of all disciplines. We
are offering a "morning-only" option for newly admitted lawyers. Please
join us at what is sure to be a "winning deal!"


Tiffany Bardwell
Section Liaison, Department of Section Services
New York State Bar Association
One Elk Street | Albany, New York 12207
518.487.5591
518.463.8844 Fax

October 4, 2011

Copyright Termination Rights: The Looming Battle for Music Industry

By Lesley Chuang

2013 is going to be a big year for the music industry.

An amendment to the Copyright Act in 1976 gave musicians and songwriters the ability to unilaterally terminate any previous grant of transfer or license of copyright after 35 years. Since the amendment went into effect in 1978, the first set of copyright grants governed by the Act will become eligible for termination on January 1, 2013.

In the front and center of the copyright termination battle is Victor Willis, the original lead singer of the Village People. The New York Times recently covered Willis' attempt to regain control over his share of "Y.M.C.A." and 32 other songs. (http://www.nytimes.com/2011/08/17/arts/music/village-people-singer-claims-rights-to-ymca.html?pagewanted=all) "Y.M.C.A." reportedly generates upwards of $1 million per year. As the hits from the late 1970s continue to earn profits for the music industry, many predict a battle over termination rights in the years to come.

Termination Right Under §203

In 1976, Congress amended the Copyright Act to give creators of copyrighted material termination rights. For musicians and songwriters who, at the early stage of their careers, handed over their rights without much bargaining power, the amendment was intended to give them another bite of the apple.

Specifically, 17 U.S.C. §203 covers any "exclusive or non-exclusive grant of a transfer or license," such as assignments, exclusive and non-exclusive licenses. The section applies to any grant made by an author on or after January 1, 1978. Effectively, the provision limits a conveyance of rights to 35 years.

Invoking Termination Rights

Termination is an option and not automatic. Once the termination date is calculated, musicians and songwriters must give their publishers a statutory termination notice at least two years (up to 10 years) in advance. Without notice, previous grants will not be terminated. Importantly, termination rights are inalienable, even if there are contract provisions to the contrary.

Scope of Termination Rights

Termination rights are not limitless. For instance, a music publisher may continue to utilize derivative works prepared pursuant to the previous grant. In addition, termination rights are effective only in the United States. For a worldwide assignment, the publisher will retain all rights outside of the country. Furthermore, if there are multiple authors, a majority of the authors must agree to terminate the grant.

Works Made for Hire Exception

Termination rights do not apply to works made for hire. An example of a work made for hire is a work prepared by an employee within the scope of his or her employment. A commissioned work may also be considered as a work for hire. For works made for hire, the employer is considered the author and owns the copyright, unless the parties agree otherwise. This exception is the main area where most of the battle will take place, as companies are gearing up to challenge terminations as for hire.

Victor Willis' Case

In January 2011, Willis provided a termination notice to Can't Stop Productions for a number of his musical works, including "Y.M.C.A." and "In the Navy" and "Go West." In July, Can't Stop Productions and its French affiliate, Scorpio Music, filed a complaint for declaratory relief in the Southern District of California. (Case No. 11CV1557 BTM RBB.)

Can't Stop Productions and Scorpio Music first argue that Willis was employed as a writer for hire. They claim that The Village People were a concept group created by the companies, and Willis was an employee. Specifically, Willis was hired to "translate the lyrics of and/or create new lyrics for certain musical compositions ..." and he was provided with the material and a studio to record. Secondly, the companies claim that Willis does not have the right to terminate because he is only one of several authors of joint works. As mentioned earlier, a majority of the authors is required by law to terminate a grant.

Willis currently earns $30,000 to $40,000 annually from The Village People recordings. According to the New York Times, that could triple or quadruple if he succeeds in recapturing his rights to those recordings. The outcome of this case could have serious implications for the music industry.

Looking Ahead

Termination rights give musicians and song writers a second chance to earn royalties, because of "... the unequal bargaining position of authors, resulting in part from the impossibility of determining a work's value until it has been exploited." (http://tmtblog.minterellison.com/2011/09/born-in-usa-recording-artists-in.html) In addition to Willis, some of the biggest stars from the same era - for example, Bruce Springsteen, Billy Joel, Tom Petty, and the Eagles - are reportedly beginning to invoke termination rights on their recordings and compositions.

On the one hand, some recording companies will suffer monetary loss because of terminated grants. Termination rights may exacerbate the loss in revenue from unauthorized file sharing and the decline in record sales. On the other hand, many recordings and compositions will be on the market for the first time since their creations, which could represent an opportunity for music publishers to negotiate a deal that will broaden or diversify their catalogs. As more musicians and songwriters invoke their termination rights, the year 2013 will signal the beginning of a long legal battle. Only time will tell the impact of termination rights on the evolution of the music industry.

