2011 saw an array of controversies, legislative activities and court decisions affecting entertainment law.  At a recent event hosted by the LA County Bar Association Entertainment Law & Intellectual Property Section, Prof. F. Jay Dougherty, of Loyola Law School, presented a breakdown of some of the the most notable developments of the past year, including:


Most recent on everyone’s radar have been the proposed legislation Protect-IP Act (PIPA) and Stop Online Piracy Act (SOPA).  PIPA was aimed at providing a private cause of action by “qualifying plaintiffs” against internet sites “dedicated to infringing activites.” (Read proposed bill here.)

SOPA, as introduced, was broader than PIPA.  One would have to be living in a cave to have been unaware of all the public outcry over the possible passage of the bill.  Its goal was to expand the ability of U.S. law enforcement to fight online trafficking in copyrighted intellectual property and counterfeit goods.  However there was significant fear that SOPA’s expansive definitions could impact noninfringing protected speech by giving government broad censorship powers.  It was also speculated that it might be used by repressive regimes to justify their own suppression of speech.

(You can read more about the potential affects of SOPA here.)

Both PIPA and SOPA have since been shelved.  But debates continue regarding the technical integrity of the internet and the problem of internet piracy.

Golan v. Holder

While the official decision by the Supreme Court was not published until January, 2012,  this is considered a case from 2011.  As explained in an earlier post, this case challenged Congress’ move by treaty to allow for copyright “restoration”  for a bevy of foreign works that previously were in the public domain.  The high court rejected arguments that taking works out of the public domain and affording them renewed copyright protection did not violate the First Amendment.  The justices said nothing “warrants exceptional solicitude for copyrighted works that were once in the public domain” (rejecting the claim that the public had ‘vested rights’ in the public domain), and that restored works would still be subject to “fair use.” (For a further discussion, read here.)

Videogames – Violence

The video game industry and its retailers found some favor with the Supreme Court this year, in Brown v. Entertainment Merchants Association.  California had introduced a bill barring the sale or rental of “violent video games” to minors and requiring a packaging label identifying games as for ages 18+.  Following the tone set by U.S. v. Stevens, in 2010, the court explained that minors are entitled to First Amendment protections and any law infringing those rights must be pass “strict scrutiny” — that is, they must serve a compelling government interest and be narrowly drawn to serve that interest.  Despite the state’s argument that “killing, maiming, dismembering or sexually assaulting an image of a human being” appeals to the deviant or morbid interests of minors and is patently offensive to prevailing  community standards as to what is suitable to minors, the court found that there was no direct causal link between violent video games and harm to minors.

Additional reading here and here.

Videogames – Right of Publicity

Videogames faced another legal battle last year defending their game designs using college athletes as ‘characters.’  In “NCAA Football,” 100 college football teams are depicted using real team names, uniform designs and logos, and ‘virtual players’ can be given names, statistics and biographical details by player. College athlete Ryan Hart claimed that his attributes were used to design/describe one of these ‘virtual players’.

 The conflict was Electronic Arts’ First Amendment right in the design of their game and Hart’s right of publicity. He noted (and the court acknowledged) that collegiate football players are caught in a Catch-22:  They have publicity rights but the NCAA forbids them from making money off them–but the NCAA has no difficulty making money off the publicity rights of its collegiate players.  Hart thought this was wrong and sued.

The court was sympathetic with Hart’s position but ruled against him.  It held that EA’s First Amendment right to free speech trumped Hart’s publicity right.

The judge said that despite the fact that the virtual quarterback in the NCAA Football game “bears resemblance to Hart and was designed with Hart’s physical attributes, sports statistics, and biographical information in mind,” a user could transform that virtual player by altering physical characteristics such as height, weight, hair, body and complexion, or by controlling his throwing distance and accuracy, and even changing his team.

“The image serves as an art-imitating-life starting point for the game playing experience,” and can be transformed to a degree where Hart’s claims should be rejected, she wrote.

Read detailed discussion here.

Implied-In-Fact Contracts

Courts continue to hold that claims of implied-in-fact contracts are preempted by copyright. This past May, the Ninth Circuit decided the case of Montz v. Pilgrim Films & Television Inc.   The complaint included claims for copyright infringement, breach of an implied contract and breach of confidence.  In a 7-4 ruling, the court held that “copyright law does not preempt a contract claim where plaintiff alleges a bilateral expectation that he would be compensated for use of the idea,” and discerned “no meaningful difference between the conditioning of use on payment and conditioning use in this case on the granting of a partnership interest in the proceeds of the production.”

In addition, on appeal to the Second Circuit, screenwriter James Muller sued defendants 20th Century Fox Film Corp., Paul Anderson and Davis Entertainment Inc., alleging that defendants’ motion picture, AVP: Alien vs. Predator, infringed the copyright to his screenplay, entitled The Lost Continent. Plaintiff also asserted a claim for breach of implied contract. Following a lengthy discussion of the two works at issue, and a detailed legal analysis, the court granted the motion for summary judgement requested by the studio.  The court found that plaintiff’s claim for payment and credit for unauthorized use is equivalent to copyright and is therefore preempted.