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

Wednesday, October 12, 2011

David Cassidy suing for Partridge Family merchandising

By Pankaj Ladhar of Manos • Alwine P.L.

One of the original teen sensations, David Cassidy, is suing Sony for proceeds from Partridge Family merchandise. Cassidy claims that the show garnered about $500 million in merchandise sales but that he only ever received $5,000.

He claims that his contract, executed more than 40 years ago, called for him to receive a portion of the proceeds from any merchandise bearing his image, and a smaller portion of the proceeds from any other Partridge Family merchandise.

Cassidy's contract dispute case is based on misappropriation of right of publicity, breach of contract, open book accounting, civil conspiracy, negligent misrepresentation, and constructive fraud.

Sony has responded to the charges by acknowledging that its right to use Cassidy's name for merchandising expired in the 1970's, but it says that it is not required to share any proceeds from Partridge Family merchandise. Sony went on to explicitly question whether Cassidy understood the difference between merchandise which uses Cassidy's name, voice, or likeness and Partridge Family merchandise.

For many entertainers, attempting to secure a fair share of these sort of back-end profits is difficult and complicated. Depending on the situation, studios may prefer to pay out a bit more up front in order to avoid having to share any future profits.

There is not a one-size-fits-all piece of advice to determine when a contract is best for either the studio or the entertainers. It is important though that both parties to this sort of agreement receive experienced and appropriate guidance to help ensure that they make the best agreement possible.

Source: SheKnows Entertainment "David Cassidy suing Sony," Caroline Goddard, Oct. 05, 2011

Friday, October 7, 2011

CityPlace sued for foreclosure by lender

By Pankaj Ladhar of Manos • Alwine P.L.

A West Palm Beach shopping center known as CityPlace is reportedly being sued by its lender for late payments on a $150 million loan. According to lenders, the commercial dispute stems from a refusal to settle on past due payments on the loan, despite a reported $233 million appraisal of the property. According to the owners of CityPlace, however, net operating income has declined to $5.2 million, from $9.3 million in 2006. This comes as a shock to many analysts that have found the property's traffic to have risen by 7 percent over the past two years.

As for the current tenants of CityPlace, the future is unclear. While a foreclosure can mean lower rental rates after an adjusted property appraisal, it can also increase monthly rent for store owners, and prevent new stores from opening in the complex.

But business experts are pointing to the foreclosure lawsuit as a sign that negotiations to settle the debt are going far from well, claiming that such lawsuits are typically a way for lenders to apply more pressure to borrowers in order to finalize a deal.

Real estate brokers are also claiming that the rent that many tenants have paid in the past has been remarkably low, if paid at all. According to financial experts analyzing the foreclosure, the practice of allowing new tenants to run their businesses rent-free within the complex helps encourage growth and stability, as well as help tenants pay overhead costs like insurance and taxes, with can be more than $27 per square foot, but it could be a major reason why CityPlace has fallen behind on debt repayment.

Source: The Palm Beach Post "Can CityPlace survive hard times? Food, entertainment, retail in limbo," Alexandra Clough, Oct. 3, 2011

Tuesday, October 4, 2011

Polka musician reaches copyright infringement settlement with ex-wife

By Pankaj Ladhar of Manos • Alwine P.L.

You may remember a story we shared with you over the summer about a polka singer who sued his ex-wife for copyright infringement. In 1978 the musician wrote the song, "'Yodelin' Boy Polka" and performed it regularly with his wife from then until their divorce in 1984. When the ex-wife and her current band began playing a song that apparently sounded surprisingly similar, the musician filed a copyright infringement lawsuit alleging that they stole the melody from "Yodelin' Boy Polka."

The ex-wife had initially claimed that her song "C'mon and Sing" was created independently and innocently. That she had found herself humming the melody and then simply added lyrics. Now however the musician and hi sex-wife have entered into an agreement to close the lawsuit that clearly acknowledges that the later song infringed upon the earlier one.
Before acknowledging that the song was infringing, the ex-wife and her band had asserted that many polka songs sounded the same, and that even if there was some infringement it was too slight to have any legal significance. They also argued that the "'Yodelin' Boy Polka" lacked originality in the first place.

