User:CheshireKatz/Entertainment

Freedom of Speech

Sedition

Three kinds of speech (that blend)

News speech (most protected)

Entertainment speech

Commercial speech

Federal First Amendment protection extends to all states, though states may extend greater First Amendment protection than that.

Abrams v. U.S., 250 U.S. 616 (1919)

Facts: During Russian revolution, Bolshevik-supporters organize a strike to protest U.S.'s alliance with White Army.

Holding: Court upheld their conviction for conspiring to advocate curtailment of production of munitions necessary to the prosecution of the war

Dissent (Holmes): Holmes Dissent: Only the present danger of immediate evil or an intent to bring it about warrants Congress in setting a limit to the expression of opinion where private rights are concerned (This is basically the clear and present danger test from Schenk) BUT: Holmes argues the test was not met here because the leaflets of these poor and puny anonymities presented no immediate danger that its opinions would hinder the success of the government arms or have any tendency to do so

Brandenburg v. OH, 395 U.S. 444 (1969)

Facts: Members of KKK

• Holding: State cannot forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.

Charismatic Authority Test - 1) Directed/intended to incite, 2) Imminent lawless action and, 3) Is likely to produce that action

Modern Incitement Test - Based on Brandeis concurrence from Whitney: Regulation of speech only satisfies clear and present danger test if danger is highly probable, very harmful and not rebuttable in the normal course of further dialogue

• Application - Conviction for incitement cannot be upheld when danger is not imminent (Hess v. Indiana (1973; 1036) “We’ll take to the fucking streets later (or again)”).
• Not Here - When an advocate’s appeals do not incite lawless action, they must be regarded as protected speech (NAACP v. Claibrone Hardware (1982; 1036) Speech advocated use of force, not used until weeks or months later)

Indecency

Indecency in Communications Media

• FCC can regulate radio broadcasts that are indecent, even if not obscene (Pacifica; (1978; 1138) upholding channeling of indecent language to times of day when children were unlikely to listen was not unconstitutional)
  • But: If there were any reason to believe that characterization of content as offensive could be traced to its political content, first amendment protection might be required
  • Justification - Invades the home & accessible to children because all a child must do is hear it
    • Court had held that mailer’s right to communicate stops at the mailbox of an unreceptive addressee because we do not have to be captive to others messages in our own homes (Rowan (1970; 1143) upholding law allowing receivers of sexually provocative materials to be removed from mailer’s lists)
      • But: Court later held that utilities could insert political advertisements in their bills (Con Ed v. Public Service Comm’n (1980; 1144)) (Powell reasoned those offended could avoid the material by putting the bill insert in the trash)
    • Court also held unsolicited ads for contraceptives could not be barred from being mailed (Bolger (1983; 1144)) (Putting things in trash is an acceptable burden)
  • Total indecency bans are not permitted (Sable Communications Inc. v. FCC (1989; 1145) Striking down federal bar on dial a porn 900 numbers because of insufficient narrow tailoring)
• Cable - Court upheld federal law permitting cable operators to ban obscene programming (Denver Area Educational Telecommunications Consortium v. FCC (1996; 1146))
  • But: Struck down provisions of the law allowing FCC to regulate obscene/explicit content
    • Allowed prohibition on the display on public access channels of indecent content
  • Struck down under strict scrutiny a law that regulated indecency on cable (Playboy (2000; 1149))
    • When a plausible, less restrictive alternative is offered to a conent-based speech restriction, it is the government’s obligation to prove that the alternative will be ineffective to achieve its goals
• Internet - Court holds that federal laws that would have effectively banned unprotected porn on the internet abridges freedom of speech (Reno v. ACLU (1997; 1150) overturning law that prohibits displaying offensive messages in a manner that is available to persons under 18 years of age)
  • Content based restrictions of speech impose a burden on government to explain why less restrictive provision would not be as effective
  • But: Court held gov’t could use “community standards” to identify material that is harmful to minors, even on the internet, when limited by a ‘serious value’ prong and a ‘prurient interest’ prong (Ashcroft v. ACLU I (2002; 1155))
  • Court affirmed injunction of COPA on the grounds that the government would likely fail in showing that there were not effective less restrictive mean (Ashcroft v. ACLU (2004; 1157)).

Obscenity

Then see FCC v. Pacifica Foundation (the Carlin case), NY v. Ferber (child porn criminalized), Ashcroft v. Free Speech Coalition (virtual child porn),

http://www.spectacle.org/freespch/faq.html

James v. Meow Media, imminence begins at time of production not when speech is reproduced.

Rice v. Paladin Enterprises, 128 F.3d 233 (1997) - Paladin Press publication of Hit Man: A Technical Manual for Independent Contractors DON'T STIPULATE TO HARM!!!

Miramax's Tie Me Up! Tie Me Down!

Hypo: Do I need Howard Stern's permission to do a docudrama about him? (Presuming you can get the film insured) depends on the state.

It's a damn good idea to get permission

Libel

• Libel is not protected speech, though its threshold is not easy to satisfy. Traditional elements require publication/communication, of a false fact, about an individual, which has a tendency to harm their reputation in their reference group, and causes damages. [class 36]
  • The idea of group libel, while not overruled, is generally discredited. Beauharnais v. Illinois (1952) [1054] (Upheld group libel law which prohibited publications that libeled groups of people).
  • Libel against public officials and figures must show actual malice. New York Times v. Sullivan (1964) (Newspaper ad, with minor factual errors, was critical of police chief in Montgomery AL. Court overturned conviction finding that technical untruths don’t suffice for criminalizing – even untruths can have value. Rules that public officials must show actual malice, i.e. knowing or reckless disregard of the truth.); Curtis Publishing Co. v. Butts and Associated Press v. Walker (1967) (extending NY Times doctrine to public figures – athletic director and retired general respectively).
    • Some subsequent cases view public figures narrowly. Key seems to be purposely availing oneself to publicity. [1063] Gertz v. Robert Welch (1974) (prominent lawyer active in his community was private figure); Time, Inc. v. Firestone (1976) (Palm Beach society divorcee was not public figure); Hutchinson v. Proxmire (1979) (federally funded scientist was not a public figure); Wolston v. Reader’s Digest Ass’n Inc (1979) (person convicted in 1958 for contempt in grand jury investigation of Soviet espionage was not public figure for 1974 allegation of being Soviet agent).
  • Libel against private figures is easier to show, as they are entitled to more protection than public figures. Gertz v. Robert Welch (1974) (holding that states can enumerate their own standards for libel against private individuals, but that damages should only compensate actual harm. Here a lawyer defamed by a John Birch Society magazine was deemed a private individual, and was able to recover).
    • If the subject matter is of public concern, private figures can be discussed. Rosenbloom v. Metromedia (1970) (focus on adult magazines justified including a distributor in the discussion – court said it does not become non-discussable on account of including a private individual.)
    • If the subject matter is of private concern, there is little protection for falsities. Dun & Bradstreet v. Greenmoss Builders (1985) (upholding damages award for private contractor damaged in false credit reporting).

