Month: April 2014

With infringing rap game, elusive damages

So you’re a Entertainment Law litigator and you get a case in which the facts seem on your side and the monetary damages that might follow could sound, well, juicy. As a recent case involving a rap song video game shows, however, litigants should not count their money in a lawsuit before all the ink’s dry on all the papers. Consider: What seemed like a copyright infringement lawsuit in New York with a potential $8 million payoff, well, honey, a federal magistrate and a U.S. District Court judge shrank that award.  (Online decision posted, courtesy of Courthouse News.) And, combined with a no-show defendant, that led counsel, figuratively, to whistle in the air and wonder about, is it leprechauns and their booty at the end of rainbows? Let’s look at what happened, starting in 2009, when 4MM, a video-game developer and publisher of Def Jam Rapstar, approached Capitol Records to license recordings for a rap song game with an agreement that 4MM never paid. Capitol, along with other record companies, sued 4MM for infringement, asserting unauthorized reproduction, distribution, use, and exploitation of certain musical compositions and sound recordings. For its part in this litigation, EMI sought $150,000 for each infringement, sending the projected total damages to more than $8 million. All defendants in this case but 4MM settled. 4MM never responded and the court ordered a default judgment against it on Nov. 15,...

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Film’s free speech KO’s killer’s publicity rights

The true life story of Chris Porco, a University of Rochester student convicted of killing his father and attempting to kill his mother, seemed like something out of a movie. The story was so horrific that it drew national attention. And soon followed a Lifetime Television film, Romeo Killer: The Chris Porco Story, depicting the notorious protagonist’s criminal investigation, trial, and conviction. Once Porco learned of Lifetime’s plans, however, he sued the cable network for violating his publicity rights under New York law and sought to enjoin the company from airing the movie. A New York state court ruled in Porco’s favor, banning Lifetime from airing and promoting its film. Now an appellate court has reversed that decision in a case that reminds about the conflicts when constitutional and individual (publicity) rights collide. After the New York state judge banned Lifetime from airing its television movie, the cable network immediately appealed. Lifetime asserted the ban was an unconstitutional restraint on its free speech and caused “irreparable damage… to the constitutional protections for speech” in general. A New York appellate court agreed, finding the temporary restraining order on Lifetime was “an unconstitutional prior restraint on free speech” because it suppresses speech based on its content before the expression of it has occurred. Since “prior restraints are the most serious and least tolerable of infringements on free speech,” Nebraska Press Association...

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MP3tunes loses a $41-million copyright case

A New York jury has ordered Michael Robertson, founder of, to pay an estimated $41 million in damages for infringement of copyrights owned by EMI Group. MP3tunes was best known for its cloud music service that allowed users to store music in online lockers, which could be downloaded through any internet device. is still online, offering cloud storage but no longer offering music to download. In 2007, EMI sued MP3tunes, and, in 2012, MP3tunes filed for bankruptcy. The judge originally granted summary judgment to EMI, holding that MP3Tues and Robertson were liable for direct infringement for personally uploading some songs and there were issues of “willful blindness” and “red flag knowledge” regarding other songs on the site. In 2012, the U.S. Court of Appeals for the Second Circuit addressed the Digital Millennium Copyright Act’s safe harbor in Viacom v. YouTube, and as a result, the judge in MP3Tunes withdrew his prior summary judgment ruling. While Robertson tried to argue that his infringements did not rise to a level of what is “objectively obvious” to a reasonable person, however it was ultimately up to the jury. The jury came back with a ruling that MP3tunes was willfully blind, leading to an estimated $41 million damages verdict including $7.5 million in punitive damages. This late March ruling was celebrated by the entertainment industry’s copyright advocates may have inspired Hollywood...

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After a first sniff, ‘Twilight’ case will go on

A federal court in New York has denied Bath & Body Works’ request for summary judgment against Summit Entertainment’s claim that the retailers’ use of “Twilight Woods” and “Twilight Crush” infringed the entertainment company’s trademarks, trade dress, and engaged in willful false designation of origin and created trademark dilution in the film-hit Twilight. In Auust, 2008, Bath and Body began developing a woods-scented personal product care line for launch in Fall, 2009.  After a series of brainstorming meetings and informal customer tests, the retailers’ team decided on the name “Twilight Woods” for their new line. On Nov. 21, 2008, Summit Entertainment released Twilight, a feature based on the books by Stephanie Meyers,  telling tales of teenage human, vampire and wolf relationships set against frigid, bucolic backdrop of Forks, Wash.  Twilight proved to be a blockbuster, grossing more than $397 million and creating twi-hard fans fervid for either “Team Edward” or “Team Jacob.” A Twilight sequel, New Moon, grossed $700 million and “each of Twilight’s subsequent movies grossed over $690 million,” the court noted. With a big-money franchise potentially affected, how did the court decide to let this litgation go on? The court noted that Summit — now a subsidiary of Lionsgate — owns forty trademark registrations in Twilight and these include categories “for clothing, candles and purses and other bags.”  Summit also holds a trademark in Nox Twilight for...

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Sony exec sees need for audience engagement

Hollywood has no choice but to engage with its audiences as part of its efforts to confront intellectual property piracy and to figure how to make user-generated content work for rather than against industry interests, Leah Weil, senior executive vice president and general counsel of Sony Pictures Entertainment, told an audience at the law school recent. Weil, who oversees all legal matters relating to Sony Pictures divisions worldwide, including motion pictures, television, and home and digital entertainment, spoke recently with Steve Krone, director of the Donald E. Biederman Entertainment and Media Institute as part of Southwestern’s “Conversation with…” speaker...

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