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Miami, FL Law Blog for Entertainment Law, Business Law, and Public Interest

Wednesday, June 6, 2012

Entertainment lawsuit filed over distribution of "Atlas Shrugged: Part One"

By Pankaj Ladhar of Manos • Alwine P.L.

Did you ever see the movie "Atlas Shrugged: Part One"? Probably not, because Miami wasn't the only city where moviegoers largely ignored this film. Despite being an adaptation of Ayn Rand's famous and well-respected novel, it made almost no money when it was released in 2011 and quickly disappeared from theaters.

Recently, the production company behind the movie filed suit against Relativity media, its distributor, and Netflix, alleging that they each failed to pay a $1.5 million fee to release "Atlas Shrugged: Part One" on home video. Lawsuits such as this are quite common in entertainment law.

The company that made the movie, Atlas Productions, said in its lawsuit that it had fulfilled all the terms of the agreement in entered into with Relativity and Netflix, but has not been paid. Furthermore, it alleges Netflix committed copyright infringement by releasing "Atlas Shrugged: Part One" without fulfilling the terms of its agreement.

All told, Atlas Productions is alleging unjust enrichment, fraudulent misrepresentation, copyright infringement and breach of contract.

Although it is impossible to remove every possible source of legal friction, having an attorney who understands the intricacies and details specific to entertainment law on your side can really help head off a lot of potential future problems. Such attorneys know what to look out for, what to prepare for and how to best represent your interests. In a field like entertainment, where it's definitely true that not all that glitters is gold, having counsel and advice you can count on is very important.

Source: The Hollywood Reporter, "Netflix, Relativity Sued Over 'Atlas Shrugged' Distribution Deal," Matthew Belloni, May 30, 2012


Friday, June 1, 2012

Dunkin' Donuts faces commercial litigation

By Pankaj Ladhar of Manos • Alwine P.L.

Dunkin' Donuts is a publicly traded company with many locations throughout Florida. The donut shops are typically franchises owned and operated by independent franchisees.

One franchisee has filed a lawsuit against the coffee and donut chain recently claiming that she has suffered racial discrimination by the franchise. This franchise owner happens to be a female of Indian descent. Though many Indian women work for Dunkin' Donuts, she is apparently the only female Indian multi-unit manager in her area.

Her experience is not limited to making coffee and donuts, however. This woman was a former business analyst at Ernst & Young. She currently operates two Dunkin' Donuts restaurants and was hoping to expand.

However, she alleges that Dunkin' Donuts forced her to operate her two stores 24 hours a day, even though her locations are located in high crime areas, posing a serious threat to her personal safety. She also claimed that she did not make enough money in the evening and early morning hours to justify the expense of hiring employees to work around the clock.

Despite these difficulties, the franchisee also hoped to open a third franchise. However, management at Dunkin' Donuts denied her proposal citing the lack of the possibility of a drive-thru window. However, she believes she was discriminated against because Dunkin' Donuts then allowed a male franchisee to open a store in the same location without a drive-thru window.

Now it will be left for a court to decide whether Dunkin' Donuts is violating its contract with this franchisee, or whether it is violating discrimination laws by its actions against her.

Source: New York Post, "Suit: Dunkin' did me wrong," Mark DeCambre, May 25, 2012


Wednesday, May 30, 2012

Gucci wins trademark infringement case against Guess, sort of

By Pankaj Ladhar of Manos • Alwine P.L.

While Florida consumers may be excited to own a knock-off of a famous luxury product for a fraction of the cost, the owner of a trademarked brand must work hard to protect their design ideas. In this regard, companies that manufacture unauthorized replica's and so-called knock-offs can be challenged for trademark infringement.

Since its founding in 1921, Gucci has attempted to protect its unique designs through trademark law. The luxury good's Italian designer maintains trademarks on its designs and it continually must work to protect its products from other business's that hope to earn sales and profits from copying Gucci's designs.

In one of these trademark infringement cases, three years ago Gucci filed a lawsuit against the apparel retailer Guess for mimicking four Gucci designs that are protected by trademark.

This case was recently decided by a federal court judge. The judge ordered a permanent injunction against Guess for three of the designs that Gucci was concerned about, namely Gucci's signature green-red-green stripe, the stylized square "G" and a design of interlocking "G's." The judge did not find that a fourth design by Guess featuring a script logo infringed upon Gucci's trademark.

By filing this lawsuit, Gucci was not only hoping to protect its trademarked designs, but also to collect on what it believed were its damages. From Gucci's analysis, its company was damaged by $120 million in lost sales and the dilution of its brand.

