Cameo Clips

The owners of the song 'On the Good Ship Lollipop' weren't entitled to a preliminary injunction to bar The Walt Disney Co. from including in a videocassette of the film 'The Princess Diaries' a trailer that contained 'On the Good Ship Lollipop' to promote a TV movie about Shirley Temple, a Manhattan federal court has ruled in an unpublished opinion. Bourne v. The Walt Disney Co., 02-6400. The synchronization license the song copyright owners gave Disney allowed use of 'On the Good Ship Lollipop' in the TV movie 'Child Star ' the Shirley Temple Story' and in videocassettes and DVDs of the full TV movie. When the song owners sued Disney for copyright infringement, Disney argued, among other things, that the plaintiffs delayed filing suit, thus rebutting the presumption of irreparable harm. The district court noted, however, 'it appears that Plaintiffs complained of the use of the Song in the trailer promptly after they discovered Disney's unauthorized use of the Song. Thus, there is no basis for an inference that Plaintiffs believed Disney had a right to use the Song in the video trailers and later sued only to gain commercial advantage or for other reasons warranting an adverse inference.' But the court went on to rule that injunctive relief wasn't warranted 'because Disney's uncontroverted evidence proffered in opposition to this motion is sufficient to establish that it has agreed to cease distribution of the offending material and has taken appropriate steps to effect that cessation.'

Orchestras/Musicians

Musicians were independent contractors, rather than employees, of the orchestra in which they played, the U.S. Court of Appeals for the Eighth Circuit has decided. Lerohl v. Friends of Minnesota Sinfonia, 02-1433. A clarinetist and French Horn player sued the Sinfonia claiming that they had been fired in violation of Title VII and of the Americans with Disabilities Act. The district court dismissed the complaints on the ground that the federal statutes didn't apply because the plaintiffs were independent contractors. On appeal, the plaintiffs argued that they were employees within the meaning of the U.S. Supreme Court's ruling in Community for Creative Non-Violence v. Reid, 490 U.S. 730, 109 S. Ct. 2166 (1989) because Sinfonia's conductor controlled rehearsals and concerts. But the appeals court noted that no one factor was determinative. Rather, all aspects of the musicians' relationships to the orchestra had to be considered. The appeals court then determined, 'Like the sculptor in Reid, Sinfonia musicians ' are highly skilled professionals who own their own instruments and need no on-the-job training other than rehearsals to perform in a variety of musical settings. Obviously, professional musicians have the option of becoming employees of a particular band or orchestra. ' But other musicians may prefer to remain 'free-lance,' committing themselves fully to no client and retaining the discretion to pick and choose among available engagements, much like lawyers, accountants, and business consultants who choose private practice instead of 'in-house' employment. ' Our cases applying the common-law agency test have recognized this freedom-of-choice principle in determining whether a skilled professional was an employee or an independent contractor in a particular case. In our view, this is the relevant control issue, not whether [the conductor] could tell [the plaintiffs] where to sit and when to play during a concert or a rehearsal. Thus, the 'key distinction' is whether Sinfonia musicians retained the discretion to decline particular Sinfonia concerts and play elsewhere.' The court added that there was no question that the plaintiffs had retained the discretion to perform for entities other than the Sinfonia and to accept or reject playing at any particular Sinfonia events.

Screenplays/Arbitration

A screenplay writer failed to establish grounds for vacating an arbitrator's ruling against him over an alleged breach of a settlement agreement by Universal Pictures, the Court of Appeal of California, Second Appellate District, has decided in an unpublished opinion. Jackson v. Universal Pictures, B153210. Carlos Jackson had sued Universal claiming infringement of his screenplay 'Agent 008.' The case was settled with a settlement agreement that gave Jackson $30,000, plus a contingent bonus of $250,000 if principal photography began on a film based on the screenplay starring Chris Tucker or if Jackson received authorship credit from the Writer's Guild of America. Jackson later sued Universal in L.A. Superior Court alleging that the defendants breached both the written settlement by failing to pay him the production bonus upon the start of principal photography of the film 'Double-O-Soul' and an oral agreement made contemporaneously with the written settlement to introduce Jackson to influential individuals and help him develop his screenplays. The case was submitted to an arbitrator who held that the oral breach claim was barred under the parol evidence rule because the written settlement contained an integration clause. The arbitrator also found that principal photography hadn't begun. In upholding the arbitrator's ruling, the Court of Appeal noted in part that the exclusion of the deposition of Universal chairperson Stacey Snider from the arbitration proceeding hadn't substantially prejudiced Jackson because it was the studio's executive vice president of production, rather than Snider, who had actual knowledge whether principal photography had begun.

Concerts/DVDs

Conversations between Detroit officials who met with artist and concert representatives prior to a show at Joe Louis Arena constituted 'oral communications' within the meaning of the Federal Wiretap Act, the U.S. District Court for the Eastern District of Michigan has held. Bowens v. Aftermath Entertainment, 02-40170. The meeting had been held to discuss city concerns over allegedly obscene material in a video to be played before the concert, which featured rap artists Dr. Dre, Snoop Dogg, Ice Cube and Eminem. The mayor's press secretary had asked that the meeting be private, but tour representatives taped the conversation with hidden audio and video equipment. The city officials filed suit over release of the conversation tapes in a DVD of the concert. The defendants moved to dismiss, but the district court noted that 'it appears from Plaintiffs' allegations that Defendants agreed to a private conversation with Plaintiffs, only City Officials and Tour Representatives were present in the meeting room, and the public was excluded. These circumstances constitute facts sufficient to establish that Plaintiffs had an objectively reasonable expectation that their conversations with Tour Representatives would be free from interception.' The defendants argued that the one-party consent exception to the Federal Wiretap Act applied because, as meeting participants, they had allowed the recordings to be made. But the court found that the exception didn't apply because the defendants had acted with a tortuous purpose by recording the meeting in order to misappropriate the plaintiffs' likenesses.

