Legal Blog

Negotiating an Agreement for Video Measurement Services

The past two decades have seen an explosion of video distribution services and content providers.  Measurement began with the need to ascertain audience size for ad sales purposes, first by mid-20th century over-the-air broadcasters and their advertisers and ad agencies.  Then, this essential monetizing requirement was passed on to the late 20th century competitive cable networks, coupled with the corollary cable, satellite and telecommunications systems delivering all of these signals, known as multichannel video programming distributors (MVPDs), of which there were hundreds, now consolidated into a mere handful.   More recently, in this century, these more traditional providers have been joined by a seemingly endless array of “over-the-top” (OTT) providers streaming programming via the web.  These distributors, and their producers, subscribe to numerous measurement services, the most well-known being AC Nielsen, as it has been providing measurement data for the industry since such information became necessary in the 1950s, and now including several competitive data and measurement providers, like Rentrak, comScore, Quantcast, Wakoopa, and Networked Insights.  The data obtained is not only useful in order to demonstrate how popular certain programming is, but also, due to digital technology, it now provides information that allows measurement data subscribers to optimize their own services to meet consumer preferences.  Continue reading

A Heavy Shield to Bear – An Overview of the New EU-US Privacy Shield

In October of 2015, when the European Court of Justice struck down the US-EU Safe Harbor framework – which allowed EU organizations to transfer EU citizens’ data to the US in compliance with stricter EU privacy laws – thousands of companies that transfer data across the Atlantic were left at sea.  Since the Safe Harbor’s downfall, organizations that transferred personal data from the EU to the US could not be certain that they were complying with EU privacy laws.  As of this July, the European Commission, in partnership with the US Department of Commerce, has approved a new legal framework for these intercontinental data transfers, deemed the EU-US Privacy Shield.  The goal of the new program is the same as the old one: to ensure that EU citizens’ data being transferred to the US is sufficiently protected.  However, the new Privacy Shield program provides more, and stricter, obligations on US companies, greater governmental oversight by US regulators, and several options for the enforcement of these obligations. Continue reading

eSports: What Teams and Players Need to Know About Endorsement Deals

The explosion of the professional eSports industry has created significant commercial opportunities for teams and individual players alike. As viewership for tournaments and online livestreams increases, and leading eSports personalities grow impressive social media footprints, eSports is increasingly perceived by certain brands as an important component in their marketing, social media and outreach strategy – particularly because eSports increasingly reach “cord cutters” in the coveted 13-34 age bracket in an era where the average age of a CBS broadcast TV viewer is 58.7 years.

With this opportunity for players and teams comes a host of business and legal issues to consider, and potential pitfalls to sidestep. Here we provide a brief list of some of the things that players and teams should consider when entering into sponsorship and endorsement agreements in order to maximize revenues and protect their brands: Continue reading

From Book Page to Musical Stage: Three Thoughts on Acquiring Underlying Rights for Theatre

Broadway has long embraced a variety of source material to inspire generations’ worth of our best-loved shows. Over the last decade, six out of ten winners of the Tony® Award for Best Musical have been adapted from an array of novels, films, musical songbooks and even comics. Kinky Boots, Once and Billy Elliott all started their lives on the silver screen, and Frank Wedekind’s 19th Century play Spring Awakening was adapted for the musical stage roughly one hundred years after first publication. As the musical theatre canon expands, it is as important as ever for writers, composers and lyricists to understand the legal framework that is required when creating a stage adaptation or other theatrical piece based on existing material.

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You Can’t Have Your Cake and Eat It Too – A Lesson in Contract Remedies from the Kardashians

Like it or not, the Kardashian clan has brought many cultural influences to the 21st century, but, for most, a lesson in bright-line legal rules does not come to mind. But the queens of reality TV are full of surprises. A recent court case of theirs served as a reminder of the old idiom “you can’t have your cake and eat it too,” or in contract law parlance, you cannot allow a contract to terminate yet still enjoy its benefits.

On August 23, 2016, the U.S. District Court for the Central District of California granted a motion for a preliminary injunction in favor of the Kardashians in the case of 2Die4Kourt, et al. v. Hillair Capital Management, LLC, prohibiting the defendant’s ongoing infringement of certain trademarks owned by the Kardashians. Continue reading

Pokemon Go Home! How Will the Popular App Fare in the Wake of the Recent Class Action Nuisance Claims Brought Against Its Creators?

