Entertainment Law podcasts in relation to your future business.

Entertainment Law Update

Episode 27: Top Ten News

In episode 27, Gordon Firemark at Tamera Bennett summarized and analyzed what they perceived to be to your top 10 cases from their 2011 podcasts. In covering their top 10 cases the two attorneys covered a wide series of trademark, copyright, court judgments, and legal trends relating to the entertainment industry and the laws governing its institutions. One such matter was the holiday song case (Song title: Santa Claus Is Comin’ to Town), Coots Baldwin et al v. EMI Feist Catalog, Inc.

The attempt by the J. Fred Coots estate to reestablish termination rights in connection to the 1934 song. The original publishing company was Leo Feist Publishers, Incorporated. Feist, the publisher which held the copyright since that period of time until its publishing catalogue was purchased and transferred to the music publishing conglomerate EMI in 1987.

This placed the parties at odds over whether Coots (who had attempted to terminate in 1981) prior to the end of the rights license period.  However, the termination attempt predated the passage of the Copyright Term Extension Act in 1988. Kenneth A. Marra will preside in the Southern Federal District Court of Florida when and if the case is heard.

Therefore, this case covers termination and renewal laws, the problems which resulted from the failure to terminate rights due to a clerical error in 1981. The copyright length of term as was established by the 1909 Copyright Law (which covered the period when the work was published). The estates assertion that the “second bite of the apple” for term extension was granted by the passage of the 1988 Sonny Bono Term Extension Revision to the Copyright Law; and the request for a declaratory judgment it order to clarify true ownership of the copyrighted material.

This portion of the podcast dealt with an issue of fact. Was this an ineffective termination matter? Whereas, the estate is trying to reestablish ownership and the music publisher maintains that it has never relinquished the ownership due to the failure of the 1981 process.

Who owns the rights? This is an important point from a business aspect because of the presence of law that existed prior to the passage of the so-called Sonny Bono copyright law term extension act in 1988. Documentary or independent filmmakers who might choose to use copyrighted photographs, interviews, or music must take into account the possibility that the transfer of license may be in question. The chain of ownership is essential. Say a filmmaker was to do a documentary on holiday songs? This particular composition is one of the most famous songs in the American songbook. Even if licensing was acquired from ASCAP, would this license the valid? This case could move to clear up a number of issues regarding termination of a copyright.

Hosts:

Gordon Firemark, Esquire

Tamera Bennett, Esquire

Episode 28: Politics, Helicopters, and Bat mobiles

How the Universal Music Group took down a Megaupload owned promotional video on YouTube.

YouTube has provided copyright holders and music publishing companies like Universal music group (a fair amount of autonomy) in requesting the removal of videos from YouTube servers. This removal however; has not been subject to a third-party serving as an impartial referee validating the position of whether or not the video in question has truly violated an existing copyright. Such an action took place when UMG requested the takedown of a promotional video featuring Kanye West and Kim Kardashian among other celebrities n in late 2011.

Universal moved promptly to have the videos removed by using the YouTube process in place where requests could be made directly to the online video service. Just as quickly, Megaupload moved to challenge UMG’s assertion of the copyright in the matter.

Shortly thereafter, and make a low moved to file suit against UMG and a series of "John Doe" parties in the lawsuit. The file sharing service claimed an unjust action on the part of UMG. A process of legal maneuvering would ensue between the parties. This culminated in the dismissal "without prejudice" of the lawsuit against the UMG; however the John Doe parties remained in the lawsuit.

This case has been complicated by the US Justice Department move to shutter the operations and resources of Megaupload in criminal charges towards the founder Kim Dotcom and other corporate executives in a larger and more far-reaching copyright infringement case.

Due to the migration of amateur filmmakers to a portal like YouTube, it is imperative that original compositions or stories be completely the void of any copyrighted material. This case is a facts issue revolving around perceived copyright infringement as noted by a computer software algorithm. However, the algorithm falsely noted (in Megauload’s view) an infringement. Therefore, an unlawful takedown (non-owned materials) was made on behalf of UMG. In doing so, did YouTube effectively transfer rights (backdoor access to a service to pull non-owned materials) to UMG? Even though Megaupload has chosen to dismiss their claim against UPM, they continue to maintain the possibility of pursuing the John Doe parties and have insisted on records of the incident preservation.

