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

Wednesday, September 26, 2012

That's bananas: Velvet Underground, Warhol Foundation fight over copyright

By Pankaj Ladhar of Manos • Alwine P.L.

For many people, Andy Warhol is synonymous with Pop Art. His brightly colored and deliberately blurred images of Marilyn Monroe, Elvis Presley and Campbell's soup cans are nothing short of iconic. But who owns the rights to his famous image of a banana?

You might think the answer would be obvious -- he does -- but the plot thickens.

The band The Velvet Underground commissioned Warhol to do the cover art for its 1967 debut album. The album and its cover art, a brown-spotted yellow banana on a plain cream background, became famous.

Now, The Velvet Underground has sued The Andy Warhol Foundation for Visual Arts, alleging it violated a copyright held by the band when it licensed the banana image for use on iPad and iPhone cases and sleeves. It also claimed the foundation was violating the band's trademark because the banana image is accepted as symbol for the band.
Recently, a judge threw out the copyright portion of the lawsuit. It seems that the band's dealings with Warhol back in the 1960s were too murky and indistinct to permit The Velvet Underground to assert ownership of the copyright to the banana image.

However, the trademark portion of the case will be allowed to go forward.

The lesson to be learned here is twofold.

First, it pays to make sure all your Ts are crossed and Is are dotted when dealing with intellectual property assets. You don't want problems to arise later.

Second, it makes good business sense to see everything as a potential asset. It seems fair to assume that neither Warhol nor The Velvet Underground thought the banana image would become so famous. But if they had realized its potential, either party might have acted with greater care to firm up its claim to the image earlier on and thus benefitted from its ownership years later, when it became very valuable.

Source: The New York Times ArtsBeat, "Portion of Suit Over Warhol's Velvet Underground Banana Is Discarded," Dave Itzkoff, Sept. 11, 2012

Friday, September 21, 2012

Woman seeks to copyright 'restored' 19th-century fresco

By Pankaj Ladhar of Manos • Alwine P.L.

By now it is likely that many individuals throughout the world, including our Miami readers, are familiar with the 19th-century fresco of Jesus located in a church in Spain that was the subject of a failed restoration by a well meaning octogenarian. Despite not having received any training on how to complete such a restoration, the woman claimed a priest at the church in which the fresco "Ecce Homo," or "Behold the Man," is located provided permission to undertake the task.

The woman's actions angered many and have led those in charge of the sanctuary to explore filing a lawsuit against her for the damage done.

In the meantime, the story of what happened to the fresco made international news and images of the "restoration" have been utilized in products throughout the world. Despite having arguably ruined a treasure, in a strange twist, the restoration has resulted in tourists flocking to the church where it is located. The church has even employed a security guard, roped off the portion of the church where it is located and started charging admission. Reportedly it took in approximately $2,600 over the course of the first four days.

Now the woman who completed the restoration is seeking to recoup some of the profits being made off her handiwork. She has obtained lawyers and is in the process of seeking a copyright of the new image. Should she be successful in the endeavor, she would be entitled to license the use of the image and collect royalties.

What do you think the outcome of this will be?

Source: New York Daily News, "Pay up! Woman who turned botched Spanish fresco of Jesus into worldwide sensation wants her cut from admission charges," Erik Ortiz, Sept. 20, 2012

Wednesday, September 19, 2012

IP suit accuses Florida team of unauthorized use of fan photo

By Pankaj Ladhar of Manos • Alwine P.L.

A Florida basketball fan has filed an intellectual property lawsuit against the Orlando Magic, alleging that the team used her photo without her knowledge and against her wishes. Team officials have not commented on the unauthorized use allegations, but state that the plaintiff's image is no longer being used in marketing campaigns.

The photo at issue was taken during the Magic's 2011 playoff push, and features the plaintiff, a 30-year-old woman, cheering with her arms raised in the air. The image was featured on light-post banners throughout Florida, in a tourist magazine, and enlarged on the back of a bus. Although the ads were pulled and the bus was repainted soon after the team was knocked out of the playoffs, the plaintiff claims that it caused her embarrassment and discomfort in both her personal and professional life.

In her lawsuit, the plaintiff accused the team of misappropriation of her likeness, invasion of privacy and infringement of publicity rights. She is seeking damages in excess of $15,000.

