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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.


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