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

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.

Thursday, February 27, 2014

Celebrities Challenge the Unauthorized Use of Photos of Their Children

Celebrity couple Kristen Bell and Dax Shepard are among the latest celebrities who are firing back at the paparazzi and the publications they sell photos to regarding the aggressive ways in which they attempt to snap photos of celebrity children and the unauthorized use of those images in print and web news outlets.

In January, Bell and Shepard wrote tweets encouraging consumers to boycott publications that buy paparazzi-generated pictures of celebrities' children without the consent of their parents.  Days later, Shepard authored a Huffington Post piece outlining the reasons behind their cause.

Due in part to Bell and Shepard's statements, celeb websites Just Jared and People magazine pledged that that won't run paparazzi photos of celebrities' children who are not famous in their own right.

"Recent discussions I’ve had with actresses ... Kristen Bell, prompted me to take the next step at Just Jared by suspending the use of unauthorized photos of celebrities’ children throughout our sites...we won’t be posting photos of children of public figures without consent."

There will still be photos of kids in these publications, but only when famous parents choose to share them via exclusive spreads or other agreements. What this means is that Just Jared and People won't be publishing pictures of celebrity kids outside of school or at the park for now on.

In September of 2013 Halle Berry and Jennifer Garner championed California legislation that was created to restrict the threatening behavior exhibited by photographers towards the stars' children. Though the California Newspaper Publishers' Association and the National Press Photographers Association opposed the bill, it still passed, as the measure was written with first amendment concerns in mind. According to the senator who presented the legislation, the bill mandates increased penalties for anyone who attempts to take pictures or recordings in a manner that "seriously alarms, annoys, torments, or terrorizes" them.

If you are a member of the entertainment community who is interested in pursuing damages for the unauthorized use of an image or images, you can count on us to fight for your rights. Give our Miami, Florida office a call at 305-341-3100 for legal guidance.

Wednesday, February 26, 2014

‘Friends’ Actress Lisa Kudrow Accused in Court Of Being A Real-Life Phoebe

The actress who formerly played the role of Phoebe Buffay in the well-known show “Friends” is being sued by her ex-manage Scott Howard for $1.7 million in residuals. Earlier this week, Kudrow appeared in court and took the stand for cross-examination, in which the plaintiff’s attorney fired a low blow. Prosecuting attorney Mark Baute accused witness Lisa Kudrow of assuming the well-recognized role of Phoebe and essentially “pretending to be dumb” during her testimony.

“You really in real life bear no relationship to the character Phoebe, right” asked Baute.

The court ruled in favor of Howard this morning.

Wednesday, February 12, 2014

'Dumb Starbucks' Labels Itself Parody Art to Escape Legal Repercussions

A potential copyright infringement case emerged in California last week when a very familiar looking storefront popped up in a  a Los Feliz shopping center. The name of the new coffee shop? Dumb Starbucks. The names of the products for sale at Dumb Starbucks are almost indistinguishable from those sold at the "real" Starbucks, except that all of the menu items are preceded with the word "dumb." For example, people can order a "Dumb Frappuccino" or a "Dumb Blond Roast."

Is it legal for a store to claim a name that's almost identical to that of an existing business?

According to a Fact Sheet posted inside the Dumb Starbucks, the establishment is lawful thanks to "parody law": "By adding the word 'dumb,' we are technically making fun of Starbucks, which allows us to use their trademarks under a law known as 'fair use.'"

The sheet also stated: "Although we are a fully functioning coffee shop, for legal reasons, Dumb Starbucks needs to be categorized as a work of parody art ... But that's for our lawyers to worry about. All you need to do is enjoy our delicious coffee!"

Apparently the satirical version of Starbucks had more pressing problems than a possible copyright lawsuit: the Los Angeles Department of Public Health ruled to close the shop to the public earlier this week because it was operating without a public health permit.

It wasn't until Monday that Comedy Central star Nathan Fielder came out as the man behind the creation of the imitation coffee chain.

Contact a Miami Copyright or Trademark Infringement Lawyer Today

The attorneys at the Miami office of Mano Alwine, P.L. have vast experience litigating disputes over copyright or trademark infringement, and will fight to protect the rights of the entertainers and businesses we represent. Contact us by filling out this short form or call us at 305-341-3100 for a free consultation to determine if we can assist you.





Friday, January 31, 2014

Florida Museum Served with Contract Lawsuit

Business people in Miami and the surrounding area strive to establish contracts only with people and companies they know they can depend on, but sometimes a company doesn't live up to its reputation and problems arise with a contract. Such was the case (allegedly) for Volusia County-based marketing company Markalyst LLC, when they entered into an agreement with a Florida museum...

