How many of us have scoffed at the warning given by movie distributers about illegal copying or distribution of the film we are about to watch? Probably not too many people live in fear of the big, bad distributor knocking on the door, seeking a bag of money as retribution for downloading or streaming their film on the web. Well…thanks to U.S. District Judge Rosemary Collyer, perhaps more people should be.

On Friday, September 10, the Judge Collyer allowed the holder of a movie copyright to subpoena the names of people accused of illegally downloading and distributing a film over the Internet. Similar to the witch-hunt to find Napster users led by the not-so-charitable rock band Metallica in 2000, the German limited partnership Achte/Neunte Boll Kino Beteiligungs Gmbh & Co KG, a creator and distributor of motion pictures, is suing internet users who are accused of copyright infringement after downloading the film “Far Cry”, a film the company holds the exclusive license to the copyright. The partnership identified the Internet protocol (IP) addresses of computers associated with the alleged infringement. It then subpoenaed the Internet service providers (ISPs) seeking names of individuals associated with those addresses. Thus, the ISPs had to spill the beans.

Upon being notified by their provider, some of the customers challenged the subpoenas, but courts have upheld that Internet subscribers do not have an expectation of privacy once they give their information to an ISP.  It’s probable that those who were subpoenaed were feeling remorse not only for being on the wrong side of the law and standing to lose thousands of dollars, but also because they put themselves in that position over a film such as “Far Cry,” which is a video game adaptation.

What do you think about this? Is it OK that Internet service providers were forced to give up such vital information? Are most people aware they are putting themselves at such risk, even if they’re only downloading a single lousy movie like “Far Cry”?

Posted by Alex on September 16, 2010 at 4:53pm.

How much do you own your life story when other people are equally involved in it? That may seem like an odd question, but a recent court case is making it suddenly relevant. Alix Daily is suing her aunt and uncle for writing, directing and producing a movie based on an incident in all of their lives. She’s claiming her privacy has been violated by the movie Finding Amanda. Despite the fact that story being told was also lived by her uncle, she claims that she is owed damages since she was never consulted or informed about the movie.

Finding Amanda is the story of gambling addict traveling to Las Vegas to save his niece from a life of prostitution, drugs and her abusive boyfriend. During this trip he also learns about himself and his limitations. In interviews Peter Tolan, the screenwriter and uncle to Alix Daily, has told reporters the movie is based on real events from his life. Daily’s suit claims that “much of the dialogue, facts, and events really happened,” and the character of Amanda “looked, dressed, and behaved like Daily.” She claims that events in the movies were revealed to her aunt and uncle during a personal crisis. Clearly she feels violated, but are there grounds for damages in mere likeness?

If this is Ms. Daily’s case it seems difficult to see how she could be successful. The character’s name was changed so the only way the general public would ever associate the events in the movie with her is due to her suit. In addition, the events in question weren’t experienced by her alone. If she wins, the quirky barista in movies can sue if they resemble the person the screenwriter may have interacted with while writing and the angry neighbor that may be molded off someone in the building will be owed money. It’s hard to imagine that no one can write about things they experienced with other people in order to protect them. If Mr. Tolan is writing about events in his own life, and selling it as such, there appears to be no violation.

Posted by Becky on July 9, 2010 at 11:23am.

There have been some new developments in Jack Kirby’s estate’s battle with Marvel over copyright issues related to the X-Men franchise.  There are several issues similar to the Superman copyright snafu, including the legal team representing the family.  LegalFish has covered this case several times, but these new developments are worth revisiting the issue.

Disney, the parent company of Marvel, has officially stepped into the fray.  They are clearing their massive weight to protect their financial stake.  Disney won’t reveal that stake because they are requesting a full accounting be held off until the claims are settled.  They are also disputing Kirby’s association with the Incredible Hulk franchise and are claiming the estate has no case due the expiration of the statute of limitations.  The latter issue is clearly not one; as the recent Superman case demonstrates copyright can be assigned long after the original work is published.

It is hard to predict how these recent developments will affect the case in the long run.  Clearly the presence of corporate heavyweight Disney will have some sort of sway.  How much is still to be determined.

Posted by Becky on June 14, 2010 at 10:21am.

Now that we’ve all learned about musical copyrights, there is a fresh case that perfectly explains the issues.  David Byrne is suing Charlie Crist, a Florida politician, for unauthorized use of his song “Road to Nowhere” in a political ad.  This commercial clearly goes against the recording copyright of the music.  Byrne is seeking $1 million in damages.

