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

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


Thursday, August 16, 2012

Silversun Pickups to Mitt Romney: Cease and desist with our song

By Pankaj Ladhar of Manos • Alwine P.L.

From time to time, you will hear about an artist objecting to a politician's use of his or her music or art in the politician's campaign.

Miami readers might remember that John Mellencamp asked Sen. John McCain to stop using his music at campaign events, and members of the band The Foo Fighters have also said they don't like their songs being played at political events.

Now, it's the Silversun Pickups' turn.

The Los Angeles-based indie band recently sent a cease-and-desist letter to Mitt Romney's campaign, asking it to stop using its song "Panic Switch" at campaign events.

A band member said the band did not agree with Romney's politics and did not want fans to think it did.

Romney's campaign said it had the right to use the music because it had a "blanket license" with the music group that manages the Silversun Pickups, but said it would honor the band's request and would no longer use the song.
Now, we are not bringing this story up to make any sort of statement either way about Romney, his political views or politics in general. Rather, we wanted to mention it because it is a good illustration of how artists can use legal remedies to exercise their privileges and carry out their goals.

In order to make full use of your legal rights as an artist, you may need to have a consultation with an attorney. Do not make the choice of whom you will hire to represent your interest lightly. It's a good idea to gather information about all attorneys in your area before you commit to anything. If you're interested in starting that process, you might want to make the Entertainment Law page on our website one of your stops.

Source: The Hollywood Reporter, "Silversun Pickups Send Cease And Desist Letter to Romney Campaign," David Greenwald, Aug. 15, 2012


Friday, August 10, 2012

At Olympics, protecting your IP assets should be an event

By Pankaj Ladhar of Manos • Alwine P.L.

Every two years, people get swept up in the drama, patriotic fervor and spectacle of the Olympics. This year, the 2012 Summer Olympic Games in London have been no exception. Who can forget McKayla Maroney's gold medal-clinching vault, or the Michael Phelps-Ryan Lochte rivalry? These are the moments Miami fans will remember for years.

Naturally, companies are eager to cash in on the good feelings the Olympics generate. The International Olympic Committee is very aware of this and only lets official sponsors, like Coca-Cola and Adidas, use the term "Olympics" or the interlocking ring symbol in their advertising and marketing -- and charges them a pretty penny for the privilege, of course.
Other companies are not going to give up that easily, but then again, they don't want to risk trademark or copyright infringement, either. This is why you hear or see very carefully worded advertisements that use imagery or connotations to evoke the Olympics without actually saying "Olympics."

For example, online cosmetics retailer recently sent out an email referring to certain items as "world class" or "medal winning." Those images call to mind standing on a podium to receive a medal, but do not actually take that final step of explicitly referring to the Olympics.

That the International Olympic Committee has to keep tabs on such...inventive marketing is a good example of how the holders of intellectual property assets must almost always been vigilant about protecting their marks. If you are interested in learning more about this area of law, feel free to visit the Intellectual Property page of our website.

Source: NPR, "Retailers Go For Gold By Evoking Olympic Games," Wendy Kaufman, Aug. 9, 2012


Wednesday, August 8, 2012

Singer Dev: Contract for 75 percent of income in perpetuity is "onerous"

By Pankaj Ladhar of Manos • Alwine P.L.

Miami readers might remember the song "In the Dark" that was all over the radio last fall. The singer behind that song, Dev, recently made the news again, but this time it wasn't for another hit. It's because she is suing her label, Indie-Pop, for what she claims is an unconscionable contract.

The contract, which Dev signed at 18, give Indie-Pop 75 percent of Dev's merchandising rights, touring income, publishing income and worldwide copyrights in perpetuity. Dev claims she was not given independent counsel and was pressured into signing the contract. The agreement has apparently been amended once, but is still "onerous, one-sided" and "should be null and void."

These sorts of contracts are starting to pop up in the entertainment industry, especially among singers. Internet piracy could be to blame. As companies lose more and more of their business to people downloading songs, books and movies to their Kindles, laptops and smartphones, they are looking for other sources of income.

A weakness of Dev's argument might be that she claims she was "showered with flattery and praise" and was presented the contract as if it were a hot business opportunity that she would not want to have sit too long. Those are pretty common tactics that are not illegal.

One way to make sure the contract you are signing is not disadvantageous to you is to make sure you have an attorney whom you trust at your side. Attorneys act as advocates and will look out for your interests. We often work with clients who are in contract negotiations. You can check out our Contract Disputes to learn more.

Source: The Hollywood Reporter, "Pop Singer Dev Sues To Void 'Onerous' Record Contract," Eriq Gardner, Aug. 1, 2012


Thursday, August 2, 2012

"Nash Bridges" copyright verdict questioned on appeal

By Pankaj Ladhar of Manos • Alwine P.L.

Do you remember the show "Nash Bridges"? It was quite a popular police show on CBS and it made a big star out of its lead actor, Don Johnson.

Two years ago, Johnson won an eye-opening lawsuit after he sued the production company that produced the show, claiming it was depriving him of profits to which he was entitled per his 50 percent stake in the copyright of the show. The jury awarded Johnson some $23.2 million in damages, but what really raised eyebrows is how the judge raised that amount to $50 million after factoring in interest.

