Entertainment Law

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 By: Scott Hervey

From all appearances, it would have been a fight worth watching. In one corner was the Beastie Boys, the Brooklyn bread, 80s powerhouse rap group; they aggressively enforce their intellectual property rights and have never allowed their music to be used in advertisements.  (This commitment was so important to the group that in his will, Adam “MCA” Yauch stated that "in no event may my image or name or any music or any artistic property created by me be used for advertising purposes.") In the other corner was GoldieBlox, an upstart toy company, founded by a Stanford-educated product designer, with a goal to disrupt the current vision of “toys for girls” and inspire the next generation of female engineers.
Continue Reading GoldieBlox v. Beastie Boys – “Girls To Bring A Lawsuit”

By James Kachmar

The great reggae musician Bob Marley passed away more than 30 years ago. Nevertheless, litigation surrounding his music legacy continues on. The Ninth Circuit recently issued an opinion in Rock River Communications, Inc. v. Universal Music Group, Inc. that dealt again with the issue of who owns the rights to Mr. Marley’s music. 

Rock River is a producer and distributor of music records. In 2006, it entered into a licensing agreement with San Juan Music Group that granted it a non-exclusive license to “sample” 16 musical recordings performed by Bob Marley and the Wailers. San Juan has been licensing Mr. Marley’s music since 1980 through an agreement with a producer of Mr. Marley’s early recordings, Lee Perry. 

Rock River made a series of remixes based on the recordings it had licensed from San Juan and created an album titled, “Roots, Rock, Remixed.” Rock River intended to sell the album on iTunes, distribute it in record stores, and also had plans to allow the use of one of its recordings in the film “Dear John”.   Rock River was unaware that any entity had disputed San Juan’s right to license Mr. Marley’s early recordings.Continue Reading Roots, Reggae, Remixes – and Litigation

By James Kachmar

We’ve become used to lawsuits being filed after a movie, TV show or song becomes a popular hit. Generally, once a show or song hits number one, someone files a lawsuit claiming that the song or show was their “idea”. ABC’s hit show “Lost” is no different. In 2009, Anthony Spinner, a television producer, writer and former studio executive brought an “idea submission” lawsuit against the American Broadcasting Company, Inc. (“ABC”) claiming that it used his ideas to develop the hit television series “Lost”. 

In the mid-1970s, Spinner was retained by ABC to develop a two-hour pilot tentatively called “L.O.S.T.” for $30,000. The script, which was completed in 1977, concerned a group of U.S. Olympians who survive a plane crash in the Himalayas. They proceed through a tunnel and discover a land inhabited by dinosaurs and prehistoric people. ABC decided to pass on the pilot, concluding it would be too expensive to produce. In 1991 and 1994, Spinner met with other executives at ABC to pitch a similar television show; however, the crash would take place in outer space. Once again, ABC passed on Spinner’s idea. 

Nearly 30 years later, an ABC executive came up with the idea of doing a show about a survivor on a desert island that would combine the elements of the hit movie “Castaway” with the hit TV show “Survivor”. He wanted to call this television show “Lost” based on a failed reality based TV show.

Continue Reading “Lost” and the Independent Creation Defense

By Lisa Y. Wang

Back in the day when I used a VCR to record TV shows (one that forwarded through commercials by itself no less), it was impossible to imagine that something like TiVo and DVRs would be in over 50% of American homes. In May 2012, Dish Network took digital recording a step further. Its customers who subscribe to Hopper don’t even have to manually fast forward through the commercials using their remote control. The "Auto Hop" feature of the Hopper automatically skips through the commercials of the all the broadcast network’s prime time lineup by moving from segment to segment of the television show and skipping the ads. The AutoHop feature, coupled with Dish’s "PrimeTime Anytime" feature, essentially allows consumers to concurrently record all prime-time broadcasting programming on all four networks without watching a single commercial without having to move a finger. With Dish Networks’ $14 billion in annual revenue and 14 million subscribers, that’s a lot of commercial revenue going down the drain. As a result, Dish Network has been sued by all four major networks for copyright infringement, and its Chief Executive Officer Charles Ergen has been dubbed by The Hollywood Reporter as "The Most Hated Man in Hollywood." 

In November 2012, Fox Broadcasting filed for a preliminary injunction claiming that Dish Network committed contributory and direct copyright infringement. The judge did not issue the injunction because Fox could not show irreparable harm and sided with Dish. Dish claimed the defense of fair use, which allows for the limited use of copyrighted works without having to obtain permission. Dish argued that it is the customers, not Dish, who are copying the prime-time network broadcasts, and that copying constitutes fair use, and the court agreed. In finding that Dish was not secondarily liable for copyright infringement for their "PrimeTime Anytime" feature, the court cited the Supreme Court case Sony v. University City Studios, 464 U.S. 417 (1984).  Sony held that the copying of television programs by consumers for time shifting was fair use. Since the consumers were not liable for copyright infringement, it was not possible for Dish to be liable for secondary infringement.  Likewise, Dish was not liable for direct infringement by offering "PrimeTime Anytime" to its consumers because the consumer is the one who directs its Hopper to create copies of the broadcasts and Dish merely passively provides the technology used for copying. Continue Reading Hopping Into A Lawsuit