The Obama Administration Speaks Out Against SOPA

January 17th, 2012

The White House has released an official statement by Victoria Espinel, Aneesh Chopra, and Howard Schmid in response to petitions again SOPA and the E-Parasite Act.

Full text below:

Official White House Response to Stop the E-PARASITE Act. and 1 other petition

Combating Online Piracy while Protecting an Open and Innovative Internet

By Victoria Espinel, Aneesh Chopra, and Howard Schmidt

Thanks for taking the time to sign this petition. Both your words and actions illustrate the importance of maintaining an open and democratic Internet.

Right now, Congress is debating a few pieces of legislation concerning the very real issue of online piracy, including the Stop Online Piracy Act (SOPA), the PROTECT IP Act and the Online Protection and Digital ENforcement Act (OPEN). We want to take this opportunity to tell you what the Administration will support—and what we will not support. Any effective legislation should reflect a wide range of stakeholders, including everyone from content creators to the engineers that build and maintain the infrastructure of the Internet.

While we believe that online piracy by foreign websites is a serious problem that requires a serious legislative response, we will not support legislation that reduces freedom of expression, increases cybersecurity risk, or undermines the dynamic, innovative global Internet.

Any effort to combat online piracy must guard against the risk of online censorship of lawful activity and must not inhibit innovation by our dynamic businesses large and small. Across the globe, the openness of the Internet is increasingly central to innovation in business, government, and society and it must be protected. To minimize this risk, new legislation must be narrowly targeted only at sites beyond the reach of current U.S. law, cover activity clearly prohibited under existing U.S. laws, and be effectively tailored, with strong due process and focused on criminal activity. Any provision covering Internet intermediaries such as online advertising networks, payment processors, or search engines must be transparent and designed to prevent overly broad private rights of action that could encourage unjustified litigation that could discourage startup businesses and innovative firms from growing.

We must avoid creating new cybersecurity risks or disrupting the underlying architecture of the Internet. Proposed laws must not tamper with the technical architecture of the Internet through manipulation of the Domain Name System (DNS), a foundation of Internet security. Our analysis of the DNS filtering provisions in some proposed legislation suggests that they pose a real risk to cybersecurity and yet leave contraband goods and services accessible online. We must avoid legislation that drives users to dangerous, unreliable DNS servers and puts next-generation security policies, such as the deployment of DNSSEC, at risk.

Let us be clear—online piracy is a real problem that harms the American economy, and threatens jobs for significant numbers of middle class workers and hurts some of our nation’s most creative and innovative companies and entrepreneurs.  It harms everyone from struggling artists to production crews, and from startup social media companies to large movie studios. While we are strongly committed to the vigorous enforcement of intellectual property rights, existing tools are not strong enough to root out the worst online pirates beyond our borders. That is why the Administration calls on all sides to work together to pass sound legislation this year that provides prosecutors and rights holders new legal tools to combat online piracy originating beyond U.S. borders while staying true to the principles outlined above in this response.  We should never let criminals hide behind a hollow embrace of legitimate American values.

This is not just a matter for legislation. We expect and encourage all private parties, including both content creators and Internet platform providers working together, to adopt voluntary measures and best practices to reduce online piracy.

So, rather than just look at how legislation can be stopped, ask yourself: Where do we go from here? Don’t limit your opinion to what’s the wrong thing to do, ask yourself what’s right. Already, many of members of Congress are asking for public input around the issue. We are paying close attention to those opportunities, as well as to public input to the Administration. The organizer of this petition and a random sample of the signers will be invited to a conference call to discuss this issue further with Administration officials and soon after that, we will host an online event to get more input and answer your questions. Details on that will follow in the coming days.

Washington needs to hear your best ideas about how to clamp down on rogue websites and other criminals who make money off the creative efforts of American artists and rights holders. We should all be committed to working with all interested constituencies to develop new legal tools to protect global intellectual property rights without jeopardizing the openness of the Internet. Our hope is that you will bring enthusiasm and know-how to this important challenge.

Moving forward, we will continue to work with Congress on a bipartisan basis on legislation that provides new tools needed in the global fight against piracy and counterfeiting, while vigorously defending an open Internet based on the values of free expression, privacy, security and innovation. Again, thank you for taking the time to participate in this important process. We hope you’ll continue to be part of it.