Byrne is asking such a large amount to hopefully curb the rampant theft of music for use in these ads. He says “it is not about politics…It’s about copyright and about the fact that it does imply that I would have licensed it and endorsed him and whatever he stands for.”  This case is fresh on the heels of another Florida politician, Marco Rubio, for his unauthorized use of “Take the Money and Run” by Steve Miller in another campaign commercial.  Miller simply stated that “The Steve Miller Band and Steve Miller do not endorse Marco Rubio’s campaign or any political candidates and respectfully request that Mr. Rubio learn more about publishing law and intellectual property rights. I also ask that in the future he extends me the courtesy of asking permission before using my songs.”  The ad has since stopped running.

This case comes just a few years after the 2008 election cycle when John McCain was forced to settle with Jackson Browne after using “Running on Empty” in a campaign ad.  This case made tons of headlines so these Florida politicians should really have known better.  Many musicians find the unauthorized use of their music in political commercials to be particularly offensive since it tends to affiliate them with a politician with whom they may not want to be associated.  These musicians tend to have the resources to persevere in a legal battle against a well-funded campaign so their cases also tend to be successful.  Once again though, these cases prove the importance of knowing your rights under the law and being willing to fight to protect them.

Posted by Becky on June 9, 2010 at 4:48pm.

A recent list on the comedy site cracked.com, The 5 Most Famous Musicians Who Are Thieving Bastards, got me thinking about copyright law as it applies to music.  Clearly copyright law is an interest of mine.  However, to me copyrighting music presents unique challenges.  While lyric stealing can seem a little more cut and dry, there are only 12 notes in the musical scales; when does similarity cross the line into outright thievery?  Almost everyone has heard about the legal implications of sampling, the direct use of musical clips in other works.  Several lawsuits have seemingly curbed unauthorized sampling, at least in major label and more mainstream releases.  But what about music that was clearly inspired by other works at the very least?  What is the legal recourse for the musical victims in these cases?

Unfortunately for some, it is very difficult to differentiate similarity from outright stealing in cases where the musical chord progression is reminiscent of other works.  The limited number of notes and musical time measures, combined with a rich tradition of musicians using basic riffs pioneered by other artists, means that unless the piece is sampled or the lyrics are stolen there is little legal recourse.  In these cases though, music copyright is clear.  When music is copyrighted two different copyrights are acquired; composition and recording.  Composition is the piece as written.  If anyone wants to cover a song this is the copyright that protects the lyrics, melody etc. of a song.  When a song is recorded the label has a recording copyright that protects their investment, i.e. the money they paid to have the track recorded in a studio, in the piece. When someone wants to use a song in a commercial, movie or anything they need to license the song from the both the artist(s) who created it and the studio that paid to record the track.  The difference between these two licenses is best explained by Nike’s issues with using the Beatles’ song Revolution in an ad campaign.  They licensed the song from the owner of the composition rights, Michael Jackson, and created and aired the commercial.  However, Capital Records owned the recording rights and successfully sued them for copyright infringement.

The owners of these copyrights, as well as the pieces themselves, are protected in several ways.  There are five basic rights that are covered by these copyrights.  The first is the right to control reproduction of their work.  This includes printing sheet music and reproducing the track on a CD. The next is the right to control derivations, or anytime the music is used in a way other than its original intended form.  This includes film, commercials and television.  The next is the right to control distribution.  This gives the copyright owner control over how the music is sold and traded.  There are several key exceptions to this right; they are why people can’t be sued for selling and buying used CDs as well as giving them away as gifts.  There is also the right to control public performance.  This protects any public performance, be it radio or cover band in a bar.  Licenses are granted to performers, venues and stations that give the right to play, perform and present copyrighted music.  Generally the musicians unions guarantee compliance.  This right is one that almost exclusively is in place to protect the composition copyright; the holder of the recording copyright has public performance right.  Finally, the copyright holder has the right to control public display.  This is a right that generally applies to things like paintings and sculptures so it does not protect the holders of music copyrights.

These copyright issues may seem confusing and excessive, but they are in place to protect the artists who created the song and the companies who made it possible for the artists to record their creation via a monetary investment.  In cases like the above examples from Cracked.com it is up to the individual artists to bring claims to court.  In an interesting example of copyright issues, the article originally included clips that played the song examples side by side so the reader could hear the similarities in the songs, but those clips have since been removed.  Some song thefts seem more blatant than others and likely have a good chance in court.  However, the offended artists are responsible for protecting themselves in these cases.  The music fans are only responsible for choosing whether or not to support thieves.

