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Weekly Issues in the News

By Geisa Balla

Beastie Boys

The Beastie Boys filed a copyright infringement lawsuit against Monster Energy (Monster) on August 7th over the unauthorized use of their music in a Web promotional campaign. The complaint was filed in Southern District of New York and alleges that the beverage maker used Beastie Boys music in promos, including a video for an event called "Ruckus in the Rockies". The compositions and recordings were used for more than three minutes. The complaint also alleges that Beastie Boys music was used in a video posted on Monster's website and in social media, and that Monster linked to an MP3 with a 23-minute medley of Beastie Boys music. The lawsuit argues that by featuring the name "Beastie Boys" in text, as well as the name of Adam Yauch, the Beastie Boys' member who died on May 4, 2012, Monster gave the impression that group granted its permission for the use of the music. Incidentally, Adam Yauch's will reads "in no event may my image or name or any music or any artistic property created by me be used for advertising purposes." The lawsuit seeks a preliminary and permanent injunction, as well as statutory damages of $150,000 for each infringement of the works.


Fox Entertainment

The plaintiffs in a class-action minimum wage and unpaid overtime lawsuit against Fox Searchlight are seeking to amend their complaint to expand the scope of the suit. Last fall, two interns who worked on "Black Swan" filed a lawsuit against Fox Searchlight, alleging that the company's unpaid internship program violated minimum wage and overtime laws. The plaintiffs are now seeking to amend their complaint and "broaden the scope of the case to include all interns who participated in Fox Entertainment Group's internship program." According to the recently filed motion, an investigation in the case "shows that the same hiring, personnel and company policies that applied to Searchlight interns applied to all interns who participated in [Fox Entertainment Group's] internship program." The plaintiffs claim that until 2010, interns hired to work for 20th Century Fox, for example, were not paid, even though they were required to fill out I-9 forms, sign confidentiality agreements and were deemed "employees" covered under workers' compensation laws. Fox Entertainment Group changed its policy in 2010, requiring that all interns be paid about $8 per hour. The plaintiffs also want to distinguish two classes of interns: those were "corporate interns" at Fox and those who were "production interns" at Fox. Oral arguments on the motion to amend will be held on August 24th.


Monge v. Maya Magazines

The Ninth Circuit Court of Appeals recently issued a decision against a tabloid seeking to use the fair use defense after it published copyrighted photographs of a secret wedding between two celebrities. The decision is seen as a huge victory for celebrities.

The case involved pop singer/model Noelia Lorenzo Monge, who secretly married Jorge Reynoso, her music producer. The couple were married in Las Vegas in 2007 and kept the marriage secret from everyone. To ensure privacy, the couple brought their own cameras and had chapel employees take pictures. The photos were kept private until a Viqueria (a paparazzo), who also worked as a bodyguard and driver, found a memory chip in the ashtray of his vehicle let to Reynoso. Viqueria tried to extort money from the couple, and when that effort failed, he sold the photos for $1,500 to Maya, which publishes TV Notas, a Latino tabloid. TV Notas published the photos. The couple registered the copyrights to the photos and brought suit for copyright infringement and misappropriation of likeness. The district court dismissed the case on fair use grounds.

On August 15th the Ninth Circuit reversed the decision and remanded the case back to district court. Circuit Judge Margaret McKeown examined the factors of the fair use doctrine in the decision. "We have little doubt that the gossip magazine's sensational coverage of the wedding qualifies as news reporting," wrote McKeown. "Our role in this regard is not as a literary critic." However, the judge noted that being newsworthy is just one factor, and that "fair use has bounds even in news reporting, and no per se public interest exception exists." When looking at the degree of transformation, the judge noted that the photographs were reproduced essentially in their entirety, and that "neither minor cropping nor the inclusion of headlines or captions transformed the copyrighted works." Regarding the issue of the amount of copyrighted material, the judge stated that the magazine copied 100% of the photos. "While we do not discredit Maya's legitimate role as a news gatherer, its reporting purpose could have been served through publication of the couple's marriage certificate or other sources rather than copyrighted photos... Even absent official documentation, one clear portrait depicting the newly married couple in wedding garb with the priest would certainly have sufficed to verify the clandestine wedding. Maya used far more than was necessary to corroborate its story." With regard to the effect of the use upon the potential market, the court stated that though Monge and Reynoso were not actively seeking to earn money from their photos, the images were valuable and the subjects could have sold them had they wished. "Recognizing that fair use focuses on potential, not just actual, market harm, we note there is little doubt that an actual market exists for the photos," the judge wrote.


The Insane Clown Posse

The Insane Clown Posse (ICP) announced that it is going to file a lawsuit against the Federal Bureau of Investigation (FBI)for classifying its fans as a "loosely organized hybrid gang" in the FBI's National Threat Assessment. The announcement was made at the 13th annual Gathering of the Juggalos. The Juggalos (and the Juggalettes) are the names given to ICP fans. The FBI's classification puts the ICP fans in the same category with Bloods, Crips and the Aryan Brotherhood. ICP launched juggalosfightback.com, where Juggalos are encouraged to share their stories of how their rights were impacted for being fans of ICP. "We want to show our appreciation and support for our fans and we are prepared to assist you in learning about your legal rights and to fight for you in Court, if possible," reads the statement on the website, which promises to "assist you in getting the legal help that you deserve as a Juggalo." ICP's legal counsel, Howard Hertz of Hertz Schram PC, released the following statement: "We are seeking individual Juggalos whose rights have been violated as a result of the mistaken belief that they are a 'gang member.' If you or someone you know has suffered any negative consequence with an employer, governmental representative, including law enforcement, border patrol, airline security, or other local, state or federal governmental agency or employee as a result of your status as a Juggalo, we want to know about it."


Alexander Wang

Alexander Wang has settled the $450 million lawsuit brought against his company by former employees who alleged that they worked under sweatshop conditions in Wang's Chinatown factory. The plaintiffs in the purported class action lawsuit alleged that Wang violated labor laws by failing to provide proper compensation, denied the workers bathroom breaks, and fired them when they complained about their work conditions. The parties settled the dispute for an undisclosed settlement amount. The court dismissed the case on Monday, August 13th, following a request to dismiss the case with prejudice submitted by the parties.



A federal judge has tentatively approved a $40 million settlement between Skechers USA Inc. and consumers who bought the company's toning shoes in a class action lawsuit. The lawsuit was filed over ads that consumers say made unfounded claims that the shoes would help people lose weight and strengthen muscles. Three months ago Skechers settled with the Federal Trade Commission over the advertisement for its shoes. Skechers has denied the allegations, but claims it is settling to avoid prolonged litigation.


Geisa Balla is an attorney practicing in New York, NY. She can be reached at geisa.balla@gmail.com.

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This page contains a single entry from the blog posted on August 17, 2012 10:54 AM.

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