Traditional Defamation

Traditional Elements of Defamation claim

1) Statement of and about plaintiff

2) published to at least one other party

3) false

4) plaintiff suffered material injury by lowering reputation/prestige in community

NY Times v. Sullivan adds two elements:

Must be done in malice

For public figures, raised standards and actual malice required (exception for parody, see Falwell case).

Davis v. Costa-Gavras, 654 F.Supp. 653 (S.D.N.Y. 1987)

So long as the entertainment producer was not aware of any contradicting information (even as a result of sticking his head in the sand) he is insulated from liability.

• Ignorance or unwillingness to fact check does not give rise to liability

Defamation typically requires actual knowledge (or reasonably should have known) for liability.

Opinion is not actionable, must be provenly false statement of fact.

Reasonable expectation of privacy at the scene of a car accident

Suits against fiction writers for creating depictions of & pertaining to you.

Parody is a subject adopted to ridicule the subject. Satire is a subject adopted to ridicule another subject.

Rights of Privacy

1. Intrusion intentionally (physically or otherwise) on another's solitude (offense is intrusion not speech) (Miller: Living room heart attack) (Schulmann: Car in embankment being rescued by jaws of life)
2. Embarrassing private facts (Bartnicki: Union negotiator secretly recorded; newsworthy) (Cox: Broadcast Rape Victims' names found in public record; not private) (Ross: Rape Victim Revealed in Documentary that led to exoneration; NY: permitted as no commercial purpose) (Howell: Photographer sneaks on private hospital grounds),
3. False light portrayal - protecting feelings rather than reputation (Spawn: Children's book feat. fabricated history of real baseball pitcher; not permitted, b/c for trade or business purposes) (Dresback: Author writes book about surrogate son's murder of his parents decades after fact including falsities; not permitted, not a public figure) (Street: Depiction of female victim relating to scottsboro boys; permitted, sought out media attention) extends to dead people in limited form w/Indiana registration,
4. Misappropriation of Image (preservation of dignity) / Right of Publicity (trademark on good name):

Carson v. Here's Johnny Portable Toilets

Here's Johnny Carson Port-a-Potty case: Dismissed right of publicity claim, b/c did not adopt full name or likeness?

White v. Samsung Vanna White sues Samsung for adopting her "image" in the form of a robot for their commercial advertisement.

Comedy III v. Saderup, Three Stooges image adoption by Saderup for reproduction on T-shirts

Without securing Comedy III’s consent, Gary Saderup sold lithographs and T-shirts bearing a likeness of The Three Stooges reproduced from a charcoal drawing he had made. Those lithographs and T-shirts did not constitute an advertisement, endorsement, or sponsorship of any product. Saderup’s profits from the sale of unlicensed lithographs and T-shirts bearing a likeness of The Three Stooges was $75,000. Comedy III Productions, Inc. brought an action against Saderup seeking damages and injunctive relief for violation of a California right of publicity statute and for related business torts. Saderup challenged the statute on First Amendment overbreadth grounds. The trial court denied Saderup’s claims and the California Court of Appeals affirmed the damages portion of the trial court’s ruling.

Hoffman v. L.A. Weekly, 2001,

Hoffman sues over a composite photo in LA Weekly Magazine, a photo of a model with her head replaced by that of Hoffman as he appeared in the film Tootsie. The photograph was part of a "spoof" by L.A. Weekly of the fashion world and referenced several famous movies, including "Gone With The Wind." The Ninth Circuit Court of Appeals, held that the ads were part of a protected news story and not commercial advertisements; therefore, the First Amendment permitted L.A. Weekly to use the photograph.

Note: Right of publicity extends beyond death in most states and extends to media unknowns.

Andrews Is THE RIGHT OF PUBLICITY A TAXABLE ASSET?

Copyright

Copyright USC Title 17 - http://www.law.cornell.edu/uscode/17/

The Copyright Act provides six exclusive rights (§106) which a copyright gives to the copyright owner (so the benefit of owning a copyright is that the owner, and only the owner, can do the following):

§102. Subject matter of copyright: In general

(a) Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories:

(1) literary works;

(2) musical works, including any accompanying words;

(3) dramatic works, including any accompanying music;

(4) pantomimes and choreographic works;

(5) pictorial, graphic, and sculptural works;

(6) motion pictures and other audiovisual works;

(7) sound recordings; and

(8) architectural works.

(b) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.

§106. Exclusive rights in copyrighted works

Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:

(1) to reproduce the copyrighted work in copies or phonorecords;

(2) to prepare derivative works based upon the copyrighted work;

(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;

(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;

(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and

(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.

Necessary to establish a copyright violation:

Copyright certificate with proof of ownership

Access to the copyrighted work

Notice of the copyright held by someone else

Historical Facts and Research

Copyright law does not protect historical facts, on the ground that such info is not an original work of authorship. Miller v. Universal Studios – investigative reporter spent over 2,500 hours researching kidnapping and rescue; researcher and victim published a book. They were refused movie rights, then Universal Studios made a movie based largely on the book. The Fifth Circuit held “the valuable distinction in copyright btwn facts and the expression of facts cannot be maintained if research is held to be copyrightable.”

Federal courts have exclusive jurisdiction over copyrights.

Bright Tunes Music v. Harrisongs Music, 1976, p. 427

Claim: George Harrison’s song “My Sweet Lord” is copied from Ronald Mack’s “He’s So Fine”

“My Sweet Lord” repeats “He’s So Fine” motif

George Harrison was aware of “He’s So Fine” song

DC found George Harrison infringing

CA affirmed and explicitly endorsed the principle of subconscious infringement

Copying in Fact—may be proven or presumed

Similarity—The degree of similarity between the works

if sufficiently similar then access can be assumed.

Similarity does not per se establish access, it is evidence of access that must be weighed in light of nature of work and other evidence of access. Selle v. Gibb (7th 1984) [π composed a song which was played a few times in Chicago and demo tapes sent to record studios; later believed Bee Gees infringed his song (but not lyrics); held, similarity in the absence of other evidence of access is not sufficient]

But see Ty v. GMA below.

Access—Evidence suggesting Δ had access to π’s work (circumstantial evidence)

chain of events established between work and access (such as a publisher or record company)

π’s work is widely disseminated (not “top 100”, see Three Boys)

Standard of Review—Given standard of “reasonable access” is very factual, appellate courts are reluctant to reverse jury verdicts in music cases. Three Boys Music Corp. v. Michael Bolton (9th 2001) [song was relatively obscure and the songs are not so similar that access can be presumed à dubious case of infringement but not so implausible as to overturn jury verdict]

Establishing Independent Creation—short of documentation or temporal impossibility (Grubb v. KMS Patriots), Δ have to rely on establishing manifest unlikelihood of access (e.g., Repp v. Webber—social and geographical differences are enough, or “clean room process” in software design). Without these “defenses” substantial similarity is enough

Reallocating the burden to the Δ: Ty v. GMA Accessories (7th 1997) access and copying may be inferred from substantial similarity (and lack of similarity to anything in public domain), but this inference can be rebutted by Δ disproving access or showing independent creation. [virtually identical bean bag toys that do not resemble actual animals creates rebuttable presumption of access]

Denker v. Uhry, Warner Bros.,

Copyright suit against Driving Miss Daisy over similar script "Horowitz and Mrs. Washington" dealing with racism between elderly Jewish person & African American helper. Both stories initiated by accident, but this is a stock plot device (scenes-a-faire) & cannot be copyrighted. Differences Sentimental work vs Comedy, main character not racist in Daisy, but is in Horowitz. Enough differences found.

