May 22nd, 2011
Earlier this month, the 9th Circuit ruled on Montz v. Pilgrims Films & Television, an “idea theft” case about the NBC Universal hit paranormal television program Ghost Hunters.
In 1981, plaintiff Larry Montz came up with the idea for a television show that followed a team of paranormal investigators to real-world locations. Between 1996 and 2003, Montz pitched the idea and presented screenplays, videos and materials to numerous television companies and producers, including NBC and the Sci-Fi Channel. The studios ultimately passed on Montz’s proposal, but NBC Universal ended up producing a series on the Sci-Fi Channel three years later called Ghost Hunters. Ghost Hunters follows Jason Conrad Hawes and his team of investigators as they study paranormal activity around the country. Montz sued NBC and over a dozen other defendants, claiming breach of confidence and breach of an implied-in-fact contract based on the industry standard that a pitched idea would not be disclosed or developed without appropriate compensation and consent.
The decision reverses the district court dismissal, which held that copyright law preempted the plaintiffs’ state-law claims. Copyright law does not protect ideas and concepts (17 U.S.C. § 102(b)); however, California courts have held that a concept can be stolen if there was an implied contract to pay the writer for using the idea. The court in Montz assessed whether copyright law preempts claims of idea theft based on breach of an implied contract.
Copyright preemption occurs when a state law grants rights equivalent to the rights within the general scope of copyright. In that situation, the federal law, the Copyright Act of 1976, preempts the state law. To put it more succinctly, federal law always ‘wins’ over conflicting state law, and the Copyright Act is a federal law so is applied over state copyright law.
The Court reasoned that because non-fixed works, such as ideas, are expressly excluded from the Copyright Act, they are outside the scope of copyright subject matter. The Court interpreted case precedent to hold that contract claims which involve an implied agreement of payment to use an idea are qualitatively and substantively different from the rights protected by federal copyright law and therefore are not preempted. Contracts are of an inherently personal nature – between the parties, rather than copyright which creates a “public monopoly.”
The Court noted the necessity of protecting ideas in a “dog-eat-dog business,” and that contract law, whether express or implied-in-fact contracts, provides the most protection for creative ideas.
O’Scannlain’s dissent argues that Montz’s ideas were embodied in screenplays, videos and other tangible media, therefore the contract claims should be preempted by federal copyright law because the ideas were “fixed,” making them within the scope of the Copyright Act. The dissent also distinguishes between contract claims and copyright claims:
Where a copyright owner authorizes the use of his work, but does not receive the consideration he was promised, he has a contract claim; where a copyright owner does not authorize the use of his work, but, nonetheless, someone uses it to produce a substantially similar work, he has a copyright claim.
Because here, there was no authorization, the dissent’s view is that it is a copyright claim, not a contract claim, but since the idea used is not a copyrightable work, the plaintiffs should lose. The dissent also finds that the breach of confidence claim falls within the scope of the Copyright Act because a right against unauthorized disclosure of copyrighted word is already provided for by the Act.
Gould’s dissent further criticizes the majority opinion because it creates instability in the law by making state law claims available in these type of cases.
The case is now remanded to the lower courts to determine damages – bad news for NBC. “Ghost Hunters” is a hit series that has evolved into its own franchise.
Read the decision here: http://www.scribd.com/doc/54634198/Montz-v-Pilgram-Films-Television-9th-Cir-May-4-2011
May 20th, 2011
My buddies over at Unveiled Arts and BeaconPass are putting on their first showcase on May 31 at Littlefield. Open bar. Four bands. Should be a fun show!
If you don’t know about BeaconPass, it’s a great way to find out about fantastic New York events. They hand-select each featured show, so that you’re always seeing incredible performances.
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May 19th, 2011
As of last month, I am now co-chair of the Events Committee for the non-profit organization Women in Music (www.womeninmusic.org). I’ve been involved with the group as a member since 2007 and am very excited to be able to contribute as co-chair of the Events Committee. If you don’t know WIM, it’s a pretty incredible group of women who work across all areas of the music industry. We’re putting on a fantastic event next week, details below. Hope you can attend!
MIMs! (Moms in Music): How to Do It All
A panel not just for moms, but for those thinking about being a mom someday, and those who just want to get some insight into how to balance your career and personal life.
When: Thursday, May 26th, 2011, 6:30 to 9pm (6:30 – check-in/mingle, panel begins at 7pm)
Where: BMI, 7 World Trade Center, 250 Greenwich Street, New York, NY (please check-in with security desk in the lobby so bring ID)
Cost: FREE to WIM members / $20 to non-members-so pass around to your non WIM friends!
(MUST rsvp by noon on Wednesday, May 25th to attend) Hosted by BMI
In light of the month of Mother’s Day, we’re presenting a panel called MIMs! (Moms in Music): How to Do It All I know we tend to focus a lot of our energy on our careers and how to get ahead and grow professionally – and most of our panels are about those topics.
A lot of us think about having a family someday and what it means to be a working mom in this industry. I personally believe that it takes a Superwoman to manage both career and family, and women seem to have to work twice as hard to get ahead once they have children.
This panel will recognize female high level executives who balance their family and career and we’ll hear from them about how they manage to do it all.