October 5, 2011

U.S. Supreme Court Denies Certiorari in ASCAP v. United States


By Brendan Mee

On Monday October 3rd, the Supreme Court denied certiorari in American Society of Composers, Authors and Publishers (ASCAP) v. United States, ending ASCAP's bid to have digital downloads over the Internet characterized as "performances" under the Copyright Act. (American Society of Composers, Authors and Publishers (ASCAP) v. United States, 627 F.3d 64 (2d Cir. 2010), cert. denied, 565 U.S. __, (U.S. Oct. 3, 2011)(No. 10-1337).)

Under an antitrust consent decree from 1941, the Southern District of New York has rate-setting authority to determine what ASCAP can charge users for a blanket license to publicly perform compositions from the ASCAP catalog. Thus, the United States was the defendant in the appeal, while the underlying dispute was between Yahoo! and Real Networks (the Internet providers), and ASCAP, over the terms of the blanket license.

The question presented in the cert Petition was whether a music download constitutes a "performance" for which ASCAP was owed a royalty under Section 106(4) of the Copyright Act. The Second Circuit made a sharp distinction between music downloads and music streaming, and agreed with the district court that the plain meaning of the Copyright Act could only be read to imply that a "performance" requires a "contemporaneously perceptible performance." Therefore, the Second Circuit did not consider a music download to be a "performance."

Ted Olsen presented the case for ASCAP, which had its own "plain meaning" argument, relying to some extent on "neighboring provisions" of the Act, rather than on the Act's definition of "perform," the latter on which the Second Circuit relied heavily to reach its decision. The Petitioner also argued that the Second Circuit's distinction between downloading and streaming would be unworkable in practice as technology developed. Most interestingly, ASCAP argued (along with several amici) that the decision was inconsistent with the United States' obligations under the WIPO Copyright Treaty. ASCAP argued that as a result of the consent decree, the Second Circuit had exclusive jurisdiction over the "vast majority of disputes" regarding public performance rights, and therefore. Further, the Petitioner argued that other appellate courts were unlikely to hear such cases, and the importance of the case at hand warranted resolution on the merits, even in the absence of a circuit split on the issue.

In the Respondent's Brief in Opposition, the United States echoed the Second Circuit's statutory construction. It reiterated that there was no circuit split warranting review by the Supreme Court, and argued that the Second Circuit's application of U.S. law was fully consistent with the United States' obligations under the WIPO Copyright Treaty, which in its view merely required that the acts covered under the Treaty are covered by some exclusive right under U.S. law.

One cannot speculate what prompted the Supreme Court to decline the case. Certainly it was a tough case for the Petitioner in light of the language in the Copyright Act defining "performance;" but the loss for ASCAP was also another hard break for songwriters and composers already badly hurt by technology shifts.

Below are links to the briefs:

Petition for certiorari : http://sblog.s3.amazonaws.com/wp-content/uploads/2011/06/10-1337.pdf

Brief in opposition: http://sblog.s3.amazonaws.com/wp-content/uploads/2011/08/09-26-Composers-BIO.pdf

Amicus brief of Broadcast Music, Inc.: http://sblog.s3.amazonaws.com/wp-content/uploads/2011/08/09-26-Composers-Broadcast-Music.pdf

Amicus brief of Independent Music Publishers et al.: http://sblog.s3.amazonaws.com/wp-content/uploads/2011/08/09-26-Composers-Independent-Music-Publishers.pdf

Amicus brief of Ralph Oman: http://sblog.s3.amazonaws.com/wp-content/uploads/2011/08/09-26-Composers-Ralph-Oman.pdf

Petitioner's reply: http://sblog.s3.amazonaws.com/wp-content/uploads/2011/08/09-26-Composers-Petitioners-reply.pdf

October 6, 2011

No Tax Love for "Jersey Shore"

By Jo-Na Williams, Esq.

At the end of last month, New Jersey Governor Chris Christie vetoed the $420,000 film tax credit awarded by the New Jersey Economic Development Authority to the company that produced the inaugural first season of the reality show "Jersey Shore".

