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Week In Review

By, Michael B. Smith

Supreme Court Justice Antonin Scalia Died at Age 79

For an excellent obituary, see http://www.nytimes.com/2016/02/14/us/antonin-scalia-death.html.

Mets Pitcher Strikes Out

Mets pitcher Jenrry Mejia has become the first baseball player to receive a lifetime ban from Major League Baseball (MLB) for failing three doping tests in less than a year. Mejia was suspended for 80 games last July, when he tested positive for anabolic steroids. Just weeks after returning from that suspension, he again tested positive and was suspended for 162 games. Mejia was still serving that suspension when he failed a third test, and the MLB issued a lifetime ban. As a result of those suspensions, Mejia forfeited much of his $2.4 million salary for 2015 and all of his $2.6 million 2016 salary.


Fox News Settles 9/11 Photo Copyright Dispute

A trial that was scheduled to start last Tuesday in the Southern District of New York (Hon. Edgardo Ramos) over Fox News' allegedly infringing use of an iconic photograph, did not go forward, when the parties settled "on the courthouse steps." Plaintiff North Jersey Media Group, which owns the rights to the famous photograph of firemen raising a flag at the World Trade Center site, sued Fox News for posting the photo on two hosts' Facebook pages without permission. The terms of the settlement are confidential.


Second Circuit Upholds Sanctions Against TV Streaming Company for Post-Aereo Distribution

The Second Circuit affirmed a contempt judgment entered by the Southern District of New York against video streaming company FilmOn for violation of a stipulated injunction that prevents FilmOn from streaming the major broadcast networks' copyrighted content. After consenting to the injunction in 2012, FilmOn changed its approach and began offering users on-demand access to an archive of previously televised programming. In 2013, the district court issued a contempt judgment prohibiting FilmOn from making any of the plaintiffs' content available through its new video-on-demand service. Thereafter, FilmOn deployed a new system called "Teleporter," which -- similar to the system used by Aereo -- leveraged a remote storage DVR system that was, at the time, permitted under Second Circuit law. The plaintiffs subsequently sought and obtained a nationwide injunction that excluded the Second Circuit. After the Supreme Court reversed the Second Circuit's decision in Aereo, FilmOn did not -- as Aereo did -- stop using the DVR-based system within the Second Circuit. The Southern District of New York again sanctioned FilmOn, for $90,000 and plantiffs' attorneys' fees.

FilmOn appealed, arguing that the injunction was ambiguous because the plaintiffs' rights under the Copyright Act were "in flux," and the Supreme Court's decision in Aereo created confusion as to whether Teleporter qualified for a compulsory license under Section 111 of the Copyright Act as a cable system. The Second Circuit rejected that argument, finding tha Aereo "explicitly slammed shut the possibility that FilmOn could continue deploying the Teleporter System throughout the Second Circuit, absence a license, without violating the Copyright Act." The Court of Appeals noted that (a) under current Second Circuit law "Internet retransmission services do not constitute cable systems under § 111" (quoting WPIX, Inc. v. ivi, Inc., 691 F.3d 275, 284 (2d Cir. 2012)); and (b) FilmOn has never obtained a Section 111 license. If FilmOn wanted to ensure that it remained in compliance with the injunction, the court admonished, it should have sought clarification or modification from the district court, and not relied on its own (erroneous) interpretation of Aereo.



Soccer Presidents Appeal 8-Year Suspensions

Last December, FIFA President Sepp Blatter and UEFA president Michel Platini were barred from the sport for eight years after FIFA's Ethics Committee found that there was no legal basis for a $2 million payment Blatter approved for Platini in 2011. Earlier this week, Platini and Blatter appeared before a four-man appeals panel to challenge that ruling. It is not known when the panel will make a decision, but FIFA will elect a new president on February 26th.


Academy Says Swag Bags Hurt Oscar

Last Tuesday, the Academy of Motion Pictures Arts and Sciences (the Academy) sued Distinctive Assets, a "celebrity placement" marketing company that provides gift bags to Academy Award nominees, in the Central District of California. The Academy alleges that Distinctive Assets, with which it has no affiliation, uses the Academy's trademarks to falsely create the impression of "association, affiliation, connection, sponsorship, and/or endorsement." The complaint points to Distinctive Assets' tweets, including "Everyone Wins At The Oscars®! Nominee Gift Bags," and cites reportage in major media outlets that link the bags to the Academy. The Academy also alleges dilution and tarnishment, citing the "less-than-wholesome nature of some of the products contained in the bags, which purportedly include a $250 marijuana vaporizer, a $1,900 'vampire breast lift'...a $250 sex toy, and $275 Swiss-made toilet paper. The lawsuit raises important issues of first impression, such as "what is a vampire breast lift?" and "can I try some of that toilet paper?"


Ninth Circuit SLAPPS Down Sergeant's "Hurt Locker" Suit

Army Sergeant Jeffrey Sarver sued the makers of "The Hurt Locker" for false light invasion of privacy, defamation, breach of contract, intentional infliction of emotional distress, fraud, and constructive fraud/negligent misrepresentation, alleging that the main character in that movie was based on his life and experiences as an Army explosive ordnance disposal technician in Iraq; that this was done without his consent; and that the film falsely portrayed him in a way that harmed his reputation. The filmmakers filed an anti-SLAPP motion to strike the complaint, which the Central District of California granted. Last Wednesday, the Ninth Circuit affirmed, finding that the film and the narrative of its central character "spoke directly to issues of a public nature," and was speech "fully protected by the First Amendment, which safeguards the storytellers and artists who take the raw materials of life and transform them into art...."


