Entertainment Law Podcasts of the Week

1.     How the Power of Branding Drives Trademark Law (From the Thompson Compumark Podcasts Series by Thomson)

The podcast centers in how trademark law has had to adapt given to the new branding rules brought by the world of the Internet. Nowadays, protecting a company’s name and the image that represents that name has become global. No longer does trademark law center on the U.S, but also in worldwide markets. The following cases were addressed to prove this point:

b.     Metel v. Barbies

“Barbies”, a restaurant in Canada decided to post their menu online in order to give leverage to their brand and attract new customers. However, Mattel, the creator of the doll line, “Barby”, became aware of the incident and asked the Canadian restaurant to please remove their website for it was infringing the “Barby” trademark. The Canadian restaurant did not comply, and Mattel went to court with the case alleging, “we were famous” and thus deserved to ask for other similar brands to be expunged. Yet, the supreme court of Canada responded to Mattel that there had to be a connection between the channels of trade before an opposition could be upheld. Thus, the court specified they still had to use the totality of the circumstances and not the mere statement Mattel “was famous.”

In my opinion, no matter how much leverage and popularity your brand acquires, procedures in court have to be made within the process established for that particular infringement. People cannot get “too cocky” as the lawyer in the podcast expressed. The law is the law, and although popularity is for the masses, a country is ruled by a code and not by self-centered individuals with elevated egos.

c.      Jaguar v. Remo Imports

Jaguar, the motorcar trademark expanded to sell leather-made goods in the 1980’s. However, Remo imports filed a lawsuit that Jaguar was associating goods that competed with their trademark and thus was driving consumers into a market in which they did not belong. Jaguar backfired their claim by arguing it was a natural extension for a brand like Jaguar, which inspires luxury and wealth, to sell leather-made merchandise with the logo of the company on it. In addition to this argument, they added that Remo on the contrary was using their claim to diminish the value of their brand in order to sell products of their own which resembled Jaguar’s and which were fabricated way after. The result was the court ruling an expunge of the Remo products.

d.     Levi’s v. Small Businesses

Small businesses filed lawsuits against Levi’s for using the word “overalls” as part of their trademark association. Levi’s argued back that although it was their purpose to expand as a brand, the word “overalls” could not be taken away from their trademark’s association to consumers given jeans (the primary product of Levi’s) were technically considered a type of overall. Yet, the court asked Levi’s in return of reversing the small businesses’ claims to include “male, female, and children overalls” in their advertisement if they desired such expansion of the brand legally to take place.

2.     Monkeying around with copyright law (Episode 23 of the Entertainment Law Update Podcasts Series by Gordon P. Firemark)

The podcasts comment about different cases regarding copyright law and copyright infringements happening now.

b.     Righthaven, a copyright troll (company that goes around acquiring rights in copyrighted materials so that instead of suing people, they can get money by settling the matter on their own without litigating), has been filing lawsuits against bloggers and online users who have been republishing work that official newspapers and magazines rightfully own. Yet, they have failed three strikes in a row based on the court not favoring Righthaven’s actions and the court’s interpretation that the true copyright holders of the pieces in question are the magazines and newspapers that originally produced them.

                                               i.     Righthaven v. Democratic Underground

                                              ii.     Righthaven v. Hoean

                                            iii.     Righthaven v. Dibiase

c.      Jack Kirby v. Marvel

Jack Kirby appeals loss in Marvel copyright lawsuit based on his work made between 1958-1963 in the company stating that there was never an official contract that mentioned Kirby working for the company in order to deliver ideas that would be used later by Stan Lee in the final comics. Marvel restated this was a work for hire and that in any work for hire when one works for a company, one’s creations belong to that company. Yet, Kirby has shielded in the copyright act of 1909 (act ruling during that time), which does not specify what a “work for hire” entails (meaning it didn’t exist back in the time). He has mentioned he was only instructed to create pages of ideas through sketches, but was never told they would be the base of current Marvel characters, which catapulted the brand to success. This appeal is in proceedings since the time due to lack of evidence from behalf of Kirby.

d.     Warner Brothers Entertainment, Inc v. X1X Productions

Although the Lyman Frank Baum characters by law should have entered to be public domain by now, Warner Brothers, with the creation of “The Wizard of Oz” in 1939, acquired a renowned trademark over specific looks of the characters. This has been a battle between being a trademark claim and a copyright claim. Warner Brothers wants to claim other people need to acquire license and rights from them in order to use the characters. Yet, other entities have been smart by not being detailed about the main characters and have stayed with secondary characters which weren’t very well depicted in the 1939 version such as in the case of the “Wicked” play producers.

