Month: July 2011

Kick in Kung Fu Panda case: care in conduct

A jury recently found in favor of DreamWorks, rejecting legal claims by Terence Dunn, a self-described writer-producer-teacher-philosopher. Jurors decided the studio did not misappropriate his ideas in creating the story behind Kung Fu Panda. But this case’s real relevance may rest in how the jury decided that DreamWorks and Dunn had entered into an implied-in-fact contract before eventually ruling against him on substantive grounds. Bottom line: this litigation could serve as a useful reminder to Hollywood folks about the risks they face if they accept scripts, treatments or pitches from third parties. California jury instruction CACI 305 states: “In deciding whether a contract was created, you should consider the conduct and relationship of the parties as well as all the circumstances of the case. Contracts can be created by the conduct of the parties, without spoken or written words. Contracts created by conduct are just as valid as contracts formed with words. Conduct will create a contact if the conduct of both parties is intentional and each knows, or has reason to know, that the other party will interpret the conduct as an agreement to enter into a contract.” In light of this, it is interesting that the jury found an implied-in-fact contract between Dunn and DreamWorks.  Dunn claimed he brought the idea of a “spiritual ku-fu fighting panda bear” to DreamWorks in 2001 thinking he would be included in...

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Hollywood hit with new bias claim

Among the many topics on which Hollywood has a special sensitivity (read that hot button or sore spot), any assertion of discrimination or barring creative people from their craft makes for a giant industry cringe.  So in a town haunted ever-still by its 1950s blacklists, its recent ageism litigation, the persistent howling about political bias, well, what to make about a new legal action that asserts that Tinsel Town mistreats African Americans? Social Hollywood Magazine reports that aspiring screenwriter Justin Samuels has filed an $8 million dollar lawsuit against WME and CAA, accusing them of discriminating against him because he is black.  Samuels, a Cornell graduate, asserts he sent hundreds of queries to WME and CAA over nine years but was rejected because the agencies do not accept unsolicited communications. Samuels argues that these restrictive policies disproportionately lock out non-whites and women screenwriters because the only way to get work looked at and advanced by powerful agencies is through the support and referral of the industry’s white-male inner circle. But is this ban by major agencies on  unsolicited communication a practice that is, as the agencies assert, rooted in the hectic, ultra-competitive nature of the business and a move to protect against other kinds of litigation over rights and ownership claims? Or it it nepotism and racism, as Samuels suggests. Ask Hollywood agents and they will argue the former.  A literary...

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Lucas loses UK suit over Star Wars props

Film icon George Lucas has lost his copyright infringement case in Britain’s highest court, the BBC reports. The defendant in the case was Andrew Ainsworth, one of Lucas’ former prop designers who runs a small business in Britain selling replica Stormtrooper helmets and body armor. Because he created the original plastic prototype that Lucas used for the movies, Ainsworth’s gear is authentic – and die-hard fans had taken notice, paying around $720 for a helmet and around $1,430 for armor. Lucas noticed as well and filed suit in 2004, seeking $20 million and asserting that Ainsworth lacked legal rights for his goods. U.S. courts agreed. But because Ainsworth lives and operates his business in Britain and the courts there declined to enforce the U.S. actions against him, Lucas’ legal team launched an action in British courts. To succeed under that country’s law, they switched strategies, as this blog noted in an earlier post, and focused  on whether the gear were sculptures — and therefore works of art, meriting intellectual property protections — or merely industrial props. Britain’s highest court, ultimately, agreed with findings in two lower courts, ruling the helmet and armor were industrial props, not sculptures and works of art. Justices pointed out “the helmet was utilitarian, in the sense that it was an element in the process of production of the film.” The ruling presents an interesting dilemma for prop-makers in...

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A briefing on legal issues and the ‘cloud’

At the invitation of the Biederman Blog, Zachary Levine, Esq., a partner in the Law Office of WLF Lawyers in Glendale, offers this briefing on and his perspectives about a leading-edge technology with potential significant effects on the Entertainment industry and Entertainment Law. He is a Southwestern alum and a graduate of the University of California, San Diego. Levine may be reached at and his firm’s website is The latest technology buzzword is cloud. A cloud allows software to be run, and data to be stored, on a remote server. The advantage to the user is the ability to run programs stored on a centralized server from multiple locations, and on multiple devices, without the need to install anything more than once. Running programs from the cloud, and storing data remotely, also reduces the operating requirements of user devices, especially mobile devices such as netbooks and tablets. Google’s Chromebook is designed primarily to run web apps rather than traditionally installed software. As a result, the Chromebook boasts faster boot times and automatic backup of data. The cloud model is quickly being adopted by music services, which allow users to access their music library at home or on the road, from their computers, music players, or cell phones. These services, designated as “cloud music,” or “music lockers,” have been met by recent legal challenge from the recording industry. Most cloud...

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Comparing anti-piracy efforts at home, abroad

It’s no secret that online piracy threatens multiple industries and discourages creative aspirations worldwide. Some would argue it’s up to major industries that rely on creative talent, such as music and film, to find alternative revenue streams from emerging technologies. But for the big players, the plain solution is to discourage piracy by punishing infringers without censoring and blocking legitimate sites. Lately, this has turned into an international effort and differing solutions have been enacted to mitigate the problem. Let’s examine these different anti-piracy laws: In the United States, the old policy was for copyright holders to sue regular people who shared material without permission on P2P networks. Litigation got launched against tens of thousands of people; some were wrongfully accused. The new response for copyright holders, which has the support of the Obama Administration and utilizes major internet service providers such as AT&T, Verizon, Comcast and TWC, has been dubbed the “graduated response” method to attack piracy. It works like this: copyright holders scour the web looking for infringing activity and report suspect IP addresses found on P2P networks to the major ISPs. The ISPs then give the infringer six warnings — the first four educational, the last two may contain “mitigation measures” at the discretion the ISP.  Possible mitigation measures at the ISPs’ disposal: to slow or disable service if the infringing activity does not stop. All in all, this...

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Entertainment Law Blogs

The Biederman Blog is now ranked NUMBER ONE on Feedspot's Top 20 Entertainment Law blogs (May 2018). It is very exciting to top this list. We are extra proud of number six - Entertainment Law Offices of Gordon P. Firemark. Mr. Firemark graduated from Southwestern in 1992, and is a top entertainment blogger and webinar presenter in addition to being a world class entertainment attorney!

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