was an eventful day for copyright law on Monday, March 4, as the Supreme Court
of the United States issued two unanimous opinions, both involving provisions
of the Copyright Act. The decisions were
fittingly both issued on the 110th anniversary of the 1909 Copyright Act.
In the first case, Fourth Estate Public Benefit Corp. v. Wall-Street.com, LLC,No. 17–571, the Court, in an opinion authored by Justice Ginsburg, resolved a long-standing circuit split over whether a copyright owner can sue in federal court with only a copyright application in hand, or whether a completed registration is necessary. The Court held that “registration . . . has been made” under Section 411(a) of the Copyright Act—and thus an infringement suit may be instituted—when the Copyright Office grants or denies registration after evaluating the copyright application (coined the “registration approach”) rather than when a copyright owner merely submits the application, materials, and fee required for the registration to begin processing (the “application approach”).
While former Judge Alex Kozinski of the Ninth Circuit once noted that “[m]oviemakers do lunch, not contracts[,]” Los Angeles Superior Court Judge Terry Green’s August 28, 2018 decision in Depp v. Bloom, 2018 WL 4344241 (Cal. Sup. Aug. 28, 2018), may force legal professionals in Hollywood to skip lunch in favor of properly executed fee agreements.
In granting actor Johnny Depp’s motion to dismiss a counter-claim for breach of contract by Depp’s longtime attorney Jake Bloom in a dispute over legal fees allegedly owed to Bloom under a percentage fee agreement with Depp, Judge Green answered the question vexing entertainment attorneys for years: are percentage-based fee arrangements considered contingency fee contracts, and thus required to be in writing under California law? Answering in the affirmative, Judge Green ruled from the bench on August 28, 2018, and issued a written decision on August 30, 2018, available here. Continue reading
The U.S. District Court for the District of Arizona in Lundin v. Discovery Communications ruled that a defamation suit brought by a reality television star against the network and producers of a reality show was not barred simply by virtue of an exculpatory “Assumption of Risk” provision containing a waiver of all claims. Significantly, the ruling stands for the proposition that there is no special exception for reality television or documentary programming which would bar intentional tort lawsuits. This decision could have potentially significant implications in the reality television sector, as many reality stars may now have recourse for the oft-cited “bad edit.”
The agreement at issue was entered into by Cody Lundin – an internationally recognized professional survival instructor, best-selling author, and survival and sustainability consultant for national and international news outlets – in connection with his appearance on Discovery Channel’s “Dual Survival.” Lundin served as the show’s on-camera host, wilderness survival expert, and consultant. The show features a pair of survival experts in predetermined scenarios set in challenging environments. For instance, Lundin and his co-hosts have been marooned on an island, lost in a jungle, and stranded in the desert, all with minimal survival gear. Continue reading
The U.S. Court of Appeals for the Sixth Circuit recently affirmed a lower-court decision that Viacom’s use of the trademark “BUBBLE GUPPIES” for promotional merchandise for its show of the same name did not infringe on a children’s clothing brand that had registered the trademark “GUPPIES,” primarily because the “GUPPIES” mark – which had been used for many years before Viacom’s use– was relatively unknown to the public.
According to the lawsuit, Plaintiffs Debbie and Dean Rohn have operated Guppie Kids, Inc., a children’s apparel brand, since 1990. The couple registered two trademarks for apparel-related items: one for the word “GUPPIE,” an acronym for “Growing Up Playing Pursuing Individual Excellence,” and the other for a logo: the word “GUPPIE,” in which a fish in a necktie forms the letter G. Continue reading
On August 24, 2017, the Ninth Circuit Court of Appeals affirmed a district court’s issuance of a preliminary injunction barring Utah-based content filtration company VidAngel from filtering and streaming any content owned by a group of Hollywood movie studio plaintiffs, who opposed VidAngel’s editing of their content (to omit “objectionable” material) and distribution without permission.
The movie studio plaintiffs (“Studios”) produce and distribute copyrighted motion pictures and television shows through many sources, including through DVD and Blu-ray sales and various online channels. To protect against unauthorized access to and copying of their works, the Studios employ technological protection measures (“TPMs”), which allow consumers to use players from licensed manufacturers to playback (but not copy) content.
In 2014, VidAngel launched an online service which eliminated objectionable content from movies and television shows using a software program that removed the TPMs, allowing VidAngel to copy content, and tag it for over 80 categories of “inappropriate” material. To remove the objectionable content, VidAngel would purchase a physical disc containing the copyrighted movie or television show, “rip” a digital copy to a computer, and stream the filtered version of the work to its customers through any VidAngel-supported device, including Roku, Apple TV, mobile phones and tablets, and desktop or laptop computers. Customers using VidAngel’s streaming service paid $1 to $2 to view the work with whatever type of objectionable content they chose to omit. In certain cases, this was well below the price offered by the Studios to view unfiltered copies of the movie or television shows. Continue reading
Enterprising corporations looking to join the “green rush” and cash in on the marijuana boom have found a loophole in the United States Patent and Trademark Office’s (USPTO) refusal to register trademarks for products that contain cannabis. By registering a trademark for ancillary products not related to marijuana, such as clothing or accessories, corporations can get a head-start in the budding cannabis industry by registering marks that they later hope to use in connection with actual cannabis products.
However, as the Trademark Trial and Appeal Board’s (“TTAB”) March 16, 2017 ruling in Margaritaville Enterprises, LLC v. Bevis (http://ttabvue.uspto.gov/ttabvue/ttabvue-91219403-OPP-44.pdf) demonstrates, applicants in the cannabis space, like all other applicants, should still be wary of the other potential potholes along the way.