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

Thursday, May 15, 2014

Another Recording Artist Fights Back Against Alleged Underpaid Royalties

Country Music Star Brad Paisley Seeks Payment from Sony Music

Record labels are supposed to help promote the music and increase the profits of the musicians they sign; unfortunately, as some recent high profile cases show, this isn’t always the case. Country music superstar Brad Paisley, who performed at President Obama’s inauguration and who was Country Music Award’s male vocalist of the year in 2008, is one of the many artists crying foul over unfair practices by one of the country’s largest labels – Sony Music.

Earlier in his career, Paisley signed a deal with the big label to distribute his recordings and to handle song licensing. In 2010, Paisley served Sony Music with a summons in New York State, claiming the company miscalculated royalty payments and underpaid him by $10 million. Last month, the stakes increased when Paisley’s attorney Richard Busch raised the issue of digital licensing royalties.

Busch has succeeded in questioning digital licensing royalty percentages in the past. Historically, digital licensing royalty percentages are calculated at 12 to 20 percent, but in a dispute between rap artist Eminem and his label, Busch succeeded in raising the digital sales percentage rate for Eminem to 50 percent. How? Busch argued that streaming songs are broadcasts, not sales. Broadcasts carry a much higher rate for the artist than do sales. If Busch succeeds in classifying Paisley’s streaming songs are broadcasts, not sales, like he did with Eminem, the money owed by Sony Music to Paisley could quadruple.

As this case suggests, artists with clear and defined agreements with recording labels are well positioned to fight for royalty payments and other rights when disputes arise. This case also illustrates that an experienced and knowledgeable record contract attorney can often determine additional instances of royalty shortfalls.

As a life-long musician himself, Miami entertainment law attorney Tom J. Manos of Manos & Associates, PL understands the unique challenges that artists face and for over 30 years, he has represented musicians at various stages of their careers. To discuss your royalty dispute questions with Attorney Manos, contact our firm by calling 305-341-3100.

Wednesday, May 14, 2014

Miami Attorney Tom J Manos Wins Dismissal of $60 Million Fraud Case in Miami Court Against His Client in Favor of Venezuelan Forum

Tom J. Manos, representing a Miami defendant who was doing business with a failed stock brokerage in Venezuela, won an appeal affirming the dismissal of a case in Miami-Dade Circuit Court alleging a $60 million fraud, civil theft and conspiracy against his client in favor of litigation in the courts of Venezuela on forum non conveniens grounds.

The doctrine of forum non conveniens permits defendants to move to dismiss cases filed in Florida where a foreign forum would be more convenient for the defendant and the court finds the alternative forum to be available and adequate to hear the case.

In this case, Manos obtained a dismissal in the trial court for his client in favor of litigating in the courts of Venezuela, arguing at an evidentiary hearing that Venezuela's court system was an adequate alternative forum for the litigation and that other factors also favored Venezuela's courts over Miami's courts. On appeal of the dismissal order, and after oral argument, the Third District Court of Appeal affirmed without opinion on February 26, 2014, and on March 31, 2014 denied a motion by the plaintiff for rehearing and rehearing en banc, or in the alternative for a written opinion. See, Vasquez-Estrella v. Camperos, Case No. 11-035080, Miami-Dade Circuit Court, Third District Court of Appeal case No. 13-2342. The appllate court's order is now final.

Thursday, May 8, 2014

A Copyright and Contract Case Gets Complicated

Finally, After Seven Years, A Ruling in the “Ghost Hunters” Dispute

Actors, models, artists, writers and others in the entertainment field are go-getters who use their ideas and talents to make a living and, in some cases, make it big. But, as a parapsychologist and publicist learned last month, it takes more than ability, drive and creativity to ensure your rights are protected when partnering with studios, production houses and other organizations.

In 1996, parapsychologist Larry Montz and publicist Daena Smoller conceived of an idea to create a TV show about investigators who explore allegedly haunted locations. That same year, they pitched their idea to NBCUniversal Studios (NBCU). When they left the studio, they claim to have believed that an understanding existed between them and the studio - if the studio produced a ghost hunter-type show at a later date, it would partner with them.