However, on appeal, the production company argued that jurors were confused. It claimed that when they reached the $23.2 million figure, they had already figured in interest -- something only the judge is supposed to do. The studio's attorneys claimed that the whole result was irreparably flawed and that a new trial was the only remedy. They even went so far as to claim juror misconduct.

The production studio also alleged the judge was mistaken in calculating interest and that he did not pay enough attention to the contract and hence interpreted it correctly.

According to one reporter who was in court as arguments were being heard, at least one justice on the three-member panel "appeared sympathetic" to the production company's argument. Johnson and his wife were in attendance, but Johnson did not testify.

(The studio also tried to raise an argument relating to a statute of limitations issue, but its attorneys did not seem to get too far with that argument.)

The appellate court will reach its decision in 90 days.

Source: The Hollywood Reporter, "Don Johnson's $50 million 'Nash Bridges' Award At Risk in Court Appeal," Eriq Gardner, July 27, 2012


Tuesday, July 31, 2012

"Modern Family" contract dispute resolved, stars head back to work

By Pankaj Ladhar of Manos • Alwine P.L.

In a previous post, we told Miami readers about how six of the stars of "Modern Family," the top-rated comedy on television, had sued the company that produces the show over an allegedly unenforceable contract.

Now, it seems that the actors have resolved their contract dispute and are heading back to work.

For the upcoming 22-epsisode season, "Modern Family's" fourth, the adult stars will be paid about $170,000 per episode. They had been asking for $200,000, but even the salary they have reportedly agreed to is quite a raise over their current $65,000-per-episode paycheck.

The actors had sued 20th Century Fox, which produces the ABC-aired sitcom, alleging that their contact was unenforceable because it was for services (i.e. acting) and lasted for longer than seven years, which is not allowed in California. Some say this is not an uncommon move when actors agree to a show when its future is uncertain and that show later becomes a hit.

Although it seems everything is settled now, the stars canceled a script-reading and caused many fans to worry that the fourth season would not be filmed. It's also fair to presume they ruffled a few important feathers at ABC and 20th Century Fox. Contract negotiations are tough, but it is helpful if you do not have to resort to such drastic measures. If you work with an attorney who has experience helping entertainers negotiate favorable contracts, you might not have to pull out all the stops like this. We often help clients who have become involved in contract disputes. One good way to learn more about what we do would be to pay a visit to our contract disputes page.

Source: The Hollywood Reporter, "'Modern Family' Cast Reaches Deal to end Salary Standoff," Matthew Belloni, July 27, 2012


Friday, July 27, 2012

Kevin Costner sues movie studio over compensation dispute

By Pankaj Ladhar of Manos • Alwine P.L.

Miamians have not seen Kevin Costner on the big screen in quite some time. However, because of skillful contract negotiation, Costner is still collecting profits from some of his big hits from the 1990s.

Or he should be, but isn't.

That's according to an entertainment law lawsuit Costner recently filed against Morgan Creek Productions, the independent studio he claims is supposed to be paying him a portion of the profits for the 1991 hit film "Robin Hood: Prince of Thieves," which he produced and starred in.

Costner claims that Morgan Creek has not been diligent or proper in how it is accounting for the money "Robin Hood" made. Worldwide, it grossed $390 million and has made tens of millions more since its theatrtical run in TV re-broadcast rights.

Morgan Creek executives reacted to Costner's claim with skepticism, questioning why it took him 22 years to find fault with their accounting practices. They also noted Costner has made more than $40 million from the film (which would be irrelevant if the real area of dispute is the means by which his compensation is calculated ).

What you should see here is that contracts can be used to maximize profits from lucrative entertainment ventures and that in many cases, there is some dispute over them if one party later becomes unhappy with the terms of the contract. An attorney who has experience working with entertainers can make sure that your best interests are represented and will be a strong advocate for you as you seek to claim what is rightfully yours.

Source: The Hollywood Reporter, "Kevin Costner Sues to Collect 'Robin Hood' Money," Eriq Gardner, July 24, 2012


Friday, July 20, 2012

Contract negotiations cost Miami DirecTV subscribers access to Viacom networks

By Pankaj Ladhar of Manos • Alwine P.L.

Why have 20 million DirecTV customers, including those in Miami, suddenly lost access to popular channels like Nickelodeon, MTV and Comedy Central? Blame a case of contract dispute.

Those three stations are among those supplied to DirecTV by media giant Viacom. When Viacom and DirecTV began negotiating to renew their agreement, Viacom reportedly wanted $1 billion more than it got last time. DirecTV declined and offered "significantly less than that." That didn't sit well with Viacom and the two were never able to reach an agreement.

Thus, on July 10, 20 million paying DirecTV customers lost access to Viacom's networks. A Viacom executive recently told a reporter that discussions with DirecTV have ended and aren't expected to resume any time soon.

This outcome is bad for both businesses. DirecTV now has a lot of customers who aren't happy that they're getting less than they used to but are still paying the same price, and ratings for Viacom's networks have fallen, since not as many viewers can see them anymore.