3.     YouTube, Hurt Locker, and Idea Theft (Episode 12 of the Entertainment Law Update Podcasts Series by Gordon P. Firemark)

The podcasts comment about different cases regarding copyright law and copyright infringements happening now.

a.     Michael Douglas v. Diandra Douglas

The film Wall Street 2 reignited a battle between superstar Michael Douglas and his ex-wife Diandra Douglas given her divorce decree stated when would receive 50% of the income from any “spin-off” of a film made during the time of their marriage. However, the court brought a problem to the definition of the term “spin-off” which is not a legal term. According to the speakers of the podcast, what she should have drafted in the decree was “any derivatives.” Nonetheless, the case is currently pending a decision.

b.     Viacom v. Google/Youtube

The district court of the southern district of New York ruled that Youtube/Google is not liable to the contributory copyright infringement Viacom was claiming. The court protected Youtube/Google based on the safe harbor provision section 5.12 of the DMCA where the service provider is not liable for infringement by reason of storing user generated material if the provider is not knowledgeable that the material is infringing. Viacom opposed arguing Youtube knew about its infringements and was only pretending not to know in order to fill their website with content.

c.      The U.S. Copyright Group v. 5,000 illegal downloads

The creators/producers of the award-winning film “The Hurt Locker” incorporated a copyright protection firm, which accuses 5,000 Internet users of downloading illegal digital copies of the film via bi-torrent software. Comcast when alleged said they would work on the matter when the time comes on a per-case basis, and the court is currently questioning if filing against/persecuting 5,000 people is a legitimate way of copyright protection. Copyright can only protect when there is a specific defendant and when there is a series of transactions (in terms of illegal downloads) harming the filing company. However, with bi-torrent in extremely hard to calculate given elements which trigger a lawsuit.

References:

How the Power of Branding Drives Trademark Law

http://itunes.apple.com/us/podcast/how-power-branding-drives/id264628681?i=23010931

Monkeying Around With Copyright Law Podcast

http://itunes.apple.com/us/podcast/id313301718?i=96594890

Use the Force, Big Boy, and Watch Out for Beyonce’s Undies

http://itunes.apple.com/us/podcast/entertainment-law-update-podcast/id313301718?i=93105276

Infringment in the Entertainment Industry

This week’s post will be centered in legal liabilities within the entertainment industry and the world. I believe it is of crucial importance to quote and refer our resources when we write and create any type of material. From books to music to schoolwork, we always need to be original and deliver proper credit to the people who said or thought concepts we are using for our new thesis.

The first article I encountered in my search for legal liabilities within this year was Adrian Jacob’s lawsuit for copyright infringement against J.K. Rowling. Jacob, who died in 1987, but was represented by family members, wrote the children book series “Willy the Wizard”, which were claimed to be very similar to his counterpart’s series “Harry Potter”.

The lawsuit was filed in a court of London and the PR representing the family stated it would be a lawsuit worth millions of dollars. The suit more specifically accused “Harry Potter and the Goblet of Fire” to have identical elements stolen from “Willy the Wizard: Livid Land”. Yet, Judge Shira Sheindlin from the United States court said “The contrast between the total concept and feel of the works is so stark that any serious comparison of the two strains credulity" (Guardian UK). She clarified the absurdity of the claim and favored Rowling.