When asked about the lawsuit's chances, a local intellectual property expert told the Orlando Sentinel that the plaintiff will likely not succeed. She is not a public figure, and therefore lacks the sort of publicity rights that the law aims to protect.

Further, he said, there is a disclaimer on the back of every game ticket which warns of the team's "irrevocable and unrestricted right and license" to use the ticketholder's image for promotional purposes "without further authorization or compensation."

However, the plaintiff's attorney argues, the use of his client's picture goes above and beyond the rights detailed in that disclaimer. The plaintiff did not agree to have her picture used in such a noticeable manner simply by walking into the arena that day.

What do you think? Should the lawsuit succeed?

Source: The Orlando Sentinel, "Woman sues Orlando Magic over use of her image," Stephen Hudak, Sept. 14, 2012

Thursday, September 13, 2012

Apple files intellectual property complaint against...Polish grocery store?

By Pankaj Ladhar of Manos • Alwine P.L.

Did its big, recent victory against Samsung go to Apple's head?

Only a few weeks after it won an intellectual property dispute with Samsung (and was $1 awarded billion in damages), the company that makes all of Miami's favorite high-tech devices has announced that it is going after a far unlikelier candidate: a Polish online grocery store called ""

The move has caused a few people to scratch their heads, since it is not immediately apparent what Apple was concerned about. ("Pl" is the Polish version of ".com," so the American equivalent of would be "")

Poland's equivalent of the U.S. Patent and Trademark Office confirmed to reporters on Tuesday that Apple had filed a complaint, accusing the of copying its logo and using a deceptively similar name to seduce customers.

Adam Taukert, a spokesman for the Polish patent office, said, "Apple brand is widely recognized and the company says that, by using the name that sounds similar, is using Apple's reputation."

In response, an executive for called the complaint "ludicrous."

Now, it is true that companies have to be vigilant and proactive when it comes to protecting their intellectual property assets. On the other hand, there is such a thing as too much aggression.

Based only on what you know about what we have written here, does Apple's lawsuit make any sense to you? Or does it sound, shall we say, questionable?

Source: Reuters, "Apple turns legal funs on Polish retailer," Sept. 11, 2012

Tuesday, September 11, 2012

Director files entertainment lawsuit over "The Dark Knight Rises" commissions

By Pankaj Ladhar of Manos • Alwine P.L.

Christopher Nolan, whom Miami movie fans know as the director of "Memento" and the Christian Bale "Batman" movies, recently sued both his former and his current agency.

The basis of his lawsuit is the switch he made earlier this year to follow his agent from Creative Artists Agency to William Morris Endeavor. Now, both CAA and William Morris are saying that Nolan must pay them millions in commission fees for Nolan's latest film, the summer mega-hit "The Dark Knight Rises."

CAA argues that it is entitled to any payments for any project that began while Nolan was under its representation. It isn't clear if that would include "The Dark Knight" specifically, but it would include the Batman trilogy.

William Morris Endeavor points out that "The Dark Knight" was released when Nolan was represented by it and that it handled some damage control in the wake of the movie-theater shooting in Aurora, Colorado.

In his lawsuit, Nolan essentially says that he does not care whom he pays, but he only wants to pay once and wants the two agencies to work it out with each other and then tell him to pay.

Disputes over commission like this are not at all uncommon in the entertainment industry. When it's clear there is some money attached to a project, an entertainer or an idea, it seems like everyone wants a piece of it, whether they deserve it or not.

We often help singer, actors, models and other creative talent when there is a dispute over things like commission. If you want to know more about the sort of cases we take on, you might visit our Entertainment Law page.

Source: The Hollywood Reporter, "Batman Director Chris Nolan Sues His Agencies To Determine Their Commission," Alex Ben Block, Sept. 6, 2012

Friday, September 7, 2012

Entertainment lawsuit filed over "The Godfather" contract dispute

By Pankaj Ladhar of Manos • Alwine P.L.

The film adaptation of "The Godfather" is, without a doubt, on the list of many Miami cinephiles' "best of" lists. It's the movie that helped make Francis Ford Coppola a respected filmmaker and it gave rise to several sequels.

There has been some talk in Hollywood about a new installment in the Corleone family saga, but Paramount, the studio behind "The Godfather," recently filed an entertainment lawsuit over the issue, putting it in danger.