Fink v. Goodson-Todman

Whether two works are similar is determined “upon the impression received by the average

reasonable man.” The leading case in California on this subject is In Fink, the court made it clear that the requisite similarity is less than in a copyright case. The similarity must be as “to a material element or qualitatively important part.”

Scenes à faire

How do you protect your idea?

Copyrights for Characters?

East Coast test: The more fixed and defined a character is, the more likely it is copyrighted.

Cal Court Test: If the character is just one of the chess men in story & not the story being told (integral part), the character is copyrighted. (Bond movie would not be a Bond movie without James Bond, also Tarzan)

Warner Bros v. American Broadcasting Co, 720 F.2d 231 (2nd Cir. 1983)

Superman-copyright holders sue ABC over strikingly similar "The Greatest American Hero." Case dismissed, many similarities, but not the story being told.

Sid and Marty Krofft's H.R. Pufnstuf vs. McDonald's

1. Extrinsic test: Is the basic underlying idea/concept the same between the two uses of the character? Playful furry anthropomorphic animals appealing to children.
2. Intrinsic test: Is the actual expression of that idea the same between the two uses of the character? The actual manifestation: Size, Shape, Colors, Sounds

Winker's checklist

Another triangle: RoPublicity, Copyright, IA

Wendt & Ratzenburger sue Host International over Animatronic Norm & Cliff robots in Cheers-themed bars licensed for by Paramount.

Under 301(a), copyright preemption for claims regarding works of authorship that are fixed in a tangible medium of expression and coming within the subject matter of copyright.

Cal. Court Extra element test: If the claim has an extra element beyond the elements of copyright claims, not covered by Copyright preemption. Human beings are not works of authorship fixed in a tangible .

Fair Use

Fair use § 107 “Notwithstanding the provisions of sections § 106 and § 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

Factor 1 & 4 seem double weighted, sometimes an equitable argument emerges, psuedo 5th factor/public policy argument (unpublished letters, no desire to publish, someone else published them against will of owner). Where 1 & 4 go the same way, typically the decision goes that way.

	Sony Home video recording of shows: Fair use	Nation Scored 300 Words of 50k word book: Unfair use	Cambell parody of Oh Pretty Woman: Fair use	Napster
Purpose & Character	Non-commercial time-shifting for personal use: Fair	Commercial first publication of part of a book: Unfair	Transformative use - parody: fair	Commercial, Non-transformative (sampling & space-shifting arguments rejected): Unfair
Nature of Copyrighted Work	Creative TV shows: Unfair	non-fiction facts:unfair	music creative (but factor not much help)	Music is creative: Unfair
Amount and Substantiality	100%:Unfair	<2%, but quantitative heart of book:Unfair	Substantially but no more than necessary (parody): Fair	100%: Unfair
Real or Potential Market Impact	No record proof of impairment: Fair	Time canceled serial rights: Unfair	Not a market substitute, could increase demand	Market impact is massive: Unfair

Parody

Campbell v. Acuff-Rose Music, Inc. 1994

Having approached Acuff requesting a license (but refused), does not cut against Campbell's right to fair-use.

Supreme court loves the transformative use analysis affixed to factor 1, because it makes for a simple determination. Parody is inherently critical and typically transformative.

http://www.sacbar.org/members/saclawyer/march_april2004/copyright_laws.html

Parody is not Satire

Parody uses work for purposes of mocking the underlying work

Satire uses work for purposes of ridiculing society

Gerald Ford memoirs, Victor Nevasky at The Nation

Ran 2200 word article about the book, scooping about 300 words, Time poised to offer $$$ for book, withdrawn after Nevasky's article.

In 1985, the U.S. Supreme Court held that a news article's quotation of approximately 300 words from former President Gerald Ford's 200,000 word memoir was sufficient to constitute an infringement of the exclusive publication right in the work.

Suntrust v. Houghton Mifflin, Re: The Wind Done Gone (parody of Gone with the Wind).

Parody makes special claim to fair use:

1. Falls under criticism exception
2. Artistic expression requiring borrowing
3. Requires creativity, stimulating which is the entire justification of copyright

Leibovitz v. Paramount Pictures Corp.

Rogers v. Koons

Mattel, Inc. v. Walking Mt. Productions

Indirect Copyright Infringement

Contributory Infringement

Elements of the claim:

1. Knowledge of the infringing activity
2. A material contribution -- actual assistance or inducement -- to the alleged piracy.

Sony Corp. of America v. Universal City Studios, Inc., Betamax case

Fred Rogers

Vicarious Infringement

Elements of the claim:

1. No Employer/Employee relationship
2. Right & ability to supervise & control infringing activity
3. Direct financial benefit from allowing the acts of piracy exist.

A&M Records, Inc. v. Napster, Inc., Napster case

(3) Napster was selling ad space

Inciting Infringement

MGM Studios, Inc. v. Grokster, Ltd., Grokster case

Different from Napster in that they're not involved except in distributing the software, so no supervising/knowledge

BUT pushing it as a Napster substitute and drawing financial benefit, welcomes liability for foreseeable infringing acts

Reasoning pushed it beyond sony into an aiding & abetting analogue

The Model

Producers -> Distributors -> Exhibitors -> Consumers

Internet is wiping out the distributors, who were the richest & most powerful

More Music Copyright

Sampling

Work made for hire

Sculpture commission

Reed v. CCMB

Credits

Star billing - Smithers vs. MGM

Lawnmower Man - Based on book by Stephen King

Moral Rights

Miss Piggy

Warren Beatty

Terry Gilliam Monty Python Licensing case - ABC sliced & diced the show to fit the 30-minute program into a 24-minute timeblock. Gilliam charged edits compromised the integrity of the piece. ABC argued that edits for American TV are commonplace (see Otto Preminger), but Monty Python had been shown full length. Court bails, treats it as a licensing case. BBC could not license greater authority than it had itself.

Trademark

Trademark

www.uspto.gov

1A application, mark already used in commerce

1B application, mark not yet used in commerce

If Mel Nimmer, a writer on copyright literature, uses his last name as a trademark on his works and Larry Nimmer attempts to publish his own copyright literature under the mark Nimmer, a violation occurs.

The Elridge decision notwithstanding, copyright has a limited lifetime, but trademark can go on forever so long as it remains in use. A good trademark is a neologism.

The moral of Daystar, more a copyright case than a trademark case, probably not on exam.

Miss Piggy! pg. 589

Henson v. Hormel (holders of the trademark to Spam, a deviled luncheon meat spread) Henson has parody character Spa'am in Muppet Treasure Island. Hormel sued for trademark infringement.

Trademark applications must identify class of goods that a trademark applies to.

Their suit was defeated on 9/22/95. The judge dismissed it after a trial for failure to prove damages, noting, "one might think Hormel would welcome the association with a genuine source of pork."

http://addendumb.blogspot.com/2007/06/this-is-very-old-news-but.html

http://thenewyorkcrank.blogspot.com/2008/01/oink-miss-piggys-tragic-lament-or.html

Dukes of Hazzard General Lee toy case

Aqua's Barbie Girl - First amendment defense trumps trademark law.