- Samantha Cox, Executive Director, Writer-Publisher Relations, BMI
- Linda Lorence, Vice President, Writer-Publisher Relations, SESAC
- Janine Small, Esq., Attorney/Partner at Carroll, Guido & Groffman, LLP
- Dawn Kamerling, Owner, The Press House
- Pilley Bianchi, VP of A&R Mamapalooza Records & MamaPUBlooza Publishing, Producer/Owner of Bianchi Musica
- Jane McGuffin, PhD, Songwriter and President, Harmony Mental Health Services, Inc. (moderator)
May 19th, 2011
It’s been pretty hard to keep track of who will have the most successful launch of a cloud-based music service. Cloud-based music initiatives allow users to store their music libraries on servers, in order to access them remotely from a variety of connected devices.
The latest update is that Apple has secured licenses with EMI and WMG for its service, Universal and Sony still pending. Both Amazon and Google have recently launched cloud music services of their own recently but have received poor reviews. Specifically, neither Amazon nor Google secured licenses with labels before the launch, so users must spend hours uploading each individual track to the server and when streaming the track the user listens to the exact copy they uploaded. With the licenses, Apple’s service could scan for songs on user hard drives and then offering streaming access to master recordings, rather than requiring the user to uploading and access their specific file. Also, without licenses in place, Google and Amazon users can’t share their music libraries with friends.
Once Apple secures licenses with the remaining major labels and launches its cloud service, Amazon and Google will likely have to consent to the labels’ desired terms for the licenses or be lost in the haze of Apple’s cloud.
May 18th, 2011
Another fun event coming up:
SEAL’s Fifth Art Auction
Date: Thursday June 2, 2011
Time: 6 – 9pm
Location: Openhouse Gallery, 201 Mulberry Street, NYC
Price: $20 / person at the door
Curated by Ranya Husami and featuring works by:
|Etel Adnan||John Jurayj|
|Nadia Ayari||Fouad el Khoury|
|Ayman Baalbaki||Ziad Naccache|
|Annabel Daou||Nabil Nahas|
|Simon Fattal||Walid Raad|
|Mona Hatoum||Mounira al Salh|
|Susan Hefuna||Hannibal Srouji|
All proceeds benefit SEAL’s projects in Lebanon.
May 17th, 2011
I recently heard about a great event featuring some outstanding women in the field. Details below. I’ll be attending the program, so if you can’t make it, be sure to check back for a recap of the evening.
The Intellectual Property Law Section of the
New York State Bar Association presents:
The 9th Annual Women in Intellectual Property Law Program
Wednesday, June 8, 2011
5:00 P.M. to 9:00 P.M.
White & Case LLP
1155 Avenue of the Americas
(between 44th and 45th streets)
You may register now by obtaining information and forms at: http://www.nysba.org/ipl
Gather with the women of the Intellectual Property Law Section for an evening of networking and the opportunity to meet some of the leading women practitioners in the field on Wednesday, June 8, 2011 from 5 pm to 9 pm at White & Case LLP, 1155 Avenue of the Americas, New York City. The program is presented by the NYSBA Intellectual Property Law Section and Hosted by White & Case LLP and dessert reception sponsored by Thomson Reuters/Thomson CompuMark.
Join Moderator Dyan Finguerra-DuCharme, Counsel at White & Case LLP and panelists Dr. Lock See Yu-Jahnes, Partner at Fitzpatrick, Cella, Harper & Scinto, Lydia Gobena, Partner at Fross Zelnick Lehrman & Zissu, P.C., Suzanne White, Senior Counsel, Coach, Inc. and Lydia Cheuk, General Counsel, Blue Man Group, as they discuss such topics as Strategies for Success, How the IP Field has Changed, Developing a Client Base, Mentoring Relationships, Equality in Compensation and Achieving a Balance between Home and Work.
The evening begins with wine and hors d’oeuvres at 5 pm followed by the MCLE program from 6 to 8 pm. Coffee and dessert will be served immediately after the program, courtesy of Thomson Reuters/Thomson CompuMark. Gift drawings will take place during the dessert reception.
Registration is $35.00 for NYSBA Intellectual Property Law Section members. Other attendees will be charged $55.00. Registration in advance by fax for this program is highly recommended as seating is limited and this program traditionally sells out quickly. Attendees must bring a photo ID to the meeting. Under New York’s MCLE rule, this program is approved for 2.0 credits in Skills for both newly admitted and experienced attorneys.
Space is limited so please register as soon as possible to avoid being closed out of the program.
For additional program information and a registration form visit: http://www.nysba.org/ipl
Questions may be directed to email@example.com.
We hope you can join us for this annual event!
Program Co-Chairs: Joyce Creidy, Esq. and Dyan Finguerra-DuCharme, Esq.
May 16th, 2011
Thanks for stopping by and checking out my new blog!
My name is Jennifer and I’m a New York-based attorney, with a practice focusing on Entertainment and IP Law. I also work in music licensing and placement.
This blog is devoted to sharing developments in entertainment and intellectual property law, innovations in music and arts technology, entertainment industry news, and New York area events that I think are worthwhile. Please feel free to comment with personal insights and opinions, or send me a message.