The Governor is a critic of the film tax credit, which seeks to attract companies to film TV shows and movies in the state. Those companies would in turn receive tax incentives on the materials and goods they use while filming in the state. Additionally, this incentive creates jobs and tourist revenues. The Governor claims, "I am duty-bound to ensure that taxpayers are not footing a $420,000 bill for a project which does nothing more than perpetuate misconceptions about the state and its citizens." (http://www.nj.com/news/index.ssf/2011/09/gov_christie_vetoes_jersey_sho.html). This and other comments have led some critics to call the Governor "Censor-in-Chief," as he has let the tax incentives stand for other movies and television shows filmed in the state. (http://online.wsj.com/article/SB10001424053111903703604576586742565938886.html)

However, proponents of the tax credit are concerned that Governor Christie's action will have a 'chilling effect' on the industry's desire to film in New Jersey. (http://www.nj.com/news/index.ssf/2011/09/gov_christie_vetoes_jersey_sho.html) and (http://businessfacilities.com/blog/snooki-tax-gets-whacked) The Governor suspended the program in 2010 to aid in closing the state's deficit, but the credit to "Jersey Shore" survived the suspension of the program because it was awarded to the show in 2009.

Giving tax credits to companies in the film industry as an incentive to attract more revenue and jobs is not a foreign concept. States like Massachusetts, Michigan, and Texas already engage in this practice, however some of their elected officials have also been harshly criticized for the content of the movies and shows filmed in their states. Many critics of these incentives question whether the content actually garners the attention, tourism, and jobs the incentives hope to create. While this is only the beginning of the battle for the film industry to receive assistance from local governments in the creations of their projects, the questions remain: should taxpayers foot the bill in exchange for increased tourism and potential jobs, or should filmmakers start cutting their budgets and clipping coupons?

Authors Guild Press Release re Hathitrust

U.K. SOCIETY REPRESENTING 50,000 BOOK AUTHORS, ALONG WITH CANADIAN, NORWEGIAN, AND SWEDISH WRITERS' UNIONS, JOINS LITERARY PROPERTY RIGHTS SUIT AGAINST HATHITRUST AND FIVE U.S. UNIVERSITIES

J.R. Salamanca, Author of "Orphaned" Book, Also Enters Lawsuit. Action Seeks to Impound Unauthorized Digital Scans of 7 Million Copyright-Protected Books, Pending Congressional Action.

NEW YORK - The U.K. Authors' Licensing and Collecting Society, the Norwegian Nonfiction Writers and Translators Association, the Swedish Writers Union, The Writers' Union of Canada, and four individual authors are among the new plaintiffs in an amended complaint filed today in Authors Guild v. HathiTrust. Individual authors joining the lawsuit include University of Oslo professor Helge Rønning, Swedish novelist Erik Grundström, and American novelist J. R. Salamanca. The Authors League Fund, a 94-year-old organization supported by Authors Guild members that provides charitable assistance to book authors and dramatists, is also now a plaintiff, as holder of rights of to an "orphaned" book by Gladys Malvern.

The defendant universities have pooled the unauthorized scans of an estimated 7 million copyright-protected books, the rights to which are held by authors worldwide, into an online repository called HathiTrust. In June, the University of Michigan, which oversees HathiTrust, announced plans to permit unlimited downloads by its students and faculty members of "orphaned" books (some consider works whose rights-owners cannot be found after a diligent search to be "orphans"). Michigan devised a set of procedures -- including a protocol for searching for an author and posting the names of "orphan work candidates" at the HathiTrust website for 90 days - to determine whether it would deem a work an "orphan." Several other schools joined the project in August.

Within days of the suit's filing on September 12th, the Authors Guild, its members, and others commenting on its blog had developed strong leads to dozens of authors and estates holding rights to the first 167 works listed as "orphan candidates" at HathiTrust's website. Four living authors were on HathiTrust's list. So were significant literary estates, such as those of Pulitzer Prize winners James Gould Cozzens and Walter Lippmann and the philosopher Sidney Hook. Foreign authors were also on the list, including André Missenard, who died in Paris in August. At least three of the works are still in print. Simple Google searches turned up most of the leads in minutes, including one that led to the author of "The Lost Country," J. R. Salamanca. Under Michigan's protocols, unlimited e-book downloads of Mr. Salamanca's book were scheduled to be made available to an estimated 250,000 students and faculty members on November 8th.

"How is it they couldn't find Jack Salamanca?" asked literary agent John White, who has represented the author for more than ten years. "He's a bestselling novelist, he's lived in suburban Maryland for decades, he's in the University of Maryland's current online catalog as an emeritus professor, and he signed an e-book agreement for "Lilith" four weeks ago. It boggles the mind."

Michigan announced on September 16th that it was suspending, but not ending, its "orphan works" program. Its online servers continue to host an estimated 7 million digitized, copyright-protected books. Millions of those books are believed to be in print, with e-book versions available for many of them.

"You don't just take someone's property," said Mats Söderlund, chairman of the Swedish Writers Union. "If they want a digital book, they should pay for it. If it's not yet available digitally, it probably will be soon. Things are moving very quickly."