Mario Puzo, who wrote the novel "The Godather," sold the film rights to Paramount in 1969. He was paid $50,000. "The Godfather" film franchise went on to generate around $1 billion in revenues (according to an estimate from Puzo's estate, anyway) and it seems the disconnect between what Puzo was paid and the money "The Godfather" went on to generate caused relations between Puzo and Paramount to sour.

So, when Puzo's estate tried to publish a new book, "The Family Corleone," Paramount sued, claiming that this would "tarnish" the legacy of "The Godfather." Recently, Puzo's estate countersued, claiming that Paramount was unjustly tainting its ability to publish further books and continue making money.

(It seems fair to note that even though publication of the novel is important in and of itself, it seems like Paramount does not want a new studio to get rights to a future "Godfather" film, and Puzo's estate wants the freedom to sell those rights to anyone it wants.)

At this stage, only time will tell how this case turns out. We are keeping an eye on it and will updated Miami readers if there are any interesting new developments in the future.

Source: The Hollywood Reporter, "Puzo Estate Asks Judge to Take Away Paramount's Rights to More 'Godfather' Films," Eriq Gardner, Sept. 4, 2012

Wednesday, September 5, 2012

One Direction wins entertainment lawsuit over name

By Pankaj Ladhar of Manos • Alwine P.L.

Back in June, we told Miami readers about how British boy-band sensation One Direction had been sued by an American group, also known as One Direction, over the use of the name.

Now, this entertainment lawsuit has been settled: The British One Direction will continue using the name, while the American band will go by the new moniker Uncharted Shores. If any money changed hands in reaching this agreement.
The American group sued the British group earlier this year, claiming that it had been using the name One Direction for a long time and that the British band's fame and success were cutting into its own.

The British one direction countersued, essentially claiming the American group's lawsuit was extortion. One Direction has made history as the first British group to have its debut album premiere at the top of the U.S. pop charts -- a feat Dusty Springfield, the Beatles and the Spice Girls never managed - and has become a bona fide sensation in the English-speaking world on par with Canadian heartthrob Justin Bieber.

This story is worth telling Miami residents about because many of us work in the entertainment industry, and entertainment professionals understand that your reputation and personal brand are incredibly valuable. Many prudent entertainment industry professionals work with attorneys to make sure that their names are reasonably protected against infringement or dilution.

We often work with singers, actors and models on such issues. If you are interested in learning more about the clients we serve and the work we do, you could visit our Entertainment Law website.

Source: BBC, "One Direction win fight against US band to keep name," Amelia Butterly, Sept. 4, 2012

Thursday, August 30, 2012

After $1.05 billion loss to Apple in patent battle, what's next for Samsung?

By Pankaj Ladhar of Manos • Alwine P.L.

Even if Miami readers might have heard a snippet on cable news about this already, there is simply no way around us writing about it -- the intellectual property news of the week is Apple's $1.05 billion verdict against rival Samsung.

Apple had sued Samsung, claiming that the South Korean electronics giant infringed upon Apple's patents when it made its own line of popular smartphones. On Friday, a jury in San Jose, California, found that Samsung went too far in knocking off the iPhone and iPad. It announced the award, though whether eight infringing Samsung products will now be banned from the U.S. (which Apple is seeking) has yet to be determined.

Technology industry observers have also said it will be interesting to see what, if any, impact the decision has on Samsung. Samsung is known in the industry for imitating other company's products. but producing them in a lean and efficient manner. The term for companies like Samsung, Canon and Nikon is "fast follower" - they do not come up with their own ideas, but rather think of ways to improve on existing products produced by rivals.

Now, Samsung in particular going to have decide if it can, as a company, innovate instead of just imitate.
Interestingly enough, Samsung actually sells the most smartphones in the world, in part because it offers a wider variety of models, including less expensive ones.

Source: USA Today, "Apple victory means soul-searching for Samsung," Youkyung Lee, Aug. 28, 2012

Tuesday, August 28, 2012

Of "The Evil Dead" and abandoned trademarks

By Pankaj Ladhar of Manos • Alwine P.L.

Any horror buffs here in Miami who are worth their salt have certainly heard of "The Evil Dead." This zombie flick is the textbook definition of a cult classic. It made very little money in its theatrical run, but later found an audience on video and wound up establishing its director, Sam Raimi, as a respected filmmaker.

