11/29/2010

Court of Arbitration for Sport's new "Bulletin"

The Court of Arbitration for Sport used to publish a newsletter which was distributed on a "restricted basis" to a select readership. The newsletter has just been renamed the CAS Bulletin, and it is now being published, for all who wish to read it, on the Court's website. The announcement explains that
The majority of the bulletin is devoted to the jurisprudence of the CAS. It also covers the jurisprudence of the Federal Tribunal concerning CAS cases and includes several articles on subjects of technical interest about CAS activities in general. Finally, the CAS Bulletin provides some general information about the activities of the International Council of Arbitration for Sport (ICAS) and the CAS.
The first 178-page issue contains a six analytical articles, and some 25 arbitration decisions and judicial opinions.

11/28/2010

The legal structure of league sports teams

The London law firm Charles Russell reports that it has
seen increasing interest from [sports] clubs in the type of legal structure through which they operate. This is rightly so, as the choice of structure will have a significant effect on the financial and legal position of the club and the risk and liability assumed by committee members. Should the club find itself faced with financial difficulties or a claim, structure is key. Increasingly, clubs are (regardless of their level) reviewing the way that they are set-up and adopting a corporate structure by setting up a company to manage their affairs.
As a result, the firm has published Club Structures: A Guide to Club Structures for National League System and Other Football Clubs -- a 30-page, illustrated explanation of the types of structures available under British law, the advantages and disadvantages of each, a step-by-step guide to incorporation, and guidance on how to comply with Football Association ownership rules. Because it was written with the UK in mind, the "National League" refers to football rather than baseball, and "football" refers to what Americans call "soccer." So, although the details will be of greatest interest to British team owners, the issues and analytical approach discussed in the publication also will be helpful to Americans and others.

History as insight to the future of the Internet

In The Master Switch: The Rise and Fall of Information Empires, Columbia law professor Tim Wu recounts the history of modern communications, from the telphone to the Internet. Why should anyone care to read this story? It's a question that Wu himself asks in the Introduction to his book. His answer: because earlier communication technologies all evolved from being decentralized and unregulated to being centralized and highly regulated; and now we need to know whether the same thing will happen to the Internet. The answer to that question, he says, is still "a matter of conjecture," for which, he argues, "our best basis is history."

State film subsidies disappearing

The number of states offering subsidies to film producers is declining, Bloomberg Businessweek reports in Strapped States to Hollywood: Stay Home. The Tax Foundation puts this development in valuable context, in commentary that includes maps and a link to a 16-page Special Report it published in January 2010 titled Movie Production Incentives: Blockbuster Support for Lackluster Policy.

11/26/2010

Manager Sam Lutfi wins right to trial in defamation suit against Britney Spears' mom

Lynne Spears is Britney Spears' mother and the author of the book Through the Storm: A Real Story of Fame and Family in a Tabloid World. Sam Lutfi was Britney's manager for several months in 2007 and 2008, so his appearance in Lynne's book was not surprising. The book's portrayal of Lutfi is not flattering, however. In fact, it is so unflattering that Lutfi has sued Lynne for defamation. Hoping to avoid the time and expense of trial, Lynne filed a motion to dismiss the case, arguing that Lutfi's reputation is so poor that he is "libel-proof," and that in any event, the passages to which Lutfi objects are simply Lynne's opinion, and thus are not actionable. The trial court denied Lynne's motion, and now, in a 17-page unpublished opinion, a California Court of Appeal has affirmed that result, so unless the case is settled, Lynne will have to defend herself at trial, after all.

Sports stadium development: the end of an era?

In Ballpark, Stadium and Arena Development: How NOT to do it the Hard Way, Christopher Bakes, Scott Anders and Jeremy Vermilyea take issue with a recent Wall Street Journal article that declared the end to the Golden Age of public construction of sports facilities. They say
There never was a Golden Age of stadium construction. . . . The key point missed by The Wall Street Journal is why so many stadium proposals became — and continue to become — problematic in the first place. It has far less to do with public funding than it does with good governance and public engagement, or (more likely) the lack of public engagement. . . . Voters don't reject great ideas, they reject great ideas that aren't carefully explained to them.