Miss Piggy Redux (pg. 607) - Hormel having failed at Fed Trademark, use NY anti-dilution statute (protects against blurring or tarnishing). A customer identifies goods by the mark and then defendant manipulates that mark to the product's detriment.

For you to succeed, must prove the idea was novel to the recipient.

Non-disclosure agreements exist as stopgaps in the face of fear of idea theft.

Click agreements including non-disclosure clauses prior to viewing the idea typing in code to access

Idea/Treatment Submissions

The Rule:

Ca: Desny v. Wilder

NY: Desny + Novelty requirement (Cosby show proposal was not novel)

WEST COAST TEST - If option K for undisclosed idea, use of idea (presumed where access & similarity are established) requires compensation

Desny v. Wilder

• Facts: Wilder was employed by Paramount Pictures Corp., either as a writer, producer or director, or combo of all 3. Desny phoned Wilder’s office and told Wilder’s secretary all about a “fantastic, unusual story.” Main emphasis was the central idea, which was entrapment of a boy in a 80 foot deep cave. P told Wilder’s secretary that they could use the story, only if they paid him “the reasonable value of it.” She said that if Wilder used it, he’d pay Desny. Wilder made a photoplay, which closely paralleled P’s synopsis and the historical material concerning the life and death of Floyd Collins.
• Rule: Ideas are not usually regarded as property.
• Issue: Whether undisclosed ideas are property and therefore protectable under © or K common law.
• Dicta: Undisclosed ideas are NOT covered by copyright. However, they can constitute valuable bargained-for consideration in K, thus recoverable based on K Law (although if disclosed without K, no CR protection). Holder of undisclosed idea cannot claim breach of K claim, unless 1) before or after disclosure he secured express promise of payment or 2) the circumstances preceding & attending disclosure, together w/ conduct of offeree acting w/ knowledge of circumstances, show a promise of the type usually referred to a “implied in fact.” Where expectancy established, no reason for idea-receiver to refuse to compensate.
• Holding: No statutory © in composition, thus must rest argument in common law property right or K (he chose K). PLA has no property right in public domain facts or in the abstract idea of making a photoplay dramatizing those facts. However, PLA's use of public domain material in constructing story & synopsis does not justify DEF's appropriation of PLA's idea without compensating PLA for it." Appropriation is presumed where PLA can establish 1) "previous access" & 2) "substantial similarity."

EAST COAST TEST - West Coast rule, BUT IDEA MUST BE NOVEL!

Murray v. NBC

• Facts: Cosby envisions show w/ all black actors, "The Cosby Show." NBC employee Murray claims that 4 years before Cosby Show premier, he proposed idea of a half-hour Bill Cosby show to NBC.
• Issue: Whether an employee PLA has a legally protectable interest in an idea proposed to his employer?
• Dicta: Non-novel ideas are in public domain free to be used by anyone (see Scenes à faire doctrine). In assessing whether an idea is in the public domain, the central issue is the uniqueness of the creation.
• Holding: West Coast test, BUT lack of novelty in an idea precludes PLA from maintaining action to prevent unauthorized use
• Outcome: Summary Judgment for DEF. Court rejected PLA's claim of novelty, saying it was just a variation on a basic theme (the family situation comedy) and the addition of blacks doesn’t alter the conclusion.
• Dissent: Thinks the issue should have gone to the jury because the novelty issue is a question of fact.

Buchwald v. Paramount, (the Coming to America case)

• Facts: In '82, PLA (humourist) submitted an 8-page treatment of an Eddie Murphy comedy to DEF (studio) for 19% of film's "net profits." DEF optioned treatment & commissioned several unsuccessful scripts from several screenwriters. In '86, Warner (competing studio) optioned PLA's treatment. In '87, DEF developed a Murphy/Landis production, "Coming to America," similar to PLA's treatment and the failed script commissions. In '88, Warner cancelled option K with PLA, citing DEF's Murphy/Landis production, which was released very successfully shortly thereafter. PLA demanded promised compensation. DEF refuses & PLA sues for breach of K.
• Rule 1: Copyright is limited to expressions, not ideas.
• Issue 1: Whether copyright extends to optioned treatments?
• Holding 1: Treatments are ideas, not expressions, and thus no copyright protection.
• Rule 2: DESNY
• Issue 2: Whether a breach of K claim can arise from the development of a film "based upon" an optioned treat?
• Holding 2: Presumed "based upon" treatment if: 1) "substantial similarity" and 2) "previous access" to treatment.
• Outcome: Court found PLA had shown by a preponderance of the evidence that both Murphy & Landis had "previous access" and the film was "substantially similar" to the treatment. Therefore, the film was based on treatment and DEF was liable for breach. Damages were a problem, see next section.

The court noted that the contract was one of "adhesion"--

• "drafted by the party of superior bargaining strength"
• "relegating to the subscribing party only the opportunity to adhere to the contract or reject it"

"Residuals" are terms in submission agreements that suggest that ideas coming out of the meeting not explicitly expressed by the author are the property of the pitched. M$ is infamous for claiming residual clauses that inevitably swallow up all rights.

Contracts

Previously saw Publicity agreements & Work made for hire

http://www.saintmarys.edu/~aplamond/C383/

DEFINITENESS

Meaning of the language used in the written contract

Basic rule: protect the expected interest of the person to whom the promise was made.

• express language
• extent to which parties performed
• past dealings between parties
• industry custom and usage

NEXT BOOK OPTION

Pinnacle v. Harlequin (S.D.N.Y. 1981)

• Facts: Pinnacle claims that Harlequin induced Pendleton to breach his K w/ Pinnacle and to enter into an agmt w/ Harlequin pursuant to which it will publish new books in or relating to a series of paperback men’s action/adventure books. Pinnacle is publisher of mass-market and trade paperback books. Pendleton, author of the series, is the © owner of the series. Pinnacle accuses Harlequin of interfering w/ the option clause in the agmt between Pinn and Pendleton, which provides that the parties would use their “best efforts” to negotiate a new K on terms to be agreed for delivery of an unspecified number of new books for the series. Harlequin claims that the “best efforts” clause is an unenforceable agmt. Holding: Harlequin is right in arguing that the best efforts clause is unenforceable because its terms are too vague. This type of clause must set forth, in definite and certain terms every material element of the contemplated bargain. Where the parties agreed only to negotiate and failed to state the standards by which their negotiation efforts were to be measured, it is impossible to determine whether Pinnacle and Pendleton used their “best efforts” to negotiate a new agmt. The option clause is unenforceable due to the indefiniteness of its terms.

• "Best efforts" clause: author will not seek another publisher until "after extending their best efforts, the parties were unable to agree on terms for a new contract."

