2/28/2011

Labor relations in Hollywood

Jonathan Handel has just published a new book about labor relations in Hollywood. In Hollywood on Strike!: An Industry at War in the Internet Age, Handel takes a close look at the WGA strike and SAG negotiations of 2007-2009, both of which swirled around the issue of compensation for Internet uses of movies and television programs. The book's description:
It was a Hollywood meltdown. . . The Writers Guild went on strike in 2007. The big issue: fees for programs released on new media such as the Internet. The strike was settled one hundred turbulent days later – but then the Screen Actors Guild spiraled out of control, unwilling to accept the same terms but unable to muster a second strike. As the national economy collapsed, idled writers and actors sacrificed millions of dollars in film and TV wages in order to pursue pennies in new media. All told, the turmoil lasted about two years. But why? Analyzing events as they unfolded, Los Angeles entertainment attorney and journalist Jonathan Handel lays bare the contracts, economics and politics swirling behind the paradox of Hollywood labor relations. Handel is a uniquely qualified guide: a former associate counsel at the Writers Guild, his law practice at TroyGould focuses on new media and entertainment. He was described as "one of the most-quoted sources on the strike," and recently taught a course on entertainment unions and guilds as an adjunct professor at UCLA School of Law. Handel covers entertainment labor as a Contributing Editor for The Hollywood Reporter and his writing also appears on Forbes.com and the Huffington Post. As a commentator, Handel has appeared in the media hundreds of times. The 2007-2009 contracts, so hard fought, brought scant months of labor peace: renegotiations began in 2010, and recur every three years. That makes this book essential reading for anyone who wants to understand Hollywood in the digital age.

2/25/2011

Who owns interview quotes: subject or writer?

The quotations in published interviews are valuable source material for journalists, book authors and film makers. But who owns their copyrights: the subjects who were quoted, or the writer who conducted the interview? That question has attracted recent attention on both sides of the U.S.-Canadian border. To the south, New York City lawyer Mark Fowler (of Satterlee Stephens Burke & Burke) considered the question in a Rights of Writers post titled Who "Owns" an Interview. North of the border, Bob Tarantino provides a Canadian law persective in Question and Answer: Who Owns the Copyright in an Interview? - a post in Heenan Blaikie's Entertainment & Media Law Signal.

2/24/2011

Roller derby's lessons for trademark and right of publicity law

I remember watching roller derby on television with my grandmother, decades ago when I was just a young boy. Little did I know then that I would be a law professor some day, or that roller derby would have something to teach me about trademark or right of publicity law, both of which I have taught to students out of thick and heavy casebooks. Suddenly, up from the inside track (or would it be down from the outside track?), Southwestern Law School professor David Fagundes points out what I didn't see, all those years ago in my grandmother's living room: roller derby skaters protect their on-track names using their own private systems, rather than traditional trademark or right of publicity law. In Talk Derby to Me: Emergent Intellectual Property Norms Governing Roller Derby Pseudonyms, David explains why lawyers might be interested in roller derby's system for name protection:
This qualitative empirical study . . . examin[es] how roller derby skaters regulate the pseudonyms under which they perform. Roller derby names are a central part of this countercultural, all-girl sport, adding to its distinctive combination of punk and camp. Skaters have developed an elaborate rule structure, registration system, and governance regime to protect the uniqueness of their skate names. The emergence of this extra-legal governance scheme despite the ready availability of IP theories (e.g., trademark, rights of publicity) to protect derby names challenges a central tenet of the prevailing literature that such norms emerge only where IP law has no substantive application. This analysis of derby names shows that IP norms emerge independently of law’s (un)availability, so long as the relevant group is close-knit and the norms are welfare-maximizing. These groups are especially likely to craft elaborate regulation and registration schemes where the relevant community is identity-constitutive, and where the intangible goods arise from nonmarket production. This study critiques existing explanations for IP norm emergence; suggests a counter-theory for the emergence of user-generated IP governance systems; casts further doubt on the adequacy of prevailing neoclassical economic assumptions underpinning IP doctrine; and calls into question what it means for rules to be law.

