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July 1, 2013

Attorney - Intellectual Property - The Xerox Corporation - Rochester

To view this job opportunity, click the link below and you will be sent to New York State Bar Association where you can apply if you are interested.

Job Summary
Position: Attorney - Intellectual Property
Employer: The Xerox Corporation
Location: Rochester, New York
Description: Attorney - Intellectual Property-13015946

The Xerox Corporation Intellectual Property Law Department is looking for a highly capable and experienced lawyer to manage its IP litigation and IP monetization counseling, and lead an experienced team of litigation support lawyers and internal IP researchers in protecting Xerox' interest in the IP space....

Click Here to view full job description: http://www.jobtarget.com/link.cfm?c=bwluojkz7JMk

July 9, 2013

Week in Review

By Martha Nimmer

Nobody Expects a Spinoff Litigation!

Did you know that there was a seventh member of Monty Python? Neither did I, but, according to Mark Forstater, the producer of the 1975 film Monty Python and the Holy Grail, he is (sort of) a member of the famous British comedy group. The Chancery Division of the High Court of Justice in the United Kingdom has ruled that Forstater is owed a larger share of profits from Spamalot, a musical "lovingly ripped off" from the 1975 motion picture.

The musical at issue, Spamalot, was written by original Monty Python member Eric Idle and debuted in 2005. Forstater claimed that he was due financial compensation arising from "spin-offs" of the Monty Python movie, pursuant to a 1974 agreement between him and the "Pythons, which along with Idle comprise Michael Palin, Graham Chapman, John Cleese, Terry Jones and Terry Gilliam." Under the agreement, Forstater received a "£5,000 fee plus a share of profits." The agreement also mentioned "merchandising" and "spin-off rights," but included provisions and formulas for instances when the Pythons contributed materially to the creation of the new work. In some of these instances, according to The Hollywood Reporter, "50 percent of revenue from exploitation -- the "Top Half" -- would first go to a film company set up by the Pythons, then the remaining money would be then put into a pot for division among all profit participants." The plaintiff argued that he was, for the purposes of profit sharing, the "seventh Python," and that the other members could not reduce his share of the profits without his permission. Additionally, Forstater claimed that he was entitled to a one-seventh share of the so-called "Top Half" earned by Spamalot, and that he should have received "twice as much in money and only paid half as much in expenses." The plaintiff estimated about $400,000 in damages.

Last year's trial, which included readings from one Python's journal, proved both humorous and contentious, with group members stating that Forstater was "ungrateful." In a journal excerpt from 1975, Python member Michael Palin recounted his reaction to the plaintiff's request for more money: ... as we are a soft lot and not at all businesslike, I think it would be in the finest traditions of Python irrationality if we gave Mark an extra £1000 and a silver tray with some cut glass sherry glasses and told him to stop writing to us for more money. Beyond that even I am not prepared to go. Oh, all right, some cheese straws to go with the sherry glasses.

Ultimately, however, a U.K. high court judge agreed with Forstater, ruling that he was due a larger share of profits from Spamalot. The exact amount due the plaintiff, however, has yet to be determined.


Read the decision here: http://www.judiciary.gov.uk/Resources/JCO/Documents/Judgments/forstater-v-pytghon-pictures-other.pdf

Can You Keep a (Trade) Secret?

According to IMAX, one of its former employees could not, and now, the Canadian corporation claims that its trade secrets have wound up in China. IMAX has sued California LLC, GDC Technology USA (GDC)and two companies based in the Caribbean to "stop GDC's illegal commercial exploitation of IMAX's trade secret large format digital theatre projection system and film conversion technologies." The complaint goes on to state that a former IMAX employee, Gary Tsui, stole the proprietary technology in question, and then "surreptitiously provided it to film companies in China, including a company now called China Giant Screen, for which he is the 'chief engineer.' China Giant Screen uses IMAX's trade secrets under the name 'China Film Giant Screen' ('CFGS')." Notably, neither Tsui nor China Film Giant Screen are defendants.

Allegedly, Tsui's bad behavior dates back to 2009. That year, IMAX discovered that Tsui had made off with the company's proprietary and trade secret information relating to IMAX's core projection and conversion technologies, including highly valuable software source code. While working for IMAX, but "unbeknownst to it," Tsui started his own company in competition with IMAX, and "used IMAX's trade secrets to compete against - and beat out - IMAX on a bid for a significant project in China." As part of an international, cross-border investigation, IMAX uncovered "voluminous, conclusive proof of Tsui's retention and theft of IMAX's confidential and proprietary trade secrets, including CDs containing the source code for IMAX's 2D/3D conversion process and re-mastering technology, as well as the repeated use of IMAX's trade secrets to form companies in Canada and China in direct competition with IMAX." Currently, states the complaint, Tsui remains an "international fugitive, and his plan to profit unlawfully from the technology stolen from IMAX has now touched U.S. soil with defendant GDC's efforts to market CFGS with the benefit of public funding."

IMAX seeks a declaratory judgment, an injunction and punitive damages for misappropriation of trade secrets, unjust enrichment and unfair competition. The company also seeks "reasonable royalties" for its trade secrets.



Exciting news for Apple devotees: last month, the company that gave us the iPod, the iPhone and the iPad filed an application with the Japan Patent Office to trademark "iWatch" in Japan for wearable devices. According to the application, Apple is seeking protection for the iWatch name, which is "categorized as being for products including a handheld computer or watch device." This move comes as Apple rival and courtroom sparring partner Samsung Electronics Co. prepares its own wearable smartphone device.

Little is known about what the iWatch will do or when it will be released. Apple is said to employ a team of about 100 product designers working on a watch-like device that could perform some of the tasks currently confined to the iPhone and iPad. iWatch rumors have abounded for most of the year, but to date, there is no clear idea of what the wearable device will look like. One report speculated that the watch would run a version of Apple operating system iOS, but suggested that battery life issues could be an issue, as any iPhone owner can attest. The watch might also include a pedometer and other features to help the product compete with tech accessories like Nike's FuelBand and the Fitbit.

This dearth of information has fueled speculation across the Internet about what the iWatch will look like, with various observers offering their own visions of what may be the next big Apple device. One website has compiled all the known patent diagrams for the iWatch: http://www.businessinsider.com/apples-iwatch-patent-diagrams-2013-7?op=1

In the meantime, feel free to enjoy your Google Glasses before they go the way of the Casio calculator watch.



Don't Scan On Me

Although commenced in 2005, a lawsuit pitting authors and book publishers against the search engine powerhouse Google has still not been resolved. The latest wrinkle in the case came last week when the Second Circuit Court of Appeals vacated a June decision that certified a class of authors suing Google for scanning millions of works without permission as part of their "Google Books" program. In vacating the class certification, the appeals court remanded the dispute to a federal court to examine Google's fair use defense.

