Digital Media

Notable TV and Digital Trends Early Summer 2018

The television landscape is changing dramatically. New and major players have disrupted traditional models, as networks and studios explore different approaches and partnerships. Beginning with an overview of the biggest “new” player, the following links provide some noteworthy examples of how the streamers continue to expand, and what everyone else is doing to adapt to the 21st century television ecosystem.

Inside the Binge Factory

According to Vulture, Netflix now makes more television than any network in history, and with a plan to spend $8 billion on content this year, it’s not showing any signs of slowing down. Driven by a desire to scale and grow, Netflix is leveraging its impressive stable of talent and reams of user data to expand into new genres and countries. But considering Netflix’s recent earnings report, which revealed slower membership growth than forecasted, will it continue the pace of this expansion? Vulture’s profile of the streaming giant takes a deep look at the who, how, and why of Netflix’s ongoing success, providing a great framework through which to analyze the future of the company. Continue reading

Chambers USA 2018 Ranks Partners Lackman and Wolff as Top IP Attorneys; Recognizes Two Cowan, DeBaets, Abrahams & Sheppard LLP (CDAS) Practice Groups

Cowan, DeBaets, Abrahams & Sheppard LLP is delighted to announce that partners Eleanor M. Lackman and Nancy E. Wolff and both CDAS’s Entertainment and IP, Copyright and Litigation Practices have been recognized by Chambers and Partners in the Chambers USA 2018: America’s Leading Lawyers for Business guide.

Eleanor M. Lackman

Nancy E. Wolff

This is the fifth consecutive year Ms. Lackman and the second consecutive year Ms. Wolff have been ranked in the Chambers USA guide. They are both among just 41 New York lawyers ranked in the field of “Intellectual Property: Trademark, Copyright & Trade Secrets – New York.”

“Impressed sources” told Chambers that Ms. Lackman is “an absolutely incredible trademark litigator” and added: “She is very practical and always seems to make the right call.” She also has notable experience handling copyright matters, often advising clients across the media and entertainment industries.

Chambers describes Ms. Wolff as “very well-known and well-respected.” She receives plaudits for her expertise in a range of complex copyright matters and is highlighted for her particular skill across the photography and visual art industry.

CDAS’s Entertainment Practice was awarded a regional designation of “Noted Firm” in “Media & Entertainment: Film, Music, Television & Theater – New York” for the third consecutive year, while the Firm’s IP, Copyright and Litigation Practice received a  “Noted Firm” designation in “Intellectual Property: Trademark, Copyright & Trade Secrets – New York” for the second consecutive year.

The annual guide ranks law firms and lawyers based on in-depth interviews with clients and lawyers, technical legal ability, professional conduct, client service, commercial astuteness, diligence, commitment, and other qualities most valued by the client.

CDAS Client Alert: Federal Trade Secrets Law Provides Potent New Tool For Businesses In Online & Digital Media Space

Yesterday President Obama signed the Defend Trade Secrets Act of 2016 (“DTSA”), the culmination of several years of bipartisan efforts to federalize trade secret protection, placing it alongside the federal copyright, trademark, and patent statutes.  The DTSA – an extension of the Economic Espionage Act of 1996 – should be significant, generally, to businesses concerned about protecting competitively sensitive information from misappropriation by former employees, industrial spies, and foreign nationals.  It should prove particularly useful to those in the online and digital media space as an important tool in the prevention and remedying of the theft of software-based products.  The DTSA has strong support from the software industry, including from Microsoft, IBM, Adobe, Micron, and the Software Information Industry Association.  Here are three key takeaways from the passage of the DTSA:

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Ninth Circuit to Copyright Holders: DMCA Requires Fair Use Considerations

In an important decision affecting copyright owners, online hosts, and creators of user-generated content, the Ninth Circuit, on Monday, issued a bright line rule that copyright holders must consider the fair use doctrine before issuing takedown notices to remove otherwise infringing content in order to comply with the Digital Millennium Copyright Act (DMCA).  The Court’s decision makes clear that a failure to do so can open the door to nominal monetary damages and attorneys’ fees under Section 512(f) of the DMCA for any material misrepresentations made (or improper procedures used) in the course of pulling content from service providers like YouTube. Continue reading

Inside Counsel’s Five-Part Series, “Where Former Entertainment GCs Go Next”, Provides Firm Profile of CDAS

Inside Counsel’s Senior Editor & Community Manager, Rich Steeves, published a five-part series titled “Where Former Entertainment GCs Go Next” last week, which was prominently featured on the Inside Counsel website.

The series, which discussed the so called “third act” for successful general counsel, provided a comprehensive profile of CDAS and the services the firm provides to clients, while also discussing the appeal the firm has had for former GCs in their transition to a new environment.

CDAS Partners Aileen Atkins, Frederick Bimbler, Douglas Jacobs, Eleanor Lackman, Marc Simon and Stephen Sheppard were interviewed for the series. You can find a link to each part of the series below.