SAMPLE CONTRACTS

BOOK PUBLISHING CONTRACT

• ¶ 1 - Grant of rights clause
• ¶ 2 - Warranty and indemnity clause
• ¶ 3 - Submission of manuscript by ______
• ¶ 5 - Integrity of the copy-edited version of the manuscript
• ¶ 6 - Copyright
• ¶10 - Galley/page proofs
• ¶12 - Revisions and subsequent editions
• ¶13 - Publisher need not promote
• ¶14 - Royalties
• ¶17 - Accounting
• ¶18 - Free copies
• ¶19 - Competing works
• ¶20 - Right of first refusal for subsequent works
• ¶21 - Disposal
• ¶25 - New York law

CH. 7 CONTRACT FORMATION AND DURATION

Basinger v. Mainline - Boxing Helena case

Facts: PLA met with Lynch (writer/director); Nudity issues discussed & resolved orally. K composed & signed by Mighty Wind agency on PLA's behalf after which PLA leaves agency. PLA's lawyer pulls her out of Mainline film for "unresolved issues," including nudity objections.

Outcome: PLA loses based on oral agreement because Statute of Frauds and has to pay $3.9M

THE STATUTE OF FRAUDS

Statute of Frauds: If not capable of being completed within a year, must be in writing

Elvin Assoc v. Franklin (S.D.N.Y. 1990) - Aretha's fear of flying case (pg. 634)

Facts:

Holding: Repeated consistent efforts give rise to promissory estoppel (1. Promise, 2. Reliance on promise leads to injury, 3. Injustice avoidable only by enforcement)

RKO

Ohio Players

Lucy v. Lady Duff Gordon

CONTRACTS WITH MINORS

(Shirley Temple, Jackie Cooper, etc.)

CA and NY legislation

• Court approval (minor cannot disaffirm)
• Maximum term
• % of net earnings set aside in a trust

Contract with a minor is voidable once he reaches the age of majority, unless it was for necessities (food, clothing, shelter.

Scott Eden Management v. Kavovit -

• Facts: The case involves a lawsuit by a manager against an artist for payment of management commissions. The artist contended that since he was a minor when the management contract was entered into, he could disaffirm the contract and avoid the obligation to pay the manager.
• Voidable, but no unjust enrichment

  If the argument asserted by defendants were adopted by the court, the infant would be put in a position superior to that which he would have occupied had he never entered into the contract with plaintiff. He would be retaining an advantage from the repudiated transaction (i.e., using the privilege of infancy as a sword rather than a shield). Not only is this manifestly unfair, but it would undermine the policy underlying the rule allowing disaffirmance. If the infant may rescind the contract with the manager immediately after a lucrative performance contract is signed, yet still retain the benefits of the performance contract, no reputable manager will expend any efforts on behalf of an infant.
  
  In this case, adjustment of the equities so as to prevent unjust enrichment, leads to the conclusion that defendants must continue to pay to Eden all commissions to which he would be entitled under their contract, as they become due. Moreover, inasmuch as Eden will no longer be involved in the day-to-day personal management of the infant, Eden will be entitled to periodic statements regarding Andrew's income and the sources thereof and shall have the right to annual inspections of the books and records kept with regard to Andrew's income.

Macaulay Culkin

Bankruptcy

In the Matter of Noonan

No specific performance of contract (involuntary servitude argument)

CH. 8 CONTRACT OBLIGATIONS

Entertainment industry actions rely heavily upon personal service contracts

Courts have trouble enforcing vague service terms.

Courts tend to interpret ambiguities against drafter.

Actors conflicts arising from creative input are not grounds for dismissal (stars can voice opinions, extras can't)

MORALS CLAUSEs

Need enough specificity to have teeth

HUAC--H.R. Un-American Activities Committee was charged, among other things, to "stamp out the 'threat' of Communist-shaped movies to the American way of life."

From "don't ask, don't tell' to the 'Waldorf-Astoria' Declaration: the wavering attitude of Hollywood studios. p. 640

Loews v. Cole (9th Cir. 1950)

Facts: Writer, Lester Cole, had refused to answer the question: 'are you now or have you ever been a member of the Communist party'?

MGM fired him under the "morals clause" of his contract. p. 643

[Movie: "Goodnight and Good Luck"]

Nader v. ABC (S.D.N.Y. 2004)

Facts: Nader's role in "All My Children" was that of Dimitri Marick (1991-1999). In Aug. 1997 he was arrested for DUI and resisting arrest, but no action was taken by ABC. In 1999 his character was written out of the script. In 2000, ABC decided to reinstate the character and entered into a new contract with pl. In Feb. 2001, pl. was arrested with charges of selling cocaine and resisting arrest. He was suspended while the charges were under investigation, then terminated in Mar. 2001 under the morals clause. p. 346

• REDGRAVE case

CREATIVE CONTROL

(director/actor)

Goudal v. DeMille Pictures (Cal. App. 1931)

Facts: 1920's movie star, Jetta Goudal, was under contract to def. Def. exercised the option to renew her contract twice, then, in the middle of 3rd year, terminated her for "failure to perform the conditions of the contract."

Did the evidence offered show she failed to perform the conditions?

• "special, unique" services
• conflicting testimony
• 3d renewal

No failure to perform pp. 636-637

PUBLISHER OBLIGATIONS

"Satisfactory product"

Jovanovich v. Goldwater (S.D.N.Y. 1982)

Facts: Advancement of royalties

• $65,000--signing
• $75,000--delivery/acceptance of satisfactory manuscript
• $60,000--publication

p. 661--obligation to edit: "the publisher has a very considerable discretion as to whether to refuse a manuscript on the ground that it is unsatisfactory to the publisher in form and content."

It cannot be, however, that the publisher has absolutely unfettered license to act or not act in any way it wishes and to accept or reject a book for any reason whatever. If this were the case, the publisher could simply make a contract and arbitrarily change its mind and that would be an illusory contract. It is no small thing for an author to enter into a contract with a publisher and be locked in with that publisher and prevented from marketing the book elsewhere.

"It is clear, both as a matter of law and from the testimony in this case, that there is an implied obligation in a contract of this kind for the publisher to engage in appropriate editorial work with the author of a book. Both plaintiff's and defendants' witnesses testified to this effect, based on the custom of the trade.

CALCULATING COMPENSATION (NET PROFITS)

Unlike movies and book publishing, in the music industry, the standard contract requires the artist/group to finance the production of recordings.

• production costs for master tape and video
• 3% royalty to producer
• packaging costs (artwork)
• 'free' promotional records

This leaves the artist with a 10% royalty, but there are club appearances, tours, and mechanical royalties (6.6 cents) as well as payments from BMI and ASCAP.

• See note on "Happy Birthday," p. 699

Buchwald v. Paramount, (the Coming to America case: part ii)

• Facts: In '82, PLA (humourist) submitted an 8-page treatment of an Eddie Murphy comedy to DEF (studio) for 19% of film's "net profits." After being found in breach for developing film based upon treatment, DEF argued there were no net profits as defined by K (despite $350M box office revenues) and provided evidence of accounting practices to support the claim. Therefore it claimed that PLA was owed nothing. PLA argued K formula unconscionable.
• Rule: A K is unconscionable where terms are either A) an Unfair Surprise or B) Unduly Restrictive in a circumstance of Disproportionate Bargaining Power (oppressively one-sided), AND the resulting K shocks the conscience
• Issue: Whether copyright extends to optioned treatments?
• Holding: Not a surprise term, very common in fact. However, disproportionate bargaining power given a lack of knowledge of accounting practices. Result that Net Profits of wildly successful film can yield no net profits shocks the conscience. Thus, such a K is unconscionable.
• Outcome: Court agreed with PLA that "net profits" term was unconscionable. DEF initially argued that "Net Profits" terms were necessary for studios to survive unsuccessful films. Judge offered to appoint accounting experts to investigate DEF's argument, prompting DEF to withdraw argument. Judge went through K and lists 7 provisions he finds unconscionable (if he couldn't see the actual labour expense, he threw them out). After recalculating, court issued $900K judgment for PLA. DEF appealed, then opted to settle for undisclosed terms (possibly to avoid further scrutinization of its accounting practices).

