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Week in Review

By Martha Nimmer

Itʼs a Bird, Itʼs a Plane, Itʼs...the Ninth Circuit Court of Appeals?

Warner Brothers is breathing a huge sigh of relief. Last week week, the Ninth Circuit Court of Appeals decided that a lower court incorrectly ruled that DC Comics -- a Warner Brothersʼ company -- brokered a deal in 2001 with the estate of Superman creator, Jerome Siegel. Absent the deal, the Siegel estate would not be able to recapture its rights in the highly successful comic book hero. This decision comes just months after a federal judge ruled in October of last year that the estate of Superman co-creator Joseph Snyder would not be able to recapture its own copyrights in the brawny superhero. This is all good news for Warner Brothers: now, the company is permitted to "exploit the Superman franchise without fear of substantial legal hassles" from the Shuster and Siegel estates.

Given the widespread success of the Superman character, the estates of his co-creators have devoted many years attempting to "exploit" the termination provision of the 1976 Copyright Act, with the ultimate goal being the recapture of valuable copyrights in the character. That provision of the Copyright Act, according to the its drafters, was to give artists who gave up their copyrights before the true value of the works became known another "bite at the bargaining apple." Facing financial hardship many years ago, Siegel and Shuster gave up their rights to Superman, but for very little money, not knowing how successful their flying superhero would become. Once Supermanʼs fame and notoriety "took off," the Siegel and Shuster estates have been
determined to recapture their rights.

http://www.hollywoodreporter.com/thr-esq/warner-bros-wins-blockbuster-victory-410871

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

Aloha from Hawaii Five-O

Bad news for George Litto, the talent agent who represented the creator of the original Hawaii Five-O series: a judge has granted CBSʼ demurrer to a lawsuit brought against it by Litto, meaning that "barring any reconsideration or appeal, the network has escaped any liability."

Now, why would George Litto sue CBS over the remake of a television show that ended over 30 years ago? It turns out, at least according to Litto, that he was prevented from participating in the creation and production of the new, highly successful Hawaii Five-O series that debuted in 2010. This exclusion, Litto says, prevented him from making "big money" on the remake. The original series aired from 1968 to 1980.

Back in the 1960s, Littoʼs talent agency represented the original Hawaii Five-O creator, Leonard Freeman. Freeman died in 1974. That year, according to the Hollywood Reporter, "an amendment to the contract [between CBS and Freeman] gave CBS the right to produce the show in the future and shifted responsibility of production from Freeman's company to CBS. The Freeman estate got a huge backend profit participation, and CBS wasn't allowed to recoup production overages." Freemanʼs widow and Litto also allegedly reached an agreement in 1996 to work together on future production of the series. Later, in 2010, CBS made a deal with the Freeman heirs, intent on going forward with a remake of the popular show. This deal, at least according to Litto, cut him out of the picture--and the profits. Fast forward to May 2012: Littoʼs agency sues Freemanʼs heirs for cutting the former agent out of dealmaking. Litto has stated that this "backstabbing" has cost him tens of millions of dollars.

The case history gets even more detailed and complex, but ultimately, the presiding judge on the suit decided to dismiss CBS from the case, for a (thankfully) simple reason: "Litto had waited too long to bring the claims," the judge wrote. Specifically, Los Angeles Superior Court Judge Gregory Alarcon stated that the "[p]laintiff instituted this current action over two years after the 2010 amendment was signed. CBS has already produced the television series and to restore the consideration would essentially require CBS to 'un-make' or, in the alternative, pull what has become a very popular television series." Not wanting to disappoint the showʼs fans, and finding it impossible to "unmake" the show, Judge Alarcon decided to dismiss CBS from the suit.

http://www.hollywoodreporter.com/thr-esq/cbs-wins-lawsuit-hawaii-five-409829

The(Mis)Adventures of Bristol Palin

If you thought you heard the last of the Palins, you were wrong.

Last week, A&E Networks settled a lawsuit with Disney Channel actor Kyle Massey over the idea for a reality show featuring Bristol Palin and her son, Tripp. In the suit, brought by Massey and his mother, the plaintiffs alleged that the Masseys created a written, halfhour series featuring the Massey and Palin families. The show, entitled Bristol-ogy 101, followed the families through their normal routines, including watching Bristol attend college while raising her child. Ms. Palin, it is alleged, agreed to work with the Masseys on the show. Two years later, however, found Ms. Palin working with A&E producers on a different show, this one called Bristol Palin: Lifeʼs a Tripp. The show aired on Lifetime, a subsidiary of A&E.

The Masseys alleged that the Lifetime show, which was subsequently removed from Lifetimeʼs prime time lineup, is substantially similar to their original show concept. The plaintiffs also raised claims of copyright infringement, fraud, breach of contract, misappropriation of name and likeness, tortious interference and unfair competition,
among other claims. Before a judge could decide whether the case could go to arbitration, however, the parties came to resolution. Details of the settlement have not been made public.

We still await news, however, about whether Sarah Palin can actually see Russia from her house...

http://www.hollywoodreporter.com/thr-esq/bristol-palin-lawsuit-ae-reality-series-409160

Vimeo or Vime-Uh Oh?

And now, to the wonderful world of the Web! Capitol Records and other major players in the music business asked a federal judge in New York last Friday to grant their summary judgment motion against the user-generated video website Vimeo. The suit, filed in New York federal court, commenced three years ago. Among the claims the
plaintiffs raise are those of copyright infringement, based on Vimeoʼs alleged copying, performing and distributing well known sound recordings by artists such as The Beatles, Coldplay, the Beach Boys and Nat King Cole. The initial dispute has taken three years to resolve because, as the Hollywood Reporter writes, "there was a pertinent piece of litigation about to go before appeals judges that considered the copyright liability of user-generated-content sites, Viacom v. YouTube." The Second Circuit has now decided what is required before ISPs, like YouTube and Vimeo, may gain safe harbor from copyright liability; essentially, the court ruled that that an ISP has to possess "actual knowledge of specific infringements through takedown notices or something else before being required to remove copyright material expeditiously."

Now that the Second Circuit has decided the Viacom v. YouTube case, record label attorneys have gone full force into filing for summary judgment. According to the motion, Vimeoʼs business model intentionally varies significantly from the business approaches followed by YouTube and Veoh. Vimeo, the plaintiffs write, regularly uploads its own infringing videos and expressly tells its users it is lawful to have infringing music in their videos, even instructing users to do so. In essence, plaintiffs complain, Vimeoʼs business model is to infringe copyrighted music as much as possible.

In its motion for summary judgment, Vimeo denied taking such an active role in copyright infringement, stating that in light of "the sheer volume of video content uploaded every day, Vimeo does not -- and cannot -- view every video uploaded by its users to attempt to determine whether it infringes a copyright or otherwise violates
Vimeo's terms of service. Instead, Vimeo relies upon copyright holders to inform it if a user has uploaded an infringing video." Vimeo has yet to tackle, however, a video it provided to CBS for possible inclusion in a 60 Minutes piece about Vimeo owner Barry Diller. According to the Hollywood Reporter, in the video, Vimeo is said to have "questioned whether it should use the video because the music wasn't licensed, with an employee suggesting, ʻ[i]f you want me to make a version that does not have copyrighted music in it, I will do that for you.ʼ"

Scroll down for the text of the suit: http://www.hollywoodreporter.com/thr-esq/bigrecord-labels-push-copyright-408708

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This page contains a single entry from the blog posted on January 14, 2013 9:29 AM.

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