"These are major, well-funded U.S. research institutions capable of great things," said Greg Hollingshead, chair of The Writers' Union of Canada. "They could have found most of these authors had they cared to, but it seems they didn't. They just wanted to release e-books for free. They don't take literary property rights seriously, so why should any of us trust their security measures? If they're hacked, and digital files of 40,000 Canadian books are released, how are Canadian authors ever again to receive significant revenues from those works?"

"I've been in this business for decades, but this is one of the craziest things I've ever seen," said Trond Andreassen, president of the Norwegian Nonfiction Writers and Translators Association. "These American universities, with Google's help, decide to digitize and put on their servers thousands of books that were published in Norway. Why didn't they ask? We can find the authors, but those authors have rights, and sometimes the answer might be no."

The Authors' Licensing and Collecting Society, based in London, has licensed secondary uses of its member-authors' works for more than 30 years. "We represent more than 50,000 book authors," said chief executive Owen Atkinson. "On behalf of our members, we negotiate agreements that enable legal access to hundreds of thousands of books, including at least 35,000 books that appear to be on HathiTrust's servers. It concerns us greatly that our members have neither consented to the digitization nor have they any say in how these works might be used in the future."

Although many U.S. universities, including Harvard, Princeton, and Stanford, have participated in Google's library digitization program, most allow Google to scan only books that are in the public domain. Only a few, principally defendants Michigan and California, have allowed Google to scan books protected by copyright. As state-run institutions, both schools are shielded by 11th Amendment sovereign immunity protections from paying damages for copyright infringement.

"Universities are important cultural bastions, valued by all of us," said Scott Turow, president of the Authors Guild, "but they need to play that role thoughtfully. In this case, university defendants are using their immunity from money damages to act as pirates, rather than custodians, of our literary heritage. The massive unauthorized digitization project in which they participated has now imperiled the literary property rights of millions of authors from all over the world. Many of those authors have devoted much of their careers to creating works they hope will have cultural or educational significance. Universities should be at the forefront of safeguarding authors' rights and livelihoods, so their libraries can continue to find many new books worth collecting."

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The Authors Guild | 31 E 32nd St | Fl 7 | New York, NY 10016 | United States


October 7, 2011

Golan v. Holder Supreme Court Argument

The transcript of oral arguments before the Supreme Court in Golan v. Holder are available at: http://www.supremecourt.gov/oral_arguments/argument_transcripts/10-545.pdf.

October 14, 2011

Pro Bono Clinic

On Thursday, November 17th, the EASL and IP Sections will be co-sponsoring a Pro Bono Clinic at the New York Foundation for the Arts (NYFA). The Clinic will take place between 4:00 and 7:00 p.m. at NYFA's offices in Dumbo, at 20 Jay Street, 7th Floor, Brooklyn.

If you would like to volunteer for one or more of the 30 minute time slots, please email me at eheckeresq@yahoo.com and specify your contact information (name, firm/company, phone number and email address), which time slot(s), area(s) of expertise, and whether you are an EASL and/or IP Section member. In addition to the usual entertainment, arts and business related questions that we receive from potential clinic clients, we are particularly interested in attorneys who have experience with incorporating and working with 501(c)(3) not-for-profit companies. Please so advise if this is an area of expertise for you as well.

If you do not have pro bono liability insurance, you may be covered under EASL and IP's policy for this Clinic. Please also notify me if you need such coverage.

I look forward to hearing from you.

Best regards,

Elissa D. Hecker
EASL Pro Bono Steering Committee
Past Chair, EASL Section

eheckeresq@yahoo.com

October 18, 2011

Thoroughbred Trainer's License Revocation Headed for Article 78 Review

By Chris E. Wittstruck

Citing repeated violations and disregard of the rules of racing, on October 12th the New York State Racing and Wagering Board (the Board) revoked the license of veteran Thoroughbred horse trainer Richard "Dick" Dutrow, Jr. In addition to prohibiting Dutrow from reapplying for a license for 10 years, the Board fined him $50,000.00. On Monday, October 17th, the State Supreme Court in Schenectady granted the trainer a 30-day stay of enforcement pending the filing of a C.P.L.R. Article 78 proceeding challenging the administrative adjudication (Index # 2254/2011).

Dutrow, 52, was the trainer of 2005 Horse of the Year, Saint Liam, as well as 2008 Kentucky Derby and Preakness winner Big Brown. While the trainer's licensing history is checkered with numerous violations of racing regulations over the course of a decades- long career, Dutrow denies the instant allegations lodged against him, and alternatively takes issue with the severity of the penalty imposed. An intense analysis at the facts and circumstances surrounding the matter presents a preview of the issues that will be litigated over the course of the foreseeable future.