The copyright infringement suit, brought by The Authors Guild and the Association of American Publishers over what was then called "Google Book Search," was initially settled when the parties reached a $125 million agreement that "would have set up a new royalty program where rights-holders would have received a share of revenues from institutional subscriptions to the collection of books made available through Google." In March 2011, a judge rejected that settlement agreement, calling it "incongruous with the purpose of the copyright laws to place the onus on copyright owners to come forward to protect their rights when Google copied their works without first seeking their permission." Undeterred by that setback, Google reached another settlement late last year with several large publishing companies, among them John Wiley & Sons, McGraw-Hill Companies, the Penguin Group and Simon & Schuster. As part of that settlement, publishers had the option of making their digitized books and journals available through the Google Library Project. The litigation with the authors pressed on, however.

Google took issue with class certification, citing problems with standing, and argued that the plaintiffs failed to allege sufficient commonality among the plaintiffs who were poised to represent the class of complaining authors. Google did not carry the day with this argument, however, eventually appealing to the Second Circuit. According to the Second Circuit's ruling, which did not directly debate the defendant's claim about class certification, the court believed that the resolution of the lawsuit may lay in Google's fair use defense: "[p]utting aside the merits of Google's claim that plaintiffs are not representative of the certified class -- an argument which, in our view, may carry some force -- we believe that the resolution of Google's fair use defense in the first instance will necessarily inform and perhaps moot our analysis of many class certification issues."

In concluding that the class certification was "premature," the court sent the case back to New York district court, where Google will be able to press its fair use defense.


Read the decision here: http://www.ca2.uscourts.gov/decisions/isysquery/d81662ba-45b4-4c1a-912c-8195ee8ec0ad/1/doc/12-3200_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/d81662ba-45b4-4c1a-912c-8195ee8ec0ad/1/hilite/

July 10, 2013

Entertainment Attorney Sought for Teaching Position

LIU/Post Campus (Brookville) seeks an entertainment lawyer to teach a 3 credit undergraduate course in "Legal Aspects of the Arts and Entertainment Industries" to undergraduate arts management students.

This course is an introduction to entertainment law, specifically to the role of contracts, copyright and the Constitution in the arts and entertainment fields. Emphasis will be placed on practical aspects of arts and entertainment law so that students studying arts management will learn the vocabulary utilized by entertainment lawyers and the principles of the major working areas of entertainment law.

If you are interested in the position, please send a résumé and names/phone numbers of three references via email to:

Robert Wildman
Associate Professor and Director, Arts Management program Department of Theatre, Film, Dance and Arts Management School of Visual and Performing Arts LIU Post (Long Island University / C.W. Post)
720 Northern Boulevard
Brookville, NY 11548
(516) 299-2353 (department office)
(516) 299-2104 (direct line, erratic voice mail)
(516) 299-3824 (fax)

July 12, 2013

Week in Review

By Martha Nimmer

A Bad Apple

Following a June trial, Southern District Judge Denise Cote ruled on Wednesday that Apple violated antitrust laws when the company fixed e-book prices with five major publishers. Judge Cote wrote, "the evidence is overwhelming that Apple knew of the unlawful aims of the conspiracy and joined the conspiracy with the specific intent to help it succeed." Assistant attorney general William Baer hailed the decision as "a victory for millions of consumers who choose to read books electronically." The major publishers involved in the suit -- Simon & Schuster, Inc., HarperCollins Publishers, Inc., Penguin, Hachette Book Group and Macmillan -- previously settled with the federal government.

The Department of Justice commenced the suit in April 2012, claiming that Apple had "acted as the 'hub' in a hub-and-spoke conspiracy to move the book industry from a 'wholesale' model dominated by Amazon.com to an 'agency' model where Apple and other e-retailers would take commissions." To effect that change, Apple first met with publishers in December 2009, and discussed moving to the agency model that included "use of most favored nation clauses--an arrangement that enabled the publishers to force Amazon, then dominating the market for e-books with its Kindle reader, to switch from its wholesale model to the agency model." Eventually, the publishers and Apple agreed on a plan wherein Apple would sell e-books and take a 30 percent commission, thereby, according to Judge Cote, "ensur[ing] that Apple would make a profit from every e-book sale in its iBookstore without having to compete on price." The publishers also convinced Google to move to that same model in late January 2010, just as Apple was introducing the iPad and the iBookstore.

Disputing the government's claims, Apple tried to argue that evidence of "rapid-fire negotiations with publishers were contentious," thereby extinguishing any notion that there was a meeting of the minds necessary to form a conspiracy. Judge Cote rejected that argument, however, writing that tense negotiations do not "preclude a finding of liability." In its closing argument, Apple tried to convince the judge that "Apple should be applauded and not condemned for its beneficial impact on the e-book market." Unmoved, Judge Cote concluded that "in any event, the Plaintiffs have shown that the Agreements did not promote competition, but destroyed it."

The case will now move to a new phase, where a judge will decide Apple's penalties for participating in an antitrust conspiracy. Adding to Apple's legal troubles is the fact that the tech powerhouse is currently being pursued by various states attorney generals who are seeking damages on behalf of customers who paid inflated e-book prices.

Executives and attorneys in the tech industry are likely to study this ruling closely, particularly because books, movies and music are now increasingly sold online. That said, industry members will be looking for guidance on how to work with other companies and establish business relationships, without violating antitrust regulations.



Read the opinion here: http://www.nysd.uscourts.gov/cases/show.php?db=special&id=306

Think Before You Post

The next time you say that a beauty pageant is rigged, don't. That is the lesson being learned by Sheena Monnin, the former Miss Pennsylvania USA 2012, who claimed on Facebook and the Today Show that the 2012 Miss USA pageant followed a "script" directing the final 16 contestants and the top five finishers. Now, Monnin must pay a $5 million damages award for defamation.

After winning the title of Miss Pennsylvania USA in 2012, Monnin "signed three contracts with Randy Sanders of Sanders & Associates, which owns the franchise for the Miss Pennsylvania USA pageant." One of the contracts contained an arbitration clause that required any dispute arising between the beauty queen and the Miss Universe organization to be resolved in arbitration. Despite this requirement, Monnin's attorney, Richard Klineburger, inexplicably refused to participate in arbitration before retired Magistrate Judge Theodore Katz in 2012.

During the opening scenes of the televised beauty pageant, 51 contestants assembled on the stage. That number, however, rapidly fell to 16, based on preliminary scoring. Monnin was one of the dismissed contestants, but she did not go quietly. While waiting to return to her dressing room, Monnin alleged that Miss Florida USA, Karina Brez, told Monnin that she (Brez) "had seen a paper in a notebook with a list of the top five finishers already written out." Incensed, Monnin texted the owner of the Miss Pennsylvania USA franchise, writing "[t]his is f-ing rigged Randy. I'm done. This is ridiculous," and "[i[t's so obviously rigged so the girl they want can shine; they kept several beautiful girls out for that reason." Monnin eventually resigned from the pageant, but her outrage did not abate: "a media frenzy was triggered that same day when Monnin went public with her allegations in a Facebook post and then posted them again on June 5."

