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December 6, 2012

Week in Review

By Martha Nimmer

Friend Request Denied

U.S. District Court Judge Richard Seeborg has given his initial approval to a settlement offer made by Facebook in the case of Angel Fraley et al. v. Facebook, Inc. This is the social networking giant's second attempt to resolve a class action lawsuit that was commenced last year. The case, filed in the Northern District of California and involving over 100 million potential class members, centers on the "critical issue of proper notice to users of social media as to their relationship to advertising online . . . ." Specifically, the lawsuit involves the use of Facebook's main advertising vehicle "Sponsored Stories." Plaintiffs allege that their names and likenesses were used without their prior consent in Sponsored Stories ads shown to their Facebook friends, in violation of the plaintiffs' right of publicity. Judge Seeborg rejected Facebook's initial settlement offer from August, which failed to award money to Facebook users whose personal information had been used unlawfully.

Under Facebook's new settlement proposal, users may claim a cash payment of up to $10 each, the funds to be paid from a $30 million settlement fund. Facebook also agreed to develop new online tools that would permit members to see what personal content may have been displayed in Sponsored Stories advertisements. A hearing on the fairness of the settlement offer is scheduled for June 28, 2013.

This news comes just a day after Facebook started to allow its more than 1 billion members to begin voting on changes to the website's policies, changes that include new privacy practices stemming from Facebook's recent acquisition of photo sharing program Instagram. Another policy at issue would "loosen the restrictions on how members of the social network can contact other members using the Facebook email system." These changes to Facebook's privacy practices have gained the attention of privacy advocates and other watchdog groups around the globe. The Ireland-based Data Protection Commission has asked Facebook to provide more information about its policy proposals.

Facebook members have until December 10th to vote on the policies. The vote, according to Facebook, is only binding if at least 30% of users vote. The last two "elections" held by Facebook failed to reach that threshold, however. Whether these privacy policy changes bring Facebook new legal troubles remains to be seen.



America's Next Top Rapper

Whether your dream is to become a supermodel, live on a deserted island with a bunch of strangers, or be yelled at by fitness guru Jillian Michaels as you exercise, there is probably a reality television show that can make that goal a reality. This was the thinking behind the rap competition, "America's Next Top Rapper," scheduled for December of last year. A website promoting the competition claims that aspiring rap and hip hop artists can win $20,000, a record deal with Universal and help from "a hit production team." To garner media attention for the event, creators Omnipresent Media and Lawrence "Amar" Wright enlisted the help of hip hop artist "Trina"--also known as Katrina Taylor. Taylor agreed to promote the event and serve on a three-person panel that judged the rap competition. Taylor, however, failed to promote the competition and demanded more money to ensure her appearance, according to a complaint filed by Omnimedia and Lawrence Wright in Queens County Supreme Court in New York.

"Trina, despite being paid to do so, never attended or participated in the competition in any form or fashion as agreed," the complaint states. As a result of Taylor's breach, plaintiffs aver, event promoters were "forced to arrange for a substitute artist to appear, on short notice . . . ." Plaintiffs are seeking $50 million in damages.


Royalty Rules (No, Not Kate Middleton and Prince William)

Meanwhile, in the nation's capital: the Copyright Royalty Board has issued new regulations for licensing public broadcasting organizations, such as National Public Radio (NPR) and Public Broadcasting Service (PBS). The Copyright Act requires that the federal government must update its licensing rules and rates for noncommercial television and radio broadcasting every five years.

The Copyright Royalty Board received input from various noncommercial broadcasting organizations concerned about the new regulations, among them the American Society of Composers, Authors and Publishers (ASCAP), Broadcast Music, Inc. (BMI) and the Harry Fox Agency. The new rates will take effect on January 1, 2013 and will remain on the books until December 31, 2017.

Notable changes to the rates include the royalty rates paid by PBS and NPR: under the new rates, licensing a musical composition for use in a PBS feature presentation will cost $232.18; the performance of a work on a NPR feature presentation will now cost $23.53. The new rates also include a new tiered system for determining the royalty rates paid by college radio stations--the rates will be based on the number of students enrolled at a college or university. Finally, the rules also laid out tiered rates for Christian and talk radio stations, whose rates will be based on the number of people the station reaches.


Read the final rate rules: http://www.loc.gov/crb/fedreg/2012/77fr71104.pdf

Read the petitions submitted as part of the determination of reasonable rates and terms for noncommercial broadcasting: http://www.loc.gov/crb/proceedings/2011-2/ptp/

Show Me the Money!