Posted by Becky on June 8, 2010 at 4:53pm.

What are the legal implications of an advertising promo?  A tiff between former executive producers of The Sopranos and David Chase, the show’s creator, may be causing problems for a new series on CBS.  The problem appears to have been resolved amicably, but if it were to go before a judge what might the outcome have been?

The issue at hand is the wording of a promotional tagline used to advertise the new CBS series Blue Bloods.  It stars Tom Selleck and was created by Mitchell Burgess and Robin Green, a married couple who were longtime executive producers on the HBO hit The Sopranos. The two were producers for 69 out of a total of 85 episodes, and were with the show from its beginning until their departure prior to the final season.  At the time, the couple said their departure was amicable, although sources close to the situation now say that Chase wanted them off the show.  Regardless of the reason for leaving, Burgess and Green were successful producers who were heavily sought after within the industry, so they easily moved onto other work. There was seemingly no ill will between either them or David Chase.

That peaceful façade began to crumble last week when CBS released a trailer for the couple’s new series Blue Bloods.  The network touted the new series as from “the executive producers of The Sopranos.”  They were subsequently sent a request from HBO lawyers to stop using that phrase to advertise their new series.  The rationale was that the use of “the” made it appear that Burgess and Green were the only executive producers on the famed HBO series.   HBO was using semantics in a way to rival Bill Clinton.

CBS removed the line from their trailers; however, the question is was this a legally valid complaint or a mere request that the offending party chose to honor?  The closest this comes to illegality is fraud, but since it would require proving injury to the victim it seems unlikely to be brought to court.  Even worse to a potential case is that a fraud allegation requires proof of an intent to deceive the victim.  Since HBO is touting one of their new dramas, Boardwalk Empire, as being from the “Emmy-award winning writer of The Sopranos,” while, much like Burgess and Green, Terrence Winter was only one of many folks who held that title on David Chase’s most famous show.

CBS did pull the offending tagline, mostly as professional courtesy, but had they refused to back down to a threatening letter they would likely have prevailed in a courtroom.  And since legal proceedings would have served as a major form of advertising it does seem strange they were so willing to capitulate.  Perhaps the animosity between the creative staff of The Sopranos was so great that Burgess and Green would rather reword the phrase than face their former boss in court.

Posted by Becky on June 4, 2010 at 2:41pm.

A stick figure drawing originally intended to depict Muhammed was changed by a Muslim student to instead depict Muhammed Ali.

South Park creators Trey Parker and Matt Stone have created successful careers on pushing the limits and making fun of just about everyone. In the popular Comedy Central program’s 14 seasons the show has created humor around celebrity scandals, national news events and even religious leaders.  No one seemed safe from Parker and Stone’s outrageous and sometimes controversial cartoon portrayals, however unwanted or undeserved the attention.

For South Park’s 200^th episode it was no surprise that the creators aimed to cross even more lines. Bringing back several of the celebrities they had previously mocked, the episode was based on a class action lawsuit brought on by Tom Cruise against the small mountain town to end the celebrity embarrassment once and for all. Things became controversial however, when Cruise agrees to drop the lawsuit if the town can give him the Muslim prophet Mohammed, who he believes to be the one person immune from satire and ridicule.

The episode contained several references to the name Mohammed and a mascot costume that supposedly hid the prophet from view. Although seemingly innocent compared to depictions of other religious figures the show has mocked such as Buddha, Moses, Jesus and Joseph Smith, many felt as though South Park had finally gone too far.

As part of their religion, Muslims do not believe in any literal depiction of Mohammed, including any kind of drawings or cartoons.  After Parker and Stone received a warning from a Muslim organization that some interpreted as a threat, Comedy Central censored future episodes of images and references to Mohammed and did not allow an uncensored version of the episode to appear on Parker and Stone’s South Park Studios website.

But there’s a fine line between censoring potentially offensive material and compromising free speech. Under the First Amendment, unpopular or controversial material is protected as long as it is not obscene. Even hate speech, or speech based on characteristics such as race, gender, religion or sexual orientation is allowed as long as it does not incite imminent danger.