Following her comments on Facebook, Monnin received a hand-delivered letter from Miss Universe, stating its intent to "assert claims for her false and defamatory statements." Monnin, however, did not keep quiet, eventually appearing on the Today Show for an interview with Ann Curry, during which Monnin repeated her allegations about what Miss Florida USA had told her backstage. Fed up, Miss Universe took Monnin to arbitration, seeking $10 million in damages. The defendant, however, did not attend the arbitration because her legal counsel claimed that she was not obligated to arbitrate because she had resigned from her contract in June 2012. The arbitrator issued his award in December of last year, writing that Monnin's comments about "rigging" caused "the Miss Universe organization to lose a $5 million site fee from BP to sponsor the 2013 Pageant on the Gulf Coast." The arbitrator added that Monnin's comments on Facebook and the Today Show were "obviously harmful to MUO's business" and made with "actual malice."

Monnin, who finally got herself new legal counsel, appeared before presiding Judge J. Paul Oetken last month. The defendant claimed that her previous attorney told her that "she was not bound by any agreement to arbitrate and that [Monnin] need not respond to any communications" from the arbitration service. Monnin added that her previous attorney also failed to keep her apprised of the situation, and she therefore lacked notice of the arbitration. Unfortunately for the former Miss Pennsylvania USA, the judge rejected the notice argument: "[w]hile it is unfortunate and perhaps unfair that Klineburger, likely in violation of the Model Rules of Professional Conduct, failed to communicate with his client for several months, despite receiving repeated entreaties and status updates regarding the Arbitration, it is well established that notice to an attorney constitutes notice to the represented client."

So with that, remember: think before you post, think again before you go on the Today Show, and definitely think harder before you choose not to participate in arbitration.


Heads Up on the NFL Concussion Case

U.S. District Court Judge Anita B. Brody has ordered the National Football League (NFL) and the former players suing the NFL over concussion-related injuries to mediate. Layn Phillips, a retired federal judge, will serve as the mediator in the case. Judge Brody originally planned to rule on the NFL's motion to dismiss on July 22. Her decision to send the case to mediation "signals a belief that a settlement is possible with continued negotiations," writes NFL.com. The judge has indicated that she would not rule on the motion to dismiss until September 3, so as to give the mediator sufficient time to hear the case and work with the parties. She also issued a gag order for both sides.

As mediator, Phillips will meet jointly with the lead counsel for both parties to the dispute, with each side giving a presentation highlighting the merits of its case and the drawbacks and weaknesses of the other side's position. At that point, Phillips will meet individually with each side and attempt to "create a situation where a deal can be struck."

Readers will recall that the former professional football players have alleged that the NFL "concealed for years and even decades" what it knew about the long-term effects of repeated impacts to the head. Unsurprisingly, the NFL has rejected that claim, adding that it issued warnings in line with medical knowledge available at the time. The NFL also points to a collective bargaining agreement negotiated between it and the players, which governs player safety.

It remains unclear how this case will evolve. At the end of the summer when the mediator reports back to Judge Brody, he will hopefully have a proposal worked out between the parties. On the flip side, the mediator may request more time to work out an agreement between the NFL and the former players, or may come up empty handed, thereby sending the case back to court. If the case does, in fact, return to court, the judge may decide to rule on the NFL's motion to dismiss, urge the parties to settle, or commence discovery. Undoubtedly, the NFL, the thousands of former players affected by the suit, and the countless observers and fans across the nation will be monitoring the case closely.



July 14, 2013

Kickstarter and the DMCA: Harper Collins Stops Proposed Sequel to Where the Wild Things Are

By Adam Beasley

After receiving a DMCA takedown notice from HarperCollins Publishers, Kickstarter has removed a campaign (http://www.kickstarter.com/projects/backtothewild/back-to-the-wild-an-illustrated-poem) for a sequel to Where the Wild Things Are. The campaign was started by U.K. illustrators Geoffrey O. Todd and Rich Berner to raise £25,000 for the proposed sequel entitled Back to the Wild. The sequel promised to follow the life of Max and the creatures in Maurice Sendak's classic 30 years into the future.

The authors claim to have "been very careful not to impinge on Mr Sendak's copyright and have taken the necessary legal advice around this whole project." However, HarperCollins, the publisher of Maurice Sendak's preeminent work, was not impressed by the project and sent a DMCA takedown notice to Kickstarter last week. The notice claims that the project will infringe its copyrights in the "characters, scenes and copyrightable elements of the original work." http://www.kickstarter.com/dmca/back-to-the-wild-inspired-by-where-the-wild-things

For HarperCollins, this situation seems fairly clear. It owns the rights to Sendak's work and did not give the U.K. duo permission to create a sequel. Despite the care taken by Todd and Berner, the planned sequel would likely qualify as a derivative work under U.S. copyright law if the same characters were used.

However, in a strange and muted twist to this whole situation, it would also appear that HarperCollins is abusing the DMCA takedown process. The DMCA was created to ferret out actual copyright infringement, not the perceived threat of ancillary infringement. Abuse to the DMCA notice and takedown framework is widespread and has been for many years. Unfortunately, these abuses, like the one at issue here, could have potentially disastrous consequences for creators and free speech. After all, by issuing a takedown request, HarperCollins has effectively restrained speech before it was made. American public policy disfavors such prior restraints. Since Todd and Berner's book has yet to be written, it is unclear whether the authors could claim a fair use exception for their work. Whether they would succeed in court under a fair use theory is up in the air, but by restraining the creation of the book, there is no way to analyze the issue.

Hopefully, this will not effect the robust crowdfunding community Kickstarter has created. Crowdfunding is great for innovative and risky art forms. But to those artists using Kickstarter to create works protected by Fair Use, this is a warning sign.

Adam Beasley is an entertainment and intellectual property attorney in New York City. He can be reached at www.adambeasleylaw.com A previous version of this post can be found at http://adambeasleylaw.com/kickstarter-removes-where-the-wild-things-are-project/.

July 18, 2013

Child Model Legislation

by Anny Mok and Lisa Willis

On Wednesday, June 12, 2013, a bill recognizing runway and print models under the age of eighteen as "child performers" passed both houses of the New York state legislature. See a summary of the Assembly bill here. The bill is awaiting Governor Cuomo's signature to officially become law. Previously, New York law recognized child actors, writers, musicians, comedians, and dancers as "performers," but not models. Models were excluded from this category, although the statute defined a performer as someone who "renders artistic or creative services."

While the NYS Department of Labor protects other child performers through regulations regarding education, health, and finances, some argue that child models, who are covered by the Department of Education regulations, did not receive comparable protection. Supporters of the bill contend that this limited protection, and under-enforcement of the existing Department of Education regulations, have led to systemic unsatisfactory working conditions and harmful outcomes for this vulnerable group, including onerous work schedules, lack of financial transparency, models foregoing their education, development of eating disorders, and sexual harassment and abuse.