As the commentators noted; regardless of the present legal problems of Megaupload, this case presents a serious question regarding how Google and YouTube allow backdoor withdrawals of content that they declare to be infringing.

John Doe parties

Hosts:

Gordon Firemark, Esquire

Tamera Bennett, Esquire

Bob Tarantino, Esquire

Episode 29:  360 Deals and the talent agencies act

What constitutes licensed talent agent and the possible of conflict with the “procurement” portion of the California or New York talent agency laws? Due to the nature of 360 deals, in states where there is a clear separation between the duties of managers and the duties of those who carry a license to procure employment; the question must be asked how can a 360 deal be legal in that environment?

In episode 29, the commentators and guest examined what factors constitute employment procurement and if any legal safe harbor is available due to which model of operation is used (ownership model v. revenue model). These issues revolve around legal consequences, the process of employment procurement, state licensing provisions, the ownership model v. revenue model of license compared to a lease, and if the safe harbor is triggered in one model or another?

This particular matter is of great importance due to the requirements of a filmmaker in relation to union or nonunion Screen Actors Guild participation. While the 360 deal generally covers recording artists, if represented by poor or unscrupulous management or legal counsel talent may fall victim to inclusive deals which may run a foul of the legal responsibilities permitted by law. Therefore this case was of great interest. The attorneys use the Dwight Yoakum video case to show the difference. Moreover, they drew clear lines which allow an independent filmmaker to understand those differences.

Hosts:

Gordon Firemark, Esquire

Tamera Bennett, Esquire

Erin Jacobson, Esquire

In conclusion, all three episodes of Entertainment Law Update provides the listener with a wide reaching grasp of current issues and state of legal questions in the entertainment field. Whether it is the pertinence of 1909 copyright law regarding the vesting of termination rights, the consequences of a company in regards to material on their servers and how and when it can be displayed in accordance to their user agreement were examined. Lastly, what legal ramifications are placed upon individuals implementing contracts with a corporation if that agreement runs counter to state law was touched upon. All three circumstances provide a good foundation for the examination of any business plan and what restrictions or expansion of legal possibilities are needed. 

Cases regarding industry liabilities...

Articles, videos, and/or podcasts title :	Legal controversy described?
Cambridge University Press et al. v. Patton et al.	Copyright infringement and fair use doctrine
Assoc. for Information Media and Equipment, ET AL. -v.-Regents University of California at Los Angeles	Legal copyright exclusivity and purpose of use, public sovereignty immunity
Lawsuit Filed over 'Bad Lieutenant' Accounting	Bad faith fiduciary accounting principles

Litigation in itself is the contesting (in the form of legal proceedings) of any suit before a referee to reach a solution. Each party has not reached agreement to settle their differences and have moved forward to the point of litigation. To this point, a lawsuit is exactly that, litigation. In the three cases that I’ve chosen to examine: Cambridge University Press et al. v. Patton et al. (Copyright Clearing Center –vs- Georgia State University) (2011), Association for Information Media and Equipment –vs.- Regents of University of California at Los Angeles (UCLA) (2011), and lastly Polsky Films and Polsky Holdings –vs- Nu Image and First Look Studios (including studio executives Avi Lerner and Trevor Short)(2011).

Each case brings an interesting perspective on a series of issues that will have a direct effect on the future of 1. How academic research may be conducted and how students may be able to access pertinent and copyrighted materials to match their instructor’s demands. Moreover, will academics who have given the financial windfall to publishers (like Cambridge or Harvard University Press) over the years because they thought that academic access would always be back and forth will now instead see this clamp down as a betrayal of faith. In order words, why give the full benefit to a system that is denying the academic community fair access over a maximum profit model? 2. They establish absolute ownership of the copyright (and ultimately what can and cannot be done to the piece in terms of presentation, changes, or performance). 3. And in one case what can a end user do with copyrighted information or content. How can and what types of legal remedies are practical and reasonable to make the plaintiff whole again is factored.