One sustained charge involved the presence of a veterinary sedative and analgesic in a post-race sample taken from one of Dutrow's horses. Yet the sedative appeared only in a urine sample; the horse's blood sample tested negative. Dutrow's expert opined that based upon a low positive in urine and no positive in the blood, the result could have been the product of cross-contamination of the sample, inasmuch as the sedative in question is commonly utilized as an intranasal spray for the treatment of migraines in humans. The possibility that a prior horse in the test stall might have excreted the substance prior to the arrival of Dutrow's horse was also raised. The Hearing Officer rejected both theories as lacking the level of substantial evidence required to rebut the presumption that Dutrow, having full care, custody and control over the animal, was at all times the guardian of the horse's physical condition. This presumption is known in racing law as the trainer responsibility rule.

Another sustained charge involved the confiscation of three syringes and needles containing a tranquilizer from Dutrow's desk drawer at his barn at Aqueduct Racetrack. It is a violation of Board rules for non-veterinaries to be in such possession. Dutrow was not present for the search, and denied any knowledge of the syringes.

Dutrow's attorney, Michael Koenig, was quoted in industry media outlets as complaining that: "The Racing and Wagering Board structure and process allows them to play prosecutor, judge and jury. No fair decisions can result from such a stacked process." Unlike states such as New Jersey, where an independent administrative law judge system (Office of Administrative Law) is in place, New York hearing officers receive an Order of Reference from the Board and act accordingly. Still, even in New Jersey, agency heads can in certain circumstances reject or modify an Administrative Law judge's determination.

Mr. Koenig also accused the Board's Chairman, retired state senator John Sabini, as having a "remarkable'' conflict of interest in the Dutrow matter, inasmuch as Sabini is also a board member of the Association of Racing Commissioners International; the same group whose President, Ed Martin, a former New York racing official, called for the revocation of Dutrow's license in a highly publicized letter to the Board. Mr. Koenig's call for Chairman Sabini's recusal was denied by the Hearing Officer as beyond the scope of his authority and was, in any event, rejected by Chairman Sabini himself. Whether Mr. Koenig's theory of conflict goes beyond a mere appearance of impropriety remains to be seen.

The rejection by the Hearing Officer of the testimony of Mr. Dutrow's character witnesses, ranging from retired Hall of Fame jockey Angel Cordero, Jr. to renowned Kentucky veterinary surgeon Dr. Lawrence Bramlage, coupled with the nature of Mr. Dutrow's medication violations over the last 10 years as being mostly minor overages of legitimate therapeutic drugs, sets the stage for a claim that the 10-year administrative ban is "shocking to the conscious" (See Matter of Pell v. Board of Education, 34 NY2d 222 (1974)). The Board's 10-year reapplication ban, however, was in fact a melioration of the hearing officer's recommendation that Dutrow never be permitted to reapply for a racing license.

In opposition to the injunctive relief request, Board counsel argued that a stay through the appeals process could grant Dutrow the right to train in New York for up to 36 months. Such a stay would also enable Dutrow to avoid the collateral reciprocity effects of the ban, and thus permit him to train in other jurisdictions as well. While time would assuredly be on Dutrow's side if he receives a stay throughout his appeals (C.P.L.R. 7805), whether any of his claims regarding due process violations, substantial evidence, inherent conflict and excessive penalty are ultimately viable will determine whether his property right in an occupational racing license is irretrievably lost (Barry v. Barchi, 443 U.S. 55 (1979).


October 25, 2011

Sarver v. The Hurt Locker LLC et al.

By Carter Anne McGowan

In 2010, director Kathryn Bigelow's The Hurt Locker nearly swept the major awards at the Oscars, winning Best Picture, Best Director, and Best Original Screenplay. Recently, a lawsuit brought by Jeffrey Sarver, alleging not only that The Hurt Locker wasn't entirely original but was also defamatory and a violation of Sarver's rights to privacy and publicity, was tossed out by the District Court for the Central District, California, under that state's anti-SLAPP (Strategic Lawsuits Against Public Participation) Law.

Jeffrey Sarver serves in the U.S. Army. While serving in Iraq from July 2004-January 2005, he worked as an Explosives Ordinance Disposal (EOD) Technician. In December 2004, journalist Mark Boal was embedded with Sarver's unit. In addition to interviewing Sarver, Sarver's unit, and several other units, Boal photographed and videographed them. When Sarver returned to the U.S., Boal spoke with him again. In August 2005, Boal's article was first published in Playboy and later published as an abridgement in Reader's Digest. In what Sarver alleged was a surprise to him, the article focused entirely on Sarver, instead of on the units with which Boal was embedded.