2/23/2011

Copyright reversion rights

Reversion rights in copyright law are as complex as anything that tax law has to offer. Complex and dry. But currently a hot topic, because of the possibility that rights to sound recordings soon may revert to recording artists. For those who may be interested in the history of copyright reversion, Cambridge law professor Lionel Bently and Columbia law professor Jane Ginsburg have co-authored 'The Sole Right . . . Shall Return to the Authors': Anglo-American Authors' Reversion Rights from the Statute of Anne to Contemporary U.S. Copyright. Their synopsis:
This study of author’s reversion rights begins with the Statute of Anne and the debates that led up to the adoption of section 11, which vested in the author a second fourteen-year term, provided he or she was still alive at the end of the initial fourteen-year term. The study then will address the impact of the author’s reversion right on publishing practice and authors’ welfare in the United Kingdom through the eighteenth century to the demise of the reversion right in 1814. We will suggest that the apparent lack of use of the reversion right by authors in the eighteenth century was a result of a host of factors, including but not limited to the common (but by no means universal) contractual practice which purported to confer on a publisher the entirety of an author’s rights. In addition, we call attention to the multiple and shifting interpretations of what was required by section 11, as well as the social and economic limitations on an author’s capacity to take advantage of the reversion. The second half of this study turns to the law and publishing practices in the United States, where reversion rights have proved more enduring if not always more beneficial to authors. The study concludes that history and practice suggest at best inconsistent achievement of reversonary rights’ aim to offset the author’s weaker bargaining position by assuring her a future opportunity to make a better deal. Legislators might improve the reversion rights regime, but it is not clear that authors’ lots will accordingly ameliorate. Substantive regulation of contracts of transfer, rather than rights to terminate those transfers, may offer the preferable path to ensuring meaningful and effective protection of authors’ interests in reaping the fruits of their intellectual labors.

2/22/2011

Recent decision: Roger Clemens defamation case

The current issue of Loeb & Loeb's IP/Entertainment Law Weekly Update reports on and links to a recent decision in McNamee v. Clemens. The case is a defamation lawsuit filed against baseball player Roger Clemens by his former personal trainer. The court denied Clemens' motion to dismiss the trainer's complaint, because - the court held - statements Clemens made at press conferences and other planned media events were not protected by the "judicial proceedings" privilege.

2/18/2011

Hart on Copyright

Terry Hart has posted two articles on copyright law in his Copyhype blog:
  • In The Reverse Class Action Lawsuit: Challenges of Enforcing Copyright Online, he looks at the strategy behind a lawsuit that's been filed by an adult film producer against a class of alleged infringers. You read that right: class actions usually are cases filed by a class of plaintiffs against a single defendant; this case is one filed by a single plaintiff against a class of defendants.
  • In Copyright and Censorship, he surveys the ever-lengthening history of the perceived conflict between copyright law and the First Amendment.

2/17/2011

The future of music

The future of music - and especially the future of record companies - is an endlessly fascinating topic. Brian Day, an associate at Orrick, Herrington & Sutcliffe, has put his thoughts in writing in an article in the Seton Hall Journal of Sports and Entertainment Law titled In Defense of Copyright: Creativity, Record Labels, and the Future of Music. The abstract:
As music production and distribution has transitioned into the digital realm, music and legal commentators increasingly contend that the record label business model is unsustainable and unnecessary. Whereas labels were once critical to the promotion, manufacture, and distribution of physical albums, commentators suggest that recent technologies may have significantly undercut the traditional advantages enjoyed by major labels. In a world of Pro Tools, iTunes, and MySpace, some argue that artists are fully capable of recording, promoting, and licensing their own music. The consequences that such theories might have upon the music industry and upon the U.S. system of music copyright more generally are profound. If labels are in fact no longer necessary to sustain a healthy music market, the fundamentals of music authorship and copyright ownership in the United States may soon undergo significant transformation. Today, recording contracts between record labels and artists weave a complex web of profit-sharing, recoupment, and upfront advances. In a post-label world, it is suggested that artists (and their management) would control all creative and business aspects of their music, including production, marketing, and distribution. Most importantly, however, artists would own the copyright in the music they record, along with the rights to any and all licensing royalties received therefrom. This Article will evaluate the need for record labels in the digital age, and consider whether fundamental principles of copyright justify record labels’ continued ownership and control over sound recording copyright. The Article surveys the current legal music landscape, and considers recent challenges to the traditional structure of the recorded music industry, including the seminal "long-tail" theory of music distribution and consumption online.