Now, "The Evil Dead" has taken center stage in a dispute over whether Raimi and his production company abandoned the trademark to the franchise. If a trademark has been "abandoned," that means the party who once held the trademark no longer has any rights with respect to it.

Another production company, Award Pictures, was trying to make a fourth installment in the film series (which stopped at 1992's "Army of Darkness"). It claimed that in a 2000 book, Raimi said that he never planned to make another "Evil Dead" film. It also noted that in the years since the first "Evil Dead" film came out in 1981, Raimi has been lackadaisical about protecting his mark. Award Pictures claims the phrase "Evil Dead" has been used in as many as 20 other movies.

However, it was Raimi who won the most recent round because Award Pictures failed to respond in court in a timely fashion. Even so, Award Pictures now claims to have hired a lawyer and plans to make up for lost time, though it seems (from an outside perspective, at least) that it may be too late. Production has reportedly finished on a rival fourth "Evil Dead" film that has Raimi's blessing.

Source: The Hollywood Reporter, "Sam Raimi Blocks Unauthorized 'Evil Dead' Sequel," Eriq Gardner, Aug. 28, 2012

Wednesday, August 22, 2012

Pizza Hut, Home Depot ads strike sour note with The Black Keys

By Pankaj Ladhar of Manos • Alwine P.L.

When members of the band The Black Keys saw a recent Pizza Hut commercial, they thought the music sounded a lot like their song "Gold on the Ceiling." They got the same feeling when they saw a Home Depot spot promoting power tools to the tune of music that, to their ears, was very similar to their single "Lonely Boy."

The problem was, neither Pizza Hut nor The Home Depot had paid the band license fees for the music, so in June, the band sued both companies separately, alleging copyright infringement.

Recently, both Pizza Hut and the Home Depot filed separate-but-similar denials. Both companies claimed the music used in the commercials is not a rip-off and that the lawsuits are without merit. Both companies want The Black Keys to pay their attorney's fees, since they think the lawsuit should never have been filed in the first place. Neither company offered any suggestion as to why The Black Keys might have thought he music was a copy of their own.
Members of The Black Keys have not commented on the denials. Nor have Pizza Hut or The Home Depot, although the initial lawsuit did prompt a Home Depot spokeswoman to say the company "takes matters of intellectual property very seriously."

Now, it is not always easy to tell when there has been copyright infringement when it comes to music. After all, there is a certain subjective nature to hearing that isn't present with, say, plagiarized writing. This is why, in intellectual propertycases, it is often a good idea to look for an attorney who has experience with cases similar to your own. Experience is often a good teacher.

Source: MTV, "Black Keys Copyright Claims Denied By Pizza Hut, Home Depot," James Montgomery, Aug. 17, 2012

Friday, August 17, 2012

'The Glass House' bombs, so CBS drops suit against ABC

By Pankaj Ladhar of Manos • Alwine P.L.

In an earlier post, we told Miami readers about how CBS had sued ABC, alleging that ABC's new game show "The Glass House" was a ripoff of CBS' "Big Brother." At the time, CBS was claiming that ABC was infringing on its copyrights because "The Glass House" copied "stole every aspect of Big Brother's tangible creative expression."
But now, things have changed.

On Friday, CBS moved to voluntary dismiss its lawsuit against ABC without prejudice because, to put it simply, "The Glass House" has bombed with viewers. (To dismiss something without prejudice means that if you change your mind, you can bring the lawsuit again. If a judge dismisses something with prejudice, that means the same claim is meritless and cannot be brought again.) CBS said it did not feel it was necessary to continue with the lawsuit since "The Glass House" is likely to be cancelled due to low ratings.

Back in June, CBS had sought an emergency restraining order that would have stopped ABC from airing "The Glass House" until the lawsuit was resolved, but a U.S. District Court Judge declined to grant the restraining order because he felt CBS had not shown that such a drastic move was necessary or would be successful.

CBS is still suing producers of "The Glass House" who had previously worked on "Big Brother" because it believes they infringed on CBS' trade secrets (essentially, a way of doing business that is valuable because it is secret) when they went to ABC and created a similar game show.

Source: The Hollywood Reporter, "CBS Drops 'Glass House' Lawsuit Against ABC" Matthew Belloni, Aug. 17, 2012

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