In the end though, the ex-wife's band admitted that they had infringed on the musician's song. The polka musician explained that this was the only way that he would accept the settlement, if it was clear to everyone that they had copied his song. In additiaon to the moral and reputational victory, the consent judgment also calls for a payment to the polka musician of $25,000.

Source: Milwaukee Journal Sentinel "It takes two to tango, but only one ex-spouse has rights to polka" Bruce Vielmetti, Oct. 2, 2011

Friday, September 30, 2011

Comedy club involved in dispute over alleged comment and professionalism

By Pankaj Ladhar of Manos • Alwine P.L.

At one of the most popular comedy clubs in Southwest Florida on September 17, comedian and actor Faizon Love refused to go on for a scheduled show following a dispute with the comedy club's management. According to Love, the business dispute was over a racial comment he claims Off the Hook comedy club management made to a waitress. Management, however, claims that Love arrived 40 minutes late for a scheduled appearance, demanded a cash payment not agreed upon in his contract, and acted unprofessionally.

The manager of the club also denied that a racial statement was ever made. Despite appearing in five shows at the club, Love declined to appear for the sixth and final show included in his contract. Once again, management offered an alternative story where Love was fired from the club for multiple reasons, including assertions that he had acted unprofessionally during his time at the club during which he was not performing. Following Love's Twitter complaints about the club and its manager, Off the Hook claimed that he invented the story to avoid the awkwardness of his dismissal.

Following the dispute over whether Love could be paid in cash for his performance, club management called local police and had Love removed from the comedy club, according to the club's manager. Too often these sorts of disputes turn into each side launching accusations at each other. Ideally a well drafted agreement that makes both side's expectations clear can make sure that the 'business' aspect of the entertainment business is not sacrificed.

Faizon Love is best known for his appearance as the drug dealer "Big Worm" in the 1995 film Friday and for his appearance as a member of a dysfunctional couple in the popular 2009 comedy movie Couples Retreat.

Source: Eagle News "Dispute brews between Off the Hook Club and Faizon Love this weekend," Joel Morris, Sept. 20, 2011

Friday, September 23, 2011

Cross-Country Pizza Time trademark dispute continues

By Pankaj Ladhar of Manos • Alwine P.L.

In a case of alleged trademark infringement, the Coral Springs based Pizza Time, Inc. is claiming that another pizza chain based in the state of Washington is using the same Pizza Time name. A lawsuit alleging that the Washington-based pizza and Italian food restaurant chain stole the Pizza Time name was filed in a Broward County Civil Court.

At issue is which company was the first to use the Pizza Time name. The Florida Pizza Time has been in business since 1980 and says that its restaurants are well-known for the quality of the Italian food and pizza they serve. The chain also claims that its reputation is so good that it has built a considerable clientele of out-of-market customers who have their favorite menu choices shipped to them by overnight courier. The Florida company also maintains that their restaurants are destination stops for customers who travel from great distances specifically to eat at their restaurants and to enjoy the menu selections.

The other restaurant company using the name of Pizza Time is based in the state of Washington and operates a chain of 25 similar pizza and Italian food restaurants throughout the Pacific Northwest. The Washington state Pizza Time, which has the corporate name of Pizza Time Holdings, has been in business since 1989.

The Washington-based Pizza Time chain is defending its use of the Pizza Time trademark, alleging that the Florida restaurant chain has violated federal trademark laws.

The Florida-based chain is suing to protect its trademark name and to ensure that its restaurants will be able to use the Pizza Time name going forward.

Source: Broward/Palm Beach New Times "Pizza Polemic: Florida's Pizza Time Calls 'Foul' on Washington's Pizza Time," Victoria Bekiempis, Sept. 17, 2011

Monday, September 19, 2011

Apple at risk for three class action suits over geolocation

By Pankaj Ladhar of Manos • Alwine P.L.

Apple is currently embroiled in litigation of all types worldwide. Apple rivals like Samsung and HTC have sued and counter-sued alleging patent violations, but Apple's biggest threat may come from ordinary consumers.

In April, a class action lawsuit was filed against Apple in federal court in Tampa, Florida, alleging that Apple tracks and records the locations of its consumers without permission. The trial lawyers representing the plaintiffs estimate that one-third to one-half of the nation's 60 million iPhone users could potentially be parties.

