Bit Parts

Anti-Bootlegging Statute/Constitutionality

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

The Court of Appeal of California, Second Appellate Division, decided that neither a financial backer of the TV show “A. J.'s Time Travelers” nor the broadcaster were liable to the creator of the character Ricky Rocket for allegedly interfering with a settlement agreement between the creator and the developer of “A. J.'s Time Travelers.” Russomanno v. Fox Children's Network, B143105. In the settlement agreement, plaintiff Diane Russomanno had retained exclusive rights in her Ricky Rocket character while Gianni Russo, the developer of “A. J.'s Time Travelers,” had agreed to change elements of the show to less resemble Russomanno's creative elements. In its unpublished opinion, the court of appeal affirmed that Russo's financial backer, Far East Canning Industries, wasn't liable for intentionally interfering with Russo's performance of the settlement agreement because there was no triable issue of material fact that Far East had been actively involved in developing the “Time Travelers” show. The court of appeal also found that Fox wasn't liable for intentional interference with the settlement agreement because, while it had broadcast four episodes of “Time Travelers” with the knowledge that the episodes didn't meet the terms of the settlement agreement, there was no evidence that the network had encouraged Russo to not make changes required by the settlement agreement. Finally, the court held that Russomanno had failed to show that her ideas were protectible trade secrets.

TV Writers/Age Discrimination

The Court of Appeal of California, Second Appellate District, Division Eight, ruled that a class of writers could proceed with their age discrimination claims against TV studios and networks as well as with their aiding and abetting claims against several talent agencies. Alch v. The Superior Court of Los Angeles County, 122 Cal. App. 4th 339. The dismissal of the writers' age discrimination suit in federal court didn't bar an action under the California Fair Employment and Housing Act (FEHA), the court noted. The court also determined that the writers had properly alleged age-discrimination pattern and practice under the FEHA so that they weren't required to plead facts to support individual prima facie cases. Also, writers who didn't apply for writing jobs during the FEHA's one-year statute of limitations, allegedly due to “a longstanding and long-known policy of discrimination against older writers,” weren't barred from pursing their claims.

Anti-Bootlegging Statute/Constitutionality

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

The Court of Appeal of California, Second Appellate Division, decided that neither a financial backer of the TV show “A. J.'s Time Travelers” nor the broadcaster were liable to the creator of the character Ricky Rocket for allegedly interfering with a settlement agreement between the creator and the developer of “A. J.'s Time Travelers.” Russomanno v. Fox Children's Network, B143105. In the settlement agreement, plaintiff Diane Russomanno had retained exclusive rights in her Ricky Rocket character while Gianni Russo, the developer of “A. J.'s Time Travelers,” had agreed to change elements of the show to less resemble Russomanno's creative elements. In its unpublished opinion, the court of appeal affirmed that Russo's financial backer, Far East Canning Industries, wasn't liable for intentionally interfering with Russo's performance of the settlement agreement because there was no triable issue of material fact that Far East had been actively involved in developing the “Time Travelers” show. The court of appeal also found that Fox wasn't liable for intentional interference with the settlement agreement because, while it had broadcast four episodes of “Time Travelers” with the knowledge that the episodes didn't meet the terms of the settlement agreement, there was no evidence that the network had encouraged Russo to not make changes required by the settlement agreement. Finally, the court held that Russomanno had failed to show that her ideas were protectible trade secrets.

TV Writers/Age Discrimination

The Court of Appeal of California, Second Appellate District, Division Eight, ruled that a class of writers could proceed with their age discrimination claims against TV studios and networks as well as with their aiding and abetting claims against several talent agencies. Alch v. The Superior Court of Los Angeles County , 122 Cal. App. 4th 339. The dismissal of the writers' age discrimination suit in federal court didn't bar an action under the California Fair Employment and Housing Act (FEHA), the court noted. The court also determined that the writers had properly alleged age-discrimination pattern and practice under the FEHA so that they weren't required to plead facts to support individual prima facie cases. Also, writers who didn't apply for writing jobs during the FEHA's one-year statute of limitations, allegedly due to “a longstanding and long-known policy of discrimination against older writers,” weren't barred from pursing their claims.