Cameo Clips

Copyright Infringement/Right To File Suit

A scriptwriter without a legal or beneficial copyright interest who obtained an assignment of a claim for infringement of the script couldn't file an infringement suit, the U.S. Court of Appeals for the Ninth Circuit decided in an en banc ruling. Silvers v. Sony Pictures Entertainment Inc., 01-56069. Nancey Silvers wrote the script for the made-for-TV movie “The Other Woman” as a work for hire for Frank & Bob Films. She later received an assignment from the production company of the right to sue Sony Pictures Entertainment and related entities for alleged copyright infringement by the defendants' film “Stepmom.” Both the district court and the Ninth Circuit denied the defendants' motion to dismiss. But looking at Sec. 501(b) of the Copyright Act of 1976, which gives legal or beneficial owners the right to file an infringement suit, the appeals court stated in its en banc ruling that “under traditional principles of statutory interpretation, Congress' explicit listing of who may sue for copyright infringement should be understood as an exclusion of others from suing for infringement.”

Then examining the legislative history of the 1976 Act, the appeals court emphasized that: “Congress wanted to ensure that an owner of any exclusive right in the copyright was entitled to bring a suit for infringement. Congress foresaw a permissible division of exclusive rights [eg, to distribute and to create derivative works]; the owner of any one of those exclusive rights may sue, with other owners being entitled to notice and joinder. … Although Congress allowed for divisibility of ownership interests under a copyright, it did not alter the requirement that only owners of an exclusive right in the copyright could bring suit.” The Ninth Circuit also relied on the Second Circuit's decision in Eden Toys Inc. v. Florelee Undergarment Co., 697 F.2d 27 (2d Cir. 1982), which embraced the exclusive-right prerequisite. Also, comparing copyright law to patent law, the appeals court noted that under U.S. Supreme Court precedent, only a holder of substantive patent rights holder can file suit.

A trial court ruling that an insurance company breached its duty to defend a lawsuit filed against the insured band Third Eye Blind didn't bar the band's negligence claim against the band's insurance broker and business manager, the Court of Appeal of California, First Appellate District, Division Three decided. Third Eye Blind Inc. v. Near North Entertainment Insurance Services LLC, 127 Cal. App. 4th 1311. Provident Financial Management, Third Eye Blind's business manager, and Near North, the band's insurance broker, obtained a commercial general liability policy for Third Eye Blind from the North American Specialty Insurance Co. (NAS). But Provident and Near North failed to inform the band of coverage exclusions under a “Field of Entertainment Limitation Endorsement” (FELE). Third Eye Blind member Kevin Cadogan subsequently sued the band after he was fired. NAS then refused to defend the band against Cadogan's suit based on FELE exclusions for trademark and right of publicity claims. After settling with Cadogan at a cost to the band of more than $3 million, including the band's legal fees and costs, Third Eye Blind sued Provident, Near North and NAS. The trial court granted summary judgment in favor of the band on the duty-to-defend claim against NAS, then ruled that Third Eye Blind's negligence claims against Provident and Near North thus were barred.

Reversing, the court of appeal noted: “[A]ppellants [Third Eye Blind] here allege the respondents' negligence caused them to have to spend large sums in suing their insurer for coverage. Had they been properly advised about the FELE in the NAS policy, appellants allege they would have obtained errors and omissions insurance. There is no dispute an errors and omissions policy would have provided clear coverage for the Cadogan suit, thus appellants would have had no need to sue NAS and no need to defend themselves in Cadogan. Since the very purpose of respondents' hiring was to ensure appellants had adequate insurance coverage, such coverage litigation was a foreseeable result of their alleged negligence in fulfilling this purpose. … In short, the complaint properly alleges multiple causes of appellants' losses.”

Copyright Infringement/Right To File Suit

A scriptwriter without a legal or beneficial copyright interest who obtained an assignment of a claim for infringement of the script couldn't file an infringement suit, the U.S. Court of Appeals for the Ninth Circuit decided in an en banc ruling. Silvers v. Sony Pictures Entertainment Inc., 01-56069. Nancey Silvers wrote the script for the made-for-TV movie “The Other Woman” as a work for hire for Frank & Bob Films. She later received an assignment from the production company of the right to sue Sony Pictures Entertainment and related entities for alleged copyright infringement by the defendants' film “Stepmom.” Both the district court and the Ninth Circuit denied the defendants' motion to dismiss. But looking at Sec. 501(b) of the Copyright Act of 1976, which gives legal or beneficial owners the right to file an infringement suit, the appeals court stated in its en banc ruling that “under traditional principles of statutory interpretation, Congress' explicit listing of who may sue for copyright infringement should be understood as an exclusion of others from suing for infringement.”

Then examining the legislative history of the 1976 Act, the appeals court emphasized that: “Congress wanted to ensure that an owner of any exclusive right in the copyright was entitled to bring a suit for infringement. Congress foresaw a permissible division of exclusive rights [eg, to distribute and to create derivative works]; the owner of any one of those exclusive rights may sue, with other owners being entitled to notice and joinder. … Although Congress allowed for divisibility of ownership interests under a copyright, it did not alter the requirement that only owners of an exclusive right in the copyright could bring suit.” The Ninth Circuit also relied on the Second Circuit's decision in Eden Toys Inc. v. Florelee Undergarment Co. , 697 F.2d 27 (2d Cir. 1982), which embraced the exclusive-right prerequisite. Also, comparing copyright law to patent law, the appeals court noted that under U.S. Supreme Court precedent, only a holder of substantive patent rights holder can file suit.

A trial court ruling that an insurance company breached its duty to defend a lawsuit filed against the insured band Third Eye Blind didn't bar the band's negligence claim against the band's insurance broker and business manager, the Court of Appeal of California, First Appellate District, Division Three decided. Third Eye Blind Inc. v. Near North Entertainment Insurance Services LLC , 127 Cal. App. 4th 1311. Provident Financial Management, Third Eye Blind's business manager, and Near North, the band's insurance broker, obtained a commercial general liability policy for Third Eye Blind from the North American Specialty Insurance Co. (NAS). But Provident and Near North failed to inform the band of coverage exclusions under a “Field of Entertainment Limitation Endorsement” (FELE). Third Eye Blind member Kevin Cadogan subsequently sued the band after he was fired. NAS then refused to defend the band against Cadogan's suit based on FELE exclusions for trademark and right of publicity claims. After settling with Cadogan at a cost to the band of more than $3 million, including the band's legal fees and costs, Third Eye Blind sued Provident, Near North and NAS. The trial court granted summary judgment in favor of the band on the duty-to-defend claim against NAS, then ruled that Third Eye Blind's negligence claims against Provident and Near North thus were barred.

Reversing, the court of appeal noted: “[A]ppellants [Third Eye Blind] here allege the respondents' negligence caused them to have to spend large sums in suing their insurer for coverage. Had they been properly advised about the FELE in the NAS policy, appellants allege they would have obtained errors and omissions insurance. There is no dispute an errors and omissions policy would have provided clear coverage for the Cadogan suit, thus appellants would have had no need to sue NAS and no need to defend themselves in Cadogan. Since the very purpose of respondents' hiring was to ensure appellants had adequate insurance coverage, such coverage litigation was a foreseeable result of their alleged negligence in fulfilling this purpose. … In short, the complaint properly alleges multiple causes of appellants' losses.”