Victoria Espinel is Intellectual Property Enforcement Coordinator at Office of Management and Budget

Aneesh Chopra is the U.S. Chief Technology Officer and Assistant to the President and Associate Director for Technology at the Office of Science and Technology Policy

Howard Schmidt is Special Assistant to the President and Cybersecurity Coordinator for National Security Staff

Event/MCLE: NYSBA Entertainment, Arts & Sports Law Section Annual Meeting

January 17th, 2012

Next week is the New York State Bar Association’s annual meeting.  On Monday, January 23rd, the Entertainment, Arts & Sports Law Section will be holding its meeting in conjunction with a 4-credit  MCLE.

The MCLE topics are:

NEW MODELS OF PUBLISHING: E-BOOKS, APPS, SELF-PUBLISHING AND OTHER CHALLENGES – This program will examine new developments in publishing that are challenging the accepted ways of doing business while also providing new revenue sources for both publishers and authors. Our panel will offer perspectives on digital rights and new distribution methods from the points of view of the publisher, literary agent and author. We will also discuss the impact of these developments on contract drafting and negotiations, rights licensing and other aspects of the publishing business.

CURRENT AND TRENDING TOPICS IN BRAND, FAMOUS PERSONALITY AND CHARACTER LICENSING: DEVELOPMENT TO BANKRUPTCY – This session will focus on two less discussed areas of licensing and intellectual property and trademark law: 1) the process of developing a brand and/or license platform for a celebrity, character, interactive property or existing corporate brand product from its initial negotiation from the owner of the underlying rights to licensee and retailer; and 2) the phenomenon of distressed brands, including the treatment of brands and accompanying licenses in bankruptcy, including the possible auction of that brand and licenses. Our experienced and distinguished panel will discuss real examples of both areas, giving the participant an understanding of the intricacies of developing and licensing nascent brands- both celebrity- or character- driven , as well as what occurs in bankruptcy situations- including the rudiments of an auction for different IP rights and the treatment of licenses of trademarks versus other intellectual property rights under U.S. bankruptcy laws.

Following the event, there will be a cocktail reception at UBS with live jazz music and a tour of the private art collection.

Registration information available here.

La-la-lawsuits: A Look Back at December’s Finest Litigious Moments

December 30th, 2011

Croatian journalist James Braddock has sued Angelina Jolie for copyright infringement of his book, The Soul Shattering (his website discusses the legal dispute in detail).  Braddock claims Jolie’s directorial-debut documentary, In the Land of Blood and Honey, infringes upon his 2007 book.  Braddock allegedly discussed the book in detail with the Bosnian producer of the film before the film was made.  The movie commenced production in 2010, and Braddock only recently filed the lawsuit, just weeks before the scheduled release.  Because of the late timing, the judge seemed reluctant to grant Braddock’s motion for a temporary restraining order and Braddock withdrew the motion before the decision was finalized.  The case was filed with the federal court in Illinois, but the judge has indicated a likelihood he will transfer it to California, given that the parties – Croatian and Californian – have pretty much no connection to the midwest state.

The Meester family will be having a peaceful Christmas, now that  the Gossip Girl star Leighton Meester and her mother Constance Meester have resolved their legal dispute.  The suit began over Leighton alleging that Constance misused the actress’s money, then developed into the issue of whether Constance was entitled to compensation for her alleged role in guiding her daughter’s career.  Most recently, Constance withdrew her claims leading to a default judgment in favor of Leighton.

The estate of Bruce Gary, drummer of the band The Knack (best known for the song “My Sharona”) has sued Capitol Records, claiming unpaid royalties for digital downloads.  The issue is whether digital downloads on platforms such as iTunes count as a ‘license’ of the master or a ‘sale’ of the phonorecords under the recording agreement.  Phonorecords implies the physical album sale, rather than digital and the label pays significantly lower royalties to artists on sales than licenses.  For a license, the royalty rate could be up to 50%, whereas for a sale the rate would likely be closer to 12%.

