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Doe v. Geller et al. |
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| Doe v. Geller et al. | |
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| John Doe, who is known publicly by the pseudonym Brian Sapient (“Sapient”), as part of his religious beliefs and mission to debunk what he alleges are “irrational beliefs and theories,” uses YouTube, a California-based file-sharing website, to “reach thousands of audience members and promote [his] activist messages and campaigns online.” As part of this campaign, Sapient uploaded a video clip that originally aired on the NOVA television program featuring an illusionist named James Randi challenging claimed psychic Uri Geller’s alleged powers. The clip Sapient uploaded contained an embedded clip, the copyright to which Explorologist, Inc., of which Uri Geller is a controlling shareholder, owns. Geller and Explorologist sent YouTube a takedown notice identifying Sapient’s post as infringing and demanding it be removed. YouTube did so and suspended Sapient’s account for more than two weeks. On May 7, 2007, Explorologist filed suit against Sapient in the Eastern District of Pennsylvania where Sapient resides alleging copyright infringement under British law. On May 8, 2007, Sapient filed suit in the Northern District of California against Geller and Explorologist, alleging violation of the takedown provisions of the Digital Millennium Copyright Act (“DMCA”), 17 USC § 512(f) (2000), claiming that Geller and Explorologist knowingly misrepresented to YouTube that one of plaintiff’s video postings infringed defendants’ copyrights. On February 4, 2008, the Northern District of California dismissed Sapient’s suit for lack of personal jurisdiction. The Court first concluded that it need not reach the difficult issue of subject matter jurisdiction presented by this case stating that no federal court has addressed subject matter jurisdiction under § 512(f) and the issue is particularly complex in this case since the defendants’ act of sending the YouTube takedown notice occurred in England and this fact was significant because United States copyright laws do not apply extraterritorially and copyright law is generally unsettled when it comes to cross-border communications. Noting that arguably an alleged violation of § 512(f) is not, itself, a copyright claim, the Court explained that treating the case as an ordinary tortuous misrepresentation or analogizing to other federal misrepresentation statutes provided “scant guidance” on how to resolve the subject matter jurisdiction question, and therefore the Court turned to the alternative ground of personal jurisdiction to decide the case. After finding no clear guidance on the “purposeful direction” prong of the California personal jurisdiction test for metaphysical Internet free speech injuries, the Court found clear insufficiency on the third prong of the jurisdiction test which is that jurisdiction must be reasonable. While defendants had the burden of showing that that the exercise of jurisdiction would be unreasonable, they did so where on balance of a seven-factor test, they showed that 1) their “purposeful interjection” into California consisted of a single takedown notice and was not aimed at a California resident; 2) there was no indication that Geller frequently traveled to California for business or had an agent in California to alleviate a foreign defendant’s burden of litigating in another country; 3) sovereignty considerations weighed against jurisdiction where the defendants were a British resident and a British corporation and the clip at issue was filmed in England; 4) the forum state’s interest was slight since Sapient was a Pennsylvania resident, not California, and California state law was not at issue; 5) the most efficient judicial resolution of the controversy was in the Eastern District of Pennsylvania where a suit was already pending; 6) plaintiff failed to show any concerns that would make California “important” to the claims; and 7) the plaintiff did not meet its burden of proving the “unavailability of an alternative forum.” Doe v. Geller et al., No. 07-2478, 2008 WL 314498 (N.D. Cal. Feb. 4, 2008) |
Litigation and Alternative Dispute Resolution Intellectual Property Business Disputes Advertising, Marketing, Publishing & Media The Arts, Entertainment & Sports |
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| Lennon, et al. v. Premise Media Corp. | |