2/16/2011

Ex-boyfriend is ordered not to post nude photos of "Jersey Shore" star Jenni Farely

"Jersey Shore" star Jenni Farley once told her then-boyfriend that she wanted to pose naked in Playboy magazine; and, he says, she allowed him to take nude photos of her. That was then, though. Now, they're no longer a couple. And she doesn't want him to sell the photos he took, to anyone. A judge in New York has granted her wish and has enjoined Jenni's ex from doing anything with the photos. The case is noted and linked to by Rick Kurnit, of Frankfurt Kurnit Klein & Selz, in JWoWW’s Ex Can’t Distribute Nude Pics, Judge Says.

2/15/2011

Online copyright registration

The United States Copyright Office has introduced online copyright registration. Beverly Hills entertainment lawyer Mark Litwak explains how to register the copyrights to films and scripts using the Copyright Office's new ECO system ("ECO" for Electronic Copyright Office), and he provides the link for doing so. 

2/14/2011

Washington state right of publicity statute is declared unconstitutional in Jimi Hendrix case

A federal judge in the state of Washington has declared the Washington State Publicity Rights Act unconstitutional, in a case filed by the estate of Jimi Hendrix against an unlicensed seller of Hendrix merchandise. Eriq Gardner explains (and links to) the decision at THR, Esq.

2/11/2011

Fictional trademarks: protectable?

"Duff Beer" is the trademark for the beer favored by "Homer Simpson." Just as "Homer" is a fictional character, "Duff Beer" is a fictional trademark. But does that mean that "Duff Beer" isn't protectable - that anyone may use the mark for anything? Fordham law student Benjamin Arrow tackles this question in Real-Life Protection for Fictional Trademarks in the latest issue of the Fordham Intellectual Property, Media & Entertainment Law Journal. By the way, the "Duff Beer" question is not hypothetical. "Duff Beer" was used, without authorization, by a brewery in Australia; and Twentieth Century Fox did sue, successfully. Arrow analyzes that case, and others. His conclusion:
This Note locates fictional trademark injuries under trademark law but proposes adapting the trademark framework to the particulars of the fictional trademark problem. This tailored trademark framework borrows analytical principles from copyright to determine what a use in commerce sufficient to reserve priority in a mark might look like for a fictional trademark, and to determine if a fictional trademark has been infringed. Conceiving of fictional trademarks as real-world trademarks for their associated entertainment products and modifying the trademark analysis to evaluate the strength of those trademarks will help protect valuable intellectual property rights in these entertainment products.

2/10/2011

Trademark law in the movie/TV business

Leonard Glickman of Cassels Brock in Toronto is writing a series of articles on trademark law issues that arise in the movie and television business. The first article was What's in a Title about trademark rights in titles. The second is Trade-marks and product placement: the use of branded products in film and television productions.

2/09/2011

Music festivals and the law

Summer is just over the horizon, and when summer arrives, music festivals do too. To the uninitiated, festivals may seem less formal than headliner-focused concerts. And less formality means that lawyers have less to think about . . . or do they? Actually, music festivals require a lot of legal planning, as San Francisco lawyer Richard Idell explains in an article titled simply Venues: Festivals that appeared in Live Entertainment: An International Handbook - a publication of the International Association of Entertainment Lawyers for its annual MIDEM program in January 2011. From the article's conclusion:
The production of a multi-day festival has many moving parts. From the point of view of the lawyer handling the legal work, the process involves numerous legal disciplines including real estate issues, license/lease arrangements, governmental entitlement and permitting, environmental clearance and compliance, governmental regulation, such as sound ordinances, allocation of risk through insurance and indemnity, copyright, trademark, right of publicity, trade secrets and personal injury defense as well as traditional contract drafting, negotiation and administration.

2/08/2011

Buying a Major League Baseball team in bankruptcy

The Chicago Cubs and the Texas Rangers both were purchased out of bankruptcy. How exactly this was done is explained by Marc Roitman of Chadbourne & Parke in Going, Going, Gone: Selling the Cubs and Rangers in Bankruptcy.