With the new bill, child models will now receive the same protections and benefits afforded other child performers, includingchaperones for models under sixteen, tutors, limits on work hours and mandatory trust accounts.

The Model Alliance, a not-for-profit organization that advocates for improvement in the working conditions of models, and co-sponsor of our On the Heels of the Week event, was the primary force behind the new bill. Sara Ziff, model and founder of the Model Alliance, participated on our panel, as did Paula N. Viola, an FLC member, former model, and Model Alliance supporter and Doreen Small, a member of the Model Alliance advisory board. Sara, Paula and Doreen all appeared at the press conference announcing the legislation. To view the press conference and for more information about the legislation, visit the Model Alliance's website at www.modelalliance.org.

For more information and background about the issues facing young models, see Craig Tepper's article in the upcoming Summer issue of the EASL Journal.

Unpaid Internship Lawsuits

By Nadine Etienne

There has been a rise in the fashion industry of individual and class action lawsuits brought by and on behalf of unpaid interns. On February 1, 2012, a class action was filed against Hearst Corporation in the Southern District of New York on behalf of a class of unpaid interns, alleging violations of federal and state labor and employment laws. The plaintiffs interned at various magazines under Hearst Corporation such as Harper's Bazaar, Marie Claire, and Cosmopolitan. Judge Harold Baer from the S.D.N.Y. recently denied class certification for plaintiffs' NY Labor Law violations claim because of a lack of commonality and predominance. The only common factor among the interns who worked at Hearst since 2009 was the fact their internships were unpaid. The named plaintiffs in the Hearst case are seeking leave for appeal. More recently, on June 13, 2013, two former interns, Lauren Ballinger and Matthew Lieb, filed suit against Condé Nast in the S.D.N.Y., claiming labor violations occurring during their respective internships at W magazine and The New Yorker. Additionally, on February 15, 2013, Dajia Davenport, a former unpaid intern at Elite Model Management, filed a class action against the agency in the S.D.N.Y for $50 million for wage violations.

The Rise of Design Patents: Spanx v. Times Three Clothier

By Amelia Wong

On March 5, 2013, Spanx, Inc. filed suit in the U.S District Court for the Northern District of Georgia seeking a declaratory judgment that its tanks and camisoles do not infringe defendant Times Three Clothier, Inc.'s ("Yummie Tummie") design patents for its shapewear. The lawsuit was filed in response to Yummie Tummie's cease-and-desist letter to Spanx claiming that Spanx infringed certain design patents related to its 3-panel slimming camisole design patent.

Yummie Tummie in turn sued Spanx in the Southern District of New York on April 2, 2013, alleging infringement of six design patents.

Polo Ralph Lauren Wins Twin Matches from United States Polo Association

By Sarah Robertson, Susan Progoff, and Fara Sunderji

Two recent decisions were issued in a war that has raged on and off since 1984 between PRL USA Holdings, Inc. (PRL) and United States Polo Association (USPA). PRL and USPA have been battling for years over the right to use a logo consisting of a polo player on a horse and the word POLO as trademarks for clothing and other products. The dispute officially began in 1984, when USPA and its licensees sought a declaratory judgment against PRL that various types of merchandise bearing USPA's horse and rider logo did not infringe PRL's horse and rider logo. PRL counterclaimed for trademark infringement. The court denied USPA's request for a judgment of non-infringement and enjoined USPA and its licensees from using any confusing marks, and from making commercial use of the name UNITED STATES POLO ASSOCIATION or any other name that emphasizes the word POLO in a manner that is likely to cause confusion with PRL or its trademarks. However, the 1984 order specifically permitted USPA to conduct a retail licensing program using its name, a mounted polo player or equestrian or equine symbol that is distinct from PRL's Polo Player logo, and other trademarks that refer to the sport of polo.

In 2000, PRL brought suit against USPA and its master licensee affiliates seeking to bar the use of USPA's name and its Double Horsemen Mark on apparel and related products. This lawsuit was settled in 2003 with a settlement agreement that set forth the terms under which USPA could use its name and certain designs on apparel, leather goods and watches. The settlement agreement incorporated certain provisions of the 1984 order.

In 2009, USPA filed another complaint against PRL seeking a declaratory judgment that it had the right to sell fragrance products bearing the trademarks U.S. POLO ASSN., the Double Horsemen Logo and 1890, the year the association was founded. PRL and its licensee, L'Oreal, who intervened in the action, counterclaimed for trademark infringement and sought a preliminary injunction. On May 13, 2011, Judge Sweet in the Southern District of New York issued an opinion holding that USPA's use of a logo consisting of two mounted polo players and its use of composite word marks in which the word POLO predominated infringed PRL's marks. The May 13th opinion also found that USPA acted in bad faith in adopting its Double Horsemen mark for fragrances, and enjoined USPA's use of the Double Horsemen mark and the word POLO for fragrances and related products, in addition to enjoining its use of any PRL trademark for any product or service in a manner that is likely to cause confusion.

On February 11, 2013, the Second Circuit Court of Appeals, in a summary order, affirmed the District Court's May 13, 2011 opinion (Appeal No. 12-1346-cv). On appeal, USPA argued that the District Court erred in finding that USPA acted in bad faith in light of USPA's previously granted right to use its Double Horsemen Logo and U.S. POLO ASSN. in connection with apparel. Dismissing this argument, the Court of Appeals concluded that USPA's authorization to use the mark in one industry does not necessarily mean that it acted in good faith in using the mark in a different industry. USPA also claimed that because of the similarities between fragrances and apparel, it had the right to expand the use of its mark into fragrances. The Court rejected USPA's position. Finally, USPA challenged both the District Court's application of a presumption of irreparable harm in deciding to enter an injunction, and the scope of the injunction as excessively broad. The Court found both of these arguments to be meritless. The District Court did not rely upon a presumption of irreparable harm. Rather, it found irreparable harm in PRL losing control over its reputation and goodwill through USPA's infringement. The Court found the injunction's scope to be appropriate in view of USPA's history of repeated infringement.

At the same time the appeal was moving forward, PRL moved in the District Court to have USPA held in contempt of the May 13, 2011 injunction because of USPA's sale of sunglasses bearing the Double Horsemen Logo. The court found the injunction clearly and unambiguously prohibited USPA from using any image that is likely to cause confusion with PRL's Polo Player logo, irrespective of the product on which the logo is used. After reviewing the parties' marks, the court held that PRL showed by clear and convincing evidence that the Double Horsemen mark that USPA was using on its sunglasses was a simulation of PRL's Polo Player trademark and therefore was prohibited by the injunction. Because PRL had known of USPA's use of the Double Horsemen logo since 2010, however, the court held that PRL had acquiesced in USPA's use of that mark, a factor that was relevant to the consideration of an appropriate sanction. Due to PRL's acquiescence, the court found PRL to be entitled only to the future profits from the sale of any sunglasses bearing the Double Horsemen logo for a period of 60 days after the date of the court's order on the motion for contempt.