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| Plaintiffs Yoko Ono Lennon, other Lennon family members, and EMI Blackwood Music filed suit against Premise Media Corporation, producers of the movie, “Expelled: No Intelligence Allowed” alleging claims of copyright and trademark infringement for utilizing fifteen seconds of the song “Imagine” without permission of the plaintiffs, who own the copyright to the song. Plaintiffs moved for a preliminary injunction prohibiting the continued distribution of the movie and a recall of the existing copies. However, on June 2, 2008, the United States District Court for the Southern District of New York denied that motion concluding that plaintiffs failed to make the required showing of a “clear” or “substantial” likelihood of success on the merits to obtain an injunction with both prohibitory (maintaining the status quo by prohibiting further distribution of “Expelled”) and mandatory aspects (demanding the positive act of recalling copies of the movie already distributed) because the defendants would likely prevail on their defense of fair use. The doctrine of fair use under the Copyright Act of 1976, 17 U.S.C. § 107 allows the “fair use” of a copyrighted work without the permission of the copyright owner for purposes such as “criticism, comment, news reporting, teaching …, scholarship, or research.” The Court considered the following four codified factors: “(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work; and (4) the effect of the use upon the potential market for or value of the copyrighted work.” 17 U.S.C. § 107. The court noted that the first factor, whether the use of a commercial rather than educational nature, is the “the heart of the fair use inquiry,” but is not decided merely on the consideration of whether the sole motive of the use is for monetary gain, but whether the use produces a value that benefits the broader public interest. The Court found that, in this case, while the defendants conceded that “Expelled” was a commercial film from which they sought profit, the film’s use of the copyrighted work was highly transformative and contributed to the broader public interest by stimulating debate on an issue of current political concern and therefore the commercial purpose weighed only weakly against a finding of fair use. Moreover, while defendants obtained permission for all other music used in the movie, that this fact did not evince bad faith because if the use is otherwise fair, then no permission need be sought. As to the nature of the work, while again conceding that “Imagine” is a creative work, and as such, at the “core” of copyright protection, the Court explained that because the work was widely published and the secondary work (the film) comments on the “social and aesthetic meaning” of the original, the second fair use factor has limited weight. As to the third factor concerning the amount and substantiality of the portion used, the Court found that the quantitative component “clearly favors defendants,” while the qualitative aspect was “more complicated.” The plaintiffs’ expert musicologist opined that the fifteen-second excerpt at issue contained the “heart” of the song, repeated in 48.8 percent of its total duration and immediately recognizable as being from “Imagine.” The Court found that because the song was repetitive it was not clear that defendants could have used any portion without referencing a part of the overall composition and from this alone the Court could not conclude the defendants’ use was unreasonable. Furthermore, the Court found that Supreme Court precedent had established that copying was not excessive in relation to a parodic purpose merely because the portion taken was from the heart of the copyrighted original, and in fact the criticism or commentary would be less effective if not directed at that recognizable portion of the work. Hence, the Court found the defendant’s copy quantitatively and qualitatively reasonable. With regard to the effect on the potential market value of the work, the focus of the inquiry according to the Court is whether the secondary use usurped the market of the original. The Court rejected the plaintiffs’ lost licensing revenue argument as not weighing strongly “if at all” since plaintiffs proffered no evidence showing that permitting defendant’s use would usurp the licensing market for the song. Finally, the Court found that the plaintiffs failed to show that the balance of harms tipped “decidedly” in their favor since substantial costs of reediting the movie and reprinting the affected portions were established and plaintiffs lost licensing fees were merely speculative. Lennon, et al. v. Premise Media Corp., No. 08 CV 3813 (S.D.N.Y. filed Apr. 22, 2008) A copy of the complaint can be found here. A copy of the preliminary injunction order can be found here. |
Litigation and Alternative Dispute Resolution Intellectual Property Advertising, Marketing, Publishing & Media The Arts, Entertainment & Sports |
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| FCC v. Fox Television Stations, Inc. et al | |
