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Week in Review

By Martha Nimmer

Flunking Franco

Whoever said that 90% of life is just showing up should probably share that bit of wisdom with actor James Franco, who is facing a default judgment in New York State Court. This default action, filed last week by Francoʼs former NYU professor Jose Angel Santana, stems from a defamation suit filed by Santana in September. Francoʼs former professor filed the lawsuit against the actor based on allegations that Franco had made disparaging and inaccurate public statements" against Santana after receiving a "D" in his class in 2010.

Santanaʼs suit concerns public comments by Franco that his former teacher was "awful," and that Franco "didnʼt feel like [he] needed to waste [his] time with a bad teacher." In response to Franco's comments, Santana's attorneys argue that Franco's actual reason for not attending class was having to work on the film 127 Hours. New York University, a co-defendant in Santanaʼs action against Franco, answered the plaintiffʼs suit in November. In its answer, NYU stated that the suit was nonsense; the university added that Francoʼs comments "consisted of nothing other than Franco's personal opinions regarding Santana's teaching skills" and hence could not be considered defamatory.

Franco could easily make the same argument, but for this to happen, he first has to hire an attorney and actually show up to court.

http://www.hollywoodreporter.com/thr-esq/james-franco-hasnt-bothered-answer-421369

From Gospel to Gangsta Rap

Gospel singers Clara Shepherd Warrick and Jimmy Lee Weary have sued some of the biggest names in rap music: last week, the musicians brought suit against Rick Ross, Dr. Dre, Jay Z, Universal Music Group, Universal Music Publishing Group and Island Def Jam Music Group in federal court in Illinois. Warrick and Weary claim that the hip-hop superstars sampled their music without permission on Ross's Grammy nominated album "God Forgives, I Don't," and "laced plaintiffs' gospel work" with profanity and other offensive language.

The gospel work at issue, "Iʼm So Grateful," was created by the plaintiffs in 1976. According to the complaint, "Plaintiffs' song was first distributed circa 1976 by their gospel singing group, Crowns of Glory, on an album titled ʻGod Save the Children.ʼ Since the release of the song, Shepherd and/or Weary have performed plaintiffs' song all over the world." Last July, Rick Ross and Def Jam released the rap album "God Forgives - I Don't," which contains a song entitled "3 Kings." It is in this song, the plaintiffs complain, that the unauthorized sampling occured: "Defendants sampled and copied additional, substantial original elements of plaintiffs' Song without plaintiffs' permission, when they wrote, recorded, performed and made derivative works of the 3 Kings song."

Unfortunately for the gospel singers, "3 Kings" contains some pretty foul language. Unsurprisingly, the plaintiffs are not happy that their music has--allgedly--been used in such a way. Warrick and Weary argue that "Defendants' use of plaintiffs' work in the manner used continues to destroy the commercial value of the song in gospel circles. Defendants' use of plaintiffs' work is also destroying rather than enhancing the overall integrity and longevity of plaintiffs' gospel song. After the current use of plaintiffs' copyrighted work on the rap album by Rick Ross, Dr. Dre, Jay Z and Jake One, Plaintiffs' song will soon have no value in the gospel community."

It should also come as no surprise that Warrick and Weary object to the "3 Kings" music video, which "features a montage of clips of Rick Ross, Dr. Dre and Jay Z throughout their careers." According to the complaint, this video has received millions of views, and "upon information and belief, the video was prepared at the direction of defendant Dr.Dre. The video includes very graphic depictions of drug use, vulgarity, nudity, gun violence, criminal conduct, actions demeaning to women and many other items that are certainly inconsistent with plaintiffs' wishes for how plaintiffs' song would be portrayed." The plaintiffis seek an injunction prohibiting the defendants from performing "3 Kings" or selling the album that contains the offending song. Weary and Warrick also seek punitive damages for copyright infringement, unfair trade practices, unfair competition, conspiracy and unjust enrichment.