Anti-Counterfeiting Update

By Sarah Robertson, Susan Progoff, and Fara Sunderji

Recently, the designer Tory Burch was awarded relief in two different cases pending before the United States District Court for the Northern District of Illinois. In Tory Burch LLC v. The Partnerships and Unincorporated Associations Identified on Schedule "A," Civil Action No. 13 C 2059 (March 27, 2013), Judge Kendall granted an ex parte temporary restraining order against an inter-related group of Chinese-based individuals and business entities alleged to be working in concert to manufacture and sell counterfeit TORY BURCH merchandise, which was offered through hundreds of websites and online marketplaces. The court also authorized the transfer of the defendants' domain names to Tory Burch and froze the defendants' financial assets that were subject to the court's jurisdiction, such as PayPal accounts and other means by which the defendants received payment for their counterfeit products. As the defendants had provided false addresses to the domain name registrars, the court permitted them to be served by e-mail and electronic publication. Finally, the court granted the plaintiff's motion for expedited discovery of the defendants' bank and payment system accounts, finding good cause for such discovery because the defendants were located overseas and had gone to great lengths to conceal their identities.

In the second case, Tory Burch LLC v. The Partnerships and Unincorporated Associations Identified on Schedule "A," Civil Action No. 13-cv-1396 (April 8, 2013), the court entered a default judgment against a group of defendants who were selling counterfeit TORY BURCH merchandise online. In addition to granting the same kind of injunctive relief to Tory Burch, the court in this case awarded the plaintiff statutory damages of $2 million from each defendant, and directed that all monies held by PayPal in the defendants' accounts be released to the plaintiff as partial payment of the damages award. The plaintiff also received ongoing authority to serve the court's order on any banks, other financial institutions and financial service providers in the event that a new account controlled by the defendants is identified and, upon receipt of the court's order, the financial institution or provider is required to transfer any funds in any such account to the plaintiff.

Adidas and Reebok obtained similar relief from the United States District Court for the Southern District of Florida in Adidas AG v. Adidascrazylight2.com. Civil Action No. 13-21230-CIV-ALTONGA (April 16, 2013), in which Adidas and Reebok sought a temporary restraining order and preliminary injunction against a series of partnerships and unincorporated associations that operate websites selling infringing ADIDAS and REEBOK merchandise. The court granted a temporary restraining order prohibiting the defendants from advertising or selling counterfeit or infringing merchandise and from disposing of any products or evidence relating to the manufacture or sale of such merchandise. In addition, the court directed the defendants to discontinue all use of the plaintiffs' trademarks in connection with the defendants' websites, and in any domain names, metatags, source code, advertising links, search engines' databases or cache memory, and in any other form that is visible to computer users. The defendants were also enjoined from transferring the domain names in issue during the pendency of the lawsuit and the domain name registrars were directed to transfer the domain names to the plaintiff for deposit with the court. The court further ordered the privacy services for the domain names in issue to disclose the owners of the domain names to the plaintiff.

Those Red Soles are Back in Court

By Sarah Robertson, Susan Progoff, and Fara Sunderji

Earlier this month, Christian Louboutin filed another lawsuit claiming infringement of its red soles. This time, the target is Charles Jourdan Fashion Footwear, which sells shoes to retailers such as DSW and Designer Shoe Warehouse. Citing to the now famous Second Circuit opinion, Christian Louboutin S.A.S v. Yves Saint Laurent America Holding, Inc., 696 F.3d 206 (2nd Cir. 2012), the complaint declared that "The United States Court of Appeals for the Second Circuit conclusively found that Plaintiffs' marks have achieved strong secondary meaning and are entitled to be protected against infringing uses when such use, as by Defendants herein, is of a Red Sole in contrast with the remaining parts of the shoe. Thus, this is the law of the case." Christian Louboutin S.A.S v. Charles Jourdan Fashion Footwear, LLC No. 13-CV-3776 (S.D.N.Y. June 4, 2013) (internal citations omitted). The parties reportedly settled the matter on July 15, 2013.

Juicy Couture Proves U.S. Infringement, but Court Refuses Injunction Elsewhere

By Sarah Robertson, Susan Progoff, and Fara Sunderji

Juicy Couture recently brought suit in the United States District Court for the Southern District of New York against a group of six defendants, five of which were based in Hong Kong, for trademark counterfeiting, infringement, and cybersquatting arising out of the defendants' use of the trademarks JUICY GIRL, JUICYLICIOUS, and JG in connection with the sale of women's clothing. Juicy Couture, Inc. v. Bella International Limited, Civil Action No. 12 Civ. 5801 (March 12, 2013). The court found that since 1995, the defendants had been operating a chain of retail stores primarily in Hong Kong, China, and Macao, in which they sold several different brands of clothing, although their primary brand was JUICY GIRL. The defendants used social media, such as Facebook, Twitter, and Sina Weibo, which was directed largely to China, to promote their products. Although the vast majority of the defendants' sales were made outside the U.S., they sold less than $3,000 of JUICY GIRL merchandise into the U.S. through their website www.juicygirl.com.hk. This website is maintained and operated in Hong Kong, but it accepts orders from around the world through PayPal.

Applying the factors from Polaroid Corp. v. Polarad Elecs. Corp., 287 F.2d 492 (2d Cir. 1961), the court held that there is a likelihood of confusion in view of the strength of the plaintiff's JUICY, JUICY GIRL and related JUICY formative marks, the similarity between the parties' respective marks, and the similarities of the products, trade channels and consumers involved. The court also found irreparable harm flowing from the plaintiff's inability to control its reputation, and that the balance of hardships tipped in the plaintiff's favor in view of the small volume of the defendants' sales that take place in the U.S. Accordingly, the court granted a preliminary injunction against the defendants' use of the JUICY GIRL mark in the U.S.

The plaintiff also sought an order disabling the defendants' Hong Kong website. Although one of the six defendants was based in the U.S., that defendant did not exercise any control over the defendants' operations, let alone the type of control that would allow the court to ignore the foreign status of the remaining five defendants. In addition, there was a parallel lawsuit pending in Hong Kong in which the defendants claimed to be the prior users of the JUICY GIRL trademark. An extraterritorial injunction issued by the U.S. court might conflict with the defendants' valid rights in Hong Kong, an issue still to be determined by the Hong Kong court. Further, the defendants' sales in the U.S. were so minimal that they did not create a substantial effect on U.S. commerce. Based on these facts, the court denied a preliminary injunction as to the defendants' activities outside the U.S., but allowed the plaintiff to renew its request if discovery discloses facts that warrant the court's reconsideration of the issue.

