Bit Parts

A Manhattan federal court found the federal anti-bootlegging statute, 18 U.S.C. Sec. 2319A, to be unconstitutional. U.S. v. Martignon, 03 Cr. 1287 (HB). The court first found that the wording of the statute and its legislative history demonstrated that the act was an exercise of Congress' authority under the Copyright Clause. But while what amounts to a copyright “writing” has expanded, the court noted that a writing has never included an unfixed work. In addition, the court stated: “It is undeniable that the anti-bootlegging statute grants seemingly perpetual protection to live musical performances, and therefore would run afoul of the Copyright Clause.”

The U.S. District Court for the Northern District of Illinois, Eastern Division, held that right of publicity claims by individuals whose photographs were used without their permission weren't preempted by the federal Copyright Act. Leto v. RCA Corp., 04 C 4514. The defendants had used a photograph of the plaintiffs at an amusement park on packaging for TV sets. After the plaintiffs filed suit in state court under the Illinois Right of Publicity Act and for common law misappropriation of name or likeness, the defendants had the case removed to federal court. Remanding, the federal district court emphasized “Defendants have not evidenced that the photographs were taken 'by or under the authority' of the plaintiffs and, therefore, we cannot find that the works which plaintiffs seek to protect – their personas ' are 'fixed' and copyrightable.” The district court subsequently denied the defendants' motion for reconsideration.

Trademark Claims/Insurance Indemnification

The U.S. District Court for the District of Oregon decided that, under an insurance policy, an insurer had a duty to defend an insured video company from a trademark dilution claim over video packaging. American States Insurance Co. v. Dastar Corp., 00-6058-HO. The underlying lawsuit for which Dastar Corp., the insured, sought indemnification alleged that Dastar had improperly sold Twentieth Century Fox's “Crusade in Europe” documentary series under the title “Campaigns in Europe.” The federal district court noted, “Although no claim in the amended complaint in the underlying action is captioned misappropriation or trademark infringement, the policy includes misappropriation of advertising ideas and style of doing business within the definition of advertising injury. … This court believes Oregon's courts would follow the majority rule that trademark infringement falls within misappropriation [insurance] coverage.”

TV Series/Tortious Interference