Cameo Clips

Copyright Jurisdiction/ Television Licenses

The issue of whether a TV programming license was properly terminated is to be decided by a state, rather than a federal, court, the U.S. Court of Appeals for the Ninth Circuit decided. Scholastic Entertainment Inc. v. Fox Entertainment Group Inc., 02-55667. Scholastic had agreed to license the exhibition and distribution rights to its “Goosebumps” series to Fox Children's Network for 15 years. Scholastic sued Fox in California state court after learning that “Goosebumps” was being aired on the Fox Family Channel. (Fox Broadcasting claimed that it was an exhibition, rather than a distribution for which Scholastic would be paid additional licensing fees.) During discovery, Scholastic found out that Fox had granted the Fox Family Channel an irrevocable license to air “Goosebumps.” Scholastic then sent Fox a letter of termination and filed suit in federal court. The district court ruled that the issue of whether the contract had been terminated was one for state court. (Scholastic did not appeal this ruling.) But the district court issued a preliminary injunction in favor of Fox on the network's counterclaim that its agreement with Scholastic was still in effect, before later sua sponte (ie, on the court's own accord) dismissing Fox's counterclaims for lack of subject matter jurisdiction. Affirming, the appeals court noted, “Because Scholastic has stipulated that it will not relicense the Goosebumps series until a determination is made as to the status of the agreement, however, Scholastic cannot be guilty of copyright infringement. Therefore, this case hinges entirely on whether Scholastic's attempt to terminate the agreement was successful. … Scholastic's success in terminating the agreement is a pure question of state contract law appropriate for adjudication in the California courts.” (The Los Angeles Superior Court ruled in June that the licensing agreement didn't limit exhibitions to Fox Children's Network. Scholastic Entertainment Inc. v. Fox Entertainment Group, BC247349.)

Right of Publicity/First Amendment

Former hockey player Tony Twist presented sufficient evidence that his name and identity were used to create a fictional “Tony Twist” enforcer character in the “Spawn” comic books, the Supreme Court of Missouri held. Doe v. TCI Cablevision, SC84856. (A jury awarded $24.5 million to the plaintiff; the circuit court granted a judgment notwithstanding the verdict in favor of the defendants.) The supreme court also ruled that Twist presented evidence sufficient to establish that the defendants intended to gain commercially by using his name. In considering the defendants' First Amendment rights, the court criticized the Restatement (Third) of Unfair Competition “relatedness” test and California's recent use of a “transformative test” in right of publicity cases as providing no balancing (“once the use is determined to be expressive, it is protected”). The supreme court then found that “respondents agree (perhaps to avoid a defamation claim) that the use was not a parody or other expressive comment or a fictionalized account of the real Twist. As such, the metaphorical reference to Twist, though a literary device, has very little literary value compared to its commercial value. … [Under] these circumstances, free speech must give way to the right of publicity.” However, the court remanded the case for a new trial due to an error in the jury instructions that allowed a verdict “that could have been based on the mere incidental result of the use rather than the intentional result.”

Copyright Jurisdiction/ Television Licenses

The issue of whether a TV programming license was properly terminated is to be decided by a state, rather than a federal, court, the U.S. Court of Appeals for the Ninth Circuit decided. Scholastic Entertainment Inc. v. Fox Entertainment Group Inc., 02-55667. Scholastic had agreed to license the exhibition and distribution rights to its “Goosebumps” series to Fox Children's Network for 15 years. Scholastic sued Fox in California state court after learning that “Goosebumps” was being aired on the Fox Family Channel. (Fox Broadcasting claimed that it was an exhibition, rather than a distribution for which Scholastic would be paid additional licensing fees.) During discovery, Scholastic found out that Fox had granted the Fox Family Channel an irrevocable license to air “Goosebumps.” Scholastic then sent Fox a letter of termination and filed suit in federal court. The district court ruled that the issue of whether the contract had been terminated was one for state court. (Scholastic did not appeal this ruling.) But the district court issued a preliminary injunction in favor of Fox on the network's counterclaim that its agreement with Scholastic was still in effect, before later sua sponte (ie, on the court's own accord) dismissing Fox's counterclaims for lack of subject matter jurisdiction. Affirming, the appeals court noted, “Because Scholastic has stipulated that it will not relicense the Goosebumps series until a determination is made as to the status of the agreement, however, Scholastic cannot be guilty of copyright infringement. Therefore, this case hinges entirely on whether Scholastic's attempt to terminate the agreement was successful. … Scholastic's success in terminating the agreement is a pure question of state contract law appropriate for adjudication in the California courts.” (The Los Angeles Superior Court ruled in June that the licensing agreement didn't limit exhibitions to Fox Children's Network. Scholastic Entertainment Inc. v. Fox Entertainment Group, BC247349.)

Right of Publicity/First Amendment

Former hockey player Tony Twist presented sufficient evidence that his name and identity were used to create a fictional “Tony Twist” enforcer character in the “Spawn” comic books, the Supreme Court of Missouri held. Doe v. TCI Cablevision, SC84856. (A jury awarded $24.5 million to the plaintiff; the circuit court granted a judgment notwithstanding the verdict in favor of the defendants.) The supreme court also ruled that Twist presented evidence sufficient to establish that the defendants intended to gain commercially by using his name. In considering the defendants' First Amendment rights, the court criticized the Restatement (Third) of Unfair Competition “relatedness” test and California's recent use of a “transformative test” in right of publicity cases as providing no balancing (“once the use is determined to be expressive, it is protected”). The supreme court then found that “respondents agree (perhaps to avoid a defamation claim) that the use was not a parody or other expressive comment or a fictionalized account of the real Twist. As such, the metaphorical reference to Twist, though a literary device, has very little literary value compared to its commercial value. … [Under] these circumstances, free speech must give way to the right of publicity.” However, the court remanded the case for a new trial due to an error in the jury instructions that allowed a verdict “that could have been based on the mere incidental result of the use rather than the intentional result.”