PART 1: http://www.insidecounsel.com/2015/04/27/third-act-where-former-entertainment-gcs-go-next-p
PART 2: http://www.insidecounsel.com/2015/04/28/third-act-where-former-entertainment-gcs-go-next-p
PART 3: http://www.insidecounsel.com/2015/04/29/third-act-where-former-entertainment-gcs-go-next-p
PART 4: http://www.insidecounsel.com/2015/04/30/third-act-where-former-entertainment-gcs-go-next-p
PART 5: http://www.insidecounsel.com/2015/05/01/third-act-where-former-entertainment-gcs-go-next-p

Appellate Victory for “The Neighbors” Photographer against Right of Privacy Claim

Arne Svenson, a New York-based fine art photographer, prevailed on an appeal before the New York Supreme Court Appellate Division, First Department, filed by plaintiffs Martha and Matthew Foster, who had unsuccessfully sought to prevent the display, promotion, or sale of certain photographs from Svenson’s popular series “The Neighbors” by invoking New York’s right of privacy statute.  A unanimous panel of the court held that Svenson’s photographs – taken with a telephoto camera lens without his subjects’ knowledge – “is not actionable as a statutory tort of invasion of privacy” because “the images in question constituted art work and, thus [are] not deemed ‘use for advertising or trade purposes,’ within the meaning of the [privacy] statute.”  The court noted that the plaintiffs’ complaints were “best addressed to the Legislature” given the narrow scope of New York’s privacy law. Continue reading

Fan, Foe or Free-Rider: CDAS Defeats Cybersquatter that Sought to Capitalize on Celebrity Client’s Famous Name

Case Highlights Benefits of Trademark Protection and Potential Risks in Posing as a Fan Online

A growing and unsettling trend in the legal field of domain name disputes is the prevalence of domain registration for bad faith purposes, such as to bait the public into thinking that there is an association between a website operator and a famous brand or person.  Recently, Cowan DeBaets Abraham & Sheppard LLP (“CDAS”) brought a complaint under the Uniform Domain Name Dispute Resolution Policy (“UDRP” or “The Policy”) which demonstrated the potential pitfalls of this trend. In Sofia Vergara v. Domain Administrator, Fundacion Private Whois / Domain Admin, Whois Privacy Corp. / Guy Bouchard, WIPO Case No. D2014-2008, Sofia Vergara (“Ms. Vergara”), represented by CDAS, prevailed before the World Intellectual Property Organization (“WIPO”) Arbitration and Mediation Center, due to the demonstrated bad faith conduct of Fundacion Private Whois / Domain Admin, Whois Privacy Corp. / Guy Bouchard (collectively, Respondent) in their registration of the domain name www.sofiavergara.org (the “Domain Name”).

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Toto Can’t “Hold the Line”: Sony Prevails in Digital Royalty Dispute with Classic Rockers

Toto, Inc. v. Sony Music Entertainment, No. 12-cv-1434 (RJS) (S.D.N.Y. 2014)

A New York federal judge recently ruled in favor of Sony Music Entertainment (“SME”) in the latest dispute over the proper characterization of artist royalties on digital music sales, dismissing a breach of contract claim brought by rock group Toto (best known for the hits “Africa” and “Rosanna”). Ever since the Ninth Circuit’s 2010 decision in favor of Eminem’s former production company in FBT Productions LLC v. Aftermath Records, artists such as Toto – whose recording contracts predated digital music sales – have taken to the courts arguing that they were underpaid on digital record royalties. Toto’s claims, like FBT’s and many other plaintiffs’ claims, focus on whether, under recording contracts, digital purchases are “sales” as opposed to higher-paying “licenses” or “leases.” Continue reading

Copyright on the Wild Side

With a Push of a Button, Monkey Raises New Question About Copyright Authorship and Ownership of Photographs

It’s been theorized that if you give a million monkeys a million typewriters, they will eventually produce the entire collected works of William Shakespeare. It’s been proven, however, that if a troupe of monkeys steals a camera, one will eventually take a really good selfie. By now you’ve probably heard this story, but just in case, the facts are as follows.

In 2011, British wildlife photographer David Slater traveled to the forests of Indonesia, equipment in tow, to follow and photograph the endangered crested black macaque species of monkey. According to news reports, during his trip, Slater set up his camera and tripod and briefly stepped away, and when he came back, a group of macaques had, in the words of The Telegraph, “hijacked” his camera, ultimately taking hundreds of shots. Many of the shots were, as expected, blurry or otherwise unusable, but several actually came out quite well, including a crystal-clear selfie of a female macaque showing off her large amber eyes and huge toothy grin. Slater sold the image to several publications, and soon the story – and the selfie – caught fire in the media, filling inches in the Guardian, the Telegraph, and the Washington Post, among other media outlets. The selfie soon ended up on Wikimedia Commons (owned by the parent company of Wikipedia), which is advertised as a repository of over 22.3 million free public domain images. Continue reading

The Future of Video

Legal and Business Considerations

By Simon N. Pulman

Consumption of online video continues to grow at a rapid pace. Online video ad revenue is projected to reach nearly $5 billion in 2016, while premium streaming video distributors including Netflix, Hulu Plus and Yahoo are stepping up their licensing and commissioning of original content. Most industry observers believe that online video – notably to the extent consumed through mobile devices – is an important component in the future of the internet.

In order to capitalize upon the growth in online video, media companies (both traditional and emerging) are creating dedicated divisions aimed at developing and producing a full range of video content, ranging from micro-short form clips with strong potential for sharing via social media (e.g., Vine), to original series and even feature length motion pictures. Certain companies may also break away from traditional film and television formats to experiment with new forms of video and transmedia content.

In this new ecosystem, certain fundamental principles remain. Regardless of video format or distribution platforms, all innovative business practices must be built upon a strong foundation of legal experience, necessary due diligence and robust content production and distribution expertise. Nonetheless, there are a few business and legal issues that deserve special consideration by the next-generation video content company. Here are three issues to consider with respect to the future of video: Continue reading

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