Entertainment Law Reporter on hiatus

I've discovered that publishing a one-man blog - even a blog that primarily calls attention to the fine work of others - is a surprisingly time-consuming activity. My work on the Entertainment Law Reporter got interrupted by the need to grade final exams and papers for my spring semester courses at Southwestern Law School, and then by my need to prepare to teach International Entertainment Law in the University of San Diego's summer-abroad program in London. Once the summer program begins, I'm going to be distracted by the attractions of London and Europe. So even though I will have Internet access while abroad, I'm unlikely to be posting much if at all during the summer. Like your favorite TV series, the Entertainment Law Reporter is going on hiatus for a while.


The Donald, The Apprentice, the FCC, and the broadcast law issues if Trump runs for President

Those who watch politics (the way others watch sports) wonder whether Donald Trump is seriously thinking about running for President, or whether he is simply generating publicity for his television show "The Apprentice." Only "The Donald" (and his hair dresser?) know for sure. But if he does decide to run, his candidacy will generate interesting legal issues. They are explained by David Oxenford in a Broadcast Law Blog post titled Donald Trump May Declare Presidential Candidacy on The Apprentice - FCC Legal Issues?

FTC reports on compliance with entertainment industry age and content ratings

The Federal Trade Commission has found that video game retailers enforce industry age and content ratings more vigorously than other entertainment retailers, and that music CD retailers are the most lax at doing so. In the words of the FTC:
Following an established trend, a Federal Trade Commission undercover shopper survey found that video game retailers continue to enforce most vigorously the ratings governing age and content that were established by the entertainment media industry. Music CD retailers lag far behind movie theaters, as well as movie DVD and video game retailers, in preventing unaccompanied children under age 17 from purchasing entertainment intended for mature audiences. "Our undercover shopper survey demonstrates some progress," said David Vladeck, Director of the FTC’s Bureau of Consumer Protection. "But more needs to be done."
The FTC's 2011 report is the latest in a series that began in the year 2000.


Golden Gate IP Law Book Review

The latest issue of The IP Law Book Review - an online periodical published by Golden Gate University School of Law - features reviews of:
  • The Public Domain: Enclosing the Commons of the Mind, by James Boyle
  • Virtual Justice: The New Laws of Online Worlds, by Greg Lastowka
  • The Soul of Creativity: Forging a Moral Rights Law for the United States, by Roberta Rosenthal Kwall
  • Inherent Vice: Bootleg Histories of Videotape and Copyright, by Lucas Hilderbrand
  • Beyond Intellectual Property: Matching Information Protection to Innovation, by William Kingston


Social media legal issues for nonprofits

Earlier this month, Pillsbury's Jim Gatto made a presentation at The Kreeger Museum in Washington, D.C., about the legal issues faced by nonprofit organizations when using social media. He spoke about the legal aspects of nonprofits' use of virtual goods, virtual currencies and gamification. And he illustrated his talk with slides that are online at Pillsbury's Virtual World Law Blog.

Fordham IP, Media & Entertainment Law Journal

The Fordham Intellectual Property, Media & Entertainment Law Journal features these articles (in Volume IX Book 3):

  • Moral Rights and Supernatural Fiction: Authorial Dignity and the New Moral Rights Agendas
  • Not that There’s Anything Wrong with That: Imputations of Homosexuality and the Normative Structure of Defamation Law
  • Protection for Informational Works After Feist Publications Inc. v. Rural Telephone Service
  • The Court of Appeals for the Federal Circuit: Has it Fulfilled Congressional Expectations?
  • Technical Knockout: How Mixed Martial Arts Will Change Copyright Enforcement on the Web
  • Huddle Up: Using Mediation to Help Settle the National Football League Labor Dispute


Trademark law in virtual worlds

Theodore Max, a partner in the New York City office of Sheppard Mullin Richter & Hampton, has written a 42-page article titled Trademarks in the Veldt: Do Virtual Lawyers Dream of Electric Trademarks? For a law review article, it is packed with allusions to science fiction. The "Veldt" in the article's title is the title of a Ray Bradbury story - one of the first (a footnote indicates) to refer to virtual reality. Lawyers of a certain age will recognize the article's subtitle as an intended homage to Philip Dick's 1968 novel Do Androids Dream of Electric Sheep? And the article's opening paragraphs refer to Neal Stephenson's 1992 book Snow Cash - a novel (the article notes) that anticipated that virtual worlds could be developed on the Internet, and players on opposite sides of the world could duel with one another using virtual swords. What does this have to do (you may wonder) with trademark law? Mr. Max explains:
There is no question that the Internet and virtual reality are part of our very fiber. As was the case in Snow Crash, the effects of viral commerce, both good and bad, have had a great effect upon humankind in real life and in virtual reality. Virtual commerce can have a great or grave effect upon the creation or destruction of a brand in the same way that counterfeiting in real life can destroy a brand. The future will show that the problems that are being grappled with in the real world with respect to counterfeiting, famous marks, dilution, and licensing will prove even more vexing in the virtual world.