2/07/2011

Recent privacy decision: Van Morrison v News of the World

The UK law firm Reynolds Porter Chamberlain reports on (and links to) a recent ruling in Northern Ireland in which Van Morrison was granted an injunction against the News of the World that barred the newspaper from publishing information it apparently got from a tradesman who did work in the musician's home.

Theater-provided hearing aids for the deaf: required by the ADA?

In an article title Movie, Concert, and Performing Arts Theaters Beware of Possible ADA Lawsuit, Martin Orlick of Jeffers Mangels Butler & Mitchell answers the question: "Should theaters provide personal hearing devices for the Deaf and Hard of Hearing?"

2/04/2011

Online copyright enforcement

Is Online Copyright Enforcement Scalable? University of Idaho law professor Annemarie Bridy asks and answers that question in a new article that 
. . . examines peer-to-peer (P2P) file sharing and the copyright enforcement problem it has created through the lens of scalability. Writing about the growth and governance of the Internet, David Post observed that "scaling problems - the problems that arise solely as a consequence of increasing size or increasing numbers - can be profound, and profoundly difficult to solve." Both the Internet’s designers and P2P network designers solved difficult problems of scale in their efforts to revolutionize the distribution of information goods. In doing so, however, they created a problem of scale in the form of "massive infringement." How to approach solving that problem of scale is the subject of this article.

Section I traces the evolution of P2P networks from Napster to BitTorrent, with a focus on the relative scalability of successive architectures. Section II takes up the difficult question of the scale of P2P infringement and its harms, examining the strategic number-crunching that underlies industry data on piracy, the government’s credulous acceptance of that data, and the risk of letting industry hyperbole, whether qualitative or quantitative, drive copyright policy and law enforcement priorities. Section III evaluates the efficacy of the Digital Millennium Copyright Act (DMCA) as a policy mechanism for scaling up online copyright enforcement. I argue in Section III that the DMCA has proven to be remarkably scalable for enforcing copyrights in hosted content but has altogether failed to scale in the context of P2P file sharing, leading to a dysfunctional workaround in the form of mass John Doe litigation. Section IV weighs the costs and benefits of more scalable alternatives to mass litigation, including a potential amendment of the DMCA’s pre-litigation subpoena provision and a pair of administrative dispute resolution systems - one hypothetical, the other real - for streamlining adjudication of P2P infringement claims.

2/03/2011

Irreparable harm as the standard for copyright injunctions

Andrew Spillane, a Marquette law student, explores The Continuing Vitality of the Presumption of Irreparable Harm in Copyright Cases in his school's Marquette Intellectual Property Law Review. His point:
Property has long enjoyed civil enforcement through a potent remedy: the permanent injunction. For decades, federal courts across the country roundly granted permanent relief upon finding infringement and a threat of future infringement of one type of property: copyrights. Beyond these showings, a prevailing plaintiff in a copyright infringement case would not have to prove the cornerstone of equitable relief – irreparable harm – to obtain an injunction. But after the U.S. Supreme Court’s decision in eBay v. MercExchange, the courts have abandoned this truncated equitable inquiry. In its place, the lower federal courts now apply eBay's four-factor test to determine whether a copyright case presents a possibility of irreparable harm. The handful of courts treating the eBay test have taken one of two approaches: rejecting a presumption of irreparable harm or continuing to recognize that presumption. In light of this emerging split of authority, this Comment argues that the presumption of irreparable harm should continue to have a place in American copyright law. Such a rebuttable presumption would protect copyright’s exclusivity, address judicial distrust that defendants will voluntarily cease infringing activity, conserve judicial resources, allow courts to shape their equitable powers through general rules as post-eBay case law develops, and adhere to the history and traditions of equity practice eBay implores the courts to follow.

Radio music royalties: what price?