NOTE: Some subsequent courts have ruled such terms not unconscionable. As a result, Net Profits terms are being used less and less. "Net" is a contract term (term is contractual profits), thus K determines what you get a piece of. Nothing to do with Gross (costs).

Recoopable costs - Expenditures by record company that must be paid back (with interest) before artist receives any royalties. Structured to never distribute any royalties.

• Songwriter enters into K w/publisher to market music for royalties. Music publisher sold all its songwriters' properties free of all obligations to musicians as it prepared to go bankrupt. Court says that's unconscionable, sale was permissible, but duty to provide royalties was breached and bankruptcy is no out.

CH. 9 - CONTRACT REMEDIES & LIABILITIES

Fuller and Purdue – all damages are compensatory and either expectancy, reliance, restitution, or specific performance.

• Restitution – giving the party back what they invested in the contract. Defendant oriented to prevent unjust gain.
• Reliance – plaintiff oriented to put the plaintiff in as good a position as they would be if they did not make the contract. This does not include the opportunity cost as, in a thick market, that would be expectancy.
• Expectancy – what the plaintiff expected to receive from the contract. Need to have some proof of what you would have gotten to recover expectancy. The default in a thick market as they force breacher to internalize the costs of breaching (cover their contract).
• Certainty doctrine – can get back concrete values but not speculative.
• Specific performance – this only usually applies when the thing contracted for is a good and not a service (enforceability problems, involuntary servitude) and when it is not readily available elsewhere such that you could get one and then recover the difference.
• UCC §2-719 – allowable remedies and exclusions

INJUNCTIVE ENFORCEMENT OF PERSONAL SERVICE CONTRACTS

Harry Rogers Theatrical Enterprises v. Comstock (Sup. Ct., App. Div. NY 1928)

• Facts: Comstock was a performer under a long-term contract to HRTE. Shubert Theatrical Corp. wanted to hire him for a musical. Rogers would not agree. Shubert hired him anyway. Rogers sued to enjoin him from performing for Shubert.
• Rule: In a breach of K claim, specific performance may be sought when damages are not an adequate remedy (ie. unique goods or services).
• Issue: Whether specific performance of a personal service K may be ordered?
• Holding: No specific performance of K for personal service contract (involuntary servitude). However, negative covenants, such as non-compete agreements are enforceable.
• Outcome: Negative covenant enforced, enjoining DEF from performing for competitors.

ABC v. Wolf (N.Y. 1981) (the TV Sportscaster case) – Equitable relief

• Facts: PLA TV Network K'd with DEF (TV Sportscaster), including a "good faith negotiation & first refusal" clause. While still employed by PLA, DEF entered negotiations & made oral agreement with competitor (CBS). PLA made DEF an offer, which DEF refused and then signed K with CBS, within PLA's negotiation period.
• Rule: COMSTOCK: No specific performance of K for personal service contract (involuntary servitude). However, negative covenants, such as non-compete agreements are enforceable.
• Issue: Whether negative covenants of a personal service K are enforceable where they will bar employee from employment entirely?
• Holding: During the period of employment, negative covenants barring employment may be enforced if: 1) Services are unique, 2) Employee has agreed to non-competition, & 3) there would be irreparable injury to the employer. However, after the term of employment has expired, such negative covenants may only be enforced to the extent necessary to prevent injury from unfair competition (strictly scrutinized) or employee threatening disclosure of trade secrets or other tortious conduct.
• Analysis: Non-compete agreements are generally disfavored by courts: 1) Employee’s interest in their livelihood, 2) Public interest in competition, 3) Not reciprocal (employee bound to not compete, but employer not bound to replacing for a time period). Also, an alternative is available in that employers can specify liquidated damages, how much a breach is worth (Good idea b/c damages are hard to determine & courts have held that this is enforceable if reasonable though can't be penalty for breach). In determining whether a non-compete is enforceable, it A) Must further a legitimate employer interest (ie. protect trade secrets, unjust enrichment of training/knowledge, etc.) B) Restriction is not broader than necessary (in time & geography), C) No harm to the public, & D) No undue hardship to the employee

Tina Marie: Options provision is not a guarantee of future employment.

DAMAGES FOR CONTRACT BREACH

Quinn v. Straus Broadcasting (S.D.N.Y. 1970)

• Facts: PLA (radio personality) K'd with DEF (radio station) as WMCA radio talk show host for $50K per year with options to renew and pay or play clause. After 4 months, DEF dismisses PLA, offering to payout his K. PLA sues for 1) $500,000 for wrongful discharge, 2) $500,000 for professional reputation, 3) $500,000 for public ridicule
• Rule: Damages for breach of an employment K are limited to the unpaid salary to which the employee would be entitled under the K less the amount by which the employee should have mitigated.
• Issue: Whether consequential damages may be awarded for speculative reputation harm or public humiliation?
• Holding: No cause of action for damage to professional reputation or subjection under breach of employment contract claim. No additional damages may be awarded under a wrongful dismissal action to compensate.

Redgrave v. Boston Symphony (1st Cir. 1988) (the Concert Cancellation case)

• Facts: PLA (actress) K'd with DEF (orchestra) to sing in "Oedipus Rex" for $30K. PLA's political activities in support of PLO drew protests and orchestra cancelled show. At trial, Producer Mann testified he withdrew "Heartbreak House" offer to PLA after DEF's show cancellation. Evidence also presented that various film productions with which PLA had Ks subsequently folded (& were now insolvent). Trial court awarded her $100K in consequential damages for loss of "future professional opportunities."
• Rule: Consequential damages → 1) Foreseeable Losses (Baxendale), 2) Proximally Caused by Breach, and 3) Rationally computed based on Facts (including deduction for mitigation)
• Issue: Whether consequential damages may be awarded for general & specific harm to an employee's professional career?
• Holding: No consequential damages awards for general reputation harm or speculative opportunity losses. However, to the extent specific foreseeable & proximally-caused lost earnings are established with “reasonable certainty," they are recoverable.
• Outcome: Deleted all but Mann's $12K offer in consequential damages, as PLA failed to produce sufficient that BSO could have reasonably foreseen & was proximal cause of the film productions' collapse.