Crowdfunding uses the Internet to elicit small monetary contributions from a large number of contributors. Crowdfunding platforms such as Kickstarter and Indiegogo have made it easier for start-up projects and young entrepreneurs to raise funds, despite the fact that traditional lending institutions are not "loaning money like they used to." Now, there is a move to allow contributors to reap financial rewards from their contributions to indie film projects: according to Variety, "equity crowdfunding would allow investors to see a return on their money, opening the door for financiers to contribute from $100 up to $100,000 each toward the next breakout hit." The problem with this plan, however, is that it is not exactly legal--yet.

Crowdfunding risks running afoul of federal securities law on two grounds. First, some crowdfunding involves selling securities, which brings into play the registration requirements of the 1933 Securities Act. Second, the websites that make crowdfunding possible may fall under the definition of "broker" or "investment adviser," according to the amorphous language applied by the Securities and Exchange Commission. To clarify these ambiguities, the SEC has commenced the preliminary stages of the rule drafting process, which normally takes three months. Hopeful members of the independent film and crowdfunding communities are cautiously optimistic that the SEC will release guidelines by the second quarter of 2013.


For more information on crowdfunding, see: http://www.sec.gov/info/smallbus/acsec/bradford_crowdfunding.pdf and Ronald L. Barabas, Crowdfunding: Trends and Developments Impacting Entertainment Entrepreneurs, Volume 23, Number 2 of the Entertainment, Arts and Sports Law Journal, (Summer, 2012).

Same Suit, Different Defendant

Undeterred by previous unsuccessful attempts to sue Marvel Entertainment, Stan Lee Media, Inc. (SLMI) has now gone after Disney in an effort to regain control over famed and iconic characters Spider Man, X-Men and the Fantastic Four, among others. Stan Lee, the comics legend who created the Spider Man, X-Men and Fantastic Four comic books series, founded SLMI in 1998 after disputing with Marvel. SLMI's suit, filed in October in Colorado federal court, alleges that Lee (who is no longer associated with SLMI) did not properly assign the works to Marvel, and that Disney never recorded its agreement with Marvel with the U.S. Copyright Office. As a side note, it should be pointed out that Disney purchased Marvel in 2009.

In its complaint, SLMI seeks billions of dollars in damages for the unauthorized use of Lee's comic creations in numerous films such as Spider Man and The Avengers. SLMI, according to Hollywood Reporter, "hoped to put the burden of proving rightful ownership upon Disney." So far, however, that plan has yet to succeed: On November 30th, Disney filed a motion to dismiss SLMI's complaint, calling it "flawed beyond cure." Among Disney's assertions, the company states that there is "no conceivable basis" on which SLMI can bring a copyright claim against The Walt Disney Company. Firstly, Disney avers, Colorado lacks personal jurisdiction over the defendant. Additionally, Stan Lee Media's complaint neglected to "plead a plausible copyright infringement claim," by failing to mention which specific works and characters it owns, instead simply referring to "comic book characters . . . that (Lee) had previously created or would create." Finally, among the many deficiencies listed by Disney, SLMI's suit seeks to relitigate the issue of copyright ownership, even though three different courts on three different occasions ruled on the issue. "The instant suit is just plaintiff's latest attempt to assert the same rights allegedly stemming from the 1998 agreement," says the Disney motion to dismiss.


Read the motion to dismiss here: http://www.scribd.com/doc/115375211/gov-uscourts-cod-136103-21-0

Time to Talk Turkey

And now, to a different type of art: ancient antiquities. On Monday, the Dallas Museum of Art returned an ancient mosaic to the nation of Turkey. The piece dates from approximately 194 C.E., and depicts Orpheus--the ancient Greek musician, poet and prophet--using his lyre to tame a group of wild animals. The museum decided to return the marble mosaic after researching its provenance and deciding that the work was likely looted years ago from an archaeological site in the area around the city of Sanliurfa, located in present day southeastern Turkey. The decision to return the ancient mosaic is part of the museum's plan to foster good relations with foreign museums, in an effort to facilitate exchange agreements with art institutions abroad. Maxwell L. Anderson, the director of the Dallas Museum of Art, also said that the return was part of a broader effort to tackle provenance issues head on: "[w]hat I didn't want to happen here was a succession of slow-motion claims coming at us." Turkish officials, according to Anderson, had been trying to locate the mosaic for some time, and "provided photographs of a looted site near [modern day Sanliurfa] whose physical characteristics closely matched those of the mosaic."

