Copyright Law

Monday, July 20, 2015

Huge Federal Court Victory for Online TV Streaming

With the ever changing nature of the entertainment industry, conflicts in the application of static laws and regulations abound. 

Cable broadcast companies sued for an injunction against TV streamer FilmOn for redistributing broadcasters' copyrighted programming. Federal judge George W. Wu ruled that, regardless of precedent, according to statute 111 of the Copyright Act there is no expressed distinction between cable broadcast and internet broadcast in the statute's permission for compulsory licensing. The judge acknowledged the ground-shaking nature of the ruling and its potential effects on the television industry, and therefore immediately authorized the case for appeal in the United States 9th Circuit Court of Appeals.

Broadcast companies such as Fox confirmed their intent to appeal and remain confident that the ruling will be overturned. 

If the ruling is upheld, online TV streamers will be entitled to the same rights as cable companies, and will obtain compulsory licensing so long as they pay royalties. Cable companies will also have to compete with the much lower prices of online competitors. 

The future of television programming and our modern notions of broadcasting hangs in the balance of the coming appellate battle.

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.

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.

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.





Wednesday, December 26, 2012

Sony asks judge to dismiss copyright infringement suit over 'Midnight in Paris'

By Pankaj Ladhar

"Midnight in Paris" was Woody Allen's most successful movie of all time, but at least one entity was not pleased with it -- the estate of William Faulkner, which sued Sony Pictures over a quote in the film. The resulting lawsuit is a good chance for Miami readers to understand the doctrine of "fair use"

The nine-word quote Faulkner's estate alleges was improperly used comes from Faulkner's 220-page 1954 novel "Requiem for a Nun." Faulkner's estate is claiming that Sony Pictures should have asked (and paid) for permission to use the quote. Since it didn't, Faulkner's estate believes it infringed on Faulkner's copyright.

Read more . . .

Thursday, December 20, 2012

Changes to Instagram's terms of use frighten, confuse users

By Pankaj Ladhar

Instagram users in Miami and elsewhere in the country are struggling to comprehend the photo-sharing service's new terms and whether they are comfortable with them.

For the uninitiated, Instagram is an app that allows a smartphone user to select filters to change the appearance of a photograph and then post that photograph to Instagram's website or to Facebook.

Recently, Instagram changed its terms to indicate that if a company or other third party wants to pay Instagram to use content created with Instagram, it can do so and Instagram does not have to pay the user who generated the content in the first place.

In other words, it seems that if a company wants to use a picture that you took with Instagram, it can -- and it will pay Instagram, not you.

In addition to alarming many of Instagram's 100 million users, the new policy has upset some photographers and other creative professionals because it does not require consent or compensation. Understandably, creative professional believe they ought to be asked for permission and compensated for the use of their product.

Instagram's new terms take effect Jan. 16.

We anticipate that this is the start of what is likely to be a stormy and passionate debate over intellectual property rights, privacy, technology and ownership of creative content. For that reason, we plan to keep an eye on what develops here and will report any significant developments back to you.

Source: CNN, "Instagram users revolt over privacy changes," Doug Gross, Dec. 18, 2012

Friday, November 16, 2012

'Spider-Man' musical the subject of copyright infringement lawsuit

By Pankaj Ladhar of Manos • Alwine P.L.

Florida residents may have heard about the hit Broadway musical sensation "Spider-Man: Turn Off the Dark." The show began performances in November 2010, and since then it has been grossing an average of $1.4 million.

However, the show's former director was fired in March of 2011 during the show's preview performances. She filed a lawsuit last November for intellectual property infringement. She claims that she had copyright protection to the "Spider-Man" script, along with rights to the staging of the performance. She says that because she was fired, the producers are benefitting from her intellectual property without paying her. She is seeking $1 million that she believes she is owed in back pay and royalties.

On the other hand, the producers contend that the former director was fired for breach of contract and that they do not owe her anything. According to their counter-lawsuit, they say that she did not cooperate with artistically overhauling the musical while in its preview stage.

In August of this year, the judge in the case ruled that the sides had to come to terms in the lawsuit or risk going to trial.

Based on sources close to both parties, it appears that the financial settlement, the acknowledgement of the director's artistic contribution in future performances, and the future of a documentary about the show are still areas of contention between both parties.

If the parties cannot reach a settlement agreement, then this intellectual property dispute will head to trial before a jury in the coming year.

Source: New York Times, "ARTSBEAT; 'Spider-Man' Settlement Talks Miss Deadline," Patrick Healy, Oct. 31, 2012

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

Monday, January 2, 2012

The most pirated film of 2012 was...wait, what? That one? Really?

By Pankaj Ladhar of Manos • Alwine P.L.

In our last post, we told Miami readers which TV shows people were illegally downloading. The list probably was not too surprising. After all, most of us have heard of "Game of Thrones" and "Dexter," the two shows that topped the most-pirated list.

But when we look at movies, the results are a little more surprising.

Yes, mega-blockbusters like "The Avengers," "Mission Impossible: Ghost Protocol" and "The Dark Knight Rises" made website TorrentFreak's most-pirated list, but the movie that came in at No.1 was one you probably have never heard of: "Project X."

"Project X" was a low-budget comedy about three high school friends who throw a party that spins out of control. It was illegally downloaded 8.72 million times.

One theory for the film's popularity is that it was based on a real-life news story out of Australia, so many Australian film fans downloaded it because it wasn't playing in Australia yet.

Another theory is that it appeals to younger viewers, who are more likely to pirate material, whereas the other films on the list were aimed at older viewers, who are perfectly comfortable buying a movie ticket.

Source: The Hollywood Reporter, "'Project X' Most Pirated Film of 2012," Philiana Ng, Dec. 28, 2012

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