Parker v. 20th Century Fox (Cal. 1970) (the Shirley MacLaine case)

• Facts: PLA (actress) K'd with DEF (studio) to act in musical "Bloomer Girl" for $750K. DEF cancelled musical, offered PLA role in western "Big Country" instead. PLA refused & sued. Trial court awarded full $750K.
• Rule: The damages award for a wrongfully dismissed employee is the K'd salary less any amount discharging employer affirmatively proves the employee did earn or could have earned from another similar job.
• Issue: Whether rejection of an alternative employment offer constitutes a failure to mitigate damages?
• Holding: To claim mitigation by cure offer, DEF must take "reasonable steps" to provide "substantially similar" substitute K. A wrongfully dismissed employee has no duty to accept or seek dissimilar or inferior employment to that which she was entitled.
• Outcome: Summary Judgment for PLA. DEF failed to produce sufficient evidence to persuade the court that curative offer was “substantially similar” to the originally offered employment, particularly difficult in Personal Service Ks.
• Dissent (Sullivan): A jury, not judges, ought to determine the two factual questions presented: 1) quality of alternative employment proposed and 2) similarity to originally offered work

Raquel Welch v. MGM (Cal. App. 1988) (the Cannery Row case)

• Facts: PLA (actress) K'd with DEF (studio) to act in Cannery Row for $250K with standard "pay or play" clause. Studio chief Begelman disapproved of casting & sought alternative. A couple weeks in, PLA fired & replaced by Debra Winger. Afterward, Begelman publicly bad-mouthed PLA to press. Trial court found breach of implied covenant of good faith & fair dealing, awarding $2M in compensatory & $8M+ in punitive damages.
• Rule: Redgrave
• Issue: Whether the compensatory & punitive damages awarded were excessive based on the facts?
• Holding: Compensatory & punitive damages are sufficiently supported by a history of prior earnings, the absence of subsequent offers, expert testimony of proximal cause, and the amount like-performers presently earn.
• Outcome (Initial): Summary Judgment for PLA. Compensatory & punitive damages were not excessive given the evidence presented and the DEF's ability to pay (MGM worth $215M at time).
  • Outcome (Final): However, in light of two subsequent CA Supreme Court decisions (Foley & Newman), the judgment was vacated and retried. Under the new decisions, an employee cannot secure redress in tort for breach of the implied covenant of good faith & fair dealing in an employment contract. Court deleted $8M+ in punitive damages, replacing with $5M+ in harm for consequential losses, relying on Welch's historic earnings and the destructive impact of Begelman's public statements.

Freund v. Washington Sq. Press

• Facts: PLA (author) K'd with DEF (publisher) to write book. Writer submits manuscript for review. Publisher bought out. New owner opts not to publish PLA's book. Trial court found breach.
• Rule: Available compensatory damages are limited to expectancy, reliance, restitution (return of goods to prevent unjust enrichment), or specific performance (when damages inadequate). In construction Ks, expectancy allows for cost-of-completion damages. Generally, no consequential damages awards for general reputation harm or speculative opportunity losses. However, to the extent specific foreseeable & proximally-caused lost earnings are established with “reasonable certainty," they are recoverable. In a thick market, reliance damages are expectancy.
• Issue: Whether cost-of-completion damages may be substituted where expectancy was royalties?
• Holding: For cancelled publishing K, damages measured by costs to PLA, not savings to DEF, and thus expectancy limited to royalties. Without sufficient evidence of lost earnings, royalty damages are too speculative. Cost-of-completion damages impermissible where expectancy was royalties. No specific performance either, due to involuntary servitude/supervision problem.
• Outcome: Cost-of-completion damages would've been greater than PLA's actual performance. Though typically generous in respect to "certainty," royalty damages were much too speculative, so PLA only received nominal damages. In these cases, courts prefer authors to mitigate by getting manuscript published elsewhere (perhaps at a reduced royalty), then trying to recover difference as calculated by experts (otherwise, might suggest manuscript not worth much). Reputation damages unaddressed.

Contemporary Mission v. Famous Music Corp

• Facts: PLA (country singer) K'd with DEF (record label) to release four singles. DEF only released 1 of the 4. PLA sued DEF for failure to promote. At trial, PLA offered expert testimony describing the profit projections of the other 3, based on success of 1st, the others' probability of reaching top-40, and the averaging of the results.
• Rule: For cancelled publishing K, damages measured by costs to PLA, not savings to DEF, and thus expectancy limited to royalties. Without sufficient evidence of lost earnings, royalty damages are too speculative.
• Issue: Whether royalties can be determined with reasonable certainty through evidence of profit projections?
• Holding: Where damages cannot be calculated exactly, court may award damages based upon reliable formulas based on past-history, market info, & like releases. No mental distress damages though. :p
• Outcome: Court preferred to award some amount ex ante likely to be close enough on average than nothing at all.

Random Negotiation

Zone of Possible Agreement (ZOPA)

How to buy a car: Dec 31st (Last day of quarter/year). Go straight for General Manager or Fleet Manager or Online Rep. Incentives to get it in by the end of the year. Bring checkbook & cellphone. Ask for offer, then call all competitors for lower bids. ("In the Driver's Seat")

Agents and Managers

"By the time William Morris wants to represent you, you don't need them anymore." (Doesn't deal in risks, you're already a sure thing any agent would kill for)

Growing tendency to rely on managers (longterm limited client base) than agents (shortterm vast client base). Managers counsel & advise; Agents find & procure work. Entertainment attorney structures deals, give legal advice, draft contracts, counsels on other business ventures. The client decides who negotiates. He who controls the client, controls the business. Showing the client that you are their best negotiator is essential. RPCs regulate attorneys, but they say little. Agents are regulated by statutes & industry agreements/unions. Managers are likewise regulated, though to a lesser degree.

Methods of regulating agents in NY Law

• Licensing (does not apply to personal managers)
• Fee caps

http://www.allbusiness.com/services/amusement-recreation-services/4588296-1.html

NYGBL 170-190 regulate "employment agencies," with "theatrical employment agency" as a subset of that group.

Investigation into the applicant's character is conducted and the applicant must pay a license fee and post a bond.

"New York caps the maximum fee chargeable for 'theatrical engagements' at 10% of the compensation paid to the talent, with an exception allowing a fee of 20% for 'engagements for orchestras and employment or engagements in the opera and concert fields.'"

CA - Talent Agencies Act

Raden v. Laurie, (Cal App 1953) [p.88]

• Facts: Manager (Unlicensed Agent) of Piper Laurie was employed to secure engagements in return for a percentage. An additional K provided that the manager had no authority and no duty to seek or obtain employment for the artist—only to give counsel and advice and to assist generally in the artist's training for a professional career and the selection and employment of agents; The artist, a minor, terminated and disaffirmed K2; The manager sought payment under K2. Laurie's parents sought to dismiss.
• Holding: Found for Laurie. Manager lied, misrepresenting "agent" activity as managing. Intentionally limited duties to circumvent licensing.
• Take away: Practitioners representing managers should draft agreements involving parents and minors in such a way that the services are being rendered to both the parent and child. This is especially true since most of the communications and decisions are often made between the parent and the manager rather than the child and the manager.