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| The United States Supreme Court is revisiting the issue it visited in 1978 when it narrowly upheld the Federal Communications Commission’s (“FCC”) sanction against the radio station that broadcast George Carlin’s “Filthy Words” monologue, a 12-minute monologue listing those “words you couldn’t say on the public … airwaves,” despite First Amendment arguments against the sanction. The Court in 1978 explained that while it had “not decided that an occasional expletive … would justify any sanction,” FCC v. Pacifica Found., 438 U.S. 726, 750 (1978), the monologue was nonetheless “verbal shock treatment” to which a sanction in accord with the FCC’s rule making authority to regulate “indecency,” did not violate the First Amendment. Id. at 760-761 (Powell, J., concurring). After the Pacifica case, the FCC did not sanction what it considered “fleeting” expletives, those that were not used in a sustained or repeated manner, until 2004. On March 17, 2008, the Supreme Court granted certiorari to review the Second Circuit’s ruling striking down as arbitrary and capricious under communications law the FCC’s policy shift in 2004 to regulate and sanction the broadcast of a single expletive as “indecent.” The FCC’s policy shift arose specifically after a “fleeting expletive” was delivered by pop singer Bono during an acceptance speech at the live broadcast of the 2003 Golden Globe Awards. The issue for the Supreme Court’s review is whether the FCC provided adequate explanation, or acted arbitrarily and capriciously, in shifting its policy to permit fleeting uses of expletives on broadcast television to be considered “indecent” under federal law. While the Second Circuit did not rule on the broadcasters’ constitutional challenges under the First Amendment, it did comment that it doubted that the FCC policy could withstand First Amendment scrutiny. The case has been fully briefed by Petitioner FCC and Respondents Fox Television Stations, Inc., et al., Center for Creative Voices in Media, Inc., and NBC Universal, Inc., NBC Telemundo License Co., CBS Broadcasting, Inc., and ABC, Inc. The Court has also received nine amicus briefs from the following: National Religious Broadcasters in Support of Petitioner, Morality in Media, Inc., in Support of Petitioner, Alliance Defense Fund and Family Research Council in Support of Petitioner, Center for Constitutional Jurisprudence in Support of Petitioner, Parents Television Council in Support of Petitioner, Decency Enforcement Center for Television in Support of Petitioner, American Center for Law and Justice and United States Representatives Charles Pickering, Roscoe Bartlett, Kevin Brady, Paul Broun, Danny Davis, John Doolittle, Mary Fallin, Trent Franks, Wally Herger, Jim Jordan, Doug Lamborn, Kenny Marchant, Jeff Miller, Marilyn Musgrave, Joe Pitts, Mark Souder, Tim Walberg and Dave Weldon, American Academy of Pediatrics, Benton Foundation, Children Now, National Institute On Media and the Family, Parent Teacher Association, and United Church of Christ, Office of Communications, Inc., in Support of Neither Party, and Free Press, Consumer Federation of America, Consumers Union, New America Foundation, Participatory Culture Foundation, Cuwin Foundation, Ethos Group, ACORN Active Media Foundation, Freenetworks.Org, Monroe Price, Susan Crawford in Support of Neither Party. The case is expected to be argued during the Court’s term beginning October 6, 2008. FCC v. Fox Television Stations, Inc. et al., United States Supreme Court No. 07-582 (petition for writ of certiorari granted Mar. 17, 2008) A copy of the Second Circuit Court’s opinion can be found here. Copies of the briefs can be found here for Petitioners Respondent Respondent Center for Creative Voices in Media, Inc. Respondents NBC Universal, Inc., NBC Telemundo License Co., CBS Broadcasting, Inc., and ABC, Inc. and Amicus. |
Advertising, Marketing, Publishing & Media The Arts, Entertainment & Sports |
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| Leadsinger, Inc. v. BMG Music Publishing, et al. | |
Practice Area | ||
| On January 2, 2008, the Ninth Circuit Court of Appeals, in a matter of first impression in the circuit, upheld the district court’s dismissal for failure to state a claim of Leadsinger, Inc.’s complaint for declaratory judgment against music publisher defendant BMG Music Publishing that it was entitled, by use of its karaoke device, to print and/or display song lyrics in real time with song recordings as long as it obtained a compulsory mechanical license under the Copyright Act, 17 U.S.C. § 115 or under the fair use doctrine of 17 U.S.C § 107. The Court found no viable claim under § 115 because that section only applies the compulsory licensing scheme to “phonorecords,” which excludes audiovisual works and, according to precedent, excludes the synchronization of musical compositions with the content of audiovisual works which requires a synchronization license from the copyright owner. The Court found that Leadsinger’s karaoke device met each element of the statutory definition of an audiovisual work. With regard to fair use under § 107, the Court found that no viable claim existed because Leadsinger had not alleged facts that, under the four factors considered in determining whether use of a copyrighted work is fair, could establish the use through the karaoke device was fair. Under the first factor, whether the use is commercial in nature or is for nonprofit educational purposes, the Court found the purpose of the use to be primarily commercial. With regard to the second factor, addressing the nature of the copyrighted work, it was clear that song lyrics were works of creative expression which is precisely what the copyright law aims to protect. Under the third factor, looking at