Intellectual Property

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.

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, 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.

Monday, December 31, 2012

'Game of Thrones' was most-pirated show of 2012

As Miami readers undoubtedly know, Internet piracy is a significant threat to the entertainment industry.

If consumers are not paying for music, films and television shows, then the companies that make those media items are not getting paid and have less incentive to remain in business.

Also, Internet piracy infringes on the copyrights that exist with regard to these forms of entertainment. A copyright grants the holder the right to decide how or if the work should be sold, reproduced or distributed and illegally downloading a TV episode or a movie violates that right.

Read more . . .

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

Tuesday, December 18, 2012

With 'Girl on Fire,' Did Alicia Keys infringe on someone else's copyright?

There are probably quite a few fans of Alicia Keys here in Miami. For years, the singer has consistently impressed critics with her richly textured songwriting and deeply felt lyrics. Her recent single "Girl on Fire" has reached No. 12 on the Billboard charts and is being used in an ad for American Express.

However, that same single is the subject of a copyright infringement suit.

In 1962, Earl Shuman wrote a song called "Lonely Boy." It achieved its greatest success when it was recorded by Eddie Holman, who called the song "Hey There Lonely Girl."

In the middle of "Girl on Fire," Keys sings what seem to be a few bars of "Hey There Lonely Girl." This was first noted by an entertainment writer on the website Showbiz 411.

Shuman seems to have read that blog post and decided to file suit. Shuman's lawsuit actually quotes the Showbiz 411 blog post extensively.

Now, it is not at all uncommon for modern artists to re-record past hits, or to borrow melodies, chord progressions and even snippets of old songs. However, they usually pay for the rights to use the past work and it seems in this case that Keys and her label, Sony, did not make that effort. Perhaps that is because they do not see "Girl on Fire" as borrowing from "Hey There Lonely Girl."

Whether Shuman is successful remains to be seen. Listen to "Girl on Fire" here and "Hey There Lonely Girl" here and let us know in the comments if you think Keys borrowed too much of "Hey There Lonely Girl."

Source: The Hollywood Reporter, "Alicia Keys sued over 'Girl on Fire': Is It Based on a Blogger's Ear?" Eriq Gardner, Dec. 17, 2012

Saturday, December 1, 2012

Facebook copyright status updates have no legal effect

By Pankaj Ladhar of Manos • Alwine P.L.

Lots of Miami residents have probably seen their Facebook newsfeeds clog up with status updates from friends that appear to be an effort to make a legal statement concerning the content the friend posts to Facebook.

In many cases, the message claims to be "in response to new Facebook policies" and purports to assert that Facebook cannot copyright any pictures or status updates the user makes.

So, do such statements have any legal effect?

In short, no.

First, Facebook's terms and policies say that any content a user uploads to the site belongs to the user, not to Facebook.

Second, while copyright protection attaches automatically as soon as an author fixes his or her work in a tangible medium (which doesn't mean it isn't a good idea to take extra steps to protect your content, by the way), that can be overridden if you sign an agreement beforehand agreeing that someone else owns your copyright.

For example, engineers, reporters and other professionals often have to sign an agreement when they are hired saying that their employer owns the rights to work created on the job, not the original employee. So, if Facebook's terms said that it owned your copyright (which they don't), then you could not change that with a status update.

We don't expect everyone to be copyright experts, of course, but this is an interesting example of how conventional wisdom regarding copyright law may be inaccurate. It is always a good idea to seek an authoritative source whenever a legal issue arises.

Source: WPTV, "Facebook warning hoax: Copyright privacy message capitalized on privacy fears, experts say," Nicole Saidi, Nov. 27, 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, November 7, 2012

'Flight' gives rise to interesting fair use dispute

By Pankaj Ladhar of Manos • Alwine P.L.

Denzel Washington's Miami fans might not have realized it, but when they went to see Washington's new thriller "Flight," they were actually watching the subject of a very interesting intellectual property debate.

In case you have not seen the movie, Washington plays a character who struggles with alcohol and drinks at inappropriate times, like when he is behind the wheel.

One of the drinks Washington's character consumes in Budweiser. Earlier this week, Anheuser-Busch asked Paramount Pictures to digitally erase the Budweiser trademark from future copies of 'Flight.'

In a statement, Anheuser-Busch said it does not condone irresponsible use of its product and doesn't like that it is being depicted in connection with unhealthy drinking.

Now, usually, the use of a trademarked image in a film is considered fair use, meaning it is a reasonable and fair use of work without the author's permission. However, it's a case-by-case analysis, since a condition of fair use is that the use in question not impede the rights holders' ability to earn money and doesn't constitute more of a "use" than is necessary to accomplish the original objective.

As applied to this film, then, does negatively portraying Budweiser impede Anheuser-Busch's economic interests and is Budweiser used more extensively than necessary to accomplish the objective of showing that Washington's character is an alcoholic?

In any event, Anheuser-Busch has asked for the logo to be removed, but hasn't made any legal moves yet. That likely says something about how it perceives its chances of filing suit over this issue.

Source: The Hollywood Reporter, "Anheuser-Busch Asks Paramount to Remove Budweiser From Flight," Daniel Miller, Nov. 6, 2012


Friday, November 2, 2012

Copyright infringement suit against Angelina Jolie forges ahead

By Pankaj Ladhar of Manos • Alwine P.L.

Angelina Jolie's directorial debut, "In the Land of Blood and Honey," did not do much at the box office. But Miami residents might be hearing about it again soon because a lawsuit filed against Jolie by an author who claims she unlawfully used his book as the basis of her film nears its start date.

Jolie, her film's distributor and the film's production company were sued by Croatian author James Braddock in December. He claimed that "In the Land of Blood and Honey," a drama about refugees in the war-torn Balkans, used his 2007 book "The Soul Shattering."

The defendants tried to have the suit dismissed, but to no avail. Attorneys for the defendants have said they plan to ask for summary judgment, which means they will ask a judge to agree that the plaintiff cannot prove the required elements of his claim.

Jolie has said she did not base "In the Land of Blood and Honey" on "The Soul Shattering," but rather on her work with the United Nations and Bosnia. Her claim is that "In the Land of Blood and Honey" was created independently and any similarities between the two works are pure coincidence and, therefore, are not actionable.

If the case makes it to trial, it will be a very complicated lawsuit. Discovery would have to take place in both Europe and the U.S. and getting a busy star like Jolie to participate might be hard.

Our law firm works on intellectual property matters such as this. If you want to know more about the sort of cases we take, you could visit our website, which is accessible by the link in the previous sentence.

Source: The Hollywood Reporter, "Angelina Jolie 'Blood and Honey' Lawsuit Heats Up as Lawyers Fight Over Private Information," Eriq Gardner, Oct. 31, 2012

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