Author: Sam Herting

Q-&-A on entertainment law, media L.L.M.

Posted by Sam Herting | Aug 10, 2011 | Q & A |

Thinking about an LL.M., but not sure if it’s worth your time? Wondering about Southwestern’s new Entertainment and Media LL.M. Online Program? At the invitation of the Biederman Blog, Prof. Bridgette de Gyarfas answers some frequently asked questions about Southwestern’s LL.M. programs. Before reading the Q-&-A, you can check out how the online program works here, or view a video about the online and resident LL.M. here. Q: I understand applicants for the LL.M. must have earned a Juris Doctor or equivalent degree, or must have passed a bar exam in the US prior to application for the program. Why earn an LL.M. when you already have a J.D.? There are a number of reasons to earn an LL.M. in Entertainment and Media Law – here are a few. First, it is one way for attorneys to keep current with the constantly evolving industry in order to effectively and responsibly represent their clients. Entertainment Law is no longer just film, television, and music. It has now expanded to include the Internet and most things digital and is expected to continue to expand even more with the ever evolving new forms of media. Second, earning an LL.M. degree is one way for attorneys to stand out in a particularly competitive job market. Earning an LL.M. can provide great networking opportunities for LL.M. students who will have access to professors who are...

What’s the take-away from Zediva shutdown?

Posted by Sam Herting | Aug 4, 2011 | Film, Music, Technology, Television |

A Los Angeles federal judge has ruled in favor of the MPAA, granting a preliminary injunction against Zediva, a controversial business that resembles a combination of an old school Blockbuster video store and Netflix. Before delving into the judge’s reasoning, let’s recap what Zediva actually does, as explained previously by this blog and by a post from wired.com: “the company literally rents you a DVD and a DVD player, with your computer, tablet or Google TV as the remote control. Unlike the other streaming movie services…Zediva’s servers have DVD drives and actual DVDS. So when you rent a movie, that disc goes out of circulation until you release it back to the company, just like in one of those increasingly rare real-world video stores. And like those video stores, Zediva doesn’t need to get permission from the studios to rent out discs, since once they buy the DVD they are free to rent it out or re-sell it, thanks to the first-sale doctrine in U.S. copyright law.” So, Zediva’s business model is to capitalize on the release of new DVDs to retailers before such DVDs are distributed to potential competitors such as Netflix, Amazon, or iTunes. Because Zediva does not acquire licenses from Hollywood studios for its content, the crux of the judge’s decision was whether or not viewing a DVD streamed from Zediva’s server constituted a public or private performance. The judge decided that...

Battles of U.S. copyright holders go global

Posted by Sam Herting | Aug 3, 2011 | Film, Music, Technology, Television |

The Motion Picture Association has won a major victory in the fight against international online piracy, convincing a London high court to force BT, Britain’s biggest internet service provider, to block access to an illegal file-sharing site. For copyright owners, the decision highlights the importance of cutting off online piracy through the gate-keeping ISPs, whether cooperatively — as in this case — or coercively, with pressure and force. The ruling more broadly shows U.S. copyright owners pushing harder to curtail online piracy worldwide — a trend also demonstrated in a story released by THR Esq regarding Summit Entertainment on Monday. The studio tracked leaked pictures and videos from its upcoming Twilight film to a northern Argentinian town. It proceeded to file civil and criminal actions in Argentina and a civil action in the U.S., then went a step further, issuing a news release identifying what it said was a culprit: Daiana Santia. In a prior post, this blog analyzed various anti-piracy efforts in the U.S. and abroad. These aggressive, recent incidents show that international bounds guarantee no protection from U.S. anti-piracy efforts. While international ISPs such as BT argue against banning websites because such moves would usher in a new wave of online censorship, U.S. policy-makers and copyright owners say there is too much at stake to allow such infringement to continue. Major foreign powers such as China and Russia turn a...

Kick in Kung Fu Panda case: care in conduct

Posted by Sam Herting | Jul 29, 2011 | Film |

A jury recently found in favor of DreamWorks, rejecting legal claims by Terence Dunn, a self-described writer-producer-teacher-philosopher. Jurors decided the studio did not misappropriate his ideas in creating the story behind Kung Fu Panda. But this case’s real relevance may rest in how the jury decided that DreamWorks and Dunn had entered into an implied-in-fact contract before eventually ruling against him on substantive grounds. Bottom line: this litigation could serve as a useful reminder to Hollywood folks about the risks they face if they accept scripts, treatments or pitches from third parties. California jury instruction CACI 305 states: “In deciding whether a contract was created, you should consider the conduct and relationship of the parties as well as all the circumstances of the case. Contracts can be created by the conduct of the parties, without spoken or written words. Contracts created by conduct are just as valid as contracts formed with words. Conduct will create a contact if the conduct of both parties is intentional and each knows, or has reason to know, that the other party will interpret the conduct as an agreement to enter into a contract.” In light of this, it is interesting that the jury found an implied-in-fact contract between Dunn and DreamWorks. Dunn claimed he brought the idea of a “spiritual ku-fu fighting panda bear” to DreamWorks in 2001 thinking he would be included in...

Hollywood hit with new bias claim

Posted by Sam Herting | Jul 29, 2011 | Film, Television |

Among the many topics on which Hollywood has a special sensitivity (read that hot button or sore spot), any assertion of discrimination or barring creative people from their craft makes for a giant industry cringe. So in a town haunted ever-still by its 1950s blacklists, its recent ageism litigation, the persistent howling about political bias, well, what to make about a new legal action that asserts that Tinsel Town mistreats African Americans? Social Hollywood Magazine reports that aspiring screenwriter Justin Samuels has filed an $8 million dollar lawsuit against WME and CAA, accusing them of discriminating against him because he is black. Samuels, a Cornell graduate, asserts he sent hundreds of queries to WME and CAA over nine years but was rejected because the agencies do not accept unsolicited communications. Samuels argues that these restrictive policies disproportionately lock out non-whites and women screenwriters because the only way to get work looked at and advanced by powerful agencies is through the support and referral of the industry’s white-male inner circle. But is this ban by major agencies on unsolicited communication a practice that is, as the agencies assert, rooted in the hectic, ultra-competitive nature of the business and a move to protect against other kinds of litigation over rights and ownership claims? Or it it nepotism and racism, as Samuels suggests. Ask Hollywood agents and they will argue the former. A literary...