Ghost Hunters premiered in 2004, and approximately a year passed before Smoller and Montz became aware of the program. Another year passed before they filed a copyright lawsuit against NBCU. The case was complex from the start due to a number of factors:

  • Questions arose as to whether the case involved copyright law or contract/implied contract law. The case originally relied on the former before switching to the latter.
  • The case relied on the ownership of an idea, not an expression. (Remember the Case against The Da Vinci Code author Dan Brown? The historians who first popularized ideas used in The Da Vinci Code sued and lost. The courts found that Brown was free to use their ideas in a fictional work.) General ideas are much more difficult to copyright than artistic expressions.
  • Questions regarding the statute of limitations (i.e. the time limit for filing a claim) arose: did the statute of limitations begin upon publication of the show or upon the plaintiffs’ discovery of the alleged copyright violation? Why did the plaintiffs wait so long before filing a claim? And did the defendant fraudulently conceal broadcasts of the show from the plaintiffs, and would such a move affect the statute of limitations?

For seven years, each side enjoyed minor legal successes before an appellate court ruled in favor of NBCUniversal in April of this year. The case contains numerous technical legal lessons, but the primary take-away is that protecting both ideas and copyrighted material is challenging.

An experienced entertainment and copyright attorney can protect your rights to material and content once a dispute arises, and help prevent legal disputes by implementing safeguards for your work or ideas. Tom J. Manos of Manos & Associates, PL in Miami, has more than 30 years of legal experience and can provide the legal representation you need. To schedule a consultation, please call 305-341-3100.

Tuesday, April 29, 2014

An Ongoing Court Case Threatens to Redefine Copyright Litigation

In the United States, copyright law protects the rights of the owners of copyrighted material to distribute the material and to profit from that distribution. A corollary of the protection afforded to copyright owners is the law’s ability to bar entities from distributing copyrighted material if they lack the legal permission to distribute it. Specifically, without ownership or permission, a company cannot legally “display [material] at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered.”

Over the past two years, a legal battle between several large television networks, including ABC, Fox, CBS and NBC, and a popular streaming television subscription service named Aereo has been brewing. The television giants claim that since early 2012, Aereo, Inc., has broadcast copyrighted material from ABC, CBS, Disney, NBC, PBS and other networks via its digital subscription service. Unlike Netflix, Hulu and other content distributors, Aereo has not negotiated permission to distribute the material in question. The legal question is whether Aereo is improperly transmitting copyrighted material it does not own to the public by which “a substantial number of persons” can access it.

The method by which Aereo distributes material falls into a “gray area” that leaves the legality of its business model in question. This is because Aereo doesn’t provide content to thousands, hundreds or even dozens of individuals at a time. Instead, subscribers each use their own tiny antenna, located at an “antenna farm” owned by Aereo, and access the material they want on an individual basis. Due to this unique distribution method, Aereo claims it is not distributing material en masse. Instead, it is assisting individuals on a case-by-case basis to access material that TV stations “are already giving away for free over the air.”

The U.S. Supreme Court is now in the process of reviewing this lawsuit and the stakes are high; if Aereo wins, other providers may enter the market and further dilute the rights of the owners of copyrighted material from controlling how the material is distributed. Copyright owners argue that without control over copyrighted material, the incentive to create material may decrease.

If you are a performer, author, musician or other artist in the Miami or South Florida and have questions regarding the protection of your copyrighted material, contact Manos & Associates, P.L. We have handled cases involving ever-changing trademark and copyright laws for more than 30 years and can provide effective and knowledgeable legal help. To contact us, call 305-341-3100.

Tuesday, April 22, 2014

Estate of James Dean Files Suit Over "@JamesDean" Twitter Account

In the past, the term "cybersquatting" may have only referred to the use of trademarks in internet domain names without permission, but may expand beyond web address names to include social media accounts.

The estate of long-deceased actor and icon James Dean has filed suit against the social networking site Twitter and one or more of its users, alleging infringement of trademark and likeness rights. A fan of the actor created the Twitter account "@JamesDean" back in 2009, with a goal of sharing their love of the Hollywood icon with the Twitter community. In question is whether using both the name and image of the long-deceased actor who starred in the movies "Rebel Without a Cause," "Giant" and "East of Eden" violates trademark and likeness rights as well as Twitter's "impersonation policy."

The site's "impersonation policy" states that "Twitter accounts portraying another person in a confusing or deceptive manner may be permanently suspended under the Twitter Impersonation Policy."  

The Federal Anti-Cybersquatting Piracy Act covers the unauthorized use of celebrity names when it comes to Web domains but not Twitter user names. In its complaint, James Dean, Inc. claims that it requested that Twitter remove the "@JamesDean" account numerous times before filing suit. The lawsuit, James Dean, Inc., et al v. Twitter, Inc., et al, alleges that Twitter allowed a user to create an account with the handle, or user's account name, "@JamesDean" during or prior to September 2012 without permission.