Things just got surreal for the museum that houses the artwork of Salvador Dalí, "the father of surrealism." The Dalí Museum is being sued by consulting company Markalyst for breaching their contract agreement and abandoning an unpaid balance of more than $230,000.

Markalyst filed a suit against the museum in late 2013, claiming breach of contract and unjust enrichment, and is seeking a jury trial. The reason for their lawsuit is pretty clear- Markalyst didn't receive the money owed to them for services rendered. Under Florida law (and other states), a plaintiff has to allege that a contract actually existed in the first place in order to file a breach. They must argue that:

  • a valid contract existed
  • there was a material breach of the contract. Meaning the plaintiff did not receive the "substantial benefit" of the deal- in this case it was money
  • damages resulted from the breach, and
  • there are no valid defenses for the breach

Are oral contracts considered valid? Yes, but a plaintiff must allege offer, acceptance and consideration. 

According to the lawsuit, the museum hired the consulting company to develop recommendations for new marketing objectives, strategies and processes, for which the museum originally planned to pay $300,000 over an extended period of time. Payments were to be made in installments due to the museum's "cash position" - a point which was not elaborated in the suit. Though Markalyst completed the work in July 2013, the museum told the company they would not be making any further payments on the project, despite the remaining balance of $233,200. The museum only paid a fraction, just $66,800, of the project's total cost, between January and August of that year.

If you are concerned you might be the victim of a contract breach, call the offices of Manos, Alwine, PL in Miami, Florida at 305-341-3100. 

Tuesday, January 28, 2014

Breach of Contract Woes for Latin Singer in Miami

Several Colombian government arts associations in Tunja, Colombia and Florida-based Miami Entertainment CMG accused famed Latin singer Paulina Rubio of a breach of contract after she failed to appear for a scheduled performance in Colombia back in November of 2010 as part of the Festival International Culture of Boyacá. The Tunjan government organizations and the entertainment company joined forces to file the breach of contract suit against Rubio in Miami.

Why was Rubio a no-show at her own concert?

Though Rubio claims she planned her trip according to the instructions outlined by both organizations, she experienced unforeseen challenges that prevented her from making the scheduled performance.  The singer states that she planned on arriving at the scheduled venues, but was unable to land in Tunja. Both Miami Entertainment and the government of Tunja insist Rubio was made aware of the area's limitations regarding travel when she entered into the agreement. Since Tunja does not maintain an airstrip, Rubio was told she would have to land elsewhere and be driven into the city. The singer supposedly landed in a nearby city on a private jet, and then refused to travel to Tunja overland with a military escort, a plan that the petitioners claim she agreed to previously. Though Rubio's band and manager arrived in time for the August 2010 performance, she never showed up.

Miami-Dade jury will hear the case

Miami-Dade Circuit Judge Abby Cynamon ruled in December 2013 that Rubio's case will be heard by a jury, though a trial date has yet to be set.

What happens if the court rules against Rubio? If the alleged breach of contract is established in court, Rubio could potentially owe approximately $1 million in legal fees and interest on lost concert earnings.

The legal breakdown...

As the petitioners' note, this alleged breach of contract resulted in lost revenue and damaged the reputation of both the Miami entertainment company and the venues in Tunja who claim they were not to blame for Rubio's no-show. Breaching a contract can have far-reaching implications, and although Rubio argues she is not personally liable for her failure to deliver a performance, the Miami judge ruled that is something the jury will have to decide.

Thursday, December 26, 2013

A Miami Recording Contract Dispute with a Twist

A Dispute Shows That, in Entertainment Law, If It Can Go Wrong, It Will

Murphy’s Law strikes again. A broadcasting and media company conducts long, detailed and good-faith discussions with a production company regarding the creation of a reality television series. An agreement is reached, payment of $100,000 is made and received and a high-quality, useable visual/audio recording of a beauty pageant-style contest is assured. All is well until the product is delivered to the media company. The problem? The recording looks great but has no useable sound!

This is not a good beginning for what may eventually become a popular local tradition. Earlier this year, the Miami-based The Bugarie Group began production of a reality TV show to be called "The Search for the Ultimate Miami Girl." In phase one of the contest, “young ladies of all types between the ages of 21 and 35 who reside in South Florida” will be invited to a live, one-day casting call. In phases two and three, selected contestants will compete in elimination contests focused on style, personality and knowledge of Miami. The winner will be awarded the title Ultimate Miami Girl and receive $25,000.