Sonny Vaccaro gives keynote at Harvard Law School Sports Law Symposium

Sonny Vaccaro has done a lot of things over the course of his storied sports career. He used to be a Nike and Reebok "sports marketing executive." He's been called the "godfather of grassroots basketball." These days he's described as a "student-athlete advocate" - a reference to his role as a consultant for the plaintiffs in O'Bannon v. NCAA. All of these things made him the logical choice for the keynote speaker slot at the 2011 Harvard Law School Sports Law Symposium on The Changing Face of Intercollegiate Athletics: Amateurs, Academics, and the Athletic Arms Race. Vaccaro's remarks are reported by Lewis Rice and shown in an online video.


Photographer Patrick Cariou wins infringement lawsuit against appropriation artist Richard Prince

I've always been puzzled about why, exactly, one artist would think it's OK, let alone legal, to use the work of another artist without permission. But, strange as it seems, there are many artists who do think that - so many that there's a label for them. They're called "appropriation" artists; and Richard Prince is one of them. Prince used photographs from Patrick Cariou's book Yes Rasta, to create new versions for what Prince called his "Canal Zone" series. To my eye, Prince's versions - done without Cariou's permission - look to violate Cariou's moral rights as well as his copyrights; but that may just be me. What I can say is that federal District Judge Deborah Batts has ruled that Prince infringed Cariou's copyrights. The decision was anxiously anticipated by those in the art world, and it has attracted comment in several quarters:

Fordham media and entertainment law articles

The Fordham Intellectual Property, Media and Entertainment Law Journal published these articles (in Volume IX Book 2):


Defamation lawsuit against online booksellers is dismissed

Amazon, Barnes & Noble and Books-A-Million have defeated a defamation lawsuit that complained about statements made on their websites by the print-on-demand publisher of a surprisingly-expensive book titled Barack Obama & Larry Sinclair: Cocaine, Sex, Lies & Murder. The lawsuit was filed by a fellow named Dan Parisi who also sued the book's author, Larry Sinclair. The part of the case against Sinclair appears to be pending still. But insofar as the online booksellers are concerned, a federal District Court has held that the Communications Decency Act gives them immunity from liability. The court's decision is explained (and linked to) by Barnes & Noble's lawyers Linda Steinman, Joanna E. Summerscales and Rory Eastburg, in a Client Advisory published by Davis Wright Tremaine and by Evan Brown on his Internet Cases blog.

The legality of filming money for movies and TV programs

Clearing props for use in movies and TV programs usually is a matter of copyright law, and sometimes trademark law too. When props include actual money, however, other laws come into play: those that prohibit counterfeiting. The question of whether it's legal to film currency has just been asked and answered, both north and south of the U.S.-Canadian border.

In the U.S., the question "Can I Film U.S. Currency?" was posted to the Cinema Law section of the blog MovieMaker and was answered by entertainment lawyer David Albert Pierce.

In Canada, the question "Do I need permission to film Canadian currency?" was answered by Bob Tarantino in Heenan Blaikie's Entertainment & Media Law Signal.

The answer in both countries: generally, it's OK to film currency for movies and TV programs, and no permission is necessary. But, as always with the law, there are nuances, explained in Pierce and Tarantino's analyses.


FedEx Field must provide listening devices to hearing-impaired fans at Washington Redskins games

The Americans with Disabilities Act requires FedEx Field to give assisted listening devices to football fans attending Washington Redskins games, a federal Court of Appeals has held. The recent decision in Feldman v. Pro Football is explained in a Client Alert posted by Proskauer Rose.

UK guidelines on sale of Royal Wedding souvenirs

Prince William and Kate Middleton will get married next week, in what surely will be deemed the wedding of the century. Many people will want souvenirs to commemorate the event, and the free market will respond by providing them. I mention this, because the British are quite imaginative about creating special-purpose IP laws. They've got one for the 2012 Olympics (called the London Olympics Association Right). And they've long had a statute that grants perpetual copyright protection to "Peter Pan" (at least within the UK). So it's somewhat surprising that the British do not have a "royal rights" statute. That they don't means that souvenir sellers will be able to satisfy the demand for Royal Wedding memorabilia. On the other hand, there are official guidelines - issued by Lord Chamberlain's Office - concerning the use of photographs on wedding souvenirs. And traditional copyright principles continue to apply as well. All this is explained quite nicely by Shepherd and Wedderburn, in an article titled Everyone Wants to Share in the Royal Couple's Happy Day.