While some reports state that its wild popularity may be waning,[1] there is no denying that Pokemon Go, the “augmented reality” mobile game application developed by Niantic, Inc. and partially owned by Nintendo, was the digital hit of the summer of 2016. Since exploding onto the scene in early July, much cyber-ink has been spilled lauding the record-breaking success of Pokemon Go, which boasts an unprecedented 100 million downloads in its first month of operation[2] and an aggregate figure of approximately 500 million downloads to date.[3] The app is on track to hit $1 billion in revenue by the end of the year.[4] Continue reading

Third Circuit Upholds Jury’s Award of $1.6 Million in Actual Damages for Infringement of Rare Photographs


A recent decision from the U.S. Court of Appeals for the Third Circuit upheld a $1.6 million award of actual damages in a copyright infringement case, affirming the “premium” price a federal jury in Delaware placed on the defendants’ extensive use of the plaintiff’s rare stem cell images.

The plaintiff, photographer Andrew Paul Leonard, takes highly technical black-and-white photographs of stem cells obtained from doctors, scientists, and researchers using an electron microscope, which he then artistically enhances to appear in color.  The two images at issue in this case, depicted below, were created by Leonard in the 1990s – a time when Leonard’s images were unique and highly sought after because there were very few photographers who had the technical skill necessary to produce such work.  Leonard made his stem cell images available for license at prices ranging from under $100 to several thousand dollars, including a $1,500 license fee for use of one of the images at issue on the cover of Time magazine.

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New York Announces Expansion of Medical Marijuana Program


In what many marijuana advocates and patients are viewing as a positive step forward, Governor Cuomo’s administration has announced its plans to adopt several key changes to New York’s medical marijuana program aimed at increasing the number of eligible participants under the program and the ability for such participants to obtain better treatment options and easier access to medical marijuana.

The announcement follows a census report recently published by the New York State Health Department which contained twelve recommendations for improving the program.  Although certain recommendations remain under review, it is expected that all twelve of the Health Department’s recommendations will eventually be adopted by the state, several of which could come into effect as early as October, 2016.  Some of these key changes include: (i) authorizing registered nurse practitioners (rather than just registered physicians) to certify New York residents for medical marijuana use; (ii) allowing for the home delivery of medical marijuana to certified patients; (iii) streamlining manufacturing requirements and broadening the capability for registered organizations to advertise their participation in the program; (iv) increasing the number of brands of medical marijuana products available to patients, as well as potentially adding to the types of forms (i.e., smokeable or other edible varieties) available for administering medical marijuana; (v) expanding the list of qualifying medical conditions eligible under the program and conducting a review as to whether chronic intractable pain should be included in the expanded list of eligible conditions; (vi) registering five additional organizations that are licensed to grow and supply medical marijuana; and (vii) making it easier for practitioners to register with the program and creating a public database of registered practitioners to make it easier for patients to find them.  Although these changes do not address issues related to the high cost of medical marijuana, which for certain patients can run up to $1,000 a month and is not covered by insurance, one additional recommended change was to expand the existing financial hardship-based waiver for the $50 patient and caregiver application fee for registration.  The report also recommended that the state continue to engage in outreach aimed at easing some of the federal restrictions impeding scientific research on marijuana and prohibiting financial transactions and traditional banking relationships in the context of the medical marijuana business.

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Maintaining the Status Quo: DOJ Rejects ASCAP and BMI’s Proposed Changes to 1941 Antitrust Consent Decrees

On August 4, 2016, the Department of Justice (“DOJ”) released a statement[1] concluding that the 1941 antitrust consent decrees governing music performance rights organizations (“PROs”) would remain in effect, rejecting the requested changes from the American Society of Composers, Authors and Publishers (“ASCAP”) and Broadcast Music, Inc. (“BMI”).

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Second Circuit Revives Iron Man Theme Copyright Infringement Suit Against Sony

A recent Second Circuit opinion has revived songwriter Jack Urbont’s copyright infringement claim against Sony Music Entertainment, Razor Sharp Records, and rapper Dennis Coles (popularly known as Ghostface Killah). Urbont had brought suit in 2011 against Coles, along with Sony and Razor Sharp, alleging that Coles had improperly sampled Urbont’s “Iron Man Theme” (“Theme”) on Coles’ album, Supreme Clientele. Urbont had written the Iron Man Theme for the 1960s television program “Marvel Super Heroes.” Sony argued—and the district court agreed—that Urbont had written the Theme as a work for hire; accordingly, the district court determined that it was Marvel, and not Urbont, who owned copyright rights in the Theme.

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