2011 has been a rough year for The Hangover II.  Earlier this year, Tyson’s tattoo artist sued over the use of the iconic face tattoo.  Now Louis Vuitton is suing, claiming that the bag carried by Zach Galifianakis marked LVM was a fake.  In the scene, Galifianakis says, ” “Careful, that is.. that is a Louis Vuitton.”  LV is suing under state and federal claims for unfair competition, false designation of origin, and trademark dilution. The full complaint can be read here.

December’s Notable Hirings, Firings & Promotions

December 29th, 2011

Hip-hop agent Cara Lewis is leaving William Morris Endeavor.

Vickie Nauman moved up to president of 7digital North America.

Don Ienner is working with Universal Music Group in a consultancy role.

Live Nation has been making some changes.  Alan Ostfield is now President, North Atlantic, covering the New York and Philadelphia regions.  Jason Miller is President of the New York operation, replacing Kevin Morrow, who moves to LA to join the North American Touring office as Senior Vice President.

Now-Bertelsmann exec Thomas Hesse joined the board of broadcaster RTL Group.

Bob Stohrer became CMO of Clear Channel Digital.

BMI promoted Tavi Shabestari and Nicole Plantin  to director-level positions in the Los Angeles office, with a similar promotion to Atlanta-based David Claassen.

Edgar Bronfman, Jr. is leaving his role of chairman at Warner Music Group, although he will remain a board member.

Live Nation owned BigChampagne just hired Ethan Kaplan, a music technologist and former SVP of Emerging Technology at Warner Music Group.

Former AMPAS president Sid Ganis is now working at Dolby Laboratories as a strategic advisor.

Wynton Marsalis has been named ‘Cultural Correspondent’ at CBS News.

David Foster is now chairman of UMG-owned Verve Music Group.

La-la-lawsuits: A look back at October & November’s most litigious moments

November 30th, 2011

The Supreme Court has refused to hear an appeal from ASCAP of an earlier court decision that digital downloads are not performances.  The earlier, lower court ruling stands.

Adam Lambert is being sued by Colwel Platinum Entertainment.  The company claims that Lambert signed a Music Services Agreement and a Co-publishing Agreement with Colwel Platinum prior to auditioning for American Idol.  Colwel Platinum eventually released an Adam Lambert album following his success on the show.  The album, Beg for Mercy, was originally available for purchase on Amazon but was made unavailable following take down notices sent to Amazon from Lambert’s reps.  Colwel Platinum is suing Lambert for making a false claim under the Digital Millenium Copyright Act and seeking declaratory relief that it owns a 50% publishing share of the recordings, that it has an unconditional right to promote and sell the recordings, that neither the Music Services Agreement nor the Co-Publishing Agreement was validly rescinded, and that these agreements remain in effect.  If the agreements were in effect at the time Lambert auditioned for Idol, Lambert could have been disqualified from the program as the agreements’ existence would be a violation of Idol’s rule that contestants not be subject to a recording or similar contract.

Classic Media, the owner of the fictional lovable canine character Lassie, is suing financial services firm J.G. Wentworth in a New York court for $1 million plus gains, alleging that the firm’s commercial featuring a similar look pup is copyright infringement.  THR published a thorough review of the case and discussion of relevant caselaw.

Kanye West is fighting an appeal of a case that was dismissed earlier this year, which alleged that West’s Grammy-winning song “Stronger” infringes the copyright of Vincent Peters.  The songs have some similar lyrics, both rhyming “stronger” with “wronger” and the underlying message is the same, but West argues that his inspiration for the theme actually came from 19th century German philosopher Friedrich Nietzsche‘s maxim “That which does not kill us makes us stronger.” Peters argues that he gave a copy of his song to West’s manager, who passed it on to West. The case was dismissed earlier this year when a judge found that there was not substantial similarity between the two works.

Universal Music Group has sued Grooveshark for copyright infringement, alleging that Grooveshark employees illegally uploaded over 100,000 UMG song files.  It hasn’t been an easy road for the music streaming service. THR reports on Grooveshark’s recent legal issues:

UMG previously sued its owner, Escape Media Group, for providing access to the label’s pre-1972 songs. The company was also recently sued by a Danish coalition of rights holders and has been the subject of complaints by some artists such as King Crimson. Earlier this year, Google pulled Grooveshark from its Android market because of copyright concerns, and the company, based in Florida, only has a deal with one major record label, EMI.