The Copyright Clearing Center-v-Georgia State case is highly perplexing as well as paralyzing. It has cast a great pall over many online academic libraries and instructors. What is fair use in the reproduction of copyrighted materials in the age of digital achieving? Administrators at Georgia State University were targeted in the lawsuit because the school moved digital files to computer servers known as E-servers containing copyrighted materials according to the plaintiffs. While in print and being shared by academics, a licensing paid for by universities was accepted by copyright holders and their agents (university presses like Harvard or Cambridge). However, the plaintiffs move that such rights do not extend to the sharing of these materials once they’re moved to a secondary archive (unlicensed) resource such as the E-server and a per use fee must be applicable. Who is ultimately liable when a copyright holder (like Cambridge University Press) or their appointed agent choses to clamp down on rights usage? This is the question. The answer as they split the apple is to find an accommodation between the parties. This case currently pending in the US Federal Court of the Northern District in Georgia

In Association for Information Media and Equipment (AIME) –vs- Regents of University of California at Los Angeles (UCLA), the Federal District Court of Central California chose by dismissing the plaintiffs case outright due to the matter that there was no Federal judicial standard (constitutionally or by statute) for their lawsuit in the mind of the presiding judge. Two specific matters governed the choice, the matter of a concept called “sovereign immunity” (State and Federal institutions are immune to lawsuits in general unless they waive the protection beforehand) and the matter of lack of “legal standing” (does one have the right or ownership lawfully in order to sue) because AIME was not the actual rights owner. Therefore, the judge was unwilling to entertain the presumption of relief on behalf of AIME.

The case of Polsky Films –vs- Nu Image and First Look is one eerily similar to another precedent setting case from the early 1990s: Buchwald – v- Paramount Pictures (The Coming To America case) in the matter that the lawsuit revolves around motion picture accounting principles and what and how profits are paid. In this case, the repayment of investors and stakeholders in association fronted $1.3 million dollars to publicize and advertise the 2009 feature motion picture project entitled: ‘Bad Lieutenant: Port of Call: New Orleans’ directed by multi time Oscar™ nominee Werner Herzog and starring fellow Academy Award™ nominee Nicholas Cage.

The jest of the case revolves around the failure in the alleged estimation by the plaintiffs of the setup of and the deposit to of profits that were earmarked to be paid on their behalf in a fiduciary arrangement by Nu Image and First Look. As in Buchwald, the standards in the way major motion picture productions are accounted is at question. This alleged failure led to a lawsuit being filed in Los Angeles County (CA) Superior Court against the defendants. The suit which is still pending will answer the intent of the defendants and if the plaintiffs will be given financial relief if they are found to have been harmed.

In conclusion, the Georgia State case and redefining of the principle of what amounts to fair use is far reaching. If successful, the plaintiffs can attain a huge profits, that is if they do not drive a new underground market similar as what happened when computer users ran in droves to illegal downloads and file sharing in response to attempts by movie, television, and music distributors to keeping their older distribution chains relevant.

The AIME case shows a level of restraint that is always a danger in Federal courts, the concept of “limited jurisdiction” (is there a standard or precedent for this case to be heard in this court and why) and can it be heard? The matter of streaming video or file sharing beyond the world of interstate commerce may be addressed by statute at a later time by the Congress. Still, in the light of the chaos brought by online demonstrations in regards to SOPA, the question is highly unpredictable.

The last case regarding Polsky –v- Nu Image and First Look is the only one in a State Superior Court. The litigants are at odds and made no moves to remedy the impasse between them in settlement. One party feels that gravely injured. This means this case even if found in the favor of the plaintiffs may have a long run to the California Court of Appeals, CA Supreme Court, and ultimately in appeals to Federal Courts. The standards of relief can be found possibly in Buchwald regarding accounting standards; however those matters will only become known if the district courts cite them if the case is adjudicated.