http://www.entlawdigest.com/2013/02/11/2143.htm

Pennsylvania Goes to Court for Penn State

Earlier this month, the NCAA filed suit in Pennsylvania court, asking a federal judge to throw out a lawsuit brought by the stateʼs governor that challenged the penalties imposed on Pennsylvania State University following the Jerry Sandusky child-abuse case. According to the NCAA, Pennsylvania Governor Tom Corbett lacks standing to
bring the case, and is seeking to undo an agreement "freely entered into" by Penn State officials. "This lawsuit is an inappropriate attempt to drag the federal courts into an intra-state political dispute," the NCAA added.

Readers will recall that Governor Corbett sued the NCAA in January, challenging a $60 million fine imposed on Penn State for its failure to prevent sexual abuse perpetrated by former assistant football coach Jerry Sandusky, who was convicted last year of molesting ten boys. The stateʼs complaint accuses the NCAA of using the Sandusky
crimes as a "pretext" to impose unprecedented sanctions, which, Governor Corbett aruges, violate antitrust laws. In addition to the multimillion dollar fine, the NCAA stripped Penn State of 112 football wins from 1998 through 2011, and barred the school from bowl games for four years.

According to the NCAA, Penn State has the authority under Pennsylvania law "to manage its own athletics program, voluntarily join the NCAA and agree to contracts." The governor, who is a member of the Penn State governing board that approved the NCAA agreement, is attempting to "usurp the discretion that the legislature delegated to PSU," the NCAA wrote.

Pennsylvania will seek an injunction against all the sanctions. The case is Corbett v. National Collegiate Athletic Association, 13-cv-6, U.S. District Court, Middle District of Pennsylvania (Harrisburg).

http://about.bloomberglaw.com/2013/02/08/ncaa-seeks-to-toss-pennsylvania-suit-oversandusky-fine/

To the Batmobile!

Cue the Batman theme music, because we have some important news! In a victory for DC Comics, a federal court in California ruled last week that the iconic Batmobile is a "copyrighted comic book character" that cannot be replicated by an autobody business. DC Comics introduced the famous Batmobile back in 1941. The black, streamlined car was also featured in the "Batman" TV show, starring Adam West in the 1960s, and in the 1989 Batman movie, starring Michael Keaton.

DC Comics sued Mark Towle, owner of California-based auto shop Gotham Garage, in May 2011. The plaintiff claimed that Towle's work constituted copyright infringement, unfair competition and trademark infringement. DC Comics owns the copyright on the words "Batman" and "Batmobile", as well as the Batman logo, the licensing of which has proven to be an extremely lucrative business. Towle and Gotham Garage do not hold such a license, but this did not prevent them from turning cars into Batmobiles, "styled as either the model in the 1966 TV show or the 1989 movie."

In ruling with the plaintiffs, U.S. District Judge Ronald Lew found that Towle "copied not only a car, but a character." In that regard, Lew wrote: "the Batmobile, in its various incarnations, is a highly interactive vehicle, equipped with high-tech gadgets and weaponry used to aid Batman in fighting crime. Even though the Batmobile is not identical in every comic book, film or television show, it is still widely recognizable
because it often contains bat-like motifs, such as a bat-faced grill or bat-shaped tailfins in the rear of the car, and it is almost always jet-black." The judge also pointed out the importance of the Batmobile to the plot of Batman: "[t]he comic books portray the Batmobile as a superhero. The Batmobile is central to Batman's ability to fight crime and appears as Batman's sidekick, if not an extension of Batman's own persona." Judge Lew ultimaltey ruled that Towle's use of the Batmobile and Batman-related symbols were likely to cause confusion in the marketplace.

At least for now, it looks as if Gotham City can rest easy that no unlicensed Batmobiles are out on the streets...

http://www.entlawdigest.com/2013/02/12/2147.htm

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This page contains a single entry from the blog posted on February 19, 2013 4:30 PM.

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