In this most recent case, UMG is seeking maximum statutory damages of up to $150,000 per infringement.   Grooveshark general counsel Marshall Custer commented:

“We have reviewed the Complaint that Universal Music Group filed  last Friday against Grooveshark in U.S. District Court in  Manhattan. Universal’s claims rest almost entirely on an anonymous, blatantly false internet blog comment and Universal’s gross mischaracterization of information that Grooveshark itself provided to Universal. While Universal has deliberately engaged the media prior to serving a copy of the Complaint on Grooveshark, Grooveshark intends to fight this battle before the Court, not in the press.  Grooveshark welcomes the opportunity to present the facts to the Court and has full confidence that it will prevail in the litigation.”

The Songwriters Guild of America has asked permission to file an amicus brief to be considered by the judge reviewing the copyright grant termination lawsuit surrounding The Village People‘s catalog of music, including hit song “Y.M.C.A.”  The issue in the case is whether the lead singer, one of many co-writers of the songs, can terminate the copyright grants without involvement from the other writers.

Emails Create Binding Transfer of Copyright Interest, Court Finds

November 18th, 2011

Earlier this month, in Rafael Vergara Hermosilla v. The Coca-Coca Company, the 11th Circuit held that a chain of email correspondence created a valid and binding contract of copyright assignment.

The facts begin in 2009.  Coca-Cola created an advertising campaign for the 2010 FIFA World Cup soccer tournament, which featured a new version of the K’naan song “Wavin’ Flag,” the “Celebration Mix,” sung in different languages.  To produce the Spanish version of the Celebration Mix, Coca-Cola enlisted Jose Puig of Universal Music Latin America.  Puig, based on a recommendation from Rafael Artero of Universal Music Publishing Group, reached out to the plaintiff, Vergara, to adapt the lyrics of the song to Spanish.  Vergara knew he would need to negotiate his interest in the adaptation but assumed this would happen after the adaptation was completely.

Vergara adapted the Celebration Mix into Spanish and sent Puig the lyrics and a demo of the song with the Spanish lyrics.  Following Coca-Cola’s approval, Vergara created and delivered to Puig the final production of the song in December 2009.

The following month, Vergara invoiced UMP $6,000 for his production work and UMP began negotiating with the owners of the composition for an “adapter’s share” of the profits for Vergara.  In February 2010, iTunes Mexico began selling the Spanish Celebration Mix without any credit to Vergara for the Spanish adaptation.  The composition owners refused to grant an adapter’s share to Vergara, at which point Vergara threatened to file a lawsuit.

Puig and Vergara negotiated a settlement and confirmed the details via email.  Vergara stated in an email on March 4, 2010 to Puig and Artero that his “only demand” was that his “name as an adapter . . . [was listed] every time the name of any composer of [the Spanish Celebration Mix] [was] shown, . . . along with . . . production credits.” Vergara further wrote that Puig should “consider [the adaptation] a Work for Hire with no economic compensation” other than “one dollar.”  Puig emailed a response the next day, telling Vergara that he could “count on the credits on the track” and that he was resending the contract to Vergara.

The contract Puig sent Vergara did not comply with Vergara’s credit requests, so Vergara sent an email to Puig “revok[ing]” his “proposal” of March 4, 2010. Puig agreed to review the contract and make the necessary changes to the credit provisions.  Universal assigned all of its rights, including Vergara’s assigned copyright interest, to Coca-Cola on March 4, 2010.

In May 2010, Vergara filed a lawsuit against Coca-Cola.  After issuing a preliminary injunction against Coca-Cola from using the song unless it attributed proper credit to Vergara, the district court later granted summary judgment in favor of Coca-Cola.  The court ruled that the email exchange was a contract entered into by Vergara to assign his copyright interest in the adaptation to Universal.

Upon review, the Court of Appeals affirmed the district court decision of summary judgment in favor of Coca-Cola.  It held that the email exchange fulfilled the requirements under Florida law to form a binding contract.  Vergara set forth his “definite proposal” and Puig “unconditionally accepted,” matching the terms of the offer.  The court found that “[t]he two emails were ‘so connected with each other that they may be fairly said to constitute . . . a complete contract.” (quoting Webster Lumber Co.  v. Lincoln , 115 So. at 502).