Warren Beatty retained rights to "Dick Tracy" by satisfying requirements of reversion clause

Warren Beatty still owns the rights to the "Dick Tracy" character, a federal District Court has held. Beatty bought those rights years ago from Tribune Media and used them to produce and star in the movie "Dick Tracy." The Beatty-Tribune agreement provided that the rights would revert to Tribune, unless the actor (who is Annette Bening's husband) began principal photography on another movie or TV program using the character, within a specified period of time. According to the court, Beatty satisfied that requirement, and thus the rights did not revert to Tribune. The court's dedecision is noted (and linked to) by Jonathan Zavin in Loeb & Loeb's IP/Entertainment Law Weekly; and its significance to others is commented on by Bob Tarantino in Heenan Blaikie's Entertainment & Media Law Signal.

UK art law

The latest issue of Private Client Issues is a special edition devoted to the arts. Published by the British firm Blake Lapthorn, the periodical features these articles:
  • Charitable Giving by Authors and Scholars, by Alison Talbot
  • Taxation of Works of Art and Chattels, by Alison Craggs
  • Buying and Selling Works of Art - What are the Pitfalls?, by Lara Robson
  • Would Mrs Bennett Approve?, by Christine Plews
  • The Life of an Artist (Whether Writer, Sculptor or Actor) is surely a Romantic One . . . Isn't It?, by Caroline van Zyl
  • Art and Business, by Christine Plews


Entertainment lawyers have featured roles in new movie

Rick Kurnit - name-partner in New York City's Frankfurt Kurnit Klein & Selz - is featured in the new movie "POM Wonderful Presents: The Greatest Movie Ever Sold." The movie is the latest from "Super Size Me" filmmaker Morgan Spurlock. New York City lawyer Paul Brennan - Spurlock's own lawyer - also makes an on-screen appearance in his client's humorous documentary about product placement, marketing and advertising.

Sports law

The latest issue of Proskauer Rose's sports law newsletter Three Point Shot  features these articles:
  • Still Teaching the World to Sing, CocaCola Scores in Dispute over Spanish Language Version of World Cup Anthem
  • Show Me the Money – Just Make Sure I Know the Risk
  • Accused Internet Pirate Sites Hung from the Yardarm


Movie ticket prices and profits

University of Sydney economists Nicolas de Roos and Jordi McKenzie have written Cheap Tuesdays and the Demand for Cinema. Their study is based on movie attendance patterns in Sydney, but their methods and conclusions look relevant world-round. The abstract:
Many movie markets are characterised by extensive uniform pricing practices, hampering the ability to estimate price elasticities of demand. Australia presents a rare exception, with most cinemas offering cheap Tuesday ticket prices. We exploit this feature to estimate a random coefficients discrete choice model of demand for the Sydney region in 2007. We harness an extensive set of film, cinema, and time-dependent characteristics to build a rich demand system. Our results are consistent with a market expansion effect from the practice of discounted Tuesday tickets, and suggest that cinemas could profit from price dispersion by discounts based on observable characteristics.
Their conclusion:
Our results imply that cinemas could increase profits by offering more off-peak pricing, and by employing variable film pricing practices. This doesn't necessarily imply that the pricing strategy should be particularly complex - it could be as simple as categorising certain films as "blockbusters", or offering a "new release" and "old release" price contingent upon some (commonly known and pre-specified) week of the run.

Art law

Herrick Feinstein has published the Winter 2011 edition of Art & Advocacy featuring these articles by Herrick attorneys Yael Weitz, Waffiyah Mian, Michael Kessel and Michael Zargari :
  • New Shipping Requirements in Effect: The Art World Reacts
  • Holocaust Art Restitution Litigation in 2010
  • Bartering with Art - Tax Implications


Songs in the public domain

Former Copyright Office librarian Tom Nichols has written They Never Renewed: Songs You Never Dreamed Were in the Public Domain. Published by The BZ/Rights Stuff, Inc., the book contains:
An Introduction that discusses Public Domain and how to safely use the information provided in the book; the heart of the book, which is a listing of 96 songs in the Public Domain written in the 50s and 60s and each listing includes the names of the composers, the original artist, the covering artists, the registration and renewal status and an audio link that will let you hear the song. Finally, there is a list of all the composers with their birth and death dates, and a listing of the performers and which songs they sang. Most countries use death dates, plus so many years, to calculate whether works are in the Public Domain or not, so the death dates will be useful to many readers.