the amount and substantiality of the portion used in relation work as a whole, Leadsinger was claiming the right to print or display all of the lyrics to an entire song and therefore this factor clearly weighed against fair use. Finally, with regard to the fourth factor, the effect of use upon the potential market for or value of the copyrighted work, the Court agreed with the district court’s conclusion that Leadsinger’s complaint did not permit an analysis of the effect that the sale of Leadsinger’s karaoke devices would have on the market. The Court found that while publishers have never or rarely demanded a print license for non-karaoke uses, the Court also acknowledged that publishers have charged in the context of karaoke uses and therefore the Court could not infer that no harm would result from Leadsinger’s use. However, the Court concluded that because it is “well accepted” that when the use is for commercial gain the likelihood of harm may be presumed. This combined with the showing on the other factors justified the dismissal of the Leadsinger’s request for a declaration based on the fair use doctrine. Leadsinger, Inc. v. BMG Music Publishing, et al., 512 F.3d 522 (9th Cir. 2008) |
Litigation and Alternative Dispute Resolution Intellectual Property Advertising, Marketing, Publishing & Media The Arts, Entertainment & Sports |
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| Eastwood v. Palliser Furniture Ltd. et al. | |
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| Clint Eastwood is seeking a federal court injunction against Palliser Furniture Corporation for using his name without authorization by naming one of its home theater chairs “The Eastwood.” The complaint was filed on January 16, 2008 in the Central District of California, alleging claims for false designation of origin and false endorsement in violation of the Federal Lanham Act, in addition to claims for misappropriation of name or likeness under common law and the California Civil Code. The claims are based on the allegation that Palliser’s use of Eastwood’s personality rights was without authorization and creates the false impression that Eastwood is somehow associated with the manufacturer. The complaint explains that the chair dubbed “The Eastwood” is sold and marketed within a line of home theater chairs named by defendants after various living and deceased celebrities, including “The Brando,” “The Cagney,” “The Cooper,” “The Bronson” and “The Connery.” The complaint also states that Eastwood has a long history of rejecting third-party licenses, reserving the exploitation of his personality rights and goodwill associated therewith for motion picture and other business ventures in which he is personally involved. In addition to injunctive relief, the complaint seeks to recover all profits earned as a result of selling the chairs and punitive damages for defendant’s “knowing, willful and conscious disregard” for Eastwood’s rights. Eastwood v. Palliser Furniture Ltd. et al., No. 08-00266, (C.D. Cal. filed Jan. 16, 2008) |
Litigation and Alternative Dispute Resolution Intellectual Property Publicity & Life Story Rights Advertising, Marketing, Publishing & Media The Arts, Entertainment & Sports Business Transactions and Organizations |
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| Ex parte Sacha Baron Cohen et al. | |
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| Kathie Martin, who owns and operates the Etiquette School of Birmingham, filed a lawsuit against Sacha Baron Cohen, Twentieth Century Fox Film Corporation and other production companies associated with the film Borat: Cultural Learnings of America for Make Benefit Glorious Nation of Kazakhstan (hereinafter referred to as "the Borat movie"), stating claims alleging fraud and deceit, quasicontract and unjust enrichment, commercial appropriation and invasion of privacy, and intentional infliction of emotional distress. Martin alleged that she had been embarrassed and humiliated by scenes in the Borat movie in which she is seen teaching etiquette to the film’s main character during a dinner party, and she claims that she thought she had been legitimately hired to teach etiquette to a foreign reporter for inclusion in a documentary film. On April 26, 2007, the trial court denied defendants’ motion to dismiss based on the forum selection clause in the contract signed by Martin and Springland Films (one of the defendant production companies) that provided that New York County, New York was the exclusive venue for Martin’s claims. The defendants sought mandamus relief from the denial of their motion to dismiss.On January 18, 2008, the Supreme Court of Alabama found that the primary purpose of the transaction between plaintiff and defendants was interstate commerce, “specifically, to provide for Martin's appearance in a film that might be used ‘without restriction in any media throughout the universe.’” Consequently, the Court found that the Commerce Clause of the United States Constitution precluded the courts of Alabama from applying a state law rendering void contracts made by foreign corporations that fail to first obtain a state certificate of authority to transact business within Alabama. The Court concluded that Martin could not then prevent the petitioners from enforcing the consent agreement between the parties, which includes a forum selection clause, the clause under which defendants had previously brought a motion to dismiss based on lack of jurisdiction. Ex parte Sacha Baron Cohen et al., (In re: Kathie Martin v. Sacha Baron Cohen et al.) [Ms. 1061288] (Ala. Jan. 18, 2008) Jefferson Circuit Court, CV-06-7333. |