Even though the parties intended to later execute a formal written contract, the court held that they still intended to be bound immediately by the written negotiations.

Beyoncé’s New Music Video: Infringement or Inspiration?

October 12th, 2011

Check out this comparison between Beyoncé’s “Countdown” video and “Rosas danst Rosas” by Belgian choreographer Anne Teresa De Keersmaeker.

When confronted, the pop-singer responded:  ”Clearly, the ballet ‘Rosas danst Rosas’ was one of many references for my video ‘Countdown.’  It was one of the inspirations used to bring the feel and look of the song to life.”

Does this inspiration go to far?  See for yourself  -


What’s up with pop artists using the “inspiration” excuse to rip off other works? There is also currently an ongoing lawsuit between David LaChapelle and Rihanna over her video “S&M.”

Event: Entertainment Law CLE – Monday September 10

October 5th, 2011

The Benjamin N. Cardozo School of Law,  Black Law Students Association, the Office of Career Services and Black Women in Entertainment Law present:

“Show me the Money! Understanding what areas of entertainment law have been expanding and how to transition into them”

Monday, October 10, 2011
7:00-9:00PM, Moot Court Room, Cardozo Law School, 55 Fifth Avenue (corner of 12th Street), New York, NY

Patrick Sullivan
President and CEO of RightsFlow

Marilyn Haft Esq.
Marilyn G. Haft, P.C.

Pauline Wen
SVP of MTV’s Digital Global Business and Legal Affairs

Erika Munro Kennerly Esq.
Senior Director of Business Affairs at truTV/Turner Entertainment Networks

Earn 2 NYS MCLE transitional/non-transitional credits in the area of professional practice.

Fee: $0  **

To RSVP, please send your name and company info via email by October 6th, 2011


** Note from me: the email I got said zero dollars.  This seems like it might be a typo though.

La-La-Lawsuits: A Look Back on September’s Finest Litigious Moments

September 30th, 2011

Sacha Baron Cohen and NBC Universal won a lawsuit brought by Richelle Olson and her husband, owners of a bingo hall which was filmed as part of the movie Bruno.  Cohen, acting as the character  Bruno, selected the bingo numbers and after each number related the number to a fact about his former male partner.  Here is a more detailed description, from a footnote in the opinion: “After Cohen called out the Bingo number 36, he states that “36″ was the age of his former male partner. Later, when he calls out the number 3, he says that his former partner’s birthday was “May 3.” When he later calls out the number 59, he remarks that 59 was the number of his hotel room he stayed in when he met his former partner, and a few minutes later when he announces number 42, Cohen offers that “42 inches was his partner’s chest size. Finally, after Cohen announces the number 7, he comments that he met his partner on “July 7.” Some members of the audience can be heard laughing after each comment.”  The comments enraged Ms. Olson and Cohen was escorted by security from the building, after which Ms. Olson went unconscious while hysterically crying and hit her head on the concrete floor causing two brain bleeds and and leaving her wheelchair-bound.  The  California Appeals Court sided with Cohen though, claiming that his statements were protected by the Constitution as free speech in making the film and touched upon a socially important issue – homosexuality, gay culture and homophobia.  The Olsons are now responsible for paying Universal and Cohen’s attorneys fees for the case.

“The singing of a song does not create a trademark,” according to a California judge that Madonna may not have clothing line trademark rights in the phrase “Material Girl.”  Madonna and her company, Material Girl Brand, are being sued by LA Triumph, an L.A.-based clothing company that claims to have sold “Material Girl” clothing since 1997 and has a registered trademark.  Madonna sold $85 million dollars of “Material Girl” merchandise in the 80′s but the judge, in denying her motion to dismiss, found that merchandise sales ancillary to her music career did not necessarily create a trademark in the brand for clothing.  The case will go to trial in October where a jury will hear all of the facts and make a final decision.

Napolean Pictures, the production company behind Napoleon Dynamite, is suing Fox Searchlight for $10 million for allegedly underreporting royalties, taking improper revenue deductions, breach of contract, and negligent misrepresentation in connection with the hit 2004 indie comedy. Searchlight had agreed in a term sheet to pay 31.66 percent of net profits on home video, but the plaintiffs claim that a 2008 audit reveals that Fox was only paying net royalties on home videos at a 9.66 percent rate, in addition to underreported royalties and improper deductions.