Billy Joel

Grubman

others

REVIEW

Legal Restraints on entertainment stories

Freedom of Speech → Not a license

Sex & Violence frequently regulated

• Two questions
  • Is this constitutional speech (books, songs, TV, video games)
  • What kinds of regulation permissible (not anti-sacriligious)
• Controlling test for obscenity Miller 26 & 27
  • Average person applying contemporary standards find prurient
  • Work depict or describe sexual conduct specifically defined by state
  • Lacking Literary Artistic P S value
• Nasty as they wanna be
  • Mackinnon's approach
    • Unconstitutional thought control Estherbrook
• Ashcroft (virtual) Child pornography act
• Indecent speech (Pacific case) Def by FCC
  • DEF1: Language or material that in context depicts or describes in terms patently offensive as measured by contemporary community broadcast standards for the broadcast medium
  • DEF2: Sexual or excretory organs or activities
    • Each medium poses certain problems, broadcasting is uniquely pervasive accessible to young and old
    • Brennan's dissent: more stakeholders to parents & children, mild offense remedied at what cost
  • Howard Stern
• Brandenburg case: 1) Advocacy directed to incite into producing imminent lawless actions & 2) Likely to succeed
  • Wiram Radio: Death of motorist by listener encouraged to break laws in race to reach prize
  • Davidson: Murder of cop while listening to Tupac, no evidence of incitement
  • McCollum (Ozzy Osbourne): Imminence test not met
  • Videogame manufacturers not liable for school shooting, no imminence
  • Hustler autoerotic asphyxia, no imminence
  • Copycat cases - all fail imminence
  • BUT WAIT! Rice v. Paladin Press - Court felt based on extraordinary concessions/stipulations that it would be liable, but settled first
• Self-regulation: MPAA
  • Unsuccessful suit by Miramax

Entertaining the public with individual lives

Docudramas - When subject doesn't like portrayal

• Defamation - NY Times v. Sullivan
  • Cause of action must have constitutional speech subject to free speech protection
    • Must be personal to the individual
    • Must be published to one other
    • Must be false
    • Must have harmed reputation in some small part of community
  • Plus also actual malice if against a Public figure,
• Something? Journalistic standards?
• Opinion generally not actionable, but is it opinion
  • Something labeled as opinion which could readily imply a factual assertion may be actionable
• Libel in Fiction
• Being libel proof, reputation so low that it isn't possible to lower any further

• Intentional infliction of emotional distress
  • Intentional or reckless
  • which is extreme or outrageous
  • which causes extreme emotional distress (breakdown, hospitalization, therapy)
    • Falwell/Hustler - No attempt to convey as truth
• Rights
  • Unreasonable intrusion on personal solitude
    • Common tort complain (paparazzi, ridealongs, emergency shows
    • 1) One who intentionally intrudes physically or otherwise on solitude or seclusion of another or their private affairs if 2) a reasonable person would find it highly offensive
    • The bad act is the physical intrusion, not the speech, and thus not constitutionalized.
    • Zone of privacy not just in home, but in certain public places such as underneath a car
    • Illegal wire intercepts are treated similarly, but purpose of statute not extended to innocent/non-co-conspirator who discover the intercept accidentally (pg 175)
    • Paparazzi statutes
  • Public disclosure of true, but humiliating private facts
    • 1) Revelation of info, 2) that would be highly offensive & objectionable, 3) to a reasonable person
    • Usually arises with crime victim info disclosure
    • If publicly available (cox) or relevant to public knowledge (ross), otherwise misappropriation tort (Howell)
  • False Light (similar to defamation)
    • 1) False facts published, 2) which place subject in a false light in the public eye
      • Doesn't protect reputation, but psychological harm
      • Hill: Actual Malice standard applies
      • Spawn: Fabricating a biography met actual malice standard
    • Public figures (outlined in Gurtz)
      • Figures with pervasive fame & notoriety
      • Limited purpose public figures injected into public eye, Kevorkian, Letter to Editor
        • Drezback - witnessing parents murder doesn't make a public figure
        • Street (scottsboro boys case) - public figure status doesn't necessarily terminate
  • Celebrity personality rights (Personae for profit)
    • 1) One appropriates to own use & benefit 2) likeness of another's personae for profit
    • Misappropriation typically only in commercial
      • appropriates name voice of another for trade or commercial purposes
      • 1st Amend doesn't preempt (Cheers litigation)
      • Created to protect dignitary interest Dr. MLK case, undermined
      • Adapted to some economic benefit, Braxton not permitted to profit on Carson's personae
      • Everyone has a right of publicity
• Publicity rights in entertainment show
  • Flying Zucchinni - even though high value speech, when whole act broadcast, means of making a living infringed
  • A cop turned lover turned addict, doesn't violate if not used for commercial speech
  • Hicks
  • Polyduros case - no intent to create anything but fiction, no case
  • Tony Twist - Admission of adaptation from real life person will screw you
  • Comedy3 - Use of underlying personae was transformative, 1st amend more likely to apply, but not where duplicated (only one prong of fair use)
  • Son of Sam statute, violating free speech by preventing class of work
  • Must have compelling state interest

• Celebrities protecting right of publicity abuse for commercial purposes
  • Here's Johnny parody, pulled from public domain
  • Vanna White, Robo-Vanna is similar enough
  • No laundry list of traits, anything that is reasonably identifier runs the risk
  • 1st Amend defense in Com3: Court adopts fair use, direct duplication
  • Dustin Hoffman
• Who owns the celebrity right?
  • Decendable by state law in some cases
  • Could be a media unknown and still have right of publicity

Copyright Summarized

CH4 Congressional right to create copyright law

Bring Laws to exam

What are Copyrights?

• Copyrights adhere in creation
• Right to
  • Reproduce
  • Produce derivatives
  • Distribute copies
  • Public performance
  • Display copyrighted work
  • Since '95, right to perform by digital audio
• A work must be
  • Original work of authorship
  • Fixed in a tangible medium of expression
    • Facts & research are not, but the composition is
    • Wade cook exception (rolling stock could be CR protected)
  • Fixation met by video/photo of choreography
    • First must prove access
    • Second must prove substantial similarity
      • Independent simultaneous creation defeats copyright claim

Similarity

• If Striking similarity, circumstantial evidence is sufficient. Render independent creation possibility nil
• If not,
  • Fragmented literal similarity (Verbatim copying portions), The Billing Song
  • Comprehensive non-similar screenplay & story cases nichols, whether what has been taken is really subject to CR protection in the first place (driving miss daisy)
  • You need not be conscious of access to infringe
  • Gibb: Can't prove direct access, may be proven circumstantially, if expert can attest incredible unlikelihood of independent creation
• Scenes à faire exception
• Character appropriation: The more defined, the more predictable. If not well defined, though book may be CR protected, a character within it may not be.
  • James Bond & Tarzan constitute story being told
  • Croft: Extrinsic test (ideas are the same?) & Intrinsic Test (expressions are the same)
• Preemption: Right of publicity preempted by CR law. Is subject matter same for CR, Are the equitable rights the same? If State law includes an extra element, then not preempted.
• Copyright law is for protection of original works of authorship not people's rights of publicity (Norm/Wendt Cheers case)

4 Factor tests (Factor 3 rarely outcome determinative, Factor 1 & 4 usually most important and if point in same direction, always go that way)

• Sony Betamax, Nation, & Acuff-Rose establish test use law (though not consistent)