I believe this case was not only absurd, like Judge Sheindlin implied, but also was a waste of time given to the passing of time that took the suit to take place after the publishing date of the Harry Potter sequel. “Harry Potter and the Goblet of Fire” was published in 2000, Jacob’s book was written before 1982, and yet the suit was made last year. Furthermore, Rowling’s books have already acquired amazing success including 7 blockbusters in Hollywood, which have grossed millions one at a time. Even if she had plagiarized a page or half a book, the fans of Harry Potter are so vast that the public acclaim would be overwhelmingly shielding against the faulty lawsuit. Not only has Rowling written a book 600 pages long which surpasses Jacob’s 36 pager, but she has created an entire world book after book, which has built a worldwide franchise.

http://www.csmonitor.com/Books/chapter-and-verse/2010/0218/J.K.-Rowling-faces-another-plagiarism-suit

http://www.guardian.co.uk/books/2011/jan/07/harry-potter-plagiarism-case-us-court

The second article I encountered was NME’s accusation against Lady Gaga in copying Madonna’s “Express Yourself” with her hit “Born this Way”. Infuriated, she said in return the only element she had transcended was the song’s beat rhythm or to be more exact:

“What a completely ridiculous thing to even question me about… If you put the songs next to each other, side-by-side, the only similarities are the chord progression. It's the same one that's been in disco music for the last 50 years. Just because I’m the first f***ing artist in 25 years to think of putting it on Top 40 radio, it doesn’t mean I’m a plagiarist, it means that I’m f***ing smart. Sorry.” (USMagazine.com).

In my opinion, I also think this accusation (which has not been taken into a law suit yet) is not relevant. “Born this way” is not similar neither in lyrics nor in style, it is only similar in tempo. Thus, I find ridiculous they accuse her of copyright infringement just because they relate in their support for the LGBT community, and not in tangible evidence that “Born this Way” is literally a copy of “Express Yourself”. Even the videos if you check them on YouTube differ drastically. While Gaga’s video resembles an orgy from the point of view of a drug addict (http://www.youtube.com/watch?v=wV1FrqwZyKw), Madonna’s video resembles a classic piece that illustrates entrapment and confusion, not perverted sex (http://www.youtube.com/watch?v=GsVcUzP_O_8). Ultimately, I would say the beats in both songs are similar, but Madonna’s has way more congas and an 80’s style than Gaga’s. From a tangible standpoint, I do believe NME is out of place in accusing Miss Germanotta of copyright infringement.

http://www.usmagazine.com/moviestvmusic/news/lady-gaga-calls-madonna-plagiarism-charges-retarded-2011204

My third and last search of the day was the famous lawsuit filed in Germany from the University of Bayreuth against defense minister Karl-Theodor Freiherr Zu Guttenberg. Although it is a case not pertaining to the entertainment industry, I am bringing it to this blog because I consider certain politicians such a George W. Bush and Sarah Palin to be celebrities of gossip and publicity money makers. Just as such, I believe in Germany Mr. Guttenberg to be the same. He was “shooting star” of conservatism driven by the public force to become Germany’s future chancellor. The 39-year-old baron, as they call him, excelled the expectations of his fellow Germans:

“In less than two years as defense minister, Guttenberg pushed through the most drastic reform of Germany's armed forces since the second world war. Most notably, he successfully fought for a plan to end conscription, part of an effort to slim down the German military and make it better adapted to an era in which it faces growing demands to deploy overseas.” (Hellen Pidd, Guardian UK).

However, one lawsuit, one accusation accompanied by massive press was all that Guttenberg needed to cease power. Bayreuth University accused him of plagiarizing his PHD thesis and although it is not considered in the US a felony or IP transgression, it was enough because of the media to shoot him down. This was aggravated when he testified in public, “I was always prepared to fight but I have reached the limits of my powers” and “I did not deliberately cheat, but made serious errors”.

Quite opposite in this case, I am in favor with the University of Bayreuth because of the nature of the case and the background of the accuser. I believe Mr. Guttenberg should have never agreed in public he did some errors in his thesis. He did not only feed a destructive force such as the media, but also directed his journey as a politician onto having to resign or he would lose faith from the people. Also, I believe this time the accuser was a scholarly source with a lot of background concerning law and education. If you are fighting against a scholastic institution and the media at the same time in a country like Germany, an individual like Mr. Guttenberg no matter how much power acquired will almost always fail. I believe he only plagiarized by not focusing and taking care of accrediting his sources; it wasn’t a voluntary action. However, it was his position in Germany’s society, which weakened his possibilities in winning a case against a force like the media who is specialized in destructive spin when it come to informing citizens.

http://articles.cnn.com/2011-03-01/world/germany.politics_1_defense-minister-plagiarism-scandal-guttenberg?_s=PM:WORLD

http://www.guardian.co.uk/world/2011/mar/01/german-defence-minister-resigns-plagiarism