Month: March 2014

Ruling on infamous film sparks yet more ire

It’s a scary rabbit hole. The Hollywood Reporter says Cindy Lee Garcia was told she would star in an “innocent adventure film Desert Warrior, but instead was “duped into providing an artistic performance … that led to serious threats against her life.” The infamous film, Innocence of Muslims, was viewed by the faithful as blasphemous to the Prophet Muhammad and protests against it have led to hundreds of injuries and more than 50 deaths worldwide. Now the film and an actress’ performance in it has become a matter judicial, with the U.S. Court of Appeals for the Ninth Circuit and Chief Judge Alex Kozinski holding recently that just because thespian Garcia isn’t a joint author doesn’t mean she doesn’t have a copyright interest in her own performance. Kozinski further said an actor’s fixed performance may be copyrighted if it meets a minimum level of creativity and rejected the possibility that Garcia’s performance was a work for hire. This all means, the 2-1 divided appellate court said, that Google must yank all copies of Innocence from all of its platforms, including YouTube. Though the court issued a gag order so parties can’t comment on the case, the Internet’s full of Netizen’s bile about this case. Google filed an emergency motion for a stay pending disposition of petition for rehearing en banc requesting that the video remain accessible while the net giant seeks further review. The appellate court denied the emergency motion, ordering Google...

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‘Peas’ shuck appellate infringment claim

The BlackEyed Peas’  big hit I Gotta Feeling did not infringe on copyrights for the dance version of Take a Dive, because the latter’s song writer, Bryan Pringle, failed to prove that (1) Peas had access to his work and (2) that the two songs are substantially similar, the U.S Court of Appeals for the Ninth Circuit has ruled, upholding the findings of a lower court, which thanks to EntLawDigest, can be read here.) The lower court had rebuked the plaintiff and counsel over how crucial case evidence got handled — or mishandled. Pringle wrote and recorded Take a Dive, then filed and was issued registration with the U.S. Copyright Office on April 29, 1998.  He further created a derivative dance version but failed to register that tune with the Copyright Office until November, 2010.  In 2009, the BlackEyed Peas recorded and released I Gotta A Feeling,  which became an instant hit.  Billboard reported that “Feeling” “set a record…for the longest successive No. 1 chart run by a duo or group in the Billboard Hot 100’s history,” and was “the best-selling digital song of all time.”  The Peas made the song available on, where the “‘stems” or component parts of Feeling, including the guitar twang sequence, were available for download. In February, 2010, Pringle heard Feeling and believed it infringed his dance “Take a Dive,” suing the Peas...

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1.35 million reasons to rethink ‘stage diving’

Kimberly Meyers, a middle-aged mother of three, went to hear live music at a Philadelphia club and did not know that Fishbone,  a punk-funk-ska band, would be performing. She was standing in the audience, when suddenly, to her surprise, band members hurled themselves from the stage and into the crowd. Meyers was flattened. Her skull and collarbone were shattered, her eardrum ruptured. The band played on as she was taken by ambulance for emergency care. She since has undergone three surgeries and is expected to undergo more because of her continuing pain, loss of motion, cognitive loss and subsequent development of both lupus and arthritis. And, in a later deposition, what did the musician who slammed into her have to say? “[W]hen you’re performing, . . . you don’t want to have anything stepping in your way of — of you expressing your true feelings and your true art . . . .” remarked Fishbone frontman Angelo Moore. U.S. District Judge Jan DuBois recently had her say about the indie band’s antics and the dangers of the practice known as stage diving, issuing a default judgment against Moore and John Norwood Fisher, Fishbone’s bassist. The court awarded Meyers $1.1 million in compensatory damages and $250,000 in punitive damages solely against Moore for inflicting life-changing injuries on the New Jersey businesswoman in a case that also spotlights other instances where...

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MJ, appellate court wipe away grocer’s score

When a Chicago grocer sought to elbow into a Michael Jordan moment and score points for itself, the basketball superstar showed that he could throw down in a court of law as well as on the hard wood, getting an appellate court to help him wipe the glass for reconsideration of what MJ asserted was a violation of his publicity and trademark rights. The U.S. Court of Appeals for the Seventh Circuit recently reversed a lower court and ordered it to reconsider Jordan’s right of publicity and Lanham Act claims against Jewel Food Stores, a Chicago grocer that had used its logo in an advertisement in Sports Illustrated congratulating Jordan on his achievements when he was inducted into basketball’s Hall of Fame. Jewel had a deal with Time Inc., in which the food retailer got free advertising in exchange for giving prominent display in its stores to a special issue of Sports Illustrated honoring Jordan. In the ad that Jewel created for the issue,  the grocer’s logo was displayed prominently above a picture MJ’s signature sneakers, along with text congratulating Jordan. The superstar athlete, NBA franchise owner and noted businessman and hyper-competitor sued Jewel Food Stores under the Lanham Act,  claiming the ad misappropriated his identity for the grocer’s commercial benefit and said it was likely to cause consumer confusion. He further claimed the ad violated his common law right...

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Video game addiction? Court dings dad’s claim

While video gamers can go on outlandish binges of play — take the fatal, 50-hour ordeal undertaken on  Aug. 5, 2005 by Seung Seop Lee — can someone pursue legal action, asserting harm from another’s video-game addiction, more particularly claiming bystander emotional distress? Gregory Cherms, who represented himself in a state Superior court in Sacramento, sued Sony Online Entertainment, Warner Brothers, and Electronic Arts, asserting they were responsible for his adult son being hooked on video games and seeking that the makers be required to provide  warnings that the games can be addictive. Cherms said he endured emotional distress as  a “bystander.” Sorry, no case here, the court said, granting a SLAPP motion to dismiss the suit swiftly to protect the game makers’ First Amendment right to pursue constitutionally protected expression. The court also said that for Cherms to have a valid claim for bystander emotional distress, he had to be physically present at the scene of the injury-producing event when it occurs and he had to be contemporaneously aware it was causing harm.  While the court noted that Cherms failed to produce admissible evidence in this instance that could support a judgment in his favor (besides a dubious article he submitted after finding it on the Internet), the judge surprisingly did not expressly bar future claims, leaving the possibility this case might come back in the future. Would...

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