The reason we're bringing this up is that Florida business owners are almost certain to go through contract negotiations at some point. While not every round of negotiations ends this dramatically, an unfruitful bout of contract negotiations can have a negative impact on your business. Many businesspeople in Miami and elsewhere find it very useful to have an attorney help them with such negotiations. Having skilled assistance often makes an unsatisfactory end result less likely.

Source: The South Florida Sun Sentinel, "Viacom says talks with DirecTV have broken down," Joe Flint, July 18, 2012


Wednesday, July 18, 2012

Miami, do you think "bikram yoga"can be copyrighted?

By Pankaj Ladhar of Manos • Alwine P.L.

Many Miami residents have become interested in bikram yoga, a type of yoga that's practiced in a very hot studio. Miami, in fact, was one of the first places where bikram yoga took off. The city got its first studio in 1985, well before the current yoga craze swept the rest of the country.

So, devoted yogis (a term for yoga practitioners) might be interested to know that bikram yoga is the subject of a very interesting intellectual property dispute.

Bikram Choudhury, the founder of bikram yoga, claims he has copyrighted bikram yoga and is now suing a former student of his who has founded his own lucrative chain of "bikram yoga" studios. The student's studios are, of course, the chief competition for Chouhury's own chain of studios.

One of the key issues in this dispute is whether a form of exercise can be copyrighted. It's an issue that not even the U.S. Copyright Office seems sure of. On June 22, it issued a statement saying that the copyright for bikram yoga may have been "issued in error" and that the office was reviewing any copyrights on the subject.

That confusion has not brought a halt to Choudhury's lawsuit, however. It is still expected to go to trial sometime next year.
Copyrights are granted to give protection to a work of authorship that is in a "fixed tangible medium." Traditionally copyrighted works are things like plays, novels and songs. That's an extremely general description of copyright, but just going off that, does it make sense that a method of practicing yoga could be copyrighted? What do you think?

Source: The Miami New Times, "Bikram Yoga Copyright Lawsuit: Miami Weighs In," Rebecca Moss and Jon Tayler, July 19, 2012


Friday, July 13, 2012

Feds crack down on 70 websites for copyright, trademark infringement

By Pankaj Ladhar of Manos • Alwine P.L.

The federal government has cracked down on more than 70 websites that were allegedly selling counterfeit items that violated the trademarks of legitimate businesses and cheated unsuspecting consumers.

The sting was part of the ongoing Project Copy Cat, a joint effort between the Department of Homeland Security and the Immigration and Customs Enforcement agency. Project Copy Cat is meant to preserve the intellectual property assets of U.S. companies and to keep U.S. consumers from unwittingly buying imitation items when they think they are getting the real thing.

What was unusual about this sting is that the sites that were targeted were not selling items that customers should reasonably have known weren't real, like the obviously-fake Rolexes or clearly imitation Chanel bags you sometimes see around Miami. Instead, they were "highly sophisticated" sites that were meant to dupe customers into thinking that they were getting the real thing. Customers were paying nearly face value for fake items that were purported to be from luxury retailers like Burberry, Tiffany and Louis Vuitton.

Many of the sites were operated out of China and nearly all of them sold Chinese-made goods. An official who worked on Operation Copy Cat said that assistance from Chinese authorities remains uneven, but on the whole is improving.
The owners of the websites do have a chance to redeem themselves by arguing in court that they were indeed selling authentic items, but a Project Copy Cat official said he doesn't expect that they will exercise this right because counterfeiters rarely bother with such steps.

Source: Agence France Presse, "70 more websites seized in US copyright crackdown," Rob Lever, July 12, 2012
 


Monday, July 9, 2012

Hollywood keeps a close eye on "Premium Rush" breach of contract suit

By Pankaj Ladhar of Manos • Alwine P.L.

Miami fans of actor Joseph Gordon-Levitt might not have realized that his next movie, "Premium Rush," is the subject of some litigation that is being watched very closely in Hollywood.

That's because the author of the book "Ultimate Rush" is alleging breach of implied contract with his claim that Sony executives stole his idea and made "Premium Rush" without giving him money or credit.

The reason other movie studios are very interested in this lawsuit is that breach of implied contract is easier to win than copyright infringement, so plaintiffs have turned increasingly to using the former cause of action instead of the latter. If the author here prevails, it may mean that all of Hollywood has to be more careful about where and how they secure their ideas for future films. It might also mean a windfall for writers and other creative people who contribute to a film because they will likely have to be paid to ensure there isn't a lawsuit.

In this case, the author is having a little trouble because it seems he cannot definitivelyprove that Sony executives read his book and then ordered a rip-off of it to be written as a script. But then again, the judge refused Sony's request to dismiss the author's suit because it wasn't entirely clear that the author's expectation of payment was unreasonable. Not many people saw that coming and it added some steam to the author's case.

However the case is decided, it will be interesting to see how it impacts entertainment, copyright and contract law in the future.

"Premium Rush" is released Aug. 24.

Source: The Hollywood Reporter, "Judge Rejects Sony Attempt to Kill 'Premium Rush Lawsuit,'" Eriq Gardner, July 6, 2012


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