Author: Max Hacker

How ‘Jersey Boys’ won 2 times in copyright suit

The U.S. Ninth Circuit Court of Appeals has affirmed a grant of summary judgment for defendants in a copyright infringement case involving the Four Seasons-inspired musical, Jersey Boys. In defendant Dodger’s production, a seven-second clip from the Ed Sullivan Show, introducing the Four Seasons, is shown on a screen over the stage. Before the clip runs, a group members prefaces it, telling the audience the Boys were competing against the British Invasion with the “whole world” watching. As the screen goes dark, the group in the live musical begins to sing. The court determined this was a fair use because the clip was shown for “biographical significance,” to illuminate an important point in the group’s career. Thus, the use was transformative. The clip’s brevity also weighed in favor of fair use. In the opinion,  Stephen S. Trott, a senior U.S. circuit judge, rejected the claim that the clip could even be copyrighted because it was not a substantial part of the episode. Further, Sullivan’s “charismatic” style alone could not be copyrighted or trademarked because personality cannot be protected. The court sided with defendants on all the other fair-use markers. Atop the appellate loss, plaintiff’s attorneys were forced to pay the other side’s fees. Fees are awarded if doing so furthers the purposes of the Copyright Act, i.e., “to stimulate artistic creativity for the general public good.” Trott agreed with the district court, that slapping...

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3 nations assailed on piracy, market barriers

The International Intellectual Property Alliance has issued its annual report to the U.S. Trade Representative, underscoring copyright piracy and market access barriers for American intellectual property owners abroad. The alliance — representing U.S. copyright industries, including the Recording Industry Association of America — highlighted 49 countries in its annual “Special 301” survey. Which countries drew American criticism?In a statement by the recording group, China and Russia were called out as the most egregious wrongdoers (“…levels of piracy…essentially eclipse the output of the legitimate sector”). Russia’s legitimate music market shrunk 30% in 2011, despite the abundance of legal services available. Russia: Social networking site vKontakte has been flagged before and is responsible for much of Russia’s piracy. The U.S. recording group urges the Russian government to pass laws and regulations to prevent companies from actively and passively promoting infringement. China: The U.S. report says piracy and regulatory restrictions have stifled the Chinese music market, which generated only $82.8 million in 2011 versus the $1 billion American experts estimate it should make. The U.S. group decries the lack of action against those who infringe and a regulatory structure riddled with “discriminatory measures” that make it hard to run legal music platforms. Ukraine: This year’s Section 301 recommended that Ukraine added to the “Priority Foreign Country” list, thereby preventing it from receiving Generalized System of Preferences benefits. It should be interesting to see whether the countries adopt more legal streaming...

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Broadcasters in Europe win key streaming case

Chalk one up for broadcasters in the ongoing saga of Internet streaming: the European Union’s Court of Justice has issued a preliminary ruling, finding that streaming broadcast television via the Internet is a “performance to the public,” requiring copyright owner consent. The Thursday decision spells trouble for London-based TVCatchup, which had operated on the belief that it streams broadcast television to its subscribers non-publicly. So far in U.S. district courts, broadcasters have received a similar ruling in California (Fox Television Stations v. Aereokiller), but an opposite one in New York (ABC v. Aereo).  What are key takeaways in the European decision? Examining the EU’s Information Society Directive, which seeks to harmonize copyright in the information society, the EU’s highest court concluded that the primary objective of the directive is to provide authors a high level of protection. Further, the court held that “communication to the public” should be interpreted broadly, per the express language of Recital 23 in the directive’s preamble (“all communication to the public not present at the place where the communication originates”). Finally, the Court found that it is irrelevant that TVCatchup’s users access the works through a one-to-one connection because a large number of the public still have access to the same works simultaneously. The concurrent U.S. cases, Aereo and Aereokiller (see above), feature similar issues (breadth of the public performance right, whether a one-to-one connection using unique copies renders the performance non-public). One obvious distinction is that the EU directive places greater...

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Why did Lohan lawyer take a hit in losing case?

The hits, legal or otherwise, can’t stop coming for troubled actress Lindsay Lohan: a U.S. District Court in New York dismissed Lohan’s lawsuit, which claimed violations of that state’s privacy laws, against recording artist Pitbull (nee Armando Christian Perez), his record company and others for using her name in a song. The track, Give Me Everything, includes the following line (of sheer lyrical genius?): “So, I’m tiptoein’, to keep flowin’, I got it locked up, like Lindsay Lohan.” The court also dismissed Lohan’s intentional infliction of emotional distress claim. Of particular interest to entertainment law practitioners, though, also may be what the miffed court decided about her counsel. At issue was New York Civil Rights Law Section 50, which makes it a misdemeanor to use the name of a living person for advertising or trade purposes without first getting their written consent, and Section 51, which provides victims of Section 50 an equitable action in court. Section 50 and 51 are narrowly construed to allow an action only if the use was for advertising purposes or trade purposes. In the decision, courtesy of THR, esq., U.S. District Judge Denis Hurley denied Lohan relief on two grounds. First, he held that the song was a work of art, entitling it to First Amendment protection. Second, the judge agreed with defendants that just because the song is made and sold for profit does not mean the use of Lohan’s name...

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Be warned: new anti-piracy steps kicking in

Warning, warning: The Copyright Alert System launches this week after it was delayed last fall. The system allows the nation’s five largest internet service providers — including Verizon and Time Warner — to send warnings to its users who illegally share music, movies and television shows via peer-to-peer software. Specifically, the system targets average consumers, as opposed to rampant violators. Each service provider can implement its own system, but the general framework calls for the so-called “six strikes” plan. After copyright owners detect illegal file-sharing, they file a complaint with the service provider, which, in turn, warns the violating user. The initial alerts are expected to be primarily educational. The third and fourth alerts, however, are expected to require the user to acknowledge receipt of earlier warnings and wrongdoing. What happens if customers fail to heed these ISP tut-tut-tuts? Their provider, after a final warning, could put the brakes on or cut off their service. How will the service providers put the system in effect? Let’s look at Time Warner, which plans on sending its initial warnings via email, with a redirect on the third and fourth warnings to a stern landing page when offenders open their browser. Those final warnings will come with a block on web access, along with a phone number to call to restore Internet access. Customers who argue they were wrongly accused can appeal for a...

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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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