Those who felt cheated by the South Park censorship took to the internet May 20 to voice their concerns with “Everybody Draw Mohammed Day”. With over 81,000 fans on Facebook, users uploaded thousands of pictures and images portraying Mohammed onto the site.

The backlash was severe, however, causing Pakistan to block sites such as YouTube and Facebook over sacrilegious content. After two weeks of blocking the site, a Pakistani court ordered on Monday for access to Facebook to be restored.  However, the formation of a counter-Facebook group called “Against Everybody Draw Mohammed Day”, actually attracted more fans than the original group.

Was it right for Comedy Central to back out on the Mohammed episode, even when South Park is known to attack everyone somewhat equally? Did the cable program decide to take the high road in hoping not to offend or the safe road after receiving threats?

Either way, the best part about freedom of speech is that you have the right to choose what you want to share. Those opposed to “Everybody Draw Mohammed Day” could have easily tuned out or chose to protest while those in support found several outlets to express themselves. No matter what your beliefs, freedom of speech will allow you to share your thoughts, even if others choose not to.

Posted by Rachel on June 2, 2010 at 5:06pm.

Warner Communications, the owners of the Superman franchise, is quickly learning that copyright claims are its own version of kryptonite.  A new lawsuit filed last week attempts to overturn a 2008 ruling that awarded the superhero’s creator’s heirs rights to royalties from use of the Man of Steel.  It elucidates the complexity of US Copyright Law as well as makes serious accusations of wrongdoing at the hands of the heir’s attorney.  All in all, this is an interesting case that is likely to take a while to sort out.

In 2008 the heirs of Siegel and Shuster, the co-creators of Superman, were awarded a claim to the copyright of the iconic character.  This decision overturned a 30+ year long agreement between DC Comics and the families that paid them a small annual fee in exchange for their share of the property.  A new lawsuit filed by Warner Brothers asserts that the lawyer who represented the heirs is responsible for “induc[ing] the heirs” into filing for their rights and that he used the suits to “secure control of the largest financial stake,” 47.5% of the copyright, of the Superman franchise.

This is a complicated case, partly due to the nature of U.S. Copyright Law and partly to the fact that it is two separate families as well as DC Comics that have legal rights to the Superman property.  Because Superman was mostly created while Siegel and Shuster were employees of DC Comics, the character is considered the property of the company due to the contracts the men signed.  Warner Communications, the larger umbrella corporation which owns the major stake in the Superman franchise, had been paying the men, their families, and later their heirs, regular payments in exchange for all the rights.  However, the men had developed the initial, admittedly limited character, prior to entering into an agreement with DC and in 2008 the courts decided that the families shared a copyright stake in the name, image and certain offshoots of the property that were created before the first comic featuring the Man of Steel was printed.

This new suit accuses Marc Toberoff, the attorney who convinced the heirs to file the suits that led to the 2008 ruling, of misdeeds in his handling of this valuable estate.  Warner Brothers asserts that he used his authority as an attorney to acquire a 47.5% controlling interest in the Superman property, leaving the creator’s families with a meager quarter share apiece.  If these allegations are true, it is a major misstep on the part of Toberoff.    Worse for the accused attorney, if they are considered chamberty and maintenance it could even lead to disbarment.  The complaint includes quotes from an anonymous letter the plaintiffs claim was written by Toberoff; in it he allegedly wrote that he planned to acquire as “much ownership of the Superman copyright personally as he can.”

Toberoff asserts that all of these claims are patently untrue.  His press release states that

Warner and Mr. Petrocelli are aware that the frivolous allegations in their complaint do not add up and will never pass muster in the federal courts. However, that’s not the point of their lawsuit. Warner and Petrocelli’s objective is to “muddy the waters” by attacking Mr. Toberoff, potentially conflict him out of the case, and thereby strong-arm the Siegels and Shusters into selling at a cut-rate price the copyrights they have legitimately recaptured. Such unethical tactics are nothing short of deplorable.

Without the benefit of a jury trial and being privy to all the evidence both sides have to offer it is impossible for a mere blogger to make a judgment either way.  It does seem like the plaintiffs are suffering from sour grapes after having the heirs claim a stake in a property that was rightfully theirs.  However, these accusations against Toberoff are interesting, and disturbing if found to be true.  Only time will tell how this case will unfold.

Posted by Becky on May 28, 2010 at 10:26am.