The decision of the Dallas Museum of Art follows robust efforts by Turkey to repatriate antiquities it says were unlawfully acquired by American and European museums. In the last few months, Turkey has demanded that the Metropolitan Museum of Art return artifacts that the Met says were legally acquired in the 1960s before being donated to the museum in the late 1980s. Unconvinced, Turkish officials filed criminal charges in Turkey this summer, seeking an investigation into the allegedly illegal excavation of 18 antiquities that are now part of the Met's Norbert Schimmel Collection. Directors from the Pergamon Museum in Berlin have even accused Turkish officials of "undue intimidation."

Turkey's efforts to reclaim allegedly looted antiquities from abroad has spurred international debate over who owns these priceless works of art, given the fact that national and regional borders have changed frequently in the last 100--let alone 1,000 --years. The UNESCO Convention of 1970 on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property is the international treaty that permits museums to "acquire objects that were outside their countries of origin before 1970." Although Turkey ratified this treaty in 1981, the country has relied on a 1906 law created during the Ottoman Empire that instituted a flat out ban on the export of cultural artifacts. Whether Turkey has any moral or cultural claim to these artifacts, however, is further complicated by the fact that its own museums are filled with pieces acquired by the Ottoman Empire during their rule over parts of the Middle East and southeastern Europe.



Read the UNESCO Convention here: http://portal.unesco.org/en/ev.php-URL_ID=13039&URL_DO=DO_TOPIC&URL_SECTION=201.html

Tax Woe for LiLo

Lindsay Lohan is not having a very good year. Last month, the Liz & Dick star was arrested in New York for allegedly punching a woman in the face, and is now being charged with third-degree assault. This charge comes on the heels of charges filed against her in Los Angeles for obstruction of justice and lying to a police officer following a car accident this past summer. Now, the IRS has seized all of her bank accounts and has filed tax liens against the star for 2009 and 2010. The once-promising star also has unpaid taxes from last year. The Huffington Post reports that Lohan is said to owe the federal government over $230,000.


In Memoriam: Dave Brubeck

Dave Brubeck--the jazz musician best known for pieces such as "Take Five"--passed away on Wednesday, a day short of his ninety-second birthday.

Mr. Brubeck was born in 1920 near San Francisco, California. His mother, a choir director at a local church, introduced him and his two brothers to various musical instruments. Until attending college, however, Mr. Brubeck had no interest in pursuing a career in music--he planned to follow in his father's footsteps and become a cattle rancher. Luckily for the music world, however, Mr. Brubeck switched his major from veterinarian sciences to music.

After serving in the Army during World War II and playing with the Army band, Mr. Brubeck attended Mills College where he studied jazz and forged important connections with other musicians. Mr. Brubeck's first musical ensemble was composed of several fellow Mills students.

In 1954, Mr. Brubeck became the second jazz musician, after Louis Armstrong, to be featured on the cover of Time. That same year, he signed with Columbia Records, promising to deliver two albums a year, including the album "Time Out," recorded in 1959. Notably, "Time Out" has since sold about two million copies. By the end of the 1950s, Mr. Brubeck had "broken through with mainstream audiences in a bigger way than almost any jazz musician since the Second World War." The popularity of his music remains today.

In addition to jazz music, Mr. Brubeck is also remembered for his strong convictions. In the 1950s, the composer clashed with college deans who told him not to perform with a racially mixed band. In 1958, Mr. Brubeck refused to visit South Africa when it was revealed that he would be contractually required to play with an all white band. Additionally, as his obituary in the New York Times notes, the composer also used jazz "to address religious themes and to bridge social and political divides." Specifically, the work "The Gates of Justice" dealt with African Americans and Jews in America. Another piece, "Truth Is Fallen," commemorated the killing of students at Kent State University who were protesting the Vietnam War.

Mr. Brubeck was named a Jazz Master in 1999 by the National Endowment for the Arts, and in 2009, received a Kennedy Center Honor. He is survived by his wife, five children, ten grandchildren and four great-grandchildren.


