Month: February 2014

‘Web celeb’ a fair use by 2 firms, judges find

If you’re a Southern California online marketplace for social sharing of music, it might seem like a publicity dream to get your name mentioned by the likes of Microsoft and consumer goods mega-giant Procter & Gamble. Well, Webceleb Inc. (motto: “Discover. Be Discovered”) thought otherwise and its push for legal protections for its name and brand have hit the latest rejection, with the U.S. Court of Appeals for the Ninth Circuit upholding a summary judgment by a federal court in San Diego for the two Fortune 500 defendants. The appellate judges found that the two corporations had engaged in fair use of “ favorite web celeb” as a People’s Choice Award category and in a section of an entertainment website. Webceleb had sued P&G claiming trademark infringement under the Lanham Act and unfair competition under California Business and Professional Code section 17200. But the appellate court held on Feb. 5 that “there is no genuine dispute that defendants’ use meets the classic fair use elements: 1. The use of the mark is not a trademark use; 2. The use is fair and in good faith; and 3. The use is only descriptive.” P&G did not use “web celeb” as a source identifier but rather as one of more than thirty five awards, and its use was purely descriptive, the appellate court said, adding this is a common term for...

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Alum helps keep order in Judge Judy’s court

“This is my courtroom, I can say what I want.  When you become a judge, we will talk.” That’s a familiar remonstration from Her Honor, Judge Judy Sheindlen. She, of course, is television’s highest paid celebrity jurist, who reportedly grosses 184 percent more than the Chief Justice of the U.S. Supreme Court. She also relies on a surprising legal authority to help bring order to her courtroom: Amy Freisleben,  a 1984 Southwestern Law School graduate. Freislenben, at a recent campus appearance, said her rise to broadcasting’s top ranks, as Executive in Charge of Production on Judge Judy, happened by chance.  “I was at the right place, at the right time,” she said when sharing her story and experiences with students. When Freisleben graduated from Southwestern, she had never taken an Entertainment Law class, and, in her day, she recalled, the only such course offered was taught by the late pioneering educator and practitioner for whom the Donald E. Biederman Media and Law Institute is named. She said she never imagined a career  in the entertainment industry, and, instead, was focused on litigation, especially after she interned at Sedgwick LLP, the international litigation and business law firm, originally founded in San Francisco and with offices in Downtown Los Angeles.  With that  internship successfully completed, she landed a job at Sedgwick as an associate in general business litigation.  Freisleben, who has worked...

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KC and the Sunshine Band suit boogies anew

The 70’s were a decade of bright clothes, tight bell bottoms, platforms and disco music, and we have KC and the Sunshine Band, in part, to thank for that. With classic hits from that day, such as Get Down Tonight and That’s the Way I Like It, the band now may have to shake shake shake its booty back to court to defend an infringement suit. That’s because the U.S. Court of Appeals for the Eleventh Circuit has has reversed a district court decision that said the son of a former KC and the Sunshine Band member lacked standing to sue the group and others for copyright infringement. And now who will get the legal Spank in this matter? In the late 70’s, Ronald Louis Smith Sr., the former band member, wrote the song Spank for Jimmy Bo Horne. Harrick Music, an affiliate of Sunshine Sound Entertainment, registered the tune naming Smith as the composer and indicating it was not a work for hire. Smith eventually left Sunshine Sound Entertainment with no agreement as to who owned the copyrights to Spank but it was agreed that he would receive royalties for it. He never received royalties and before his death sent a cease-and-desist letter revoking Harrick Music’s authority to administer the song, which the company continued to exploit. After Smith’s death, his son Ronald Louis Smith Jr. sued on behalf of his father’s estate...

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Quelle dommage: sans signatures, sans deal

It seems simple and basic: a contract isn’t valid until it is signed. And even if the parties swap back-slapping, agreeable emails about the documents and one side even signs them, the two sides don’t have an enforceable accord without both inking copies — if that’s what they agreed they both needed, a federal court in Los Angeles has ruled. That decision scuttled the lawsuit filed against Ion TV by Atlantique Productions seeking millions of dollars in damages over claims of breach of contract and fraud involving eight episodes of Le Grand, an English-language detective series for which payment was supposed to occur on an episode-by-episode basis. Ion and Atlantique had agreed on their deal but a terms sheet never was signed; Atlantique had inked the paperwork and sent it to Ion, which had never signed it and sent it back. That made the contract invalid, said U.S. District Judge Dolly Gee, who noted that both parties had an understanding that “the terms sheet had to be signed by both parties” for the contract to be in force. As part of its claim that it believed the contract was good, Atlantique said it had sent Ion the dailies for the production, also known as Jo and starring the well-known and raspy-voiced actor Jean Reno. Gee said that action was irrelevant: Ion’s acceptance of the dailies did not mean a valid...

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Tarantino tiff shows how ‘take-downs’ plod

Filmmaker Quentin Tarantino’s battle with the gossip site Gawker, which posted not only his leaked script but also hyperlinks to where it could be seen and downloaded elsewhere in cyberspace, has generated online attention for the pursuit of another now-important legal remedy – how to get the Internet giant Google to pull the links to disputed works, such as those to his now-canceled film The Hateful Eight. And as several blogs, such as Ars Technica, have been quick to point out, stuffing the content genie back into a secure and private bottle isn’t as fast nor easy a task as it might seem. The case illustrates not only the challenges of the Digital Millenium Copyright Act’s take-down notice process but also persistent criticism of search-engine Google’s overwhelming role in playing online cop over rights claims.  The DMCA has two main sections: the “anti-circumvention” provision (section 1201 of the Copyright Act) and the “safe harbor” provision (section 512). Under the safe harbor provision of section 512(d), providers are immune from monetary liability for users’ possible copyright infringement, if they comply with the “notice and take-down” procedures. These procedures include expeditiously removing or disabling access to material that is claimed to be infringing. This gives providers immunity from lawsuits by following the DMCA’s take-down procedure. However, service providers also may choose not to follow this process. Tarantino’s team, through MarkMonitor AntiPiracy, sent DMCA notices...

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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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