On the matter of the amount of damages that Guess should pay, the judge disagreed with this analysis. Instead, the judge awarded Gucci only $4.66 million in damages representing the profits earned by Guess by selling the trademark infringing products.

Source: Reuters, "Gucci wins $4.66 million, ban on Guess knock-offs," Jonathan Stempel, May 21, 2012


Saturday, May 26, 2012

Miami Heat advance while Lin wins

By Pankaj Ladhar of Manos • Alwine P.L.

Congratulations are in order for the NBA's biggest "big three," who advanced to their second consecutive Eastern Conference Finals with a 105-93 win over the Pacers on Thursday night - and for the biggest single one-man story in the league this year -- Jeremy Lin, the last applicant left standing in the battle to secure trademark rights to the term "Linsanity."

Until February, few people apart from friends, family members and die-hard basketball fans even knew Jeremy Lin existed. He played collegiate ball at Harvard, which this year made its first appearance in the NCAA basketball tournament since 1946. He was not selected by any team in the 2010 NBA draft. The Knicks, who picked him up off waivers a few days after this current NBA season started, became his third NBA team in just 18 months.

Until February, in fact, the term "Linsanity" simply didn't exist at all.

Then it did. And then it was everywhere. And soon after that, the U.S. Patent and Trademark Office was flooded with applicants vying for the right to trademark "Linsanity" and put it on just about anything and everything they could possibly sell.

Since Lin filed his own application with the USPTO on February 13, his attorneys have been conducting a "cease-and-desist" campaign that successfully convinced all but about a dozen other applicants to drop their pursuit of the trademark rights. And finally this Thursday, the USPTO rejected the remaining applicants -- leaving Lin alone in his quest for the trademark rights.

While the USPTO has not officially granted Lin the trademark for "Linsanity" yet (which is why we can still use it but probably won't ever use it again after concluding this post) -- future use of the term without Lin's permission will likely constitute violations of U.S. trademark law and give rise to trademark infringement lawsuits.

Source: The Huffington Post, "'Linsanity' Trademark Fight Ends -- Jeremy Lin Is Last Applicant Standing," Ron Dicker, May 24, 2012


Thursday, May 24, 2012

Poisons' Michaels settles CBS-Tony Awards suit over head injury

By Pankaj Ladhar of Manos • Alwine P.L.

Singer Bret Michaels of the rock band Poison took a knock to the head in 2009 during the CBS-broadcast Tony Awards that nearly killed him. The rocker filed a lawsuit earlier this year against the television network and awards-show organizers that ended with a mediated settlement.

Michaels suffered injuries to his face. The worst of it seemed to be a broken nose, although a facial injury for a performer can be injurious to a career. Doctors later discovered the set piece that fell on Michaels' head caused a life-threatening brain hemorrhage.

The singer was furious that CBS allowed the video of the on-stage accident to air. A viral version was seen by millions of people online. Tony awards organizers were named in the suit for failing to warn Michaels about a set change during the show.

Poison's contract to perform on the awards show should have covered the expectations of the performer and the organizers. Details of a set change were not too minute to include in the musicians' work agreement. Michaels' injury might have been prevented, if he and the band had known in advance when a set change would occur.

Performance agreements are not all about salary or security. Performers and the people who hire them are bound by contractual agreements that cover any number of professional or personal requirements. A provision that addressed the well-being of Michaels or band members in the event of a mishap could be written into a performance contract.

Performers and their temporary employers can end up at legal odds when signed contracts are too generic.
Settlement terms were not made public. One point Michaels wanted to make in court was how much impact the injury had on his reality TV show and musical career. The injury forced the singer and his bandmates to give up potential income during the musician's long recovery.

Source: The Huffington Post, "Bret Michaels, Tonys Lawsuit: Rocker Settles Case Over 2009 Award Show Incident," May 14, 2012
 


Friday, May 18, 2012

Miami lawsuit follows ouster of hotel management company

By Pankaj Ladhar of Manos • Alwine P.L.

Given the vibrant economic climate and recreational opportunities in Miami, there are many luxury hotels to serve visitors to the area. Of course some of them are better appointed and managed than others. But one hotel management company was taken completely by surprise earlier this year when they were cast out by the owner of the hotel for alleged poor performance. After kicking the management company out, the owners installed a new management company to run the hotel.