Earlier phases of the contest have been held, filmed and edited by the production company Stardust Pictures. The Bugarie Group claims that the recording delivered had "no sound, [or was]muffled or unusable" and seeks $600,000 in damages. The complaint, filed in Florida federal court in early December 2013, claims that the planned show will have “no value” unless Stardust Pictures captures a contest that has “accompanying and synchronized sound.”

The Bugarie Group faces a serious problem but not an insurmountable one, especially of its rights are fully protected by its contract with Stardust Pictures.  An experienced and diligent entertainment law attorney can anticipate potential issues in ventures such as “The Search for the Ultimate Miami Girl” and draft an agreement that protects the rights of the artist. Likewise, when Murphy’s Law strikes, an effective entertainment law firm can aggressively pursue the compensation owed when a party fails to honor all aspects of an entertainment law contract. To discuss you business law, entertainment law or breach of contract law concern today, call us at 305-341-3100.

Thursday, December 26, 2013

A Fair Outcome Following Alleged Trademark Infringement

Any business that owns a valuable patent, trademark or other intellectual property has likely taken considerable risk or expended a considerable sum to obtain it. When another business decides that it, too, can profit from the property or material without permission or a license, it’s important to take action to:

  • Protect your property
  • Obtain any compensation owed by law

A recent case in South Florida illustrates that, in the case of blatant trademark infringement, legal action can bring both a fair outcome and a high-value result.

For years, booth holders at the Fort Lauderdale-based Swap Shop flea market allegedly served as a source for counterfeit luxury items, including Coach purses, handbags and other items. Earlier this year, Coach responded to the alleged trademark infringement by filing a lawsuit not against alleged sellers and makers of the knock-off goods but against Swap Shop owners Preston and Betty Henn. The Henns, Coach claimed, “willfully turned a blind eye” to vendors illegally selling counterfeit Coach products on their property.

After just two days in court, the Henns capitulated and agreed to a settlement that included a $5.5 million payment to Coach due no later than December 27, 2013. For its legal efforts Coach obtained intellectual property protection, sent a message to other would-be trademark infringers and won a high-value sum that will significantly boost its 2013 bottom line.

The attorneys of the law office of Manos &Alwine, P.L., applaud the outcome of this lawsuit. Coach expends vast sums annually designing, marketing and distributing its coveted products. It deserves compensation from any party complicit in trademark infringement.

If your business is involved in a trademark dispute or other commercial dispute in Miami, Fort Lauderdale or elsewhere in South Florida, contact one of our business dispute attorneys to discuss your concerns. Our team of commercial litigation attorneys has resolved hundreds of trademark and contract disputes involving licensed material, unfair competition, insurance, entertainment law, distribution agreements and more. We represent both plaintiffs and defendants and have achieved numerous six- and seven-figure outcomes both in and out of court. To contact us, call 305-341-3100.

Wednesday, December 18, 2013

Non-Compete Agreements Rankle, but They Remain Enforceable in Many Instances

Non-compete agreements are among the most contested of contracts, perhaps because they are viewed both as unnecessary and as slightly un-American. Frequent comments heard by contract attorneys handling non-compete agreement disputes include “Who will gain if this agreement is enforced?” and “How can they stop me from doing my job and making a living?”

Earlier this month, a Court of Appeals in Tennessee went far in answering these questions when it resolved a Tennessee non-compete agreement case with a Florida connection.

In 2010, two executives began work at a Tennessee corporation. Each signed a contract stating that:

  • The executives would not compete with their employer anywhere their employer did business in the U.S. for two years
  • The executives would not engage in any business their employer was engaged in or [had] taken steps to be engaged in prior to the executive’s termination of employment
  • The contracts would be “construed under” and “enforced in accordance” with the … laws of the State of Florida

In 2011, both executives resigned, and then filed lawsuits in which they claimed that the non-compete contracts were void and unenforceable. Their former employer filed a counterclaim, and, eventually, the Court of Appeals decided that the non-compete agreements were:

  • Enforceable because they reasonably and necessarily protected the employer’s legitimate interests
  • Overly broad in scope: their primary purpose of preventing the formation of a competing business was not served by limiting business engagement options

The Court of Appeals also ruled that Florida law contravened Tennessee’s public policy as it pertained to this dispute therefore could not and did not apply.

This case illustrates that employers may still effectively protect their interests via non-compete agreements. However, the outcome of any dispute may be more assured with the knowledgeable and strategic counsel of an experienced contract attorney.