FTC's Textile Rules are Changing

By Sarah Robertson, Susan Progoff, and Fara Sunderji

The Federal Trade Commission (FTC) is in the process of revising and updating its Textile Rules that operate in association with the Textile Fiber Products Identification Act, 15 U.S.C. § 70. The proposed changes may impact provisions on fiber naming, country of origin identification, e-commerce, and guarantees. Interestingly, however, the FTC is considering allowing manufacturers to create hang-tags that disclose fiber names, trademarks and non-deceptive performance claims, without disclosing a product's complete fiber content, as currently required. To prevent consumers from being misled about the limited amount of information presented on such hang-tags, the FTC has proposed a requirement for manufactures to include a disclaimer, such as "This tag does not disclose the product's full fiber content,'' or ''See other label for the product's full fiber content." The FTC sought public comments on all of the proposed changes through July 8, 2013.

FCPA Investigates Actions Against Ralph Lauren

By Sarah Robertson, Susan Progoff, and Fara Sunderji

On April 22, 2013, the U.S. Department of Justice (DOJ) and the U.S. Securities and Exchange Commission (SEC) each announced that Ralph Lauren had resolved parallel investigation actions brought against it under the Foreign Corrupt Practices Act (FCPA). Ralph Lauren's pro-active self reporting and cooperating with the SEC made the process go as smoothly as possible.

The charges stemmed from alleged actions taken by Ralph Lauren's indirect, wholly-owned, subsidiary in Argentina. Over a five-year period beginning in 2003, the subsidiary allegedly retained a customs broker to assist with clearing its merchandise. During that period the General Manager of the subsidiary allegedly approved the payment of bribes to permit clearance of items without the necessary paperwork, of prohibited goods and to avoid inspections.

Ralph Lauren learned about the conduct in 2010 when implementing a new FCPA policy under the direction of its board of directors. After employees reviewed the new policy, they informed company officials. The company then terminated its custom broker and took a series of steps which included: 1) amending its anti-corruption policy; 2) enhancing due diligence procedures for third parties; 3) enhancing its commission policy; 4) amending its gift policy; 5) conducting in-person anti-corruption training for certain employees; and 6) eventually terminating its retail operations in Argentina.

Ralph Lauren also cooperated with regulators. The company self-reported, produced all documents, voluntarily furnished translations of documents, made witnesses available for interview, and conducted a world-wide risk assessment.

Under the terms of the DOJ non-prosecution agreement, Ralph Lauren agreed to pay a penalty of $882,000. Under the terms of the SEC agreement, the company agreed to pay disgorgement of $593,000 and prejudgment interest.

While the DOJ frequently resolves anti-corruption actions under non-prosecution agreements, this represents the SEC's first ever non-prosecution agreement in the FCPA context.

Following the investigations, Argentinean tax authorities asked for the names of the Argentinean government officials involved to assist with their own criminal investigation, thus indicating the FCPA's global impact.

July 19, 2013

Week in Review

By Martha Nimmer

Playing the Plaintiff

Six current college football players have joined the Ed O'Bannon/NCAA antitrust lawsuit, which hopes to turn the "economic model of big-time college sports" on its head, by forcing the NCAA and its member conferences to share revenue with their players. In June, Judge Claudia Wilken asked the plaintiffs to add a current player to the suit; later this summer, the judge will rule on whether to certify the class of current and former players, which would pave the way for it to pursue its claims as a group instead of as individuals.

The newest members of the O'Bannon suit, all of whom are seniors at BCS schools, hail from top football programs. The current football players who have joined the suit include Vanderbilt linebacker Chase Garnham; Clemson cornerback Darius Robinson; linebacker Jake Fischer and kicker Jake Smith from Arizona; tight end Moses Alipate and wide receiver Victor Keise of Minnesota. These athletes "join a roster of 16 former NCAA athletes, including former UCLA basketball player Ed O'Bannon," according to CBS Sports. In joining the suit, originally filed in 2009, the players greatly increase the chances that damages in the suit could hit upwards of a billion dollars. Yes, billion.

As detailed in an earlier post, the O'Bannon suit argues the NCAA, EA Sports and Collegiate Licensing Co.--the nation's leading trademark and licensing firm--violated antitrust laws. The suit also accuses the NCAA of "fixing at zero the amount that players can receive from video games and other products that use players' names, likenesses and images." The plaintiffs later amended their lawsuit, asking that current NCAA athletes be included in the suit, arguing that they deserve to share in the billions of dollars of revenue that are earned by the NCAA, their conferences and member schools.



Former Penn State President Sues Former FBI Director

Louis Freeh, the former director of the FBI who led an investigation into the Jerry Sandusky sex abuse cover-up, will soon be facing legal action from former Penn State University President Graham Spanier. According to the cover sheet filed along with the five-page notice, Spanier is suing Freeh for "slander, libel or defamation." Readers will recall that Freeh's seven month-long investigation "placed Spanier at the center of the cover-up" of the sex abuse scandal that rocked the university these last few years. Specifically, Freeh concluded in his investigation that Spanier, former head football coach Joe Paterno, and two other senior school officials "hid critical facts surrounding Sandusky's abuse." Spanier and Paterno were fired in November 2011. Paterno died last January. Sandusky, who was convicted in June 2012 of 45 criminal counts, is serving a minimum 30-year sentence.

Spanier's decision to sue Freeh comes just eight months after Spanier's being charged in November with endangering the welfare of a child in connection with a 2001 allegation against Sandusky. Timothy Curley, a former Penn State athletic director, and Gary Schultz, an ex-vice president in charge of university police, were also indicted. Both individuals, writes Bloomberg Law News, "had previously been charged with perjury in connection with the 2001 incident." Freeh's report stated that "red flags" involving Sandusky were "numerous" and that Spanier and officials ignored the warnings to avoid bad publicity.

A state court judge has scheduled a preliminary hearing for Spanier, Curley and Schultz to begin on July 29th to determine whether there is sufficient evidence to hold the men for trial.


Requiem for a Lawsuit

Yesterday, a federal judge in Mississippi ruled that the use of a nine-word quote from American author William Faulkner's Requiem for a Nun was de minimis and fair use under the Copyright Act.

The lawsuit, launched by the owners of the rights to the Faulkner works, argued that Sony Pictures' use of the quote in the Woody Allen movie Midnight in Paris violated the Copyright and Lanham Acts. Midnight in Paris stars Owen Wilson who travels to Paris and "finds himself spending time with literary greats," such as F. Scott Fitzgerald, Ernest Hemingway and Gertrude Stein. In the film, Wilson describes his amazing meetings, saying, "[t]he past is not dead! Actually, it's not even past. You know who said that? Faulkner. And he was right. And I met him, too. I ran into him at a dinner party." In Requiem for a Nun, Faulkner wrote, "[t]he past is never dead. It's not even past."