11/25/2010

Music "theft" and copyright law

Jennifer Jenkins, the Director of the Center for the Study of the Public Domain, lectured at Duke Law School on November 17, 2010, about the history of music "theft" and its relationship to copyright law. The video:

The NCAA and the Law

On October 15, 2010, Boston College Law School and the BC Law Review hosted a symposium examining the legal issues surrounding the unprecedented growth of the NCAA over the last 100 years. The symposium's panel discussions covered:
- Postseason College Football, the BCS, and the National Championship
- The NCAA and Gender
- The NCAA and Students
- The NCAA as a Commercial Enterprise
- The NCAA and Constitutional Law
Videos of the panels are available at the Boston College Law School website.

UK statute bans Olympics ambush marketing

In anticipation of the 2012 Olympics in London, the UK enacted a statute designed to ban ambush marketing. The London Olympic Games and Paralympics Act 2006 created a new intellectual property right called the London Olympics Association Right. The new right complements -- and goes beyond -- the rights already granted by traditional trademark law. The new right's novel details are explained in Olympic Crackdown on Ambush Marketing by UK lawyers Joanna Boag-Thomson and Paul Carlyle, and in Ambush Marketing vs. Sponsorship Values at the London Olympic Games 2012 by German lawyer André Soldner.

11/24/2010

Harm to incentives as the test for copyright infringement

In Copyright Harm and Reform, Professor Christina Bohannan (Univ of Iowa) argues that the distinction between unlicensed "personal" and "commercial" uses of copyrighted works is not a good test for distinguishing between permitted and infringing uses. Instead, she argues, that
copyright law should protect against the kind of free-riding that is likely to undermine the incentives to produce and distribute creative works. Given copyright’s purpose, what we really need to ask is whether a particular use is likely to harm incentives to create or disseminate a copyrighted work and whether the use itself benefits creativity and innovation. Commercial exploitation is not always a good proxy for assessing these harms and benefits. Rather, the use of a copyrighted work should be considered non-infringing when that use: falls outside the range of uses a copyright holder would rely on for incentives to create the work, increases demand for the original work or its usual derivatives more than it decreases that demand, or is otherwise unlikely to reduce a copyright holder’s ex ante incentives to create or distribute the work.

Why Beatles were on Internet radio before they were on iTunes

Beatles recordings are now available on iTunes, as a result of a recent and quite newsworthy deal. But they've long been available on Internet radio stations. This is puzzling for those not versed in the intricacies of Internet music licensing law. David Oxenford of Davis Wright Tremaine unravels the puzzle in Apple iTunes Gets the Beatles - Why Internet Radio Had Them All Along. His explanation:
The answer is the statutory license under which Internet Radio operates. While there have been many disputes over the royalties that have been imposed under the statutory license created by Congress which allow non-interactive digital music companies to use sound recordings to provide music to their customers, there is no question that the license has fulfilled one of its primary functions - making sure that there is access by Internet radio operators to the entire catalog of sound recordings available in the United States.

New reg proposed for copyright termination of pre-1978 transfers of works created after Jan 1, 1978

The United States Copyright Office has proposed a new regulation concerning copyright termination notices. One of the termination provisions of the Copyright Act permits authors to recapture ownership of the copyrights to works they created but transferred to others after the current Copyright Act became effective on January 1, 1978. The law is unclear about whether this provision of the law permits authors to terminate pre-1978 transfers of works that weren't actually created until after January 1, 1978. This sort of thing would have happened, for example, when authors transferred their copyrights to works they had not yet created, but would be creating during the term of the contracts they were signing. According to some people, including law professors Jane Ginsburg (Columbia) and Neil Netanel (UCLA), and some copyright lawyers, including Ken Freundlich and Bill Gable, pre-1978 transfers of works created in and after 1978 did not become effective until the works were actually created, so authors should be able to terminate those transfers. On the other hand, the RIAA contends that the Act permits transfers to be terminated only if they were signed after January 1, 1978, so that pre-1978 transfers may not be terminated. The dispute boils down to one of terminology: whether a transfer is "executed" as soon as it's signed, or only when the transfer becomes effective. The Copyright Office has issued a Notice of Proposed Rule Making indicating its intention to
record a notice of termination in such a case so long as the notice states that the grant was executed on . . . on or after January 1, 1978. . . . The
Office’s recordation of such notices of termination is without prejudice as to how a court might ultimately rule on whether the document is a notice of termination within the scope of section 203 [the post-1978 termination provision].

11/22/2010

French Google book project case is settled

In "Why is the French deal of Hachette with Google so much better than the one reached by the US publishing companies?", French lawyers Diane Mullenex and Jacques Mandrillon report that
On the 17th of November, Google and Hachette Livre, the largest publisher in France and the No.2 trade publisher by sales worldwide . . . reached an agreement authorizing Google to scan and sell electronically its out-of-print French language titles under the control of the publisher. This agreement covers about 50,000 French titles, including literature and nonfiction works, still under copyright protection.
Of special interest: their explanation of how the French settlement differs from the settlement of the U.S. case, and their explanation for why, in their view, the French settlement is better.