Musical Compositions/Synchronization Licenses

The owners of the song 'On the Good Ship Lollipop' weren't entitled to a preliminary injunction to bar The Walt Disney Co. from including in a videocassette of the film 'The Princess Diaries' a trailer that contained 'On the Good Ship Lollipop' to promote a TV movie about Shirley Temple, a Manhattan federal court has ruled in an unpublished opinion. Bourne v. The Walt Disney Co., 02-6400. The synchronization license the song copyright owners gave Disney allowed use of 'On the Good Ship Lollipop' in the TV movie 'Child Star ' the Shirley Temple Story' and in videocassettes and DVDs of the full TV movie. When the song owners sued Disney for copyright infringement, Disney argued, among other things, that the plaintiffs delayed filing suit, thus rebutting the presumption of irreparable harm. The district court noted, however, 'it appears that Plaintiffs complained of the use of the Song in the trailer promptly after they discovered Disney's unauthorized use of the Song. Thus, there is no basis for an inference that Plaintiffs believed Disney had a right to use the Song in the video trailers and later sued only to gain commercial advantage or for other reasons warranting an adverse inference.' But the court went on to rule that injunctive relief wasn't warranted 'because Disney's uncontroverted evidence proffered in opposition to this motion is sufficient to establish that it has agreed to cease distribution of the offending material and has taken appropriate steps to effect that cessation.'

Orchestras/Musicians

Musicians were independent contractors, rather than employees, of the orchestra in which they played, the U.S. Court of Appeals for the Eighth Circuit has decided. Lerohl v. Friends of Minnesota Sinfonia, 02-1433. A clarinetist and French Horn player sued the Sinfonia claiming that they had been fired in violation of Title VII and of the Americans with Disabilities Act. The district court dismissed the complaints on the ground that the federal statutes didn't apply because the plaintiffs were independent contractors. On appeal, the plaintiffs argued that they were employees within the meaning of the U.S. Supreme Court's ruling in Community for Creative Non-Violence v. Reid , 490 U.S. 730, 109 S. Ct. 2166 (1989) because Sinfonia's conductor controlled rehearsals and concerts. But the appeals court noted that no one factor was determinative. Rather, all aspects of the musicians' relationships to the orchestra had to be considered. The appeals court then determined, 'Like the sculptor in Reid, Sinfonia musicians ' are highly skilled professionals who own their own instruments and need no on-the-job training other than rehearsals to perform in a variety of musical settings. Obviously, professional musicians have the option of becoming employees of a particular band or orchestra. ' But other musicians may prefer to remain 'free-lance,' committing themselves fully to no client and retaining the discretion to pick and choose among available engagements, much like lawyers, accountants, and business consultants who choose private practice instead of 'in-house' employment. ' Our cases applying the common-law agency test have recognized this freedom-of-choice principle in determining whether a skilled professional was an employee or an independent contractor in a particular case. In our view, this is the relevant control issue, not whether [the conductor] could tell [the plaintiffs] where to sit and when to play during a concert or a rehearsal. Thus, the 'key distinction' is whether Sinfonia musicians retained the discretion to decline particular Sinfonia concerts and play elsewhere.' The court added that there was no question that the plaintiffs had retained the discretion to perform for entities other than the Sinfonia and to accept or reject playing at any particular Sinfonia events.

Screenplays/Arbitration

A screenplay writer failed to establish grounds for vacating an arbitrator's ruling against him over an alleged breach of a settlement agreement by Universal Pictures, the Court of Appeal of California, Second Appellate District, has decided in an unpublished opinion. Jackson v. Universal Pictures, B153210. Carlos Jackson had sued Universal claiming infringement of his screenplay 'Agent 008.' The case was settled with a settlement agreement that gave Jackson $30,000, plus a contingent bonus of $250,000 if principal photography began on a film based on the screenplay starring Chris Tucker or if Jackson received authorship credit from the Writer's Guild of America. Jackson later sued Universal in L.A. Superior Court alleging that the defendants breached both the written settlement by failing to pay him the production bonus upon the start of principal photography of the film 'Double-O-Soul' and an oral agreement made contemporaneously with the written settlement to introduce Jackson to influential individuals and help him develop his screenplays. The case was submitted to an arbitrator who held that the oral breach claim was barred under the parol evidence rule because the written settlement contained an integration clause. The arbitrator also found that principal photography hadn't begun. In upholding the arbitrator's ruling, the Court of Appeal noted in part that the exclusion of the deposition of Universal chairperson Stacey Snider from the arbitration proceeding hadn't substantially prejudiced Jackson because it was the studio's executive vice president of production, rather than Snider, who had actual knowledge whether principal photography had begun. The Walt Disney Co. The Walt Disney Co. U.S. Supreme Court's ruling in Community for Creative Non-Violence v. Reid, 490 U.S. 730, 109 S. Ct. 2166 (1989)