The potential cost to Apple could be significant. Also significant is the possibility that success in the U.S. case could trigger similar lawsuits in other countries. Another class action suit has been filed in Puerto Rico contending that Apple was releasing consumer location information to third parties without authorization. In that case, Apple is facing allegations of fraud and abuse.

Most recently, a suit has been developing in South Korea. A South Korean attorney has collected 27,000 signatures on a petition seeking co-complainants for a privacy rights class action lawsuit. If Apple were to lose that case, the cost to Apple could be as high as $24.6 million. The danger is not from having to pay any judgment, as Apple can certainly afford it.

Rather, the danger is in a trend of costly international consumer lawsuits developing, as well as potential damage to Apple's business goodwill and popularity with consumers.

Source: Mobile Magazine, "South Korea Prepping for Major Class Action Lawsuit Against Apple," Silvia Pikal, Aug. 17, 2011

Friday, September 16, 2011

University of Miami football players involved in gift scandal

By Pankaj Ladhar of Manos • Alwine P.L.

Collegiate and professional athletes excel on the field. To make it at either the college or professional level requires an intense amount of training and dedication. Unfortunately these athletes are sometimes the targets of fraudulent schemes by those who are talented not in athletics, but instead in confidence schemes and financial double dealing.

Such is the case involving a number of football players at the University of Miami. The players were alleged to have received cash and gifts including meals from Nevin Shapiro who is said to have been running a Ponzi scheme. The players are schedule to receive letters and subpoenas from the bankruptcy court demanding they return anything of value that they may have received from Shapiro. The items returned by the players will be included as assets in Shapiro's bankruptcy filing.

An attorney for the bankruptcy trustee said the 72 Miami players involved in the action are not free to ignore the subpoenas and if they choose to do so, could face a contempt of court charge. The bankruptcy trustee could also order the players be brought into court.

The attorney spokesperson for the bankruptcy court trustee said the court is also interested in recovering any money that may have been given to a former assistant head coach for the Hurricanes as a loan from Shapiro. The attorney for the bankruptcy trustee is encouraging the former coach to come forward voluntarily.

A considerable amount of the evidence against the players came from a Yahoo! Sports report that broke the scandal. Available records show some of the transactions, but many are not easily traceable.

The bankruptcy court has recovered around $19 million dollars of funds given to Shapiro to run a bogus wholesale food business. The bankruptcy court is attempting to recover $111 million dollars.

To date, none of the 72 University of Miami players have contacted the bankruptcy court to return any of the gifts they may have received from the alleged Ponzi schemer.

Source: Miami Herald "Miami Hurricanes' accused players may have to pay back Shapiro benefits," Barry Jackson, Aug. 30, 2011

Wednesday, September 14, 2011

Miami Beach based media company faces legal scrutiny

By Pankaj Ladhar of Manos • Alwine P.L.

Plum TV, the Miami Beach based media enterprise laid off the majority of its staff on Tuesday and now faces questions about its financial affairs. The company moved its headquarters from New York to Miami Beach last year under the leadership of its chief executive. That chief executive resigned just five days before the massive layoffs.

The former chief executive explained to the Miami Herald that last Thursday he realized that the company had insufficient assets to cover payroll, sales commissions and other important expenses. The New York Department of Labor recently issued subpoenas for the company's financial records. It is possible that employment litigation related to the recent revelations about the company will be following soon.

Plum TV was created to provide 'hyper local' television programming in areas considered luxury vacation markets. Besides broadcasting in Miami Beach, they also provided programming in Vail, Aspen, Sun Valley, and the Hamptons. There had been plans in the works to try to expand the company into a full-fledged multi-media brand including print publications, online content, and live events. The recent cutbacks included a suspension of the newly launched Plum Miami Magazine.

The former executive estimated that as many as 70 employees were laid off. The company had previously employed 85 people.

While the company intends to attempt to keep moving forward, it appears that their first priority will be to manage and mitigate their current financial and employment relations issues.

Source: Miami Herald, "Plum TV announces layoffs," Ina Paiva Cordle, Sept. 14, 2011

Thursday, September 8, 2011

Linkedin in trademark dispute over name of new startup

By Pankaj Ladhar of Manos • Alwine P.L.