As to be expected, the presiding judge weighed the various factors that make up a claim of fair use in order to determine whether Sony's use of the Faulkner quote was permissible. In analyzing whether the market for Faulkner's famous literary work is likely to be harmed by the film, District Judge Michael Mills remarked that the film, in fact, "helped the plaintiff and the market value of Requiem if it had any effect at all." Ultimately, the court concluded that "no substantial similarity exists between the copyrighted work and the allegedly infringing work, and Sony's use in this matter was de minimis. The use is not actionable, and this claim is dismissed." Judge Mills, according to The Hollywood Reporter, also added that Sony's First Amendment rights superseded any Lanham Act claim that the film misled viewers into believing that there was an endorsement or connection with the famous writer's estate.


Read the opinion here: http://www.scribd.com/doc/154578618/Faulkner-Requiem

First the Devil, and Now Netflix

T. Allen Chey, the creator of the film, Suing the Devil, now has a new enemy: Netflix. Chey, who is also an attorney, accuses Netflix of "the most egregious act ever committed by a film distributor," i.e. declining to stream his movie. The outraged director wrote in his complaint, filed in Los Angeles federal court, "[i]t is a well-known fact in Hollywood that independent filmmakers and artists are constantly mistreated, scammed, and abused by film distributors of all sizes . . . . This case takes the worst 'Scam-the-Artist' to a new low."

In his complaint, Chey argues that Netflix used Suing the Devil to "lure" subscribers "both old and new," and "deprive him of traditional moviegoers, who can wait for Netflix to stream the movie or offer it on DVD." After its limited August 2011 theatrical release, Suing the Devil became a hit on Walmart's movie streaming service, Vudu, and was distributed through Redbox DVD kiosks. Netflix, according to the complaint, refused to make the title available to its subscribers. Chey claims that Netflix "never intended" to stream the movie, and "purposefully and methodically uses the image of a filmmaker's work to bring that customer base in to sell to their own subscription base." Chey then goes on to state that he was "extremely shocked" when Netflix refused to distribute his film; the plaintiff claims the "enormous damages" it caused him are "incalculable at raw glance."

Seemingly unaware of the outrageousness of his comments, Chey goes on to claim that he is on a mission to "protect innocent filmmakers from having to go through what he endured." To further that crusade, Chey has asked a judge to grant TMZ, Variety, The Hollywood Reporter and The Wrap unrestricted access to cover his anticipated "obvious and complete victory" in court. Yes, he actually wrote that. To conclude, Chey calls Netflix's actions "the most egregious, humiliating, discriminatory acts" in the history of film distribution, and goes on to state he has never seen such "horrific conduct." Really?

Chey seeks a $10 million judgment, a figure that may seem low to some readers, in light of his supposed outrage. He also seeks damages for fraud and deceit, intentional misrepresentation, negligent misrepresentation, unjust enrichment, copyright infringement, intentional infliction of emotional distress, and interference with prospective business advantage.


Frozen Yogurt Fraud?

According to a lawsuit filed this week, the Food Network's new reality show, "Giving you the Business", does not actually "give you the business," much to the disappointment of the lawsuit's plaintiff, Kris Herrera.

The show, which premiered on April 25th this year and just wrapped its first season, features food service workers who must face new and unusual challenges at their restaurants. The employees are unaware that they are being filmed by hidden cameras. Whoever handles the situation best wins his or her own franchise of the episode's featured restaurant. Herrera won the "Giving You the Business" episode that aired on May 23rd and featured the New York frozen yogurt franchise 16 Handles. Herrera, who managed a New York City 16 Handles, says in his complaint that he was "repeatedly promised his own 16 Handles location." Instead, however, Herrera says that he received a single, non-transferable, non-voting share of common stock in the frozen yogurt company's parent, and nothing else. Unhappy, Herrera sued the Food Network and its parent company, Scripps Network, on Tuesday in New York court. Herrera also named 16 Handles founder Solomon Choi and parent companies Yogurt City and Yo Fresh and Food Network producer Cineflex as defendants.

According to the complaint, when the May 23th episode finished filming, the network "began advising [Herrera] that he was going to be awarded only a 'part of a franchise' or a 'stake in a franchise.'" Herrera's questions about what, exactly, he would receive went unanswered, ultimately culminating in his receipt of a single share of the above-described stock.

Herrera has sued for breach of contract, fraud and violation of his right to privacy and publicity.



Battle of the Bands

Even decades after their breakup, the Beatles remains one of the most popular and iconic musical groups in the world. Hoping to capitalize on that popularity, numerous tributes bands have formed to honor the British group. Now, instead of harmonizing on stage, two of those tribute groups find themselves doing battle in a New York courthouse.

This battle of the tribute bands arises from the premier of the musical, "Let It Be", set to begin next week on Broadway. The creators behind another tribute show, "Rain", have filed suit against "Let It Be's" producers, claiming copyright infringement. "Rain" appeared on Broadway for nine months from 2010-2011. The suit claims that "Let It Be" "owes a significant debt to "Rain," from the musical arrangements to the between-song patter to the mop-toppy wigs," writes The New York Times. Additionally, the suit alleges "[a]ll but 3 of the 31 songs in "Rain" are also in 'Let It Be,'"and "the artwork used as background during the performance of many of those songs are similar or identical." Notably, the plaintiffs have not tried to interfere with the running of "Let It Be" in London, but instead, ask for a 50-50 split of show revenue. The suit also seeks that the Rain Corporation be listed as a joint author of "Let It Be". According to the suit, the Rain Corporation and the defendants originally agreed to create a music production in 2005. In 2009, however, the agreement was modified as a "'50-50 percent partnership' for what was then called 'Rain -- A Tribute.' The parties involved were all listed as producers of the Broadway production of 'Rain.'" The complaint further states that the Rain Corporation supplied the producers of "Let It Be" with "Rain's" "script and blocking, sent 'Rain' cast members to Nevada for 'Let It Be'" rehearsals and also "oversaw the cast's costume fitting and wig cutting/styling."

The 2009 agreement detailed above expired two days before "Let It Be" began in London in September 2012. According to the lawsuit, "Let It Be" producers later "sent an e-mail saying that the 50-50 partnership agreement no longer pertained and that the "Rain" creators were now entitled to 7.125 percent of the revenue." Overall, the Rain Corporation suit seeks to maintain the original revenue distribution for the Broadway production and subsequent productions of "Let It Be".

Hopefully, the bands can get out of the courtroom sooner rather than later and return to the stage, Sgt. Pepper costumes and all.


July 29, 2013

Week in Review

By Martha Nimmer

From MVP to SWP (Suspended Without Pay)

Major League Baseball (MLB) announced that Milwaukee Brewers outfielder Ryan Braun had been suspended without pay for the rest of the season. Braun will miss 65 games during his suspension. He has earned $9.61 million this season, but the suspension will cost him $3.85 million in salary. Previously in 2012, baseball commissioner Bud Selig unsuccessfully attempted to suspend Braun for a urine sample that tested positive for elevated levels of testosterone. An arbiter ruled, however, that the sample had been mishandled, ultimately leading to Braun's successful appeal of the suspension.

