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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.


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This page contains a single entry from the blog posted on July 19, 2013 8:27 AM.

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