It alleges trademark infringement under §§ 32(1) and 43(A) of the Lanham Act, 15 U.S.C. §§ 1114(1), 1125(a); and false endorsement under § 43(A). In addition, the suit claims violations of the right of publicity under both Indiana and common law, unfair competition, and unjust enrichment. As per the lawsuit, James Dean Inc. wants Twitter to "give" the @JamesDean account back to the estate.

If you are a member of the Miami entertainment community and think you may have a trademark infringement case, contact the law office of Manos & Associates, P.L. online or call 305-341-3100 to contact an attorney and musician who knows the entertainment world. Your first consultation with an intake specialist can determine if we can help you, and it's free of charge. 

Wednesday, April 16, 2014

Rapper Faces $16 Million Loss in a Partnership Dispute with Florida Company

Celebrity product lines can be lucrative, but beware the fine print.

For many celebrities and entertainers, artistically creative years are followed by lucrative years during which licensing, endorsement and joint venture deals lead to high-value personal incomes. Business opportunities are often governed by contracts, which have the potential to result in costly litigation if not adhered to completely. A dispute between celebrity rapper 50 Cent and a Florida personal headset manufacturer and marketer illustrates the need for a clearly-outlined contract in any entertainment-related business agreement.

In 2010, 50 Cent (whose real name is Curtis Jackson), partnered with Sleek Audio of Bradenton. Specifically, Jackson lent $285,000 to the company so that they could develop 50 Cent-branded headphones. Sleek created the headphones per its agreement with Jackson, but Jackson became frustrated with the speed at which Sleek brought the new products to market. In 2011, Jackson brought Sleek’s headphone designs to the Delray Beach manufacturer SMS Audio, who then proceeded to produce several headset lines for Jackson.

In its complaint, Sleek claimed that Jackson did not follow through on his obligation to launch a product line with them, and then launched a line featuring designs Sleek-owned designs. Faced with courtroom litigation, Jackson eventually agreed to have the dispute arbitrated.

During the arbitration proceedings, Jackson expressed frustration with the company’s alleged poor management, he claimed that Sleek fraudulently induced him to invest in the company. The arbitrator responded with sympathy to Jackson’s frustration, but also indicated that it did not justify Jackson taking Sleek’s intellectual property to another firm. The final ruling was a serious blow to Jackson: $4.5 million in attorneys fees and $11.7 million in damages.

As this case demonstrates, frustration, impulse and even good business sense are no substitute for carefully following both the law and the specific terms of a business contract. If you need legal assistance regarding entertainment and contract law in Florida, contact Attorney Tom J. Manos in Miami. We can assist you both in the creation of business agreements and with litigation in the event of a dispute. Call us at 305-341-3100.

Wednesday, April 9, 2014

Rights to Deceased Singer Nina Simone’s Music Remain in Dispute

Legal disputes following the death of a loved one in Miami may be exacerbated if the deceased was a famous entertainer, such is the case for the dispute over Nina Simone's music. Several individuals who were close to the jazz, blues, R&B and gospel singer are in dispute over who owns certain portions of her 'music library.'

A divorce, conflicting contracts and an untimely death result in more than a decade of litigation.

Musicians rarely envision long-term property disputes when starting their recording and performance careers. Too often, though, incorrectly handled legal agreements eventually result in disputes involving not only intellectual property law but contract law, estate planning law and a range of other legal issues.

The fate of a Simone’s music library serves as a case in point.

In 1972, Simone signed a divorce settlement agreement with her husband Andrew Stroud. Prior to her death in 2003, Simone also signed property contracts with attorney Steven Ames Brown and entered into contract agreements with Sony Music Entertainment. In the years following her death, all three parties have sparred over the ownership rights of a number of her recordings. The dispute is complicated by the following factors:

  • Stroud died in 2012. His wife at the time of death (not Simone) was named in his place in ongoing lawsuits,
  • Before he died, Stroud sold some of his (disputed) ownership rights to ICU Entertainment Company,
  • Brown (Simone's attorney) claims to own not a portion of the disputed recordings,
  • Simone’s estate exists as a fourth major party of interest in the dispute.

Despite the complexity and longevity of the dispute, an end may be in sight. In March of this year, a U.S. Magistrate Judge recommended judgment and injunctions against Stroud’s companies and estate. Judgments were also made in favor both for Simone’s estate and for Sony Music Entertainment via RCA Records. However, Brown's claim that he owns some of the recordings in question may still be viable.