December 13, 2012

Week in Review

By Martha Nimmer

This Means War

David Hester, "Storage Wars" personality and creator of "YUUUP!" catch phrase paraphernalia, has sued A&E Television Networks (A&E) over his allegedly wrongful termination from the hit reality TV series. Hester's suit also contends that the show is "rigged," in violation of the Communications Act of 1934. The suit, filed on Tuesday in Los Angeles Superior Court, states that "A&E has committed a fraud on the public and its television audience in violation of the Communications Act of 1934, which makes it illegal for broadcasters to rig a contest of intellectual skill with the intent to deceive the viewing public." Specifically, Hester alleges that A&E planted valuable items in some of the auctioned storage lockers, items ranging from a BMW mini car to newspapers from the day that Elvis died. The complaint avers that Hester was wrongfully terminated when he brought this practice to the attention of A&E producers. A&E has declined to comment on the suit, stating that it does not discuss pending litigation, but has previously asserted that the show is not faked.

"Storage Wars" follows the pursuits of "an eclectic group of modern day treasure hunters" who earn their living bidding on and selling off the contents of abandoned storage lockers located throughout southern California. According to the show's introduction, when a storage locker is not paid for or abandoned, the contents of the lockers are auctioned off to buyers. The buyers are usually given a few minutes to observe the lockers, but may not enter them or touch their contents. The buyers then bid on the lockers' contents, and only then may the winning bidder may enter the storage locker and inspect his winnings. The goal is to sell the contents of the locker at a profit. The original series debuted in 2010, with spinoffs in Texas and New York debuting in 2011 and 2013, respectively.


Read the complaint here: http://www.hollywoodreporter.com/sites/default/files/custom/Documents/ESQ/A_E.pdf

Guardians of Eden Do Battle With Avatar

If you thought you were done hearing about Avatar for awhile, you were wrong. Since the movie was released in 2009, the entertainment world has been abuzz over the highest grossing film of all time. Unsurprisingly, this treasure trove of a movie has brought it with seemingly endless litigation aimed at getting a piece of the Avatar pie.

The latest lawsuit comes from Gerald Morawski, who met Avatar creator James Cameron in 1991. Morawski's complaint alleges that the plaintiff pitched a film called "Guardians of Eden" to Cameron in the early 1990s. The proposed film project recounted the "epic" struggle between evil mining companies set on destroying the planet to satisfy their greed, and a brave indigenous tribe that peacefully coexisted with the rainforest. Cameron, however, states that he remembers no such pitch meeting, and that his $2.8 billion dollar baby was his own, independent creation. In a 45 page declaration, Cameron recounts how he came up with the Avatar story, the idea for which came to him when he was a child in the 1960s. Morawski disputes this claim, however, noting that Cameron failed to commit the story line to paper until after meeting with the plaintiff. The defendants, however, are hoping to dispose of the suit via summary judgment.


Why Didn't the Mayans Predict This Lawsuit?

Cue the Indiana Jones theme music, because here comes a lawsuit involving the world-renowned adventurer!

Jaime Awe, a real-life Indiana Jones and director of the Institute of Archeology of Belize, filed suit last week in Illinois federal court on behalf of the nation of Belize. Awe is seeking the return of an ancient crystal skull, popularized by the 2008 film Indiana Jones and the Kingdom of the Crystal Skull (Crystal Skull), from the family that allegedly stole the piece almost a century ago from Belize. Dr. Awe has also named Lucasfilms, the new owner of the Walt Disney Co. and Crystal Skull distributor Paramount Pictures, for using a replica "likeness" of the skull in the most recent Indiana Jones movie. Among the damages alleged by Awe are the "illegal profits" of Crystal Skull. According to Hollywood Reporter, the movie grossed around $786 million.

According to the complaint, the skull is believed to have originated in Mayan culture. The Mayans, when they were not busy predicting the end of the world, carved the skull from clear or white quartz, and attributed supernatural powers to the object. Only four skulls are known to exist today: "three are on public display at the British Museum in London, the Musée du quai Branly in Paris and the Smithsonian in Washington." As for the fourth skull, Dr. Awe states that it was removed illegally from Belize in the 1920s by English adventurer F.A. Mitchell-Hedges. "Lucasfilm never sought, nor was given permission to utilize the Mitchell-Hedges Skull or its likeness in the Film," states the complaint. "To date, Belize has not participated in any of the profits derived from the sale of the Film or the rights thereto." Dr. Awe is suing the Mitchell-Hedges family for the removal of the skull from Belize. No word yet on whether Dr. Awe will make a cameo appearance in sequel to the Crystal Skull...