Hip-hop, copyright and culture

U.C. Davis law professor Thomas W. Joo has written A Contrarian View of Copyright: Hip-Hop, Sampling, and Semiotic Democracy. The abstract:
A dominant trend in intellectual property (IP) theory asserts that technologies such as digital copying enable individuals to resist the cultural dominance of the media industry. Under this view, individuals appropriate cultural material and “recode” it by assigning alternative meanings to it. By enabling more people to participate in the making of cultural meanings, recoding supposedly enhances “semiotic democracy.” IP theorists tend to argue that copyright law inhibits recoding, thus stifling semiotic democracy. The use of sampling in hip-hop music is frequently cited as a paradigmatic example of recoding that has been stifled by IP law.

This paper uses history, economics, and critical theory to question these arguments on both the empirical and theoretical levels. Many scholars assert that copyright law turned against recoding in the 1990s by requiring samplers to pay for copyright permission. But the music business – including the hip-hop sector – was already in the practice of paying for copyright permission. Judicial decisions simply codified existing practice, which treated copyright permission as merely one of the many costs of making music. Thus copyright law did not impede musical recoding generally or hip-hop specifically.

While economic markets work well in allocating recoding rights, however, this does not necessarily advance semiotic democracy, because market failures afflict the marketplace of ideas. Recoding embodies contradictory forces that both advance and retard semiotic democracy. Law and technology facilitating recoding not only help independent record labels and artists question the cultural meanings advanced by major record companies; they also allow the latter to appropriate from the former. Moreover, recoding not only creates new meanings from existing cultural materials, but also repeats and reinforces those dominant cultural meanings. Indeed, by creating alternative meanings for dominant cultural materials such as popular music, recoding can contribute to their commercial appeal and cultural influence.


Copyright Office to host roundtable on copyright protection for pre-1972 sound recordings

The Copyright Office will host a roundtable on copyright protection for pre-1972 sound recordings on June 2, 2011, at the Library of Congress in Washington, D.C. It is possible that the roundtable will continue on a second day, June 3. The roundtable will be conducted to assist the Copyright Office in its study for Congress on the desirability and means of bringing sound recordings fixed before February 15, 1972, under federal jurisdiction.

Is there a "hot hand" in NBA basketball?

The end of the long NBA season is on the horizon, and that means that many people - including lawyers - will be watching more basketball. Some may feel guilty about stepping up their TV viewing, mistakenly believing that even the NBA Finals are just "games," and that serious law work ought to be given precedence.

If you're among those who will be watching more and feeling guilty, you will be pleased to learn that there's a serious side to NBA basketball too, and it has to do with statistics. Apparently, lots of folks believe that there's no such thing as a "hot hand" in baskeball. In other words, missed shots are as likely to follow hits as more hits, and the notion that Kobe or LeBron can't miss when they're "hot" is just a myth.

Oregon State Economics Professor Daniel F. Stone has given this belief some serious attention, and has come to the conclusion that the "hot hand" may not be a "myth" after all. Statistically-minded readers will find Professor Stone's reasoning in A Note on Measurement Error and the Hot Hand.

Recent decisions: right of publicity; copyright fees

Loeb & Loeb's IP/Entertainment Law Weekly reports on (and links to):

No Doubt v. Activision Publishing, in which a California Court of Appeal held that Activision's use of the likenesses of the members of the band "No Doubt" was not transformative, and thus upheld a lower court order that denied Activision's motion to dismiss the band's right of publicity lawsuit.

Zamoyski v. Fifty-Six Hope Road Music, in which a federal District Court ruled that Bob Marley's heirs were entitled to attorneys' fees as the successful party in a copyright case, even though their claim was for declaratory relief concerning copyright ownership and breach of contract (rather than infringement); but the court awarded Marley's heirs only 55% of the amount they had requested because the opposing party's claim was not frivolous.