Boal later wrote the screenplay for The Hurt Locker and also served as a co-producer on the film. The film featured a main character named "Will James," a damaged, antiheroic cowboy of a soldier who lives for danger and flouts the chain of command. When released in 2009, the film contained a disclaimer that it was a work of fiction. In March 2010, Sarver sued Boal, Bigelow, and the production companies behind the film, alleging: (1) a violation of his right to publicity due to misappropriation; (2) false light invasion of privacy; (3) defamation; (4) breach of contract; (5) intentional infliction of emotional distress; (6) actual/intentional fraud; (7) constructive fraud/negligent misrepresentation. The defendants filed a Motion to Strike the complaint under California's anti-SLAPP statute, Cal. Code. Civ. Proc. §425.16, and, last week, Judge Jacqueline Nguyen held in their favor and struck the complaint in its entirety.

The California anti-SLAPP provision, which shall be "construed broadly", §425.16(a), provides: "A cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim." §425.16(b)(1).

Therefore, a defendant must initially show that those acts alleged to be violative are (a) First Amendment protected acts (rights of petition or free speech) and (b) made in connection with a "public issue." The Sarver court easily found the The Hurt Locker to fall under the First Amendment's protection, citing Burstyn v. Wilson (343 U.S. 495 (1952)), in finding that "Motion Pictures are a significant medium for the communication of ideas" (Burstyn, 343 U.S. at 501), and therefore protected speech.

With regard to the second prong of the defendants' burden - that of a public issue - California courts have taken to heart the legislative exhortation to construe the statute broadly. The court, in finding that the alleged portrayal of Sarver is related to an issue in the public interest, relied upon Tankin v. CBS Broadcasting, Inc. (193 Cal. App 4th 133, 144 (2011)), which stated, "an issue of public interest...is any issue in which the public is interested. In other words, the issue need not be 'significant' to be protected by the anti-SLAPP statute." The Sarver court then went on to list several aspects of Sarver's story that made it to be "of public interest": (1) Sarver's service in the Iraq War; (2) the importance of EOD Technicians in the War; (3) the danger of Sarver's job; and (4) "Sarver's claim that he disarmed more IED's than any single team." (Sarver at 3.)

Once the court found that the defendants had met both prongs of their burden under anti-SLAPP, the burden of proof shifted to plaintiff Sarver to prove that the facts of each cause of action, if believed by the fact-trier, would support a judgment as a matter of law in favor of the plaintiff. The second half of anti-SLAPP motions are, in this way, similar to summary judgment motions.

In short order, the court struck down each of Sarver's causes of action as failing to establish the necessary prima facie showing necessary for a judgment as a matter of law:

Right of Publicity/Misappropriation. Relying on the common law definition of misappropriation, and California's willingness to extend misappropriation claims to non-celebrity plaintiffs, the court nevertheless found that, pursuant to the "transformative use" defense adopted by the California Supreme Court in Comedy III Productions, Inc. v. Gary Saderup, Inc. (25 Cal. 4th 387 (2001)), the defendants were protected by their First Amendment rights, as The Hurt Locker contained "significant transformative elements", such as personal differences between Sarver and the Will James character in the film, the dialogue in the film, and the direction of the film. Furthermore, "the value of The Hurt Locker unquestionably derived from the creativity, and skill, of the writers, directors, and producers...whatever recognition or fame Plaintiff may have achieved, it had little to do with the success of the movie. Thus, Plaintiff's misappropriation claim is banned by the First Amendment as a matter of law." (Sarver at 15.)

Right of Privacy/False Light: Successful false light claims must prove that not only must the depictions of the harmed individual be false, but they also must be highly offensive to a reasonable person. In less than one paragraph of analysis, the court did away with this claim as (1) redundant to the defamation claim and (2) unsupportable, as, in the court's opinion, "Will James" is presented as a war hero, which would not be a highly offensive portrayal to a reasonable person.

Breach of Contract: Sarver alleged that he was a third party beneficiary of the agreement between Boal and the U.S. Department of Defense, and that Boal "breached the contract by reporting about Plaintiff's personal life." (Sarver at 19.) Unfortunately, Sarver presented no evidence of such a contract.

Intentional Infliction of Emotional Distress: In another brief dismissal, the court did not even reach the second and third requirements for success under this cause of action, holding that the defendants' actions were not "extreme and outrageous" under the first requirement for intentional infliction of emotional distress, as there was nothing extreme or outrageous about writing a screenplay based on reporting (although, notes this blogger, the court earlier in its decision relied on the disclaimer alleging the film to be fictional) and that it was not outrageous to use a fictional name for a character, even if it was based on Sarver.

Fraud/Negligent Misrepresentation: The court bundled these last claims together, holding that Sarver did not submit any evidence that Boal misrepresented his intent to write about EOD Techs, and that he did not "obfuscate[] the fact that he was writing a screenplay based on the Playboy article..." (Sarver at 22.)

