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.
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