Litigation and Alternative Dispute Resolution Intellectual Property Business Disputes The Arts, Entertainment & Sports Business Transactions and Organizations |
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| Kiedis, et al. v. Showtime Networks Inc., et al. | |
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| On November 19, 2007, band members of Red Hot Chili Peppers (hereinafter “RHCP”) filed a lawsuit in the Los Angeles County Superior Court against Showtime Networks and the producers and writer (hereinafter “Showtime”) of Showtime’s hit cable television series entitled “Californication,” seeking injunctive relief, treble damages, and disgorgement of profits. The case was removed to federal court on December 17, 2007. The complaint claims violations of the federal Lanham Act for unfair competition and dilution based on the use of the title “Californication,” the title of RHCP’s 1999 multi-platinum, Grammy-nominated composition and albums of the same name, and use of the nickname “Dani California” for a character in the series, which was also the name of a character who is the subject of or mentioned in three RHCP songs, including the “Californication” composition, and the title of another multiple Grammy-winning hit single by RHCP. RHCP claims that the title “Californication” is distinctive, famous, and immediately recognized by consumers as associated with RHCP and their composition and album, and has thereby acquired secondary meaning long before defendants used the term beginning at least with the series debut in August 2007. Therefore, according to the complaint, defendants’ actions in creating and distributing the television series “Californication” constitutes a false designation of origin and has caused and continues to cause a likelihood of confusion, mistake, and deception as to source or sponsorship in the minds of the public, a violation of section 43(a) of the Lanham Act. Moreover, the complaint alleges that the use of the “Californication” mark by defendants dilutes the quality of the mark by diminishing its capacity to identify RHCP’s goods, services, sponsorship and affiliation. Showtime filed a motion to dismiss claiming that Plaintiffs’ false designation of origin claims fail because Defendants’ use is protected by the First Amendment. In particular, Showtime argues that the term “Californication” has been used for decades, beginning with a 1972 Time magazine story entitled “The Great Wild Calfornicated West,” and continuing with bumper stickers and various sound recordings and registered copyrights for print and sound recordings from the 1980s and 1990s that include a form of the term “Californication.” Also, use of this common term did not mislead as to the source of the work nor did the title suggest, explicitly or otherwise, that Plaintiffs had sponsored it. Specifically, because the term accurately represents the themes of the California lifestyle and a character who attempts to deal with writers’ block through a series of sexual encounters, hence “California” and “fornication,” Defendants’ use of the term is noncommercial expressive speech artistically relevant to the substance of the series, and therefore it is protected by the First Amendment and exempt from dilution statutes. The court ruled on Defendants’ motion to dismiss on February 19, 2008, denying in part and granting in part. It denied the motion as to the Lanham Act unfair competition and the state law unfair competition and unjust enrichment claims, while granting the motion and dismissing RHCP’s federal and state law trademark dilution claims with prejudice. Relatedly, Showtime filed an application with the U.S. Patent and Trademark Office on April 10, 2007, to register the mark CALIFORNICATION, “for entertainment in the nature of an on-going comedy series.” The mark was published for opposition on October 2, 2007, and RHCP filed a motion to extend time for filing an opposition on October 22, 2007. Although granted, RHCP’s motion to extend time for filing was rendered moot when Showtime abandoned its application on November 21, 2007. A copy of Showtime’s motion to dismiss can be found here. A copy of the notice of removal can be found here. A copy of the court’s minute order regarding Showtime’s motion to dismiss can be found here. |
Litigation and Alternative Dispute Resolution Intellectual Property Advertising, Marketing, Publishing & Media The Arts, Entertainment & Sports |
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| Intellectual Property Act of 2007 | |