Bruno Mars filed suit in the Central District of California Superior Court, in an attempt to get out of his publishing deal with Bug Music.  Mars alleges that the contract has actually been terminated because Bug did not properly exercise an option to renew the deal.

The Saul Zaentz Co., producer of the 1996 best picture winner The English Patient, has sued distributor Miramax and its former owner the Walt Disney Co. for $20 million in profits from the hit drama, alleging that the companies hid revenue, improperly allocated and deducted expenses and fees, and engaged in self-dealing with respect to the film.

Pandora, the web service that allows users to customize radio stations based on listening preferences, is facing a class action lawsuit in Michigan.  The lawsuit  claims that Pandora is breaching customer privacy by making users’ profile pages, including favorite songs and listener history, publicly available and searchable online. Additionally, the class action asserts that Pandora is violating privacy by integrating users’ listening records with their Facebook accounts.  These acts purportedly violate Michigan’s Video Rental Privacy Act and Consumer Protection Act. The plaintiffs are demanding statutory damages of $5,000 per person.

Charlie Sheen, Warner Bros. and Two and a Half Men co-creator Chuck Lorre are settling their $100 million legal dispute.  An official statement from WB: “Warner Bros. Television, Chuck Lorre and Charlie Sheen have resolved their dispute to the parties’ mutual satisfaction.  The pending lawsuit and arbitration will be dismissed as to all parties.  The parties have agreed to maintain confidentiality over the terms of the settlement.” Terms of the settlement were not disclosed, but $25 million has been the rumor, which includes a reinstatement of the revenue stream from past episodes of Two and a Half Men (even those filmed before his media meltdown) that WB had denied Sheen after he filed the lawsuit.

In August, Lady GaGa submitted a complaint to the National Arbitration Forum that alleged that the website was registered in bad faith and in violation of her trademark.  The owner of the site responded that it was merely a non-commercial, unofficial fan site for Gaga that “does not have any sponsored links or links to third-party websites which market and sell merchandise bearing Complainant’s trademark.” The owner of got her reward on Wednesday when three panelists at the National Arbitration Forum ruled that Lady Gaga had failed to show that respondent lacked legitimate interest in the disputed domain name.

And event more Lady Gaga drama – The latest lawsuit targets Excite Worldwide LLC, which is using the Gaga name to sell cosmetics and jewelry.

Universal Studios Home Entertainment is suing former COO Thomas Emrey for allegedly breaching his contract and fiduciary duties by leaving the company for DineEquity, which operates IHOP and Applebee’s. Universal says his employment contract ran through May 2012.

Europe Extends Sound Recording Copyright Protection to 70 Years

September 15th, 2011

This past Monday, the European Union extended the term of copyright protection for sound recordings from 50 years to 70 years.  The main motivation for the extension was to benefit songwriters and musicians, according to a statement released by the Council of the European Union.  Unfortunately, this motivation may not achieve its end.  A New York Times article on the topic predicted that only 4 percent of financial benefits from the extension will benefit musicians like those mentioned in the statement.  Instead, 72% will go into the pockets of the record labels and the rest will go to superstar acts.

“This is extremely good news for record companies and collection agencies, but bad news for artists,” said the singer Sandie Shaw, who along with Nick Mason of Pink Floyd and Ed O’Brien of Radiohead is one of the leaders of the Featured Artists Coalition, a British group that advocates for musicians’ rights. “It means they have 20 more years in servitude to contracts that are no longer appropriate to a digital age.”

There is no provision in EU copyright law similar to the US “termination rights,”so musicians cannot reclaim their assigned works.  The directive vaguely assured that it “foresees measures” to guarantee that musicians “actually benefit from the term extension and may recuperate their rights subject to certain conditions,” and does include ”a “use it or lose it” clause that allows artists to reclaim ownership rights to recordings, but only after 50 years and only if a recording is no longer available commercially. It also sets up a new fund for payments to session musicians and a “clean slate” provision that is supposed to wipe out musicians’ debts to their labels.”

EU member states must put the extension into effect within two years.

For more information, check out this Digital Music News article.