11/19/2010

Internet copyright issues

Fenwick & West has posted on its website a 516-page analysis of Advanced Copyright Issues on the Internet by David L. Hayes, the Chairman of Fenwick's Intellectual Property Practice Group. From the introduction:

This paper discusses the multitude of areas in which copyright issues arise in an online context. Although the issues will, for simplicity of reference, be discussed in the context of the Internet, the analysis applies to any form of online usage of copyrighted works. Part II of this paper discusses the various copyright rights that may be implicated by transmissions and use of works on the Internet, including new rights and remedies, as well as certain limitations on liability for online service providers afforded under federal statutes. Part III then analyzes the application of those rights to various activities on the Internet, such as browsing, caching, operation of an online service or bulletin board, linking to other sites, creation of derivative works, and resale or subsequent transfer of works downloaded from the Internet. Part III also analyzes the application of the fair use doctrine and the implied license doctrine to various Internet activities.

Boston Museum of Fine Arts - Oskar Kokoschka's "Two Nudes"

The Museum of Fine Arts in Boston has won a lawsuit which sought to recover possession of the painting "Two Nudes" by artist Oskar Kokoschka. The lawsuit was filed by Claudia Seger-Thomschitz who is the heir of the painting's former owner. The lawsuit alleged that the painting was sold under duress after Austria was annexed by Nazi Germany in 1938 so that good title never passed to the original purchaser and thus not to the Museum either. A federal Court of Appeals has affirmed a lower court decision that Seger-Thomschitz's claim is barred by the statute of limitations. The appellate court's decision is available here: Museum of Fine Arts v. Seger Thomschitz.

11/17/2010

New case reports: J&J Sports; Capitol Records

The November 17, 2010 edition of Loeb & Loeb's IP/Entertainment Law Weekly Case Update for Motion Picture Studios and Television Networks reports on (and links to):

J&J Sports Productions, Inc. v. Jimenez, in which a federal district court held that the defendants are entitled to a jury trial on the plaintiff's claims for statutory damages for the unauthorized publication or use of communications and the unauthorized reception of cable service.

Capitol Records Inc. v. Thomas-Rasset, in which a jury awarded copyright infringement damages to the plaintiff record companies of $62,500 for each of 24 songs ($1.5 million in all).

(If you are reading this more than a week after November 17th, use the search box on the Loeb & Loeb page to find these case reports.)

11/16/2010

Lisa Kudrow's former manager is entitled to trial on claim that he had oral agreement requiring actress to pay post-termination commissions

Lisa Kudrow may have to pay her former manager commissions on money she earned after she fired him, even though the management agreement was simply oral. In an unpublished ruling, linked-to in an article in THR Esq , a California Court of Appeal has reversed a summary judgment against the manager, and has sent the case back to the trial court for further proceedings. Though their oral agreement said nothing about post-termination commissions, the manager contended that it is customary for such commissions to be paid. The Court of Appeal ruled that he was entitled to prove that, if he could, because custom may be used to explain apparent ambiguities.

Drug test samples properly excluded from Barry Bonds' perjury case

The federal government is prosecuting Barry Bonds for perjury, because he denied - under oath - using performance enhancing drugs. Urine and blood samples tested positive for drugs, but the government struggled to prove that the samples actually came from Bonds. The trial court ruled that the samples could not be introduced into evidence; and the Ninth Circuit Court of Appeals affirmed. Details of the case and the Ninth Circuit ruling are reported in the November issue of Proskauer Rose's sports law newsletter Three Point Shot. Without the test results, Proskauer doesn't think much of the government's case. It's take:
In an 0-2 hole against Bonds, you might think the prosecutors would head to the showers but, instead, the government has opted to go forward with its remaining evidence. A new trial date is set for March 2011.