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| The House of Representatives has introduced the Prioritizing Resources and Organization for Intellectual Property Act of 2007 (PRO IP Act) (HR 4279). The Act seeks to establish the Office of the US Intellectual Property Enforcement Representative to serve as the president’s chief intellectual property advisor and create an Intellectual Property Enforcement Division within the Department of Justice. The Act is also intended to strengthen current IP laws. To do so, it proposes increasing copyright damages recoverable by allowing courts to “make either one or multiple awards of statutory damages with respect to infringement of a compilation, or of works that were lawfully included in a compilation, or a derivative work and any preexisting works upon which it is based” based on a consideration of “any facts it finds relevant relating to the infringed works and the infringing conduct, including whether the infringed works are distinct works having independent economic value.” The Act also greatly increases the statutory damages for trademark infringement in the form of commercial counterfeiting. The Act would also allow the Department of Justice to seize and auction the computer or other property used to facilitate copyright crime. In a December 13, 2007, hearing before the House Subcommittee on Courts, the Internet and Intellectual Property, the act received the support of NBC Universal executive vice president and general counsel Rick Cotton, Teamsters president Jim Hoffa, who cited the need to dedicate more enforcement resources to the growing problem of counterfeiting and piracy and the loss of jobs attributable to counterfeit and pirated media. Critics of the Act included Gigi B. Sohn, representing the public interest group Public Knowledge, who noted that many of the provisions would likely hurt ordinary consumers. A copy of the Act can be found here. |
Intellectual Property Business Disputes Software & the Internet Advertising, Marketing, Publishing, and Media The Arts, Entertainment & Sports |
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| Entertainment Software Association v. Swanson (formerly ESA v. Hatch) | |
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| In a suit seeking to permanently enjoin Minnesota’s new statute prohibiting persons under the age of 17 years from buying or renting certain video games, the United States District Court for the District of Minnesota joined the 7th, 8th, and 9th Circuits, as well as various other District Courts, in finding Minnesota’s statute and others like it violated the First Amendment. The Minnesota Restricted Video Games Act prohibited persons under the age of 17 from buying or renting video games that were rated M (Mature) and AO (Adults Only) by the Entertainment Software Rating Board (“ESRB”), a private entity which bases its ratings on reviews made by a randomly-selected group of three trained reviewers. Noting that the standard for a permanent injunction is virtually the same as that for a preliminary injunction, the only substantive difference being the showing of actual, as opposed to a probability of, success on the merits, the Court explained that the plaintiffs had established the four factors: (1) success on the merits; (2) the threat of irreparable harm; (3) the balance between that harm and any injury the relief would inflict on other parties; and (4) the injunction would serve the public interest. Since the state admitted that it was incapable of showing a causal link between playing video games and deleterious effects on the psychological, moral, or ethical well-being of minors and it was impossible to determine “from the data presented whether violent video games cause violence, or whether violent individuals are attracted to violent video games,” the state could not demonstrate the harms the statute sought to alleviate were “real, not merely conjectural, and that the regulation will in fact alleviate those harms in a direct and material way.” Interactive Digital Software Ass'n v. St. Louis County, 329 F.3d 954, 958 (8th Cir. 2003). Further, the state could not show that restricting just video games, rather than other violent media, would have alleviated the harm, and therefore the statute was not narrowly tailored enough to survive First Amendment strict scrutiny for protected speech. The Court further found that the Act's delegation of authority to the ESRB to determine which video games were prohibited violated due process under the Fourteenth Amendment in delegating public regulatory authority to a private body. Subsequently, the Court found that the loss of First Amendment freedoms and the chilling effect therefrom “unquestionably constitutes irreparably injury” from which there was no adequate remedy at law. Further, the state could not show that the harm to minors outbalanced the First Amendment harms because the state could not establish any evidence linking the availability of video games with any harm to Minnesota’s children. The permanent injunction against enforcement of the Minnesota Restricted Video Games Act was therefore granted. The State of Minnesota appealed and the Eighth Circuit upheld the decision of the district court. Judges Wollman, Smith and Benton reasoned that the State had failed to proffer “incontrovertible proof of a causal relationship between the exposure to violence” in video games and “subsequent psychological dysfunction,” it therefore had not satisfied its evidentiary burden. On March 28, 2008, the State petitioned the Eighth Circuit for a rehearing en banc. Entertainment Software Association v. Swanson, 443 F. Supp. 2d 1065 (D. Minn. 2006) The district court’s decision granting permanent injunction can be found here. The Eighth Circuit opinion affirming can be found here. |