Is this piece you’re reading an article? Am I reporter when I tell you the story of a blogger in New Jersey who is not protected by her state’s Shield Law? Or is this merely a diary, journal, or opinion piece, regardless of how well my facts have been checked or how rigorous the standards are to which I personally adhere? These are the types of questions recently raised by a lawsuit in New Jersey, one which clearly stated that bloggers do not have the same legal protections as “legitimate” journalists.

Shelle Hale is a blogger based out of Washington State who was writing an expose on Too Much Media (TMM), a company specializing in software used in the pornography industry. While preparing her piece, Hale received information that TMM had participated in “illegal and unethical use of technology” by profiting off of the theft of customer’s e-mail addresses. She posted this information on a public message board on another web site, along with her assertions that TMM employees “may threaten your life if you report any of the specifics.” Hale was accusing Too Much Media of serious security breaches and of criminal menacing when it came to keeping their misdeeds secret.  TMM responded to these claims with a lawsuit for defamation. As the company attempted to depose Hale, she claimed protection under the Shield Law, so she would not have to identify her sources.

This may be a good time to explain the Shield Law. These are laws that vary by state, but are in place to protect both reporters and their confidential informants. They allow the reporter to refuse to identify their source while under oath. These laws are designed to encourage people to come forward with incriminating information without having to risk their jobs or lives by having their identities revealed. Hale claims that despite the fact that her work wasn’t intended for the Wall Street Journal or The Washington Post, she was researching and reporting on alleged crimes and misdeeds in an effort to inform and protect the public. She set up a public website, pornafia.com, hired writers and informed Washington’s Attorney General of her investigation. Her attorney argued that these laws designed to protect affiliated journalists should be extended to reporters working within the blogosphere.

Unfortunately for both the casual and professional blogger, the judges felt that these protections did not extend to her. They felt that Hale did not adhere to the rigorous standards practiced by the more traditional journalists. She “exhibited none of the recognized qualities or characteristics traditionally associated with the news process, nor has she demonstrated an established connection or affiliation with any news entity.” Although the court mentioned a lack of affiliation, they made a point of stressing that the main reason for their judgment was Hale’s lack of adherence to standards the court felt was critical for a professional journalist. She took no notes, never identified herself as a journalist, did no fact-checking and never went to TMM for comment or rebuttal on any of the claims made against them.

It seems to me that Hale’s professional sloppiness in these areas was the major reason for the court’s decision against her. Unfortunately for her, the ruling that she is not a journalist opens her up to a slander and defamation suit since malice is only a requirement in cases involving reporters and their publications. This case should serve as a warning to all amateur bloggers and reporters on the internet; take good notes, get both sides, and be ready to argue this case again if need be.

Posted by Becky on May 26, 2010 at 4:39pm.

In our justice system attorney-client privilege is sacrosanct. Oftentimes, the only way to properly defend yourself is to have a true confidant in which you are able to confide. You may need to tell your lawyer things that could otherwise incriminate or embarrass you. The strict code of ethics the bar association enforces upon its members guarantees this protection for the nation’s clients. Not only can the privileged communication not be brought up in court, it can’t be brought up anywhere. But what happens when the attorney is no longer practicing? Is any information gleaned from his or her time representing someone still to be protected? This issue is at the forefront of a new case pitting the actor Randy Quaid against his former attorney.

Lloyd Braun represented the Quaid family throughout the 90s; he served as not only the family attorney but also negotiated a few dozen professional contracts for Randy as an actor. When Braun decided to switch careers, the Quaids, and the files put together by Braun, transferred to another attorney. Braun now heads BermanBraun, a web company specializing in entertainment sites. One of this company’s sites, a tabloid site named Wonderwall, published content and personal information gathered during Braun’s tenure as the Quaid family attorney.

Is this a clear-cut breach of attorney-client privilege? Braun claims it’s not because he hasn’t represented the family in over a decade. However, there appears to be no doubt that the information published by the former attorney was acquired during his time as the family lawyer. Should this still be protected?

To complicate the matter, as an entertainment lawyer Braun brokered deals for which his received a commission. In several cases he is still receiving payments off of residuals. Braun may no longer be the family attorney is practice, but he is still receiving payments for services rendered during that time.

Braun is no longer a member of the bar and is not affected by the association’s sanctions. Should this be a criminal offense, akin to breach of contract? Braun claims he did nothing wrong but the Quaid family rightfully feels violated for having the personal information put out there by someone they felt they could trust with it.

Posted by Becky on May 20, 2010 at 4:03pm.