Read the complaint at the end of the story: http://www.hollywoodreporter.com/thr-esq/indiana-jones-lawsuit-seeks-hollywood-399236

Illegal Contact!

Bad news for EA Sports. A federal court in Maryland ruled last month that EA Sports' (EA) use of the Baltimore Ravens' former team logo does not constitute fair use. This case harkens back to events in 1995, when plaintiff Frederick Bouchat "created and copyrighted a drawing of a raven clutching a shield emblazoned with a capital letter B." The NFL team copied Bouchat's illustration and incorporated the design into its logo, which was used on the team's helmets during its first three seasons, from 1996 to 1998. The artist previously sued both the NFL and the Ravens for copyright infringement, seeking $10 million dollars in damages. Unluckily for Bouchat, however, the jury declined to award him damages, finding that "no part of the defendants' profits was attributable to [their] copyright infringement." The Ravens adopted a new logo in 1998.

The story, however, does not end there. Seeking to ensure that its Madden NFL series was highly realistic, EA added a "throwback jersey" feature to the 2010, 2011 and 2012 versions of its highly popular video game. Among the "throwback" options recreated by EA was the 1996 Baltimore Ravens uniform, which featured the infringing "Flying B" logo. Bouchat promptly filed suit against both the NFL and EA, alleging copyright infringement. The defendants moved for summary judgment, arguing that their use of the logo was protected under the fair use exception to the Copyright Act. The court agreed with Bouchat, analyzing and applying the four fair use factors listed in 17 U.S.C. § 107: "(1) the purpose and character of the use, (2) the nature of the copyrighted work, (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole, and (4) the effect of the use on the potential market for the original work."

Applying the first factor, the court held that the "purpose and character" of the use weighed in Bouchat's favor, stating that EA had used the logo in a nontransformative way, for a substantially commercial use. Similarly, the second and third factors also weighed against a finding of fair use, given the fact that Bouchat's drawing is a creative work deserving of robust copyright protection, and because the entirety of Bouchat's creation was used in the video game. Finally, as for the fourth factor, the court held it "is, if not neutral, only slightly favoring a finding of fair use." Taking all four fair use prongs together, the court ultimately found that EA's use of the Flying B logo in Madden NFL was not a fair use.


December 20, 2012

Week in Review

By Martha Nimmer

Picture This

Instagram, Facebook's billion dollar baby, is poised to change its Privacy Policy and Terms of Service starting in 2013. The proposed changes have already shocked the Instagram world, from professional photographers who use the app to showcase their works to a global audience, to Brooklyn hipsters who chronicle their newest vegan, locally sourced brunches. The changes will go into effect on January 16th, but will not apply to pictures uploaded to Instagram before that date.

The proposed changes include modifications to how Instagram utilizes users' personal information, to how Instagram may use and market users photos. For instance, under the new privacy policy, Instagram is permitted to share user information with its parent company, Facebook, and outside affiliates and advertisers. The goal behind this change, according to Instagram, is to permit it and Facebook to communicate more seamlessly about its users. Another change, which has received much uproar from users, has to do with the "Rights" section of the Terms of Service. Under the new Terms, Instagram is now allowed to use its users' photographs and identities in advertisements. Specifically, the Terms state: "You agree that a business or other entity may pay us to display your username, likeness, photos (along with any associated metadata), and/or actions you take, in connection with paid or sponsored content or promotions, without any compensation to you . . . ." According to the New York Times, Marc Rotenberg, executive director of the Electronic Privacy Information Center, said that the use of a person's likeness in ads could "run into some state laws protecting people's privacy." Practitioners of privacy law and lawyers with even the most basic knowledge of state right of privacy/right of publicity laws will likely comment that this modification to the Instagram Terms of Service will likely run afoul of state law, possibly culminating in pricey class actions if these changes are actually implemented.

Instagram has also said that underage users are not exempt from the above changes. According to the New York Times, "Although Instagram says people must be at least 13 years old to sign up for the service, the new terms note that if a teenager signs up, they are agreeing that a parent or guardian is aware that their image, username and photos can also be used in ads." Although Instagram may insist that its underage users are not exempt under the new terms of service, state and federal laws aimed at protecting minors, such as the Children's Online Privacy Protection Act (COPPA), say differently. COPPA, which took effect in 2000, applies to websites that are developed expressly for children, but also covers any online service that is likely to be used by children or that collects information from children.

