Author: Kristen Tojo

A Ranger fan-vid morphs past takedown

Mighty morphing… Lawsuit Rangers? A recent Power Rangers’ fan-created video, posted on YouTube and Vimeo, quickly was taken down after the copyright owner claimed infringement, sparking an ongoing debate about such creations and fair use. The 14-minute work, starring Katee Sackhoff (Battlestar Galactica) and James Van Der Beek (Dawson’s Creek), garnered several million views in the two short days it could be seen on the sites before representatives of copyright owner Haim Saban contacted both services claiming infringement. The short, with a grown-up approach to a kids’ character franchise, then was  yanked, resulting in a copyright strike for the producer under YouTube’s terms of service. It since has gone back up, albeit with disclaimers and age-related safeguards. Should fans blame some evil galactic force or what, in legal terms, befell this bit of pop production, causing it to yo-yo around online? Fan videos fall into a legal “gray area.” While rights owners do not want to anger their fan base and potentially hurt the good will of their franchise, they must protect their copyright and police their trademark. Fan videos also may have some protection under fair use. Transformative? As the distinction between fair use and infringement is “not always clear” or easily defined, important factors must be considered: whether the nature and character of the use is sufficiently transformative and whether the allegedly fair use of the material seeks to make...

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Boom! Artist boxes record label for infringment

A quick verdict by a Manhattan jury last week cost Soul Temple, Wu- Tang Clan rapper RZA’s record company,  $200,000 after jurors found the label guilty of willfully infringing on artist Lyle Owerko’s copyrighted work. The lawsuit stemmed from the record label’s use of two images of vintage boomboxes produced by Owerko from his “Boombox Project.” The images were taken from an Internet search and featured on Wu-Tang rapper  U-God’s 2013 solo album and promotional merchandise. While Soul Temple conceded infringement of the images, the record label contested the issue of willfulness. Bob Perry,  Soul Temple’s former general manager, said the “label grabbed the images from thousands available on the Web without realizing that they were copyrighted.” The jury, however, appeared unconvinced, as it found the label guilty of willful infringement in only 40 minutes or so of deliberation. Under the Copyright Act, a court may enhance statutory damages for “willful infringement.” While a court may increase damages, the Act does not define “willful infringement.” Generally willfulness may be based on actual or constructive knowledge of infringement or on a defendant’s reckless disregard of the holder’s rights. Besides taking the images off the Internet, failing to license them, and using them for the album cover, it is unclear what evidence was presented to show actual or constructive knowledge of infringement. It is possible the jury found Soul Temple’s failure to...

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Another round of chasing the anonymous

Can you sue the nameless and faceless? In the entertainment industry’s most recent quest to curb internet piracy, a new solution — does this sound familiar? — to sue “Joe Doe” has arisen: In a recent high-profile hijacking of the new, Dumb and Dumber To film, thousands of John Does in Oregon are being sued for copyright infringement after illegally downloading the newest installment of the franchise. Copyright cases against the anonymous are controversial. Most commonly, plaintiffs move to subpoena the otherwise private identifying information from internet service providers. Previous cases used a mass-joinder approach where plaintiffs attempted to “stuff as many defendants into a case as possible.” Actions to curb infringement are particularly important in cases like the Expendables 3, where the film has not yet been released but is being currently illegally distributed online or is available for download on torrent sites. The cyberworld also has been plagued by so-called trolling episodes, in which parties, porn makers themselves or others who buy up rights, file mass actions against ISPs to learn the names of those alleged to have illegally downloaded blue materials — they’re offered a settlement to protect their identities, if they will pay a fee, say, of several thousand dollars. While copyright protection is important, others are worried about the potential intrusion on the right to privacy that may be at stake if internet providers are...

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Is Dish v. Fox a hop away from slinging to end?

You can’t always get what you want — that’s a lesson to be re-learned from long-running litigation between Fox Broadcasting and Dish Network. The case, involving technologies including “the Hopper” and Sling, has been contested for almost three years but finally appears to be be nearing an end. While a key recent ruling by U.S. District Judge Dolly Gee has been released, neither Fox nor Dish can claim victory. (Kudos to the Hollywood Reporter Esq. for  posting the decision). The parties just may be headed for a settlement over technologies that let consumers choose to “hop” over (skip) content they don’t want to see — such as commercials, key to broadcaster revenues — and to sling (send) programming to devices and at locations of their choice. What Dish won  Gee has found that Dish does not engage in the “volitional conduct” necessary to constitute direct infringement. She ruled it is the user who “initiates the process, selects the content and receives the transmission.” It, thus, would be users who may be liable, under direct infringement. Because individual Dish subscribers transmit programming rightfully in their possession to authorized devices, and because the program does not travel to a large number of unknown people, the transmission does not constitute a public performance, and, thus, cannot constitute secondary infringement, the judge ruled, tossing another Fox claim. Where Fox prevailed Dish didn’t triumph on all...

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Are gamers’ tiffs just the edge of a net specter?

Who owns the technology that now is intrinsic to our daily lives? Chances are, it is not you. While users may own the physical devices, the technology that drives them, the intellectual property that they rely on, and their operating systems — surprise — likely are owned and controlled by their creators, not their buyers-users. That has really raised the hackles of video gamers of late. And while aspects of their immediate battles with manufacturers might fall within the portfolios of those specializing in Entertainment Law, technology’s advance and the rise of the rampantly web-interconnected world — the Internet of Things — may be blurring and broadening the legal issues involved.    Dying Light take-down Gamers may buy and own a cartridge or hold a specific license to access an entertainment but they do not capture ownership of critical underlying intellectual property. This has gotten to be a gnarly issue because frequent modifications or mods of key codes to play the games are becoming the norm. Who owns the mods? If gamers engage in do it yourself or DIY mods, do they infringe on makers’ copyrights? The issue broke out online recently when fans of the Dying Light game received Digital Millennium Copyright Act take-down notices for mod files they had shared via the Internet. Those disputed files had created no piracy concerns; they just modified game visuals. The...

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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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