Finally, as if to add insult to (non)injury, the court awarded attorney's fees to the defendants, as defendants who succeed in an anti-SLAPP special Motion to Strike are entitled to reimbursement of attorneys' fees. Although the court held that Sarver's rights were not violated in The Hurt Locker, it certainly put him in one.

Yet there is something about this case that nags a bit at the conscience. The speed and lack of analysis with which the court did away with Sarver's claims, combined with its reliance on fairly flimsy arguments like disclaimers and character names, combined with its statements later in the decision that the film was based on the Playboy article, leave questions as to how thoroughly the court analyzed the issue before it.

Also, is this the sort of case to which we want anti-SLAPP motions should apply? In California, anti-SLAPP Motions to Strike immediately stay discovery. This case seems to be a case where discovery is warranted. It hardly seemed to be a "strategic lawsuit" of the type we saw during the civil rights movement, designed to chill free speech. Despite the gung-ho language of the California anti-SLAPP statute, this case may be one in which a statute meant to be construed broadly was indeed construed too broadly.

Some Things to Know When You're a Woman

By Deborah Gonzalez

The statistics:
• 42 million women in the U.S. (about 53% of the adult female population) routinely participate in social media on a weekly basis (Flowtown 2010).

• 68% of women use social media to stay in touch with family and friends (Rebtel 2011 Survey).

• 89% of online women between the ages of 18 to 29 are on social media sites; 69% of them log on every day (Pew Internet & American Life Project, 2011).

• 70% of women online vs. 30% of men online "share" - this includes links, videos, images, other content, re-tweets and comments on blogs or forums (MediaBadger.com, 2011).

• Women are spending less time with traditional media as they spend more time with social media: 39% less on newspapers, 36% less reading magazines, and 30% less watching TV (BlogHer 2011 Survey).

• Women are more "network savvy" in the Alternative Dispute Resolution and International Trade Industries on LinkedIn, while men are more "network savvy" in Medical Practice and Law Enforcement (LinkedIn 2011 Analysis).

Some more statistics for context:
• Women make up 31% of all lawyers in the US (ABA Market Research Department, 2010).

• Women make up only 6% of Managing Partners, 15% of Equity Partners, and 19.4% of Partners in private practice. (ABA Commission on Women in the Profession, 2011 Glance at Women in the Law).

• Women make up 16 to 18% of General Counsel in Corporations (ABA Commission on Women in the Profession, 2011 Glance at Women in the Law).

• Women lawyers' average weekly salary is only 74.9% of a male lawyer's salary (2009 Bureau of Labor statistics).

Bringing these two sets of statistics together make something very clear - women are leading the way in social media but are lagging in the legal profession. Can the former change the latter?

Various legal professionals, such as Nicole Black, Carolyn Elefant, Carla Varriale and Amy Elizabeth Stewart, claim that the answer is a resounding "yes." Why? Let's take a look at some of their reasons:

1. Social media is where our clients are transacting business, living their lives. We need to be where they are.

2. Social media plays to women's interpersonal communication skills strengths - women tend to be relationship builders, and understand that in order to build a strong relationship, communication needs a social aspect to it and must be continuous. Knowing about the client, his or her family, and some personal notes, like hobbies, is essential business knowledge.

3. Social media is about transparency and authenticity - women tend to be more open in regards to information and who they are. This in turn allows clients to build "trust" in their lawyers.

4. Social media provides opportunities for women lawyers to demonstrate their expertise and knowledge in their legal fields through blogs and other forums. At the same these opportunities induce interaction and engagement between the bloggers and the readers, adding another layer of "social".

5. Social media allows for a convenient form of networking - one not limited by geography or time - lending itself to help women lawyers balance their work and home lives.

6. Social media is a flexible platform and can level the playing field. It permits women lawyers to seek and obtain mentors wherever those mentors may be, as currently there are so few women lawyers at the top who can share their insights and lessons of the way to success, as well as offer other employment and career opportunities.

These are six great reasons for seeing social media as a valuable tool in a woman lawyer's toolbox. Yet there are some things about which to be cautious.

1. Ethical Rules - Professional Rules of Conduct and ABA Model Rules must be adhered to while participating in social media. State bar associations are starting to provide guidelines for attorneys so they can stay ethical online. Examples include confidentiality concerns, disclaimers so that there is no accidental unauthorized practice of law in jurisdictions in which one is not licensed, and making sure that profiles do not contradict the "no specialty" rule for attorneys (for example LinkedIn Specialty section in its public profiles). It is important to keep in mind that these rules apply regardless of gender.

