Author: Elissa "Eli" Buenrostro

Listing racy film titles? That leads to sanctions

The courts are catching onto and cracking down on those dubbed by netizens as copyright trolls. The latest outfit to incur judicial wrath for its online and legal actions questioned by many would be Malibu Media, an adult film producer. With the help of its lawyers at Lipscomb, Eisenberg, and Baker and other law firms, Malibu has been involved in more than 1,078 civil lawsuits against John Doe defendants in federal courts nationwide since May, 2012.  Malibu sues anonymous Internet users, accusing them of illegally downloading or sharing its adult films.  Those caught up in the legal action face the choice of potential red-faced exposure of their identities and their interest in blue movies or settling, often at set costs that can make the registers ring for plaintiffs.  But U.S. District Judge William Conley in Wisconsin recently grew suspicious of Malibu when it started attaching to its complaints lists of other movies, allegedly downloaded by defendants and which were not subject to its copyright. The lists have become infamous as “Exhibit C” — rosters of movie titles racy, profane and even more embarrassing and salicious than those of Malibu’s movies. The judge rebuked Malibu for its tactic and noted that “the lewd and obscene nature of the graphic titles and content are enough to persuade many initially anonymous defendants to reach early settlements out of fear of being ‘outed’ should the lawsuit proceed.” He also asserted that Malibu’s list was “calculated principally to harass defendants.” He ordered Malibu’s attorney, Mary Shulz, to explain why she...

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A troubling privacy claim sent back for trial

A&E and Gangland Productions, two television production comapnies, can’t find shelter under the First Amendment from a lawsuit by a police informant whose identity was disclosed in a documentary, possibly endangering his life, a federal appellate court has ruled. The U.S. Court of Appeals for the Ninth Circuit in Los Angeles waded into sensitive territory — the zone between privacy and free expression rights — before ordering a lower court to take the case back up of “John Doe” and what happened to him when he appeared on a televised documentary about a white supremacist gang. Doe was interviewed for the History Channel’s documentary series Gangland about Public Enemy Number 1, which started as a group of upper middle-class punk-rock fans and since has turned into a gang of white supremacist-affiliated, drug- and gun-trafficking and identity-theft criminals, authorities say. Doe was a police informant familiar with the gang.  He insists the production companies promised to protect his identity but they failed to do so. Saying his granting an interview was contingent on the firms’ shielding his identity, he notes that he came to his taping with a hat and bandana but wsas told this disguise was unncessary. Gangland’s producer says Doe signed a release, allowing for his on-air identification, though he says he is dyslexic, struggles to read and thought he was signing a receipt for payment. An episode that aired on April 21, 2010, disclosed Doe’s identity. He sued the production companies. A&E and Gangland...

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‘I’ll fly away’ decision grounded on appeal

I’ll Fly Away, the gospel standard written by onetime Oklahoma cotton-picker Albert Brumley, has been updated, remade and re-mastered by artists for decades now, taking wing as one of the most recorded songs of its genre. But the question of exactly who might profit from the work’s considerable popularity has been tossed in the air anew, remanded recently by the U.S. Court of Appeals for the Second Circuit  to a lower court for reconsideration of issues about evidence that may lead to a decision that sticks about the song’s copyright ownership among Brumley’s heirs. And while his composition may derive some of its power in performance by its fervent simplicity, Brumley, the record shows, played his own part in launching a legal tangle that traces to the Seventies, and involves some classic who said what and who meant what, all to be figured long after the fact. In the latest action in this running dispute, Robert Brumley, one of the writer’s sons, asserts in an appeal that his father, Albert, in 1975 assigned his interests in I’ll Fly Away to him and his brother, William. Robert claims that shortly thereafter, in a 1979 Bill of Sale, Goldie, the writer’s widow, assigned her interests, as well. In 2006, however, the writer’s four other children sought to terminate the assignment of the song. In a December, 2008, hearing, Robert argued that...

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Cyber lecture turns into a fair-use clash

When Harvard Law Prof. Lawrence Lessig uploaded his 2010 Creative Commons Conference keynote address in Seoul to YouTube, the last thing he expected was a legal confrontation. His lecture included several videos, including one showing people dancing to a copyrighted song, Lisztomania, to demonstrate the effect of the Internet on the communication of young people. To his consternation,  Liberation Music, claiming to own the tune’s copyright, filed a Digital Millennium Copyright Act take-down notice to force YouTube to remove Lessig’s video. With the help of the Electronic Frontier Foundation, Lessig fired back, filing a complaint against Liberation in federal court last Thursday for violation of Section 512(f) of the DMCA. The professor and the foundation hope to school Liberation and other quick-trigger take-down issuers in court about copyright’s Fair Use Doctrine, which allows for and even shields educational and nonprofit uses of copyrighted material. In his complaint, Lessig asserts his use of the song was noncommercial, minimal and caused no market harm. Further, he suggests that Liberation’s overreach in copyright enforcement violates his First Amendment right to freedom of expression. Liberation’s take-down of Lessig’s lecture appears particularly egregious because so many performances of the song still fly freely in cyberspace, sans DMCA threat. And while this kerfuffle has gotten Liberation some free attention, the Down Under record company may not fully be grasping the interconnection of music consumers and...

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Hey, it’s OK, again, to refer to ‘gaymers’

In 2006, Chris Vizzini, a gay gamer and blogger, started the website gaymer.org and he registered a trademark on the term gaymer, though the word had been used widely before he created his site. In 2012, he took notice that Reddit, a popular online community site and the self-described “front page of the Internet,” had developed a forum for gays interested in cyber games: /r/gaymers. Vizzini sent a cease-and-desist letter that has led to a concerted and successful response against him and his mark. The LGBT community on Reddit enlisted the help of the Electronic Frontier Foundation and Perkins Coie, asserting that gaymer was a widespread, generic term long in use before Vizzini came on the scene. The unhappy opposition petitioned the U.S. Patent and Trademark Office urging it to cancel Vizzini’s trademark. The agency officially canceled Vizzini’s trademark recently, and he, ultimately, surrendered it, thereby ending the legal battle. In the cut-throat and now global marketplace, the virtues of trademarks and the protections they offer for goods are undeniable. Still, the laws and basics about them are clear: And while it’s always hats-off to the counsel who can come up with a novel, sound argument for a client, the cases involving head-scratching claims have burgeoned in recent days. The attention-grabbing but unsuccessful or discontinued cases from those who obsesses over and seek to monopolize targeted words, names and...

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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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