But the former management company claims that the ouster was a complete surprise and has initiated commercial litigation alleging breach of contract by the owner. They specifically claim that they were never given written notice of any perceived problems nor any opportunity to correct any issues. The former management company also claims that the actions of the owner damaged their reputation.

For its part, the new management company that was brought in to run the hotel does not seem interested in having any part in the dispute. Instead, in public statements they have focused on potential improvements and renovations to the property, including a revamping a restaurant that has up till now only been available for private functions.

The details of this conflict will have to be sorted out through the lawsuit or some process of arbitration. But in many cases, there is narrow distinction between motives when one party to contract accuses the other of failure to perform. It may be that they have a good faith belief that the there has been a failure and that the only path forward is to terminate the relationship. In other cases, the accusations of failure to perform are more perfunctory and while still potentially defensible, are actually a means of negating a contract that they feel no longer best serves their interests.

Source: The Miami Herald, "As lawsuit looms, Miami's Setai hotel moves forward," May 16, 2012


Wednesday, May 16, 2012

"Godfather" sequel proceeds on hold during Puzo litigation

By Pankaj Ladhar of Manos • Alwine P.L.

Paramount Pictures and the estate of author Mario Puzo are at odds over the publishing rights of the third book to follow the blockbuster novel, "The Godfather." Each party has filed a lawsuit, starting with litigation initiated last February by Paramount and followed in March by a countersuit filed by Anthony Puzo, the late author's son and executor.

The movie studio, owned by Viacom Inc., is reluctant to give up its perceived rights to a novel that kicked off one of the most successful and lucrative movies series of all time. Paramount wanted to halt this month's publication of "The Family Corleone," the third Godfather sequel. Studio officials said the book's release violated a contractual agreement the studio had with Mario Puzo that gave Paramount, not the author's estate, permission to authorize Godfather sequels.

Anthony Puzo contends Paramount breached its contract with his father, who died in 1999. The estate maintains that the author's agreement, signed more than four decades ago with the movie company, excluded publication rights to follow-up novels. An attorney for the author's son told a federal court that Anthony Puzo wanted the Paramount contract canceled.

Paramount company officials stated they gave permission in 2004 for the Random House publication of the first Godfather sequel, "The Godfather Returns." Two years later, according to the studio's court filing, a second sequel called "The Godfather's Revenge" hit bookstands without Paramount's authorization. Puzo's estate notified Paramount in 2011 that it was planning to publish the third sequel penned by Ed Falco this year. Grand Central Publishing went ahead with the release of "The Family Corleone" in early May.

The movie studio and the author's son agreed that the novel could be made public as long as the book's proceeds were escrowed, until the publishing rights issue came to resolution. Attorneys for both parties are hoping to resolve the intellectual property rights through mediation.

Source: Bloomberg, "'The Godfather,' Anti-Piracy: Intellectual Property," Ellen Rosen, May 14, 2012


Friday, May 11, 2012

Ownership of Village People songs may return to one of the original Village People

By Pankaj Ladhar of Manos • Alwine P.L.

Even when a songwriter has completely finished writing a song it can be very difficult to tell whether or not it will be a commercial success. But it is long before the true value of a song is known that the author of the work has likely transferred the rights, it may have occurred before the writer ever even began.

In the 1970s copyright law was amended to provide creators of works of art "termination rights" after 35 years. Songs from the late 1975 are now passing the 35 year mark and subject to the exercise of termination rights that would allow the creators to reclaim them.

Recently, a court ruled in favor of Victor Willis, lead singer for the Village People, in his attempt to reclaim the rights to YMCA and other hit songs he wrote and performed.

The Judge said that based on the termination rights in the copyright laws, songwriters and recording artists may reclaim rights that they signed away 35 years ago. This is possible, according to the judge, even when the contract explicitly contradicted it. This ruling could have a very large impact on the music industry. Particularly with the large number of songs from the late 1970s and early 1980s that are still popular and often used in movies and commercials.

While the ruling opens the way for Willis to reclaim his rights it did not determine the extent of those rights, but even partial ownership of the catalogue of songs he helped create over three decades ago could still be very significant. As more songs reach their 35th birthdays, it will be interesting to see how future lawsuits like this one play out.

Source: New York Times, "Village People Singer Wins a Legal Battle in Fight to Reclaim Song Rights," By Larry Rohter May 8, 2012


Wednesday, May 9, 2012

"Bogie's" Burberry at the center of heirs' court action

By Pankaj Ladhar of Manos • Alwine P.L.