Creeped out yet? Upset? Too bad, says Instagram. The only way to "opt out" of these changes is to delete your account--Instagram's new Terms of Service state that "by accessing or using the Instagram website, the Instagram service, or any applications (including mobile applications) made available by Instagram (together, the "Service"), however accessed, you agree to be bound by these terms of use." In response to these changes, other photo sharing sites like Flickr have been trying to attract Instagram.


Read the text of the proposed changes here: http://instagram.com/about/legal/terms/updated/

Read the text of COPPA here: http://www.ftc.gov/ogc/coppa1.htm

"I'm your biggest fan, I'll follow you until you love me / Papa, paparazzi"

Many thanks to Lady Gaga for those fitting lyrics. Now, we turn to California, where the State's Attorney is hoping to save a state motor vehicles law enacted to dissuade paparazzi from reckless driving while pursuing celebrities. Last week, attorneys for the State of California petitioned the Appellate Division for a review of Los Angeles Superior Court Judge Thomas Rubinson's decision to overturn the 2010 law, calling it an impingement of the First Amendment. Paul Raef, a California-based photographer, was prosecuted under Section 40008 for allegedly driving 80 MPH on a busy Los Angeles street as he pursued teen heartthrob Justin Bieber in November of this year.

Raef's attorney argued that the law at issue was overbroad, thereby failing to satisfy constitutional scrutiny. The attorney added that if California wanted to prevent paparazzi from driving recklessly, the state should increase the penalties for such conduct, instead of passing a law that could be used to punish or deter members of the press from pursuing news-gathering or other First Amendment-protected activities. In response, the Los Angeles City Attorney argued that the criminal penalties used in the past have proven insufficient in deterring paparazzi from engaging in reckless driving. In their petition for appellate review, the State's attorneys also argue that Judge Rubinson used the wrong level of scrutiny when assessing the constitutional validity of the law, attributing this error to a fundamental misunderstanding of First Amendment jurisprudence.

Although at first blush the law appears exceedingly applicable to media outlets that drive recklessly when investigating the news, Section 40008 is actually applicable to any person, not just one carrying a camera or a microphone: "It was a criminal law of general application that applied to any person, including news-gatherers," states the appellate petition. The law is content neutral due to this general applicability and thus receives intermediate scrutiny as per U.S. Supreme Court precedent. Intermediate scrutiny requires the government to prove that the statute at issue involves important governmental interests, and that the law is substantially related to achieving an important governmental purpose.

The State's petition has requested an immediate stay of trial court proceedings.

Scroll down for the full text of the petition: http://www.hollywoodreporter.com/thr-esq/california-justin-bieber-paparazzo-state-401966

Read the California statute here: http://www.dmv.ca.gov/pubs/vctop/d17/vc40008.htm

Federal Felines

Ernest Hemingway is known for many things: his writing, his love of Cuba and his news coverage of the Spanish Civil War. Hemingway was also the proud owner of a six-toed cat named Snowball. Now, Snowball's polydactyl descendants are subject to federal regulation by the Department of Agriculture. How, you may ask? Well, they apparently "substantially affect interstate commerce," at least according to the 11th Circuit Court of Appeals.

These federal felines can be found at Hemingway's former Key West home, now a museum. The cats number from 40 to 50, and live and roam freely on the grounds that are enclosed by a brick fence at the property's perimeter. According to the decision, "no Hemingway cat has ever been bought or sold, although some cats have been given away at various times. However, the Museum charges admission for a tour of the property, and the tour includes seeing and discussing the roaming Hemingway cats. Approximately 250,000 visitors from within and beyond Florida visit the Museum annually. The Museum's gift shop sells cat-related merchandise online and at its physical location." As the cats are so important to the museum's continued vitality and commercial success, the exhibition of the cats affects interstate commerce, which brings the cats under the purview of Congress and the Interstate Commerce Clause of the U.S. Constitution.

What does this mean for the whiskered residents of the Ernest Hemingway Home and Museum? It looks as if the museum will have to cage the cats at night, construct a higher fence to contain them or hire a security guard to keep on an eye on them at night. The museum may also have to "tag each cat and construct 'elevated resting surfaces' for the animals," according to the 11th Circuit.