11/14/2010

WGA jurisdiction to determine the writers of movie and TV scripts

If the Writers Guild had not been created by writers themselves, movie and TV companies would have created it - just to have it determine who gets credit, when scripts are the creation of more than a single person. What gives the WGA the power to perform this critical and sometimes contentious task? That's the question addressed by UC Irvine law professor Catherine Fisk in The Jurisdiction of the Writers Guild to Determine Authorship of Movies and Television Programs. From the intro:
Ever anxious about their status as the authors of a film in a world in which directors and actors are far more likely to be seen by the public and by critics as the authors of a film or TV show, writers use their jurisdiction over writing credit to protect their status as authors. While jurisdiction is always the device by which law sanctions the exercise of power, the jurisdiction of the Writers Guild reflects and creates a particular form of power in Hollywood: the power to define individual authorship of a collective creation, which in turn creates the power to be paid to tell stories.

Political campaigns' use of music

The 2010 election changed the makeup of the House of Representatives . . . and added a subtopic to copyright law. On the heals of the article noted in the previous post comes word that the Georgetown Law Journal will be publishing The Barracuda Lacuna: Music, Political Campaigns, and the First Amendment by Sarah Schacter. Her Note
. . . is about the First Amendment issues that are raised when political candidates use music in conjunction with political campaigns without the consent of songwriters and recording artists. Sometimes, based on the circumstances, copyright law provides a clear remedy for a contested use. Other times, however, an artist will have to look to other legal doctrines for a remedy. Although there are other doctrines that the musical artist may invoke, this Note will demonstrate that these alternative avenues of relief are inadequate to protect the artist and also flawed in that they fail to fully address the unique First Amendment concerns that arise in such a scenario. There is, thus, a lacuna in this area of the law - a "gap" that Congress must fill.

11/10/2010

Unauthorized use of copyrighted music in political campaigns

Landslide (the magazine of the ABA's IP Section) has published Singing the Campaign Blues: Politicians Often Tone Deaf to Songwriters’ Rights by Robert Clarida of Cowan Liebowitz & Latman and Andrew Sparkler of ASCAP. The article was prompted by the unauthorized and objected-to use of music by John McCain, Marco Rubio, Charlie Crist, Rand Paul, Sarah Palin, President Barack Obama and French President Nicolas Sarkozy, in their political campaigns. The article explains that
The exact nature of these music claims, and the politicians’ responses to them, have been varied. Simple public performances, such as playing songs over the PA system at rallies and other campaign events, raise one set of issues. Including songs in videos, websites, and TV ads raises additional issues. Altering the songs with new lyrics to make topical political points raises still another set of issues.
The article then analyzes all these issues, in just six quite readable pages.

Legal Guide to Independent Film Making

The American Bar Association has published the Legal Guide to Independent Filmmaking by Michael C. Donaldson and Lisa A. Callif. It is described as
the authoritative handbook you need to lead you through the legal morass of producing an independent film, from the moment you get the crazy idea to do such a thing, through financing, development, principal photography, distribution, and the too-often overlooked subject of delivery. Each chapter contains a general road map for the phase of filmmaking covered by that chapter, including the relevant forms and contracts, which come with plenty of explanatory info and some select negotiating tips. [It] includes a CD-ROM with all the contracts, employment and nondisclosure agreements, and licensing deals you'll need.

New case reports: National Lampoon; Lime Wire

The November 10, 2010 editions of Loeb & Loeb's
IP/Entertainment Law Weekly Case Update for Motion Picture Studios and Television Networks

and
Music Law Weekly Case Update for Music Industry Executives

contain reports about (and links to the full texts of)
- Ahanchian v. Xenon Pictures, Inc. (9th Cir)
- Arista Records LLC v. Lime Wire LLC (SDNY)
(If you are reading this more than a week after November 10th, use the search box on the Loeb & Loeb page to find these case reports.)

California right-of-publicity statutes

Douglas Mirell of Loeb & Loeb has written Right-of-Publicity Statutes: Some Historical Reflections and Recent Developments. The article explains that
For nearly four decades, the state of California has recognized a statutory right of publicity for living people. And for the past quarter of a century, California has extended that statutory right to the heirs and other representatives of deceased individuals. This article explores the extent to which the hopes of this legislation’s proponents have been achieved and, conversely, whether the concerns expressed by its opponents have come to fruition. It also briefly addresses the reasons for 2008 clarifying amendments to California’s postmortem publicity rights statute, as well as the status of various other states’ recent attempts to enact or amend right-of-publicity legislation.

Trademarks, video games and the First Amendment

Russell Frackman of Mitchell Silberberg & Knupp and Joel Leviton of Fish & Richardson have written Trademarks, video games and the First Amendment: an evolving story. Their thesis:
As video games become more realistic and more interactive, the issue of in-game trademark use raises new concerns. And a traditional trademark infringement analysis may no longer be suitable.