Though carefully constructed contracts cannot necessarily prevent property rights disputes in all instances, they can strengthen owners’ claim to property, reducing the number and length of disputes. It's possible that more diligent legal representation could have resulted in more legally efficient property rights both for Simone and her estate.

If you are a recording artist or entertainer and have questions regarding commercial litigation and entertainment law in Miami or anywhere in Florida, contact Manos Elwine, PL. We have provided unwavering legal representation to our entertainment industry clients for more than 30 years. Call 305-341-3100.

Monday, March 31, 2014

Social Media, Defamation and Your Rights

Anyone familiar with Facebook, Twitter and other social media knows that these communication tools can be used to air grudges, disseminate questionable information and hurt feelings. But when do embarrassing claims and potentially damaging statements cross the line, legally, to the level of defamation, slander, libel and illegality?

An international civil case that resolved in March of this year helps illustrate what constitutes defamation conducted via social media.

In 2008, the head of an Australian school’s music department left his position for health reasons. He was replaced by veteran instructor Christine Mickle. For reasons that remain unclear, the retired department leader’s son made numerous tweets suggesting that Mickle bore responsibility for his father’s need to leave the school. Mickle sued for defamation.

The district court judge handling the case concluded, after an investigation, that the defendant had feelings of resentment against the plaintiff, "apparently based on a belief that she had something to do with his father leaving the school" and that there was "absolutely no evidence to substantiate that belief." The court awarded Mickle $100,000 in damages, stating:

  • The defamatory statements had a “devastating” effect (the plaintiff needed to take sick time to deal with the effects of the defamatory statements and was able to return to work only on a limited basis)
  • The type of communication used (Twitter) had an “evil,” “grapevine effect” that allowed lies to spread easily.

The ease of which defamatory statements can spread via “the simple manipulation of mobile phones and computers” may have played a role in the judge’s decision.

What Steps Can You Take in the Face of Defamatory Statements?

Everyone has a right to their opinion, but when businesses and careers are hurt by inaccurate and damaging misstatements and overt untruths, victims often have a right to financial compensation. The attorneys of Manos Alwine, PL have extensive commercial litigation experience in the Miami and all south Florida communities. If you need legal help regarding a possible defamation case involving Facebook, Twitter or any other form of print, verbal or electronic communication, contact us for a consultation by calling 305-341-3100.

Tuesday, March 18, 2014

Google Scores Big Success in Its Dispute With Viacom

The legal climate for intellectual property owners in infringement disputes may have just become more challenging.

The federal Digital Millennium Copyright Act (DMCA) of 1996 was passed in part as a response to the increasing complexity of protecting copyrighted material in the age of the internet, file sharing and the ease of copying digital material. The law criminalized numerous acts associated with the copying, production and dissemination of copied material and placed the onus on preventing copyright infringement on, among others, internet service providers (ISPs). Specifically, it required that ISPs take action to halt copyright infringement upon notification by a copyright holder that infringement has occurred.

Relying on the “Safe Harbor” provision of the DMCA, Viacom filed suit against YouTube owner Google in 2007 claiming that Google “had built its [YouTube] business by hosting tens of thousands of copyright-infringing videos” owned by Viacom without authorization. The closely observed lawsuit was thought by some to have hinged on the following legal point:

  • In YouTube’s earlier years, an estimated 75 to 80 percentof the content posted on the site was copyrighted material. With such a high rate of infringement, Viacom asserted that YouTube “must” have been aware of infringement and must have willfully ignored “red flags.”

Despite the rationality to Viacom’s claim, a New York federal court determined in April of 2013 that “the burden of showing that YouTube knew or was aware of the specific infringements of the works in the suit cannot be shifted to YouTube to disprove." In other words, Viacom did not prove specific infringements and YouTube did not have to. Summary judgment was awarded to YouTube. Armed with the summary judgment, Google settled the case with Viacom under terms that remain private but may have been highly advantageous to Google.

As this case illustrates, proving infringement and recovering compensation for losses are difficult. If you feel a company has infringed on your or your firm’s intellectual property rights, it is important to obtain legal assistance from a firm with a track record of success in civil litigation. To speak with an experienced copyright infringement and intellectual property attorney in Miami, call 305-341-3100.

