Bit Parts

Actors/Disability

The U.S. Court of Appeals for the Fourth Circuit held that an actress who suffered from post-traumatic stress disorder and severe depression wasn't disabled within the meaning of the Americans with Disabilities Act. Rohan v. Networks Presentations LLC, 03-1637. Affirming on its own grounds, the Fourth Circuit determined that actress Tess Rohan, who had been appearing in a tour production of the musical “Jekyll & Hyde,” had failed to establish that her struggles with social interaction were “sufficiently severe” to show a substantial limitation under 42 U.S.C. Sec. 12102(2)(A). The appeals court also concluded that Rohan failed to establish that the production company had regarded her as substantially limited, as required by 42 U.S.C. Sec. 12102(2)(C).

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Internet/File-Sharing

The U.S. District Court for the Northern District of California refused to dismiss a suit by record labels and publishers against Bertelsmann AG and the investment firm Hummer Winblad for investments made when Napster was a file-sharing service that offered unauthorized downloads of sound recordings. UMG Recordings Inc. v. Bertelsmann AG, C 04-1351 MHP. The complaint alleges vicarious and contributory copyright infringement by the defendants by providing funding that permitted Napster to continue its business. The district court noted that the plaintiffs have “stated a claim that Bertelsmann and Hummer Winblad ' as entities exercising full control over Napster's operations ' were directly responsible for the infringing activity perpetrated by Napster's online users; more than merely knowing of and contributing to the infringing activity, they are alleged to have specifically ordered that such activity take place. … [A]t this stage the court need not pass upon the question of whether mere financial support of a contributing and vicarious infringer such as Napster ' without more direct involvement ' would give rise to a claim for contributory or vicarious infringement against the party providing the funding. Plaintiffs' far more extensive allegations suffice to defeat defendants' motions to dismiss.”

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Misappropriation/RICO Claim

The U.S. Court of Appeals for the Second Circuit decided in an unpublished opinion that alleged misappropriation of creative works wasn't a predicate act for purposes of establishing a civil claim under the Racketeering Influenced and Corrupt Organizations Act. Terrell v. Eisner, 03-9021. The plaintiffs claimed that former Creative Artists Agency chairman Michael Ovitz had used their film and TV proposals as leverage to become president of The Walt Disney Co. and that the plaintiff's proposals were used for Disney films.

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Right of Publicity/Personal Jurisdiction

The U.S. Court of Appeals for the Ninth Circuit ruled that Arnold Schwarzenegger failed to establish personal jurisdiction in California over an Ohio car dealer who utilized without permission an image of the actor as the “Terminator” in advertisements in Ohio. Schwarzenegger v. Fred Martin Motor Co., 02-56937. Affirming, the appeals court noted that for purposes of general jurisdiction, it wasn't enough that the defendant purchased cars imported through California, entered into supply contracts with California choice-of-law provisions, retained a California-based marketing firm and maintained a Web site accessible from California. For purposes of specific jurisdiction, the court noted that the defendant had aimed his ads at Ohio, rather than California.

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Trademarks/Injunctive Relief

The U.S. Court of Appeals for the Ninth Circuit affirmed a denial of a preliminary injunction to bar the cable network ESPN from using the name “Playmakers” for a program series. Playmakers LLC v. ESPN Inc., 04-35031. The plaintiff, which owned registered “Playmakers” trademarks for its sports agency, filed suit in federal court in Washington state after ESPN began airing a gritty series with the same name. In its affirmance, the appeals court noted that tarnishment couldn't be used as a factor in determining the likelihood of consumer confusion. The appeals court then concluded that “despite the marks' similarities, the commonness of the term “playmaker,” the remoteness of the parties' lines of business, the differences in their choices of marketing channels, and the degree of care professional and aspiring professional athletes are likely to exercise before choosing an agent strongly suggest that LLC's prospective clients are not likely to be confused.”

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TV Writers/Discrimination

The U.S. Court of Appeals for the Ninth Circuit decided that a plaintiff failed to establish that an affirmative action trainee program that the Writers Guild of America, West, Inc., negotiated at CBS discriminated against Hispanic writers. Chinea-Varela v. CBS Broadcasting Inc., 03-55106. The appeals court stated in its unpublished opinion that the plaintiff, Migdia Chinea-Varela, “entirely failed to demonstrate how the program had a disparate impact on Hispanic scriptwriters, or how it resulted in Varela's being discriminated against in consideration for regular staff writing positions at CBS.”

