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Week in Review

By Martha Nimmer

A Score to Settle

Attorneys for NCAA college athletes announced last week that a settlement with Electronic Arts (EA) had been reached regarding ongoing claims that the video game maker impermissibly used players' likenesses. According to The Hollywood Reporter, a stipulation of settlement has been filed in a California federal court, and now awaits approval from U.S. District Judge Claudia Wilken. She is expected to approve the settlement.

The details of the settlement have not been made public, but the particulars are expected to include licensing payments to athletes, although who, exactly, will receive payments, and in what amounts, remain to be seen. The settlement is also expected to be of interest to many other companies in the entertainment field, "particularly television networks with billion-dollar deals with the NCAA." This potential settlement could thus end "one battle in the ongoing fight over whether amateur athletes get compensated, but it doesn't finish the larger war," writes The Hollywood Reporter.

Other legal issues still remain, however. The plaintiffs in the suit, including Ed O'Bannon, Bill Russell and Oscar Robertson, "continue to push antitrust claims against the NCAA for forcing athletes to sign waivers and allegedly enforcing group boycotts among its licensing partners." A ruling is expected soon from Judge Wilken about whether to certify a class action; additionally, the NCAA has indicated its willingness to take the case to the U.S. Supreme Court, if necessary. Steve Berman, lead attorney for EA in this litigation, indicated "[w]e are looking forward to presenting our case against the NCAA to a jury at trial. We believe the facts will reveal a startling degree of complicity and profiteering on the backs of student athletes."


"Not Liable"

A jury in California unanimously found that concert promoter AEG Live was not liable for the death of Michael Jackson. The family of the late singer sued AEG Live a year after Jackson died in June 2009, claiming that the concert promoter "negligently hired and controlled" Jackson's physician, Dr. Conrad Murray. Murray, readers will recall, was found guilty in 2011 of involuntary manslaughter for administering propofol, a sedative, to Jackson shortly before his death.

Specifically, the jury ruled that even though the defendant promoter hired Murray, he was "not unfit for his job," thereby rejecting the main premise of the lawsuit brought by Jackson's mother, Katherine, and other members of the Jackson family. AEG Live's counsel argued that there was insufficient evidence to show that it was responsible for Murray's hiring, adding that the doctor had been Michael Jackson's longtime physician, and that AEG had only "administered the relationship." Jackson's family, in contrast, attempted to show that AEG's executives were aware of Jackson's poor health, and "in advance of the planned 'This Is It' tour, placed pressures on Jackson and his team that eventually led to his death." Ultimately, however, the jury found for AEG; a legal victory for the family could have netted hundreds of millions of dollars in damages for Jackson's mother and his three children.



"Only God (and a Court) Can Judge Me"

Tupac Shakur's mother, Afeni, has re-filed a lawsuit against Entertainment One and Death Row Acquisition LLC, seeking $1.1 million in royalties and the master copies of her late son's unreleased songs. In her suit, Ms. Shakur claims that Entertainment One failed for over four years to pay her royalties for her son's works, and refused to return masters of unreleased recordings. Ms. Shakur had originally filed the same suit in federal court last year, but learned this month that an Entertainment One partner was based in Delaware, thereby eliminating "complete diversity and, therefore, the district court's subject matter jurisdiction."
Ms. Shakur became the administrator of her son's estate following his murder in 1996. She created Amaru Entertainment, which is a co-plaintiff to the instant action, to manage her son's intellectual property. According to her lawsuit, Tupac entered into a contract with Death Row Records for three albums, and released his first "long-play recording on the label," "All Eyez on Me," in 1996. Under a 1997 settlement agreement with Death Row Records, the estate "secured all rights to Tupac's Death Row master recordings and audiovisual works." The Shakur estate, in turn, agreed to accept a payment from Death Row "within 60 days of the 10-year anniversary of the agreement for one album featuring unreleased Tupac recordings," his mother claims. She added that royalties from past and future Tupac releases were part of the agreement.

Fast forward to 2003, however, and Death Row entered into a decade-long distribution deal for Tupac's recordings with Koch Entertainment. Pursuant to that agreement, Koch Entertainment was prevented from assigning distribution rights to any other party absent Afeni Shakur's approval, "unless the assignment was part of an assignment, public offering, or private placement of substantially all of Koch's assets," [emphasis added] according to the lawsuit. The record label later filed for bankruptcy in 2006, eventually leading a trustee to exercise the assignment option on the album of unreleased Tupac songs; the label then paid $100,000 to the estate, according to the complaint. In 2009, Death Row was sold for $100 million to the entertainment development company WideAwake Death Row Entertainment. The sale included Tupac's 1995 handwritten contract, the estate's agreement with the label, and the 2003 distribution agreement with Koch Entertainment, now known as Entertainment One. Ms. Shakur claims that she has given defendant Entertainment One a "29-page audit breaking down how much it owes," but the company is holding the money "hostage," and refuses to deliver her son's master recordings.

Ms. Shakur seeks an injunction, an accounting, and damages for breach of contract, breach of faith, and unfair competition.

X Marks the Trademark Violation

Don't tell ExxonMobil that copying is the sincerest form of flattery--it doesn't want to hear it.

On Wednesday, the oil giant sued FXX network in Texas federal court, alleging trademark infringement. The globally-known oil and gas corporation says it has a "design mark over a stylized EXXON and has continuously used it since 1971," according to The Hollywood Reporter. The interlocking X logo of the newly launched FXX Network--whose parent company is Fox--"is likely to cause confusion, to cause mistake, or to deceive customers and potential customers of the parties ... as to some affiliation, connection, or association of Defendants' business with ExxonMobil," according to the complaint. Although ExxonMobile fails to cite specific evidence that consumers are, in fact, confused about the source or origin of the cable TV logo, the oil company does point to a few Internet postings that are "making an association" between the ExxonMobil and FXX logos.

ExxonMobil claims trademark infringement, trademark dilution, unjust enrichment and unfair competition. The plaintiff is demanding a permanent injunction, treble damages, an accounting of Fox's profits and legal fees.

So, the next time you pull up to an Exxon station, don't expect Danny Devito from It's Always Sunny in Philadelphia to pump your gas.


Read the complaint here: http://www.scribd.com/doc/173106641/Exxon

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This page contains a single entry from the blog posted on October 4, 2013 8:33 AM.

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