The de Havilland v. FX Networks, LLC Appeal: Round 2 Goes to FX

On Monday a California appeals court handed down a decision in the closely watched case of de Havilland v. FX Networks, LLC et al., triggering a collective sigh of relief from studios, networks, and other content producers. The court’s decision reaffirms two widely recognized principles: (1) that the First Amendment’s protection of creative works is not limited by the mere fact that a work generates income, and (2) that an individual cannot censor the way in which she is depicted in a creative work merely because she does not like that depiction.

These principles, as applied to the entertainment industry, have been challenged in recent years with a wave of cases such as de Havilland.  For instance, a case in New York, Porco v. Lifetime Entertainment Services, LLC, was allowed to proceed after an appellate court held that the newsworthiness exception to New York’s statutory right of publicity did not apply to a docudrama that substantially fictionalized the life story of a real person.  The court stated that such a work was “mainly a product of the imagination” and thus “nothing more than [an] attempt[] to trade on the persona of the plaintiff.” Continue reading

In Case of First Impression, Third Circuit Says that Claim for Joint Authorship Accrues Upon “Express Repudiation”

Court finds that where a claimant should have known that an alleged co-author asserts sole ownership of copyright rights, the statute of limitations on the claim starts to run.

A recent decision from the U.S. Court of Appeals for the Third Circuit clarifies when the countdown starts for authors hoping to bring a declaratory judgment claim for joint authorship under the Copyright Act.  In Brownstein v. Lindsay, the Third Circuit held that an authorship claim arises and accrues when a plaintiff’s status as an author under copyright law has been “expressly repudiated” by a defendant, thus triggering the applicable three-year statute of limitations to assert a claim.  The decision also confirms the district courts’ lack of inherent power to cancel copyright registrations on their own accord.  Continue reading

Kenneth N. Swezey to Moderate Book Expo Panel on Digital Publishing & Transmedia Storytelling: Deals, Rights and Revenue

CDAS Partner Kenneth N. Swezey will moderate a panel on digital rights and new publishing business models at Book Expo America next Wednesday, May 29th. The panelists will be Corinne Helman of Harper Collins, Miriam Goderich of Dystel & Goderich Literary Management and Jeff Gomez, CEO of Starlight Runner Entertainment. Continue reading

Too Much Trademark “Melodrama”: Court Sanctions Author for Fraudulently Registering Book Publisher’s Trademark . . . and Then Using the Registration to Claim Publisher Is a Trademark Infringer

Southern District Grants Melodrama Publishing’s Pleading-Stage Request to Cancel Author’s Registration

The burden of showing fraud in a trademark filing is ever-evolving but always high. A similarly high standard applies when it comes to meeting the “exceptional case” requirement for an award of attorneys’ fees for the prevailing party. Nevertheless, some cases involve such obvious wrongdoing that the burdens can be met before discovery even opens. This is one of those cases. Continue reading

Kirtsaeng v. John Wiley & Sons: Supreme Court Applies First Sale Doctrine to Foreign-published Books Despite Publisher’s Geographic Import Restrictions

Court adopts policy of international exhaustion

In the recent case of Kirtsaeng v. John Wiley & Sons, the Supreme Court held that the first sale doctrine, codified in Section 109(a) of the Copyright Act, applies to copyrighted works manufactured overseas. Kirtsaeng, a Thai national studying mathematics in the United States, made himself thousands of dollars reselling textbooks on eBay that had been manufactured by Wiley’s Asian subsidiary and shipped to him by family and friends. Although the English-language Thai editions were nearly identical to their American counterparts, Wiley had priced them differently, as economic conditions and demand for academic textbooks vary in different territories. While this sort of activity is undoubtedly legitimate (and the underpinning of robust businesses) if it’s done entirely within the United States, the statutory text is, in the words of the Second Circuit, “simply unclear” and “utterly ambiguous” when you consider works produced abroad that are imported and resold domestically. Proponents of differential pricing argue that their ability to serve poorer territories with low cost, lower quality publications is subsidized by the sale of higher quality books where the market will allow it, whereas critics emphasize the importance of consumers’ freedom of choice and argue that differential pricing is not an exclusive right of copyright holders. Continue reading

Central Park Five: Judge Blocks City’s Subpoena

Ken Burns Film Not Required to Produce Footage and Outtakes

Renowned documentary filmmaker Ken Burns and his film company, Florentine Films, won a significant legal victory recently as a Magistrate Judge ruled that they do not have to produce unused material from his documentary The Central Park Five to New York City. On February 19, 2013, Magistrate Judge Ronald Ellis ruled that Burns and Florentine are protected by the reporter’s privilege. Continue reading

CDAS Client Katherine Applegate Wins Newbery Medal for Outstanding Children’s Book

Our whole firm joins CDAS partner J. Stephen Sheppard in congratulating our client Katherine Applegate on winning the Newbery Medal for her novel “The One and Only Ivan,” published by Katherine Tegen Books, an imprint of HarperCollins Children’s Books. Regarded as one of the most prestigious awards in publishing, the Newbery Medal is awarded annually to the most outstanding children’s book published in the preceding year. Continue reading

Facebook Introduces Graph Search, Privacy Challenges Possible

Facebook recently unveiled “Graph Search,” an innovation designed to help users find and connect their friends by their interests, shared history, and past activity on the social networking platform. The new feature, which will begin beta testing soon, greatly expands the search capabilities of the Facebook platform in a move some commentators speculate may help it compete with Google in the search business area. The Wall Street Journal has a rundown of Graph Search’s functionality here. Continue reading

What 2013 May Ring In For New Copyright Legislation

2012 was a quiet year for any new copyright legislation that could affect those engaged in the creation, production and distribution of entertainment media. With the elections behind us, this could change in 2013. The Copyright Office has indicated that it is interested in tackling several issues that were identified as office priorities in a two-year plan under the new Register of Copyrights, Maria A. Pallante, filed in October 2011. As Co-Chair of the American Bar Association Committee on Copyright Legislation, I have been following these and other legislative issues and will continue to provide updates throughout the year. Continue reading