Those interested in an economist's view of how to determine what music royalties radio stations should pay will find it in Fair Copyright Remuneration: The Case of Music Radio. The author, Richard Watt, is a professor of economics and finance at the University of Canterbury in New Zealand, though his article was prompted by recent radio royalty debates outside - as well as inside - his home country. He explains:
The issue of what price should be set for the music input to radio broadcasts has been hotly debated recently in several countries, including USA, Canada and New Zealand. Since music is subject to copyright, this is an issue that is of great importance to the economics of copyright. The central point is the fact that, because of the economic efficiency that is gained by collective management and blanket licencing, the copyright holders in music are represented by a single bargaining unit. The ensuing monopoly power is often seen to be detrimental to social efficiency, and so in exchange for allowing the collective to form and operate, the price at which it grants access to its repertory is regulated. The regulated price should be set at a fair and equitable level. In this paper, the Shapley methodology is used to attempt to provide such a tariff.

2/02/2011

Expanding and overlapping intellectual property protection: natural or problematic?

I've never been troubled by the fact that some things - Mickey Mouse and Superman, for example - are protected both by copyright law and by trademark law. Some things have dual functions, so for me it was completely natural that one of their functions would be protected by one type of IP law while the other function would be protected by another. Not everyone shares that simple view, though. Professor Andrew Beckerman-Rodau has explained why he does not, in a new article in the Yale Journal of Law & Technology titled The Problem with Intellectual Property Rights: Subject Matter Expansion. Professor Beckerman-Rodau is the Co-Director of Suffolk Law School's Intellectual Property Law Concentration, and his article
. . . examines the expansion of the subject matter that can be protected under intellectual property law. Intellectual property law has developed legal rules that carefully balance competing interests. The goal has long been to provide enough legal protection to maximize incentives to engage in creative and innovative activities while also providing rules and doctrines that minimize the effect on the commercial marketplace and minimize interference with the free flow of ideas generally. The expansive view of subject matter protectable via intellectual property law has erased the clear delineation between patent, copyright, and trademark law. This has led to overprotection of intellectual property in the form of overlaps which allow multiple bodies of intellectual property law to simultaneously protect the same subject matter. Such overlapping protection is problematic because it interferes with the carefully developed doctrines that have evolved over time to balance the private property rights in intellectual creations against public access to such creations. This article will examine the competin policies that underlie the various branches of intellectual property law. It will then discuss the expanding domain of subject matter protected by patent, copyright, and trademark law. Finally, it will examine the overlaps that exist under patent, copyright, and trademark law and the resulting problems with regard to software, clothing, computer icons, graphical computer interfaces, music, and useful commercial products.
Professor Beckerman-Rodau studied engineering before going to law school, but his article doesn't ignore issues of interest to entertainment lawyers. It includes sections on music, iPods and clothing, as well as software and user interfaces. In what may be a first (or at least unusual) for the Yale Journal of Law & Technology, his article also is illustrated.

2/01/2011

New book on the future of digital copyright

Oxford University Press has published a new book by Zohar Efroni, of Stanford's Center for Internet and Society, titled Access-Right: The Future of Digital Copyright Law. The publisher's description:
Copyright law has become the subject of general concerns that reach beyond the limited circles of specialists and prototypical rights-holders. The role, scope and effect of copyright mechanisms involve genuinely complex questions. Digitization trends and the legal changes that followed drew those complex matters to the center of an ongoing public debate. In Access-Right: The Future of Digital Copyright Law, Zohar Efroni explores theoretical, normative and practical aspects of premising copyright on the principle of access to works. The impetus to this approach has been the emergence of technology that many consider a threat to the intended operation, and perhaps even to the very integrity, of copyright protection in the digital setting: It is the ability to control digital works already at the stage of accessing them by means of technological protection measures.

The pervasive shift toward the use of digital technology for the creation, dissemination, exploitation and consumption of copyrighted material warrants a shift also in the way we perceive the structure of copyright rules. Premising the copyright order on the concept of digital access first calls for explaining the basic components of proprietary access control over information in the abstract. The book then surveys recent developments in the positive law, while showing how the theoretical access-right construct could explain the logic behind them. Finally, the book critically analyzes existing approaches to curbing the resulting problems of imbalance and overprotection, which are said to disadvantage users. In conclusion, the book advocates for a structural overhaul of our current regulative apparatus. The proposed reform involves a series of changes in the way we define copyright entitlements, and in the way in which those entitlements may interrelate within a single, coherent scheme.
Two chapters of the book may be digitally previewed for free, and even downloaded and printed, from here and here (though it's likely that Oxford University Press would rather have readers buy the book).