Digital music sampling

Duke University Press has published Creative License: The Law and Culture of Digital Sampling by Kembrew McLeod, Peter DiCola, Jenny Toomey and Kristin Thomson. The book answers these questions:
How did the Depression-era folk-song collector Alan Lomax end up with a songwriting credit on Jay-Z’s song "Takeover"? Why doesn’t Clyde Stubblefield, the primary drummer on James Brown recordings from the late 1960s such as “Funky Drummer” and "Cold Sweat," get paid for other musicians’ frequent use of the beats he performed on those songs?
. . . this way:
The music industry’s approach to digital sampling—the act of incorporating snippets of existing recordings into new ones—holds the answers. Exploring the complexities and contradictions in how samples are licensed, Kembrew McLeod and Peter DiCola interviewed more than 100 musicians, managers, lawyers, industry professionals, journalists, and scholars. Based on those interviews, Creative License puts digital sampling into historical, cultural, and legal context. It describes hip-hop during its sample-heavy golden age in the 1980s and early 1990s, the lawsuits that shaped U.S. copyright law on sampling, and the labyrinthine licensing process that musicians must now navigate. The authors argue that the current system for licensing samples is inefficient and limits creativity. For instance, by estimating the present-day licensing fees for the Beastie Boys’ Paul’s Boutique (1989) and Public Enemy’s Fear of a Black Planet (1990), two albums from hip-hop’s golden age, the authors show that neither album could be released commercially today. Observing that the same dynamics that create problems for remixers now reverberate throughout all culture industries, the authors conclude by examining ideas for reform. Interviewees include David Byrne, Cee Lo Green, George Clinton, De La Soul, DJ Premier, DJ Qbert, Eclectic Method, El-P, Girl Talk, Matmos, Mix Master Mike, Negativland, Public Enemy, RZA, Clyde Stubblefield, T.S. Monk.
Co-author Peter DiCola, a professor at Northwestern University Law School, will be giving a lecture and multimedia presentation about the book at American University in Washington, D.C., on April 15th.

Canadian tax credits for U.S. movie and TV productions

Cassels Brock & Blackwell has published An Overview of Canadian Tax Credits For Non-Indigenous Film and Television Production. From the Introduction to the 23-page document:
Canada, often referred to as “Hollywood North,” continues as a leading innovator in the development and implementation of public sector incentives for film and television production. These incentives have stimulated a billion dollar industry in Canada for the production of both domestic or indigenous programming content and foreign based Canadian location or service productions. . . . In this monograph, we focus on . . . their application to US-based film and television productions.

NBC defeats "Biggest Loser" infringement claim

The television series "The Biggest Loser" does not infringe the copyright to a treatment titled "Phat Farm/Fat Farm – A Weight Loss Adventure," a federal District Court has held. The court found that the NBC series is not substantially similar to the protectible elements of the treatment.

The court's decision is noted by Arent Fox and noted and linked to by Loeb & Loeb.


Peter Yu offers entertainment industry more convincing proposals for digital copyright reform

It isn't often that an academic offers to help the entertainment industry with legal arguments. (The industry, after all, does have paid professional help.) But Drake University law professor Peter Yu says he's done just that. Yu is a highly-regarded professor of IP law and the Director of Drake's Intellectual Property Law Center, so he knows whereof he speaks. His latest article is titled Digital Copyright and Confuzzling Rhetoric, and it appears in the Vanderbilt Journal of Entertainment & Technology Law. His thesis, and offer:
The entertainment industry tells people they shouldn’t steal music because they wouldn’t steal a car, but has anybody ever downloaded a car? Music fans praise Napster and other file-sharing services for helping to free artists from the stranglehold of the music industry, but how many of these services actually have shared profits with songwriters and performing artists? Industry representatives claim that people use YouTube primarily to listen to or watch copyrighted contents, but are they missing a big piece of the user-generated content picture? Artists are encouraged to forget about copyright and hold live concerts instead, but can all artists succeed under this alternative compensation model? Over the years, policymakers, industry representatives, consumer advocates, civil libertarians, academic commentators, and user communities have advanced many different arguments for or against stronger copyright protection and enforcement. This article examines eight of these arguments, which the author finds rather unpersuasive. It then outlines five strategies that seek to help the entertainment industry make its proposals for digital copyright reform more convincing. The article concludes with two short stories to illustrate the tremendous difficulty for the public to appreciate the complexities in copyright law. It underscores the paramount importance of making convincing arguments in the digital copyright debate.


Jerry Seinfeld and wife's publisher defeat defamation and idea submission claims by cookbook author

Jerry Seinfeld has defeated a defamation claim filed against him by Missy Lapine, the author of The Sneaky Chef: Simple Strategies for Hiding Healthy Foods in Kids’ Favorite Meals. At the same time, HarperCollins defeated Lapine's claim that it breached an implied contract by publishing Deceptively Delicious: Simple Secrets to Get Your Kids Eating Good Food written by Sienfeld's wife Jessica. The decision of the New York state court in which these claims were rejected is reported upon (and linked to) in Loeb & Loeb's IP/Entertainment Law Weekly Case Update.