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Stan Soocher Entertainment Law & Finance [email protected] www.theyfoughtthelaw.com

Actors/Disability

The U.S. Court of Appeals for the Fourth Circuit held that an actress who suffered from post-traumatic stress disorder and severe depression wasn't disabled within the meaning of the Americans with Disabilities Act. Rohan v. Networks Presentations LLC, 03-1637. Affirming on its own grounds, the Fourth Circuit determined that actress Tess Rohan, who had been appearing in a tour production of the musical “Jekyll & Hyde,” had failed to establish that her struggles with social interaction were “sufficiently severe” to show a substantial limitation under 42 U.S.C. Sec. 12102(2)(A). The appeals court also concluded that Rohan failed to establish that the production company had regarded her as substantially limited, as required by 42 U.S.C. Sec. 12102(2)(C).

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Internet/File-Sharing

The U.S. District Court for the Northern District of California refused to dismiss a suit by record labels and publishers against Bertelsmann AG and the investment firm Hummer Winblad for investments made when Napster was a file-sharing service that offered unauthorized downloads of sound recordings. UMG Recordings Inc. v. Bertelsmann AG, C 04-1351 MHP. The complaint alleges vicarious and contributory copyright infringement by the defendants by providing funding that permitted Napster to continue its business. The district court noted that the plaintiffs have “stated a claim that Bertelsmann and Hummer Winblad ' as entities exercising full control over Napster's operations ' were directly responsible for the infringing activity perpetrated by Napster's online users; more than merely knowing of and contributing to the infringing activity, they are alleged to have specifically ordered that such activity take place. … [A]t this stage the court need not pass upon the question of whether mere financial support of a contributing and vicarious infringer such as Napster ' without more direct involvement ' would give rise to a claim for contributory or vicarious infringement against the party providing the funding. Plaintiffs' far more extensive allegations suffice to defeat defendants' motions to dismiss.”

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Misappropriation/RICO Claim

The U.S. Court of Appeals for the Second Circuit decided in an unpublished opinion that alleged misappropriation of creative works wasn't a predicate act for purposes of establishing a civil claim under the Racketeering Influenced and Corrupt Organizations Act. Terrell v. Eisner, 03-9021. The plaintiffs claimed that former Creative Artists Agency chairman Michael Ovitz had used their film and TV proposals as leverage to become president of The Walt Disney Co. and that the plaintiff's proposals were used for Disney films.

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Right of Publicity/Personal Jurisdiction

The U.S. Court of Appeals for the Ninth Circuit ruled that Arnold Schwarzenegger failed to establish personal jurisdiction in California over an Ohio car dealer who utilized without permission an image of the actor as the “Terminator” in advertisements in Ohio. Schwarzenegger v. Fred Martin Motor Co., 02-56937. Affirming, the appeals court noted that for purposes of general jurisdiction, it wasn't enough that the defendant purchased cars imported through California, entered into supply contracts with California choice-of-law provisions, retained a California-based marketing firm and maintained a Web site accessible from California. For purposes of specific jurisdiction, the court noted that the defendant had aimed his ads at Ohio, rather than California.

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Trademarks/Injunctive Relief

The U.S. Court of Appeals for the Ninth Circuit affirmed a denial of a preliminary injunction to bar the cable network ESPN from using the name “Playmakers” for a program series. Playmakers LLC v. ESPN Inc ., 04-35031. The plaintiff, which owned registered “Playmakers” trademarks for its sports agency, filed suit in federal court in Washington state after ESPN began airing a gritty series with the same name. In its affirmance, the appeals court noted that tarnishment couldn't be used as a factor in determining the likelihood of consumer confusion. The appeals court then concluded that “despite the marks' similarities, the commonness of the term “playmaker,” the remoteness of the parties' lines of business, the differences in their choices of marketing channels, and the degree of care professional and aspiring professional athletes are likely to exercise before choosing an agent strongly suggest that LLC's prospective clients are not likely to be confused.”

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TV Writers/Discrimination

The U.S. Court of Appeals for the Ninth Circuit decided that a plaintiff failed to establish that an affirmative action trainee program that the Writers Guild of America, West, Inc., negotiated at CBS discriminated against Hispanic writers. Chinea-Varela v. CBS Broadcasting Inc ., 03-55106. The appeals court stated in its unpublished opinion that the plaintiff, Migdia Chinea-Varela, “entirely failed to demonstrate how the program had a disparate impact on Hispanic scriptwriters, or how it resulted in Varela's being discriminated against in consideration for regular staff writing positions at CBS.”

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Stan Soocher Entertainment Law & Finance [email protected] www.theyfoughtthelaw.com