Social networking has gone from a niche universe of college students to something that is used by a wide spectrum of people. Everyone from grandma to business professionals use social networks to share personal and professional information. The success of this industry is now leading to such saturation that trademark disputes are arising as new channels sometimes have a striking resemblance to established ones.

A new network aimed at professional networking for financial professionals recently submitted a trademark application. LinkedFA is a Miami based company started in 2009 and now has about 10,000 users. LinkedIn, the popular professional networking site filed an opposition challenging LinkedFA's trademark application arguing that over the new company's use of the word 'Linked.'

A representative for Linkedin explained their position. They believe that the name of the new company poses a significant threat of confusion to consumers. That is, that they might think that LinkedFA is somehow associated or affiliated with Linkedin, which it is not. They believe that opposing the trademark application is an appropriate and reasonable step to protect their brand.

LinkedFA counters that it is substantially distinct from Linkedin. Specifically because of the highly regulated nature of the financial industry, LinkedFA says that it provides a networking platform while reducing the risk that they would violate their compliance requirements. LinkedFA also contends that Linkedin has attempted, unsuccessfully, to block access to its application programming interface (API).

As these types of properties become more valuable and more companies attempt to get their foot in the door, it is not unlikely that disputes like one will become more common.

Source: Advisor One. "LinkedFA Fights LinkedIn in Trademark Dispute," Joyce Hanson, Sept. 6, 2011

Tuesday, September 6, 2011

Culinary school alums sue school for misrepresentation

By Pankaj Ladhar of Manos • Alwine P.L.

When entering into a contract, most people assume that both parties are operating in good faith and accurately describing the likely benefits to be expected from their performance. Unfortunately, in some cases, when parties enter into a business contract one party may seek to oversell the potential benefits that the other side will receive.

Recently, students of the for-profit culinary school, Le Cordon Bleu, filed a lawsuit claiming that the school's recruiters misled them about the value of the education that they would receive. The school has a campus in Miami as well as 15 other locations.

The class action lawsuit alleges that, among other things, the school misrepresented its job placement rates. When graduates finished the program with hefty student loans they expected that their success at landing a well paying job would be similar to how it had been described by the recruiters. Unfortunately for many, the school's program did not turn out to be as valuable as they had originally believed.

The company has already entered into a potential settlement agreement for one lawsuit. If approved, the pending settlement would provide a rebate of up to $20,000 to 8,500 students who took classes between 2003 and 2008.

According to news reports, the school's website indicates that 48 to 100 percent of graduates find work in their chosen culinary discipline. But critics counter that this placement rate is deceptive because many of those are minimum wage jobs that do not require formal education.

Source: Associated Press "Culinary school grads claim they were ripped off," Terence Chea, Sept. 4, 2011

Friday, September 2, 2011

Sports agent teaching at school he sued raises eyebrows

By Pankaj Ladhar of Manos • Alwine P.L.

A sports agent who filed a lawsuit against a university for allegedly interfering with his relationship with an athlete he formerly represented has been hired to teach a class at the school. The agent formerly represented one of the school's football defensive ends, helping him obtain a contract with a professional NFL team.

In the lawsuit, the agent argued that the university interfered with his relationship with the athlete, causing the termination of their relationship a few days before a NFL lockout ended. The lawsuit seeks approximately $300,000 in recovery from the athlete, supposedly the amount of loans and advances that the agent furnished him while the athletics contract was still ongoing.

Some have questioned whether the hiring of the agent to teach raises ethical or conflict of interest issues. These include whether agents should recruit athletes for professional teams if they are teaching at a school, or whether an agent should teach at a school where a client was formerly a student.

Opinions may differ, however, and the agent has said that his only intention in accepting the teaching job was to pursue his love of teaching. Despite this, in light of the lawsuit, the athletic department at the school decided not to recommend the agent's class to its student athletes. A spokesman for the department indicated that it had not been aware that the agent was under consideration for a teaching post until after his hiring was already announced. Other sports agents have been hired for teaching positions at other universities.

Source: Business Insider, "Ethical Considerations Of Sports Agent Teaching College Course" Aug. 29, 2011

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