Tuesday, March 11, 2014

"Pink Slime" Case Illustrates Legal Protection Against Defamation

Most individuals and organizations in Miami and beyond have a passing understanding of their rights and responsibilities regarding what they can and cannot say about others, and what can and cannot be said about them, they're familiar with the terms: “Defamation.” “Liability.” “First Amendment rights.” “Free speech.” “Anticompetitive practices.” “The marketplace of ideas.”

Yet, the lines can seem blurred between free speech, liability, and the like when there is a possible defamation case at hand. Do potentially defaming statements truly equal defamation or are they perhaps merely offensive? Did damages occur and, if so, what are their value? And how can potential legal issues be resolved?

A recent case covered by the Miami Herald demonstrates that, despite a vigorous defense, potentially defaming statements based on questionable assertions can cause real damage and lead to potentially high-value legal outcomes.

In 2012, ABC broadcast a story questioning the safety of the beef product “lean, finely textured beef,” also known as  “pink slime”, which is a beef product made with the trimmings left over when a cow is butchered. In the broadcast, ABC:

  • Brought attention to the then little-known and derogatory term “pink slime”
  • Claimed that lean, finely textured beef is “not meat” but, rather, “filler”
  • Implied that the U.S. Department of Agriculture was not a credible source to certify that lean, finely textured beef is safe because it “overruled scientists” when approving the food’s use
  • Named only one producer of lean, finely textured beef- that producer was Beef Products Inc.

Following the ABC story, Beef Products Inc.’s sales plummeted, leading to the closing of three production plants, the laying off of 700 workers and reduced profits. In response, Beef Products Inc. sued ABC for $1.2 billion. ABC claimed, in response to the lawsuit, that it “never quoted critics saying the product is unsafe,” that the term "pink slime" is not incorrect and that Beef Products Inc. “doesn't get to choose ABC's words.” Despite ABC’s defense, the judge handling the case refused to throw out the case, stating that ABC wasn’t protected against liability by claiming in its news reports that lean, finely textured beef is beef and that it is safe and nutritious. Though the case has not yet concluded, Beef Products Inc. may potentially recover significant compensation for its losses.

As this case illustrates, laws against defamation have the ability to offer real protection. If you or your organization has suffered losses from a damaging statement made by another party, or you suspect that an individual or entity has made defaming statements about you, protect your rights and bottom line by obtaining sound legal advice. The attorneys of Manos Alwine PL in Miami have extensive civil litigation experience, including experience successfully handling defamation claims, and can be contacted at 305-341-3100.

Friday, March 7, 2014

Law Professor and Record Company Settle on YouTube Video Copyright Lawsuit

If you live in the greater Miami area and are on either side of a copyright or trademark infringement suit, contact our office for a consultation. We will determine if we can help you in your pursuit or defense of legal action.

Most people involved in copyright cases aren't actually copyright attorneys themselves, but recently an attorney and copyright activist was named as the defendant in an infringement case out of Massachusetts.

Australian record company Liberation Music filed a lawsuit against Harvard Law professor Lawrence Lessig accusing him of copyright infringement for using a song by the Liberation-represented band Phoenix in one of his YouTube videos. Ironically enough, the video showcased one of Lessig's lectures about the fair use of copyrighted work. A legal doctrine known as fair use entitles people to use clips of certain copyrighted material for purposes of education and satire, among other things.

"If I'm using it for purposes of critique, then I can use if even if I don't have permission of the original copyright owner," Lessig said, as reported by NPR.

YouTube took the video down, prompting the law professor to counter-sue the label because of the way they went about notifying him of the alleged infringement: through an automated system.

In filing the suit, Lessig was hoping to send a message that the automated way of relaying alleged violations of copyright is often "used as an excuse to silence legitimate speech," he said in a statement issued through his attorneys at the Electronic Frontier Foundation, a digital rights group.

Lessig, who is vocal in his criticism of these automated notices, hopes his suit will set a precedent that convinces copyright holders to put actual human lawyers in charge of all things copyright-related, rather than send automated takedown messages regarding material a person may be within their rights to use.

NPR quoted Lessig as saying "Too often copyright is used as an excuse to silence legitimate speech. I've been fighting against that kind of abuse for many years, and I knew I had to stand up for fair use here as well. Hopefully, this lawsuit will send a message to copyright owners to adopt fair takedown practices — or face the consequences."

Lessig proved triumphant in his battle against the label- the opposing parties recently settled, with Liberation Music agreeing to pay Lessig for any harm caused as a result of the lawsuit/takedown. The label also agreed to amend its policies on issuing takedown notice.

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