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

By Scott Hervey

This isn’t the first time a songwriter has used a celebrity’s name in a song, but it may be the first time a celebrity sued over such use. Musical writer and performer Armando Perez, well known by his rap name Pitbull, wrote and recorded the song “Give me Everything.” Approximately one third of the way through the song, Lohan’s name is used as follows: “So, I’m tiptoen’, to keep floin’ / I got it locked up like Lindsay Lohan”. Lohan, who did not grant consent to the use of her name in the song, sued Pitbull and his record label, Sony Music Entertainment, for violating Sections 50 and 51 of the New York Civil Rights Law, for unjust enrichment and for intentional infliction of emotional distress. The court dismissed Lohan’s complaint on the grounds that it fails to state a claim. While most are chalking this up as another legal loss for the challenged Lindsay Lohan, this case is an interesting commentary on the reach of New York’s right of publicity statutes.

Although New York does not recognize a common-law right of privacy, the State sought to provide a limited statutory right of privacy when it enacted Sections 50 and 51 of the New York Civil rights Law. Section 50 makes it a misdemeanor for any person to “use… for advertising purposes, or for the purposes of trade, the name, portrait or picture of any living person without first having obtained the written consent of such person.” Section 50 provides:

Any person whose name, portrait, picture or voice is used within this state for advertising purposes or for the purposes of trade without the written consent first obtained as provided [in Section 50] may maintain an equitable action in the supreme court of this state against the person, firm or corporation so using his name, portrait, picture or voice, to prevent and restrain the use thereof; and may also sue and recover damages for any injuries sustained by reason of such use and if the defendant shall have knowingly used such person’s name, portrait, picture or voice in such manner as is forbidden or declared to be unlawful by section fifty of this article, the jury, in its discretion, may award exemplary damages.

Continue Reading Lindsay Lohan Finds Herself on the Wrong Side of New York’s Right Of Publicity Statute