Read the decision here: http://www.ca11.uscourts.gov/opinions/ops/201114217.pdf

Slap Shot

Earlier this week, in anticipation of an antitrust suit brought by the National Hockey League Players' Union, the National Hockey League (NHL) and its teams filed suit in federal court in Manhattan against the players' union. The NHL's suit comes in response to actions by the Executive Committee for the NHL Players' Association (NHLPA) authorizing a vote to determine whether the union's leadership may "disclaim interest in its role as the exclusive bargaining representative of NHL players so that the NHL players could commence antitrust litigation against the NHL." The NHL has called this move "an impermissible bargaining tactic," the goal (no pun intended) of which is to gain "more favorable terms and conditions of employment in ongoing collective bargaining negotiations with the NHL."

According to the NHL's 43-page complaint, the NHLPA's "improper threats of antitrust litigation are having a direct, immediate and harmful effect upon the ability of the parties to negotiate a new collective bargaining agreement." The NHL has sought a declaration that the ongoing lockout does not violate antitrust laws, specifically, the Clayton Antitrust Act, and consequently, cannot be enjoined or result in any damages to the defendants. The owners further claim "that the Norris-LaGuardia Act deprives the federal courts of jurisdiction to enjoin or restrain the ongoing lockout . . . ." This latest suit does not bode well for hockey fans: the owners' lockout threatens to cancel the entire NHL season, for the second time in nine years.

Football fans will recall a similar turn of events in the 2011 case Brady v. NFL, et al., wherein the National Football League Players' Union was "decertified" by the players, who professed to have become not a union, but "simply a collection of individual players." Essentially, the NFLPA members felt that by decertifying their union, the players could "force" antitrust scrutiny of the owners' lockout. Whether a similar outcome results in the ongoing dispute between NHL players and owners remains to be seen.


Read the Norris-LaGuardia Act here: http://uscode.house.gov/download/pls/29C6.txt

I Volunteer As Tribute!

Unfortunately for online retailer Yagoozon, Inc., it does not appear as if anyone will be volunteering to take its place in a lawsuit brought against it by Lions Gate Entertainment, the producer and distributor of the hit movie The Hunger Games.

Last week, Lions Gate filed suit in the Central District of California, alleging claims of federal and common law trademark infringement, false designation of origin, federal and state law trademark dilution, state and common law unfair competition and copyright infringement. The crux of the suit centers on Yagoozon's production of a "mockingjay pin," a version which was used on the cover of Suzanne Collins' book and appears on the official poster for the next film in the trilogy, The Hunger Games: Catching Fire. Readers familiar with the book or the first film will recall that the mockingjay pin was protagonist Katniss Everdeen's "tribute token" during the annual Hunger Games, and came to symbolize rebellion against the Games and its organizer, the Capitol. The pin has also become part of a billion-dollar franchise, and Lions Gate has "taken a number of steps to register the 'mockingjay logo' at the Trademark Office."

Given how popular the Hunger Games trilogy has become, Lions Gate has been robust in defending its intellectual property rights in the works. According to the complaint, the defendants attempted to purchase Hunger Games merchandise, including the mockingjay pin, from Lions Gate licensee National Entertainment Collectibles Association (NECA). Yagoozon CFO Benjamin Joseph later sent a letter to NECA, threatening an antitrust lawsuit if NECA did not sell the requested merchandise. NECA still refused to supply the items, and shortly thereafter, Lions Gate discovered that the defendants were selling counterfeit Hunger Games merchandise online, including the iconic mockingjay pin. Included with the pin, the plaintiff claims, was packaging "virtually identical" to NECA's Lions Gate-authorized packaging. Looking at the complaint (linked to below), one can see from the exhibits that the packaging is essentially indistinguishable, aside from, perhaps, the slightly sepia tone on Jennifer Lawrence's face on the Yagoozon packaging. In its prayer for relief, the studio seeks a permanent injunction against the production, sale or marketing of the infringing items, as well as damages and disgorgement of profits earned as a result of the infringement.

Given the degree of similarity between the NECA-produced Hunger Games merchandise and the allegedly counterfeited Yagoozon-made items, it does not appear that that odds will be ever in the defendants' favor...


Read the complaint here: http://www.scribd.com/doc/117497980/Hunger-Games

About December 2012

This page contains all entries posted to The Entertainment, Arts and Sports Law Blog in December 2012. They are listed from oldest to newest.

November 2012 is the previous archive.

January 2013 is the next archive.

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