The disheveled trench coat actor Humphrey Bogart wore in the fog-clouded last scenes of the 1942 movie "Casablanca" was made by the fashion company Burberry, based in England. Burberry recently created a social media website depicting the actor using a still photograph from the film, which may put the coat manufacturer in court.

Burberry wants a federal court to approve of the company's use of the trench-coat image in an online timeline. The late actor's heirs, who include Bogart's children and actress Lauren Bacall, filed a trademark infringement lawsuit against Burberry the same day.

The maker of the Bogart Burberry coat claims it has done no wrong. The coat maker apparently licensed the image it used from a photo agency. The clothing manufacturer stated it did not impinge on the rights or publicity rights of the Bogart Corporation and did not use the image to promote the sale of merchandise.

Bogart's corporation and family disagreed, saying Burberry purposely used the late actor's name and "Casablanca" image to enhance its own place in the fashion marketplace.

Burberry contends that Bogart Corp. is in the wrong and is trying to "exert and assert" intellectual property rights it does not own. Bogart apparently contacted Burberry multiple times last month to force the company to stop using the image and eventually ordered Burberry to pay for the photo's use.

Burberry officials asked a federal judge to agree that the use of the Bogart photo in a timeline, rather than a sales pitch, is protected by the First Amendment to the Constitution.

The son of the actor called Burberry's court action "disrespectful." He likened the use of Bogart's picture on the Burberry website to that of a cigarette maker trying to capitalize on the kind of cigarette Bogart smoked.

Source: Los Angeles Times, "Bogart heirs and Burberry at odds over trench coat image," May 4, 2012


Friday, May 4, 2012

Singer Selena Gomez sued for plagiarism

By Pankaj Ladhar of Manos • Alwine P.L.

A lawsuit against popular singer Selena Gomez (also widely known as Justin Bieber's girlfriend) accuses her of plagiarism in connection with a chorus in her 2010 recorded song "A Year Without Rain." The song is being used in an ad campaign planned for this month to promote a new Macys perfume fragrance.

The lawsuit was filed by a relatively unknown musical group called Luce, which contends that a chorus in her hit song was drawn from one they first used in "Buy A Dog," a 2005 single they released. They claim that the two choruses are almost identical. Approximately $1 million is reported to be at stake in the action. "A Year Without Rain" was released as the title track on Selena Gomez's second album. She regularly records with her own band, known as Selena Gomez & the Scene.

Plagiarism lawsuits against songwriters and musicians occur from time to time in the recording industry. In one memorable instance, John Fogerty (currently a solo artist, but renowned for his role as lead singer for the fabled Credence Clearwater Revival group) actually performed the song that he was accused of plagiarizing for the benefit of the jury. The case was subsequently dismissed.

Earlier this year, rock band Paramore was accused by another rock group of plagiarism in connection with their 2010 recording of "The Only Exception." In March, the copyright infringement claim was dropped when the accusers backed off.

The Black Eyed Peas in 2010 faced two entirely separate accusations of plagiarism involving the songs "Boom Boom Pow," and "I Gotta Feeling." The latter recording was a huge hit for the group in 2009.

Source: The Examiner, "Selena Gomez to follow John Fogerty in getting plagiarism lawsuit dropped?" Radell Smith, April 30, 2012


Thursday, May 3, 2012

Who owns the right to sue if someone steals your music?

By Pankaj Ladhar of Manos • Alwine P.L.

Different bands and labels may have a variety of approaches to how they manage their intellectual property. Everyone is familiar with the multitude of lawsuit filed by the RIAA against those suspected of illegally downloading music. Musicians not only put their heart and souls into their music, but for many of them it is their primary source of income. It is important that they are appropriately compensated by those whom consume their music.

While some artists and labels choose to vigorously protect their intellectual property, other musicians may prefer another approach. Regardless of how a rights owner chooses to manage their intellectual property, the keys factor is that they have the right to decide. That is why one band was very surprised when a lawsuit was filed in Florida seeking damages against individuals that had allegedly downloaded the band's music. The band had never even heard of the entity that filed the lawsuits.

The band has reached out to their label to see if there was any legitimate reason that this third party that they had never heard of would be filing a lawsuit regarding the rights to their music. While there are licensing and rights management firms that do seek to enforce artists' intellectual property rights on their behalf, there must be some formal assignment of the right to seek damages on behalf of the artists before such an entity can legitimately file a cause of action.

Source: Gizmodo, "Apparently, Copyright Trolls Don't Need to Tell the Band When Suing Its Fans," Andrew Tarantola, April 30, 2012
 


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