2. Regulatory Restrictions - Women attorneys practicing in regulated industries such as healthcare, the financial sector, and pharmaceuticals, will also have to be aware of FTC, FDA, SEC, and other agency guidelines regarding protected data and disclosures.

3. Privacy - Privacy is also a concern. Women attorneys need to realize that nothing is truly private - regardless of the privacy preferences set on your social media accounts. One should not put anything online that one would not want to see on a billboard. The media is full of cases of social media mishaps that have cost reputations, jobs, and even lives.

4. Using public WIFI - Ever go to Starbucks and turn on the tablet to get a quick look at emails? Be careful, public WIFI are unsecured and can leave a user and his or her data vulnerable to being stolen, damaged (through malware) or manipulated to harmful consequences. As attorneys, we may have sensitive information on our devices, so it is important to have a firewall and turn off file sharing while in public. As for security and using "the cloud", that's another article all together.

5. Safety - Is it prudent to let people know where one is or when one will not be home? Today's social media platforms, such as FourSquare and other geolocation sites, can be used as tools for targeting individuals. Women lawyers who work in the criminal arena need to be especially careful, as former defendants (who may have been convicted of violent crimes) may follow.

6. Cyber-discrimination, cyber-harassment and workplace cyber-bullying - From threats to off-color jokes, to the sending of inappropriate photos by email, text, Twitter or status updates, can cause harm to the professional dignity and safety of women lawyers. Can a woman put up the notice on Facebook that she just found out she is pregnant? Will that affect her legal career if the law firm finds out that she is on the "Mommy-track"? Businesses, corporations, and law firms must update their policies to include this online possibility and offer the mechanisms for victims to seek redress.

Upon review, we have six good and six bad points. Yet social media is basically neutral, as it is a tool and depends on how it is used. The negative can be protected against with awareness, education and other technology tools. The positive can have long-term effects, including changing the gender disproportion in the legal profession. What do you think? How are you using social media in your practice, and if you are not, why not? Go ahead, send out invites and do a "tweet-up" with women attorneys to discuss these issues. You may be surprised at what's happening around you.

Deborah Gonzalez, Esq. is the founder of Law2sm, LLC, a new legal consulting firm focusing on helping its clients navigate the legal issues relating to the new digital and social media world. Deborah speaks about the legal issues relating to intellectual property, art, music, and digital entertainment law, in addition to social media legal trends and practices. For more information email Deborah at deborah@law2sm.com or see www.law2sm.com.

October 27, 2011

2011 Fall Conference 2nd Annual Conference on Sports and Entertainment Law

The Sandra Day O'Connor College of Law at Arizona State University will host the 2nd Annual Conference on Sports and Entertainment Law. Speakers and Panelists from all over the country will present and discuss the most critical issues in the fields of Sports and Entertainment Law. Keynote speaker is President of the Arizona Cardinals Michael Bidwill.

•Date: Saturday, November 5th, 2011
•Time: 9am - 5pm, followed by a reception for all attendees and speakers
•Location: Armstrong Hall, Sandra Day O'Connor College of Law at Arizona State University Campus - Tempe, AZ

"Collective Bargaining Agreements - The Big 4″ (9:10am - 10:40am)
•Gregg Clifton
•Travis Leach
•Darren Heitner

"Gene Doping/Drug Testing" (9:10am - 10:40am)
•Gary Marchant
•John Hoberman

"Protecting IP on the Internet-What and How to Enforce" (10:45am - 12:05pm)
•Hamid Jabbar
•Elissa D. Hecker
•Connie J. Mableson

"Right of Publicity & Defamation" (10:45am - 12:05pm)
•James M. Marovich
•Corie Rosen
•Don E.N. Gibson
•Neville Johnson

Keynote Address (1:05pm - 1:40pm)
•AZ Cardinals President Michael Bidwill

"State of the NCAA: Antitrust & the BCS; Amateurism & Compliance" (1:45pm - 3:05pm)
•Stephen Webb
•Timothy Liam Epstein
•Mary Penrose

"Sports Agent Regulation" (1:45pm - 3:05pm)
•Darren Heitner
•Travis Leach
•Gregg Clifton

"Ethics and In-House Counsel" (3:15pm - 4:15pm)
•Caleb Jay
•Nona Lee

"Bankruptcy - Stars, Dodgers, Coyotes, Rangers-Who's Next?" (4:20pm - 5:30pm)
•Tom Salerno
•Judge Redfield Baum
•Susan Freeman

For more information, see:
http://www.sportsandentertainmentlawblog.com/2011-fall-conference/

About October 2011

This page contains all entries posted to The Entertainment, Arts and Sports Law Blog in October 2011. They are listed from oldest to newest.

September 2011 is the previous archive.

November 2011 is the next archive.

Many more can be found on the main index page or by looking through the archives.