Braun, the former 2011 National League MVP, is the first player suspended following MLB's Biogenesis investigation, although the commissioner's officer did not indicate that the suspension was related to the investigation. Earlier this year, the names of more than 80 MLB players, including Alex Rodriguez, Bartolo Colon, Nelson Cruz and Melky Cabrera, appeared in documents from the now closed Miami clinic founded by Tony Bosch. Braun's suspension now raises a number of legal and financial concerns for the players implicated in the Biogensis scandal. Sports lllustrated's Michael McCann summarizes some of the issues that Braun and his fellow players may face.

Firstly, McCann writes, the Brewer outfielder can breath a (small) sigh of relief: Braun will likely avoid criminal charges arising from his purchase of performance enhancing drugs (PED). Braun has been careful not to mention specifics about his use of PEDs--instead, Braun merely points out that he "made some mistakes" and is far from perfect. The baseball player may have a tougher time, however, avoiding a defamation action. As part of Braun's effort to challenge a positive drug test result in 2012, Braun, according to McCann, "attacked the character of the test collector, Dino Laurenzi Jr. in February 2012." Braun could argue, however, that he was only stating his opinion of Laurenzi, and not airing false facts about the test collector.

The most challenging issue confronting Braun at this point is the Brewers' ability to void his contract. According to Sports Illustrated, the team is "set to pay Braun $133 million over the next eight years as part of a 2011 contract extension." If the Milwaukee team decided to void the player's contract, the team "would likely cite two paragraphs in the Uniform Player Contract. Paragraph 7(b)(1) allows for contract termination if a player "fails, refuses or neglects to conform his personal conduct to the standards of good citizenship and good sportsmanship or to keep himself in first-class physical condition or to obey the club's training rules.' Paragraph 7(b)(3) allows the club to do the same if a player 'fails, refuses or neglect to render his services hereunder or in any manner materially breach this contract.'"

Whatever Braun's fate is, legally and professionally speaking, it is likely that his problems are far from over.



Stupid and Stupider

Believe it not, there is a legal battle unfolding over who will get to make the sequel to Dumb and Dumber. Brad Krevoy and Steve Stabler, who produced the 1994 movie, have filed counterclaims against the company seeking to exclude them from a sequel that will again star Jim Carrey and Jeff Daniels.

The controversy began earlier this month, when Red Granite Pictures filed suit in Los Angeles Superior Court against Krevoy and Stabler, seeking to keep out the pair from "any involvement as producers" in the upcoming movie. According to Red Granite, run by Riza Aziz and Joey McFarland, the company has "no contract with Krevoy and Stabler for what the company is calling Dumb and Dumber To." The original Dumb and Dumber was distributed by New Line and Warner Bros.

Now, the defendants are fighting back. Stabler and Krevoy's counterclaim, filed this week, disputes the plaintiffs' contention that no agreement exists between Red Granite and Krevoy and Stabler. In the counterclaim, the defendants point to the contract they signed for the first film, which "entitled them to $600,000 in producer fees, a hard floor of 15 percent of net profits and a 25 percent royalty on video revenues." Further notable is the fact that the first agreement gave Stabler and Krevoy a "right of first negotiation for sequels and remakes on terms at least as favorable as their terms for producing the Original." This term, according to the defendants, is a standard clause in the entertainment industry that paves the way for producers to get paid "even if the studio decides to hire another producer for the sequel, so long as the producer is willing and able to produce the sequel."

The defendants also call into question whether McFarland and Aziz will honor any of their commitments to the "key talent" working on Dumb and Dumber To. The defendants also make it known that they doubt the Red Granite pair can even pull off a sequel: "Red Granite will not succeed with money alone because McFarland's and Shahriz Bin Abdul Aziz's experience producing motion pictures during their short tenure in the industry consists of cavorting at nightclubs with Paris Hilton and making dinner reservations at posh nightclubs in New York and Los Angeles." That, however, may be all the skills the Red Granite producers need to make a film called Dumb and Dumber To.



American "I"-Strain

Ten former contestants on American Idol have sued the popular reality competition show. Named as defendants in the suit are Fox Broadcasting, executive producer Nigel Lythgoe and many of Idol's corporate sponsors, including Ford Motors, Coca-Cola and AT&T. The suit, authored by the contestants' attorney James H. Freeman, numbers in the hundred of pages--429, to be exact. The complaint begins with a quote from former U.S. Supreme Court Justice Thurgood Marshall, and then provides an overview of Enlightenment and the founding of the United States, just in case the presiding judge needs a refresher course on American history.

Joking aside, what distinguishes this action from other discrimination suits filed in the entertainment industry is "the alleged way that producers have obtained, disseminated and exploited the criminal background of the show's black contestants," writes The Hollywood Reporter. In other words, the suit claims that the defendants used the plaintiffs' criminal records as a way to reinforce pernicious stereotypes: "Rather than allow them to compete for the valuable prizes on the basis of their individual merit as artists, the program's top senior executives, British showrunners Nigel Lythgoe and Ken Warwick ran interference on them, sabotaging their promising careers as recording artists and gutting them of the opportunity they rightfully earned to become the next American Idol. Why? Because the Plaintiffs' identities could be used to scandal-monger Nielsen ratings while reinforcing the age-old stereotype of the 'black criminal'."

The goal of this behavior was to "systematically disqualify and publicly humiliate . . . virtually every top-ranking Black American Idol contestant who had a record of arrest (no matter how petty the alleged crime and no matter whether there was a conviction or an acquittal)." In contrast, states the complaint, the criminal records of Caucasian contestants were rarely made public, and if they were, the Caucasian contestants were "championed as models of redemption." This differing treatment, according to the complaint, helped Caucasian contestants prevail over the disqualified Black contestants on the program. The suit also alleges that White show participants were permitted to sing any songs of their choosing, while Black contestants were pushed to choose songs from the jazz or hip-hop genres.

Ambitious and sweeping though this lawsuit may be, it may not be long for this world: one of the first challenges that the plaintiffs will have to confront is whether a New York federal court has jurisdiction over the case. Before appearing on American Idol, the contestants signed various agreements, which likely included an arbitration clause that would typically require contestants to go to arbitration to settle disputes. The plaintiffs aver, however, that the agreements made with American Idol should be rescinded as "highly oppressive, unconscionable Willy Wonka contracts."


Read the complaint here: http://www.scribd.com/doc/156189462/Andrews-vs-Fremantle

About July 2013

This page contains all entries posted to The Entertainment, Arts and Sports Law Blog in July 2013. They are listed from oldest to newest.

June 2013 is the previous archive.

August 2013 is the next archive.

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