Bit Parts

The New York Appellate Division, First Department, affirmed dismissal of a suit by a librarian allegedly depicted in the best-selling book “Primary Colors: A Novel of Politics.” The plaintiff claimed that the book, admittedly based on actual people, should be examined as a non-fiction work. But the court of appeal responded: “Although the book was inspired by real-life personalities and events, it was still fiction, and must be analyzed as such in this libel suit. … We find that the Supreme Court [ie, the New York trial court] properly deemed any purported similarities to be superficial in its appropriate role to determine whether a complaint sufficiently alleges that a fictional character refers to the plaintiff.” Carter-Clark v. Random House Inc., 5891. The court of appeal added: “[T]he [trial] court properly dismissed plaintiff's claim of negligence against Random House, since, in dealing with a work of fiction, the publisher was not obligated to take any greater steps than it did.”

Concert DVDS/'Secret Videotaping'

The Court of Appeals of Michigan upheld the dismissal of all but one claim by Detroit city officials over an alleged secret videotaping of them engaged in a heated discussion backstage with tour representatives at a rap concert that featured Dr. Dre, Snoop Dogg and Eminem. The video, taped by “aiding” tour defendants, had been included in a DVD of the concert. In its unpublished opinion, the court of appeals noted in part, “Nowhere in the complaint do plaintiffs provide any facts to support the allegation that the disclosing defendants [ie, the distributor and retailer defendants] did or should have had a reasonable belief that the video was produced without the consent of some of the participants.” Bowens v. Aftermath Entertainment, 250984. But regarding the plaintiffs' eavesdropping claim against the “aiding” defendants, the court of appeals concluded that “based upon the footage contained within the DVD, further discovery may reveal relevant, material evidence. … [F]rom a review of the cassette submitted to the trial court, it is not at all clear that plaintiffs were aware that the meetings were being taped.”

Digital Millennium Copyright Act/Notice and Takedown Procedures