Bit Parts

Defamation/Republication

The U.S. District Court for the Eastern District of Michigan, Southern Division, decided that the release of a film on DVD amounted to republication, rather than continuous publication, of the work for purposes of restarting the statute of limitations for defamation. Nichols v. Moore, 03-74313. The suit was filed against director Michael Moore over comments related to the plaintiff in the film “Bowling for Columbine.” The district court noted that many of the special features on the DVD were produced after the film's theatrical release and that the DVD was intended to reach a new audience. In another defamation case, a Manhattan federal district court ruled that the rebroadcast of a TV show on The Learning Channel constituted a republication for statute of limitations purposes. Lehman v. Discovery Communications Inc., 01 CV 4211. The court noted that “a rebroadcast of a television show is intended to reach a new audience and is therefore an additional communication. A rebroadcast has renewed impact with each viewing and creates a new opportunity for injury, thereby justifying a new cause of action.”

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Implied Contract/Preemption

The U.S. Court of Appeals for the Ninth Circuit decided that a screenwriter's claim for breach of implied contract against a film producer wasn't preempted by the Copyright Act. Grosso v. Miramax Film Corp., 01-57255. Plaintiff Jeff Grosso filed both a breach-of-implied-contract claim under California law and a federal copyright claim alleging that the defendants' film “The Rounders” violated Grosso's rights in his screenplay “The Shell Game.” The appeals court affirmed dismissal of the copyright claim for lack of substantial similarity, but reversed dismissal of the implied-contract claim. According to the court, California recognizes an implied contract where an idea is disclosed to another for sale “under circumstances from which it could be concluded that the offeree voluntarily accepted the disclosure knowing the conditions on which it was tendered and the reasonable value of the work.” This gave Grosso's implied-contract claim the extra element that defeated copyright preemption.

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Record Distribution/ Compulsory Licenses

A Manhattan federal district court decided that a record label's failure to obtain-per a distribution agreement-a compulsory license to use a musical composition justified granting summary judgment for the defendants in a suit by the label against the record distributors. 24/7 Records Inc. v. Sony Music Entertainment Inc., 03 Civ. 3204 (MGC). 24/7 alleged that the defendants failed to distribute its records in good faith, failed to pay royalties and wrongfully charged or overcharged 24/7 for some items. 24/7 Records also alleged that Sony Music tortiously interfered with 24/7's distribution contract with defendant Artemis Records by pressuring Artemis to cease distributing 24/7's cover recording of “The Ketchup Song.” But the court noted, “It is undisputed that 24/7 did not have a negotiated license to use 'The Ketchup Song' composition.”

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Right of Publicity/Copyright

The U.S. Court of Appeals for the Seventh Circuit ruled that a model's claim that a products company used her likeness in connection with packaging and advertising beyond the authorized time, was preempted by the federal Copyright Act. Toney v. L'Oreal U.S.A. Inc., 03-2184. According to the court, “Toney's right of publicity in her likeness in photographic form protected under the IRPA is qualitatively indistinguishable from the rights enumerated in Sec. 106 of the Copyright Act.” …

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Television Shows/Employee Discharge

The Court of Appeal of California, Second Appellate District, Division Seven, has reinstated several causes of action by Holly Hallstrom, who filed suit over her firing as a model on the TV game show “The Price Is Right.” Hallstrom v. Barker, B165008. The court ruled, among other things, in its unpublished opinion that there were triable issues of fact on Hallstrom's claims for age discrimination, slander and libel, and misrepresentations preventing employment. The court also held that Hallstrom should be allowed to amend her cross-complaint to state a claim for retaliation for opposing show host Bob Barker's alleged sexual harassment of another model. However, the court also found that the district court correctly granted summary judgment for the defendants on Hallstom's gender discrimination claim and that an arbitrator had properly dismissed Hallstrom's claim for breach of contract.

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Trademarks/Licensing

A Manhattan federal district court held that DC Comics, which publishes “Superman” comic books, has a protectible trademark in the term “kryptonite.” DC Comics v. Kryptonite Corp., 00 CV 5562 (RO). DC Comics filed suit alleging that the defendant intended to use the term beyond the scope of an agreement to limit use to bicycle locks and accessories and to utilize “krypto” stem words. The case continues, however, including on whether DC Comics breached the licensing agreement regarding limited use.