Timberlake Accused of Bringing "New Day" Back

On Wednesday, the sister of deceased musician Perry Kibble sued Justin Timberlake and Will.i.am for copyright infringement in the Southern District of New York (Hon. Vernon S. Broderick). Kibble was best known as a former member of the band "A Taste of Honey," which in turn was best known for their 1978 hit, "Boogie Oogie Oogie." The plaintiff alleged that Timberlake's song "Damn Girl (ft. Will.i.am)" off the 2006 "Futuresex/Lovesounds" album, copied a "substantial part" of the Perry-penned "A New Day Is Here At Last," including "the introduction, rhythm, harmony, melody, and 'hook'."


Court Says Kesha Can't Escape Alleged Rapist

On Friday, the New York Supreme Court (Hon. Shirley Kornreich) denied pop star Kesha's request that she be released from her recording contract with Sony Music to avoid having to work with producer Lukasz "Dr. Luke" Gottwald. Kesha sued Gottwald in 2014, claiming that he drugged and raped her when she was 18. Gottwald denied the claim and sued Kesha for extortion. Judge Kornreich determined that the "commercially reasonable thing" would be to not "decimate a contract that was heavily negotiated and typical for the industry." The contract requires Kesha to produce six more albums for Gottwald's label, Kemosabe.

http://nytlive.nytimes.com/womenintheworld/2016/02/19/kesha-ordered-by-high-court-to-fulfill-6-record-obligation-with-her-alleged-rapist/ (in which the Old Grey Lady refers to the New York Supreme Court as the "high court." For shame.)

Whose Loss? Reeves' Loss

David Reeves, aka "Davy DMX," co-authored a number of songs for Run-DMC, including "Run's House". In the late '80s, Reeves transferred all his rights in those compositions to an entity called "Rush Groove" in exchange for a share of the profits. Rush Groove subsequently transferred those rights to another entity, Protoons, Inc. In 2007, Reeves -- who had fallen on very hard times -- purported to transfer a 50% interest in the compositions to Reach Music Publishing, Inc. In 2008, Reach and Reeves sued Protoons in the Southern District of New York, alleging diversity jurisdiction, but voluntarily dismissed the case when ordered to provide facts demonstrating subject matter jurisdiction. They re-filed in state court, but that court dismissed for lack of subject matter jurisdiction under the Copyright Act.

In 2009, they went back to the Southern District (Hon. Katherine Forrest), this time alleging federal question jurisdiction. Protoons filed counterclaims, asserting Reeves' transfer of his rights to Rush Groove 20 years earlier. Reeves and Reach's claims were dismissed with prejudice in 2010. Protoons ultimately prevailed on its counterclaims, and thereafter sought punitive damages and roughly $2.25 million in costs and attorneys' fees. On Friday, the court found that punitive damages were not appropriate, despite the fact that the plaintiffs pursued claims they knew were contractually prohibited, in part because the award of attorneys' fees ($1.4 million) was sufficiently high.


Ninth Circuit Awards "Grand Theft Auto" Suit Extra Life

On Friday, the Ninth Circuit reversed the Central District's dismissal with prejudice of a putative class action against Take-Two Interactive. Plaintiffs Brian McMahon and Christopher Bengston had filed a class action complaint on behalf of "all persons who purchased the GTA V videogame in the State of California," alleging that Take-Two violated California's unfair competition (Cal. Bus. & Prof. Code § 17200 et seq.) and false advertising (Cal. Bus. & Prof. Code § 17500 et seq.). McMahon and Bengston allege that that Take-Two knew the online game would not be available at release, but failed to give consumers notice that the heavily-promoted online component would not be available right away. The district court found that the plaintiffs' allegation that they would not have purchased GTA V at a "premium price" if Take-Two had not misrepresented the availability of GTA Online was sufficient to establish the economic injury requirement for standing under the California statutes and to state a claim for restitution, but that plaintiffs' allegations that they read all the disclosures and statements on the packaging, which led them to believe that GTA Online would be available immediately, were insufficient to state a claim. The Ninth Circuit disagreed, finding that the district court erred in failing to construe the allegations in the light most favorable to plaintiffs, and abused its discretion by denying leave to amend.


Ninth Circuit Grants Gibson Encore in Spongebob Uke Suit

On Friday, the Ninth Circuit partially reversed the dismissal of a trademark infringement action brought by Gibson Brands against Viacom International, Inc. and John Hornby Skewes & Co., Ltd. (JHS). Gibson alleges that JHS infringed its "Flying V" trademarks by producing and distributing a V-shaped ukelele bearing Viacom's Spongebob Squarepants and Nickelodeon trademarks. Gibson accused Viacom of contributory and vicarious infringement. The Central District dismissed Gibson's direct claims against JHS for lack of subject matter jurisdiction, finding that Gibson had failed to satisfy the Lanham Act's "use in commerce" requirement. The Ninth Circuit reversed, citing its decision in La Quinta Worldwide LLC v. Q.R.T.M., S.A. de C.V., which was decided after the dismissal of Gibson's complaint, that the "use in commerce" requirement is an element of a cause of action, not a jurisdictional prerequisite. The Court of Appeals affirmed the district court's findings that Gibson failed to allege that Viacom exercised sufficient control over JHS's production and sale of the ukelele to be liable for secondary infringement. The court remanded the case for the district court to re-evaluate the 12(b)(6) motion in light of the La Quinta decision.


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This page contains a single entry from the blog posted on February 21, 2016 1:42 PM.

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