Litigation and Alternative Dispute Resolution Advertising, Marketing, Publishing, and Media The Arts, Entertainment & Sports |
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| Muzikowski v. Paramount Pictures Corp. | |
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| The plaintiff brought an action against Paramount Pictures for defamation per se under Illinois law, claiming that a character in its movie, Hardball, which was based on a book about the Little League baseball team he co-founded, was easily identifiable as himself and portrayed in a negative way. The Seventh Circuit Court of Appeals, noting that Illinois’s “innocent construction” rule was more favorable to defendants than most jurisdictions, affirmed the District Court’s grant of summary judgment to Paramount Pictures. Under Illinois law, a statement is defamatory per se if its defamatory character is obvious and apparent on its face and injury to the plaintiff’s reputation may be presumed. However, even if a statement falls into one of the categories of words that are defamatory per se, it will not be actionable per se if it may reasonably be innocently interpreted or reasonably be interpreted as referring to someone other than the plaintiff. If a statement is capable of two reasonable constructions, one defamatory and one innocent, the innocent one will prevail. The Seventh Circuit acknowledged that there were many similarities between the plaintiff and the character in the movie but recognized some important, non-defamatory differences which could just as easily lead a reasonable viewer who knew the plaintiff to concede that the character represented either a composite of the characters described in the Hardball book or a combination of these real-life figures with a stock Hollywood leading man. Thus, because the character in the movie was reasonably susceptible to both innocent and defamatory constructions, the Seventh Circuit affirmed the District Court’s conclusion that the “innocent construction” rule defeated the plaintiff’s defamation claim. Muzikowski v. Paramount Pictures Corp., Nos. 05-3004 & 05-3005 (7th Cir. filed Feb. 8, 2007) |
Publicity, Privacy and Defamation The Arts, Entertainment & Sports |
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| C.B.C. Distribution and Marketing, Inc. v. Major League Baseball Advanced Media | |
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| In a suit brought by a producer of fantasy major league baseball games for a declaratory judgment against defendant owners that it had the right to use the names and statistics of players in its games, and wherein Players” association intervened, the United States District Court for the Eastern District of Missouri found that there was no violation of players' right to publicity, under Missouri law because: (a) the use of names and statistical records was in conjunction with playing the games, rather than for an independent commercial benefit to be derived from names and statistics; (b) there was no implication that players were endorsing games; (c) producers did not use the names of players as symbols for the players' identity or persona; (d) the use of the names and statistical data did not involve character, personality, reputation or physical appearance of players, or other factors shaping identity; and (e) producers did not contravene public policy underlying the protection of the players' rights by creating games using the names and statistics since their actions had no impact on the ability of the players to earn a livelihood through the playing of actual games and existence of fantasy games might have made actual games more lucrative. Further, the producer”s First Amendment right of freedom of expression outweighed the players' right to control publicity since the names and statistical information on major league baseball players constituted non-commercial speech protected by First Amendment, even though producer profited from games, entertainment was involved and games were interactive. The court further found that the names and statistics of players lacked the originality required for copyright protection, precluding the defendants” and interveners” copyright infringement claim. C.B.C. Distribution and Marketing, Inc. v. Major League Baseball Advanced Media, L.P., 443 F. Supp. 2d 1077 (E.D MO. 2006) |
Intellectual Property Publicity, Privacy and Defamation The Arts, Entertainment & Sports Advertising, Marketing, Publishing, and Media |
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