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Stan Soocher Entertainment Law & Finance [email protected] [email protected]

Defamation/Republication

The U.S. District Court for the Eastern District of Michigan, Southern Division, decided that the release of a film on DVD amounted to republication, rather than continuous publication, of the work for purposes of restarting the statute of limitations for defamation. Nichols v. Moore, 03-74313. The suit was filed against director Michael Moore over comments related to the plaintiff in the film “Bowling for Columbine.” The district court noted that many of the special features on the DVD were produced after the film's theatrical release and that the DVD was intended to reach a new audience. In another defamation case, a Manhattan federal district court ruled that the rebroadcast of a TV show on The Learning Channel constituted a republication for statute of limitations purposes. Lehman v. Discovery Communications Inc ., 01 CV 4211. The court noted that “a rebroadcast of a television show is intended to reach a new audience and is therefore an additional communication. A rebroadcast has renewed impact with each viewing and creates a new opportunity for injury, thereby justifying a new cause of action.”

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Implied Contract/Preemption

The U.S. Court of Appeals for the Ninth Circuit decided that a screenwriter's claim for breach of implied contract against a film producer wasn't preempted by the Copyright Act. Grosso v. Miramax Film Corp., 01-57255. Plaintiff Jeff Grosso filed both a breach-of-implied-contract claim under California law and a federal copyright claim alleging that the defendants' film “The Rounders” violated Grosso's rights in his screenplay “The Shell Game.” The appeals court affirmed dismissal of the copyright claim for lack of substantial similarity, but reversed dismissal of the implied-contract claim. According to the court, California recognizes an implied contract where an idea is disclosed to another for sale “under circumstances from which it could be concluded that the offeree voluntarily accepted the disclosure knowing the conditions on which it was tendered and the reasonable value of the work.” This gave Grosso's implied-contract claim the extra element that defeated copyright preemption.

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Record Distribution/ Compulsory Licenses

A Manhattan federal district court decided that a record label's failure to obtain-per a distribution agreement-a compulsory license to use a musical composition justified granting summary judgment for the defendants in a suit by the label against the record distributors. 24/7 Records Inc. v. Sony Music Entertainment Inc ., 03 Civ. 3204 (MGC). 24/7 alleged that the defendants failed to distribute its records in good faith, failed to pay royalties and wrongfully charged or overcharged 24/7 for some items. 24/7 Records also alleged that Sony Music tortiously interfered with 24/7's distribution contract with defendant Artemis Records by pressuring Artemis to cease distributing 24/7's cover recording of “The Ketchup Song.” But the court noted, “It is undisputed that 24/7 did not have a negotiated license to use 'The Ketchup Song' composition.”

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Right of Publicity/Copyright

The U.S. Court of Appeals for the Seventh Circuit ruled that a model's claim that a products company used her likeness in connection with packaging and advertising beyond the authorized time, was preempted by the federal Copyright Act. Toney v. L'Oreal U.S.A. Inc., 03-2184. According to the court, “Toney's right of publicity in her likeness in photographic form protected under the IRPA is qualitatively indistinguishable from the rights enumerated in Sec. 106 of the Copyright Act.” …

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Television Shows/Employee Discharge

The Court of Appeal of California, Second Appellate District, Division Seven, has reinstated several causes of action by Holly Hallstrom, who filed suit over her firing as a model on the TV game show “The Price Is Right.” Hallstrom v. Barker, B165008. The court ruled, among other things, in its unpublished opinion that there were triable issues of fact on Hallstrom's claims for age discrimination, slander and libel, and misrepresentations preventing employment. The court also held that Hallstrom should be allowed to amend her cross-complaint to state a claim for retaliation for opposing show host Bob Barker's alleged sexual harassment of another model. However, the court also found that the district court correctly granted summary judgment for the defendants on Hallstom's gender discrimination claim and that an arbitrator had properly dismissed Hallstrom's claim for breach of contract.

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Trademarks/Licensing

A Manhattan federal district court held that DC Comics, which publishes “Superman” comic books, has a protectible trademark in the term “kryptonite.” DC Comics v. Kryptonite Corp., 00 CV 5562 (RO). DC Comics filed suit alleging that the defendant intended to use the term beyond the scope of an agreement to limit use to bicycle locks and accessories and to utilize “krypto” stem words. The case continues, however, including on whether DC Comics breached the licensing agreement regarding limited use.

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Stan Soocher Entertainment Law & Finance [email protected] [email protected]