An attorney can determine the full range of protection that a non-compete contract can validly offer. For example, in addition to preventing the formation of a competing start-up, a non-compete agreement can protect valuable intellectual property. And by avoiding overly broad and unenforceable provisions, an attorney can help prevent conflicts and litigation. For more information regarding effective non-compete agreements, contact the law office of Manos &Alwine, P.L., at 305-341-3100.

Wednesday, December 18, 2013

Retail Shop Infringes on “Harry Potter” Licensing Rights

As South Florida readers in the entertainment industry likely know, licensing right disputes are a common threat to incomes and profits. While infringement most often occurs during the whirlwind days when a film, song, book or other property is first released, a recent case in Los Angeles shows that licensing infringements can also occur years after legally protected materials are initially released.

In early 2013, Warner Bros. filed suit against a shop in Los Angeles called Whimsic Alley, accusing it of selling and renting out unlicensed "Harry Potter"-branded items. Specifically, Warner Bros. claimed that Whimsic Alley’s wizard costumes, wands and Hogwarts-style “great halls” that it supplied for children’s parties were created and marketed without permission from Warner Bros., which the owner of most “Harry Potter” trademarks. Warner Bros. claimed that the extent of infringement entitled it to demand both compensation and the potential shuttering of the costume and gift shop.

Supporters of Whimsic Alley began a letter-writing campaign in what was viewed by many as a “David and Goliath”-type scenario, but attorneys following the case understood the legal ramifications of the dispute. Intellectual property law attorney Allen Grodsky of The Los Angeles Times noted that Whimsic Alley had been accused of illegally marketing unlicensed merchandise before and that he could “understand why Warner Bros. is upset.” Whimsic Alley’s attorneys must have agreed. Following a confidential settlement with Warner Bros., the store will be allowed to remain open, but it will have to “make changes” in its product that reflect a permanent injunction barring it from “displaying any ‘Harry Potter’ trademarks and other ‘confusingly similar’ marks in the shop or on its website”.

Irrespective of the scenario of this case, the fact is, trademark infringement is unfair and illegal and can cost you or your business a significant amount of money. If you believe another party is infringing on a trademark you own, protect your property and rights with the help of an attorney skilled in contract, intellectual property entertainment law. The attorneys of Manos &Alwine, P.L. have handled trademark infringement disputes since 1999. To contact us, call 305-341-3100.

Tuesday, November 26, 2013

Electronic Evidence and Business Litigation

Email, intra-office messaging and digital image transference are hardly new concepts, however few business owners realize the long-term implications of this style of free-flowing communication, particularly in light of litigation and e-discovery requests. If you are a Florida business engaged in litigation or preparing for possible conflict in the future, one of the best strategies for your company is to implement and maintain an electronic evidence policy for employees. Too often, damaging information, accidental concessions or discriminatory language is casually exchanged between two employees -- believing to be engaged in a private chat -- only to be uncovered by a sweeping e-discovery request from opposing counsel. To avoid this result and protect your business from unnecessary exposure to liability, consider meeting with a business litigation lawyer about your company’s electronic information policies.

Electronically Stored Information and Business Litigation Holds

Once a civil complaint is filed, both parties are entitled to request and receive evidence from the opponent in a process known as discovery. Requests for information need not be necessarily admissible at a subsequent trial, however any non-privileged information that may be relevant to a party’s claim or defense is discoverable. In the context of electronic discovery, it is considered routine discovery practice to require opponents to place a “litigation hold” on electronically stored information, thereby preventing companies from destroying or erasing data. These holds generally include all emails, voicemails or electronically stored documents, and various software companies have developed products to help organizations manage and store data pursuant to a litigation hold.

Disastrous Consequences for Employers

In preparation for possible litigation, it is vital for your employees to carefully consider all electronic communication, as one pejorative email could bring your case to a screeching halt. In the context of employment litigation, a plaintiff claiming workplace discrimination could prevail, thereby costing your company thousands of dollars, all due to the discovery of derogatory jokes uncovered by electronic discovery. The same is true in the context of any other area of business law wherein one employee admits wrongdoing, breach or fraud in a casual email to a colleague. Once the litigation hold is in place, there is no telling what the opponent could uncover, thereby placing your business at an increased risk of liability.

Speak with a Reputable Miami Business Litigation Attorney

Electronic evidence can be a complex area of the law. However, with the proper workplace policies, businesses like yours can work to avoid the potential consequences of the vast, boundless litigation hold and can rest assured in the notion office emails do not contain inadvertent confessions, admissions or disclosures. If you are facing upcoming litigation and are seeking counsel on these issues, contact the commercial litigation attorneys at Manos Alwine PL for a consultation.


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