Bit Parts

Book Publishing/Libel and Negligence

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 In its unpublished opinion, the court of appeals noted in part, “Nowhere in the complaint do plaintiffs provide any facts to support the allegation that the disclosing defendants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

The U.S. Supreme Court denied a petition for writ of certiorari to a federal appeals court ruling that the Motion Picture Association of America (MPAA) acted in other than good faith in informing an Internet service provider (ISP) under the “notice and takedown” procedures of the Digital Millennium Copyright Act (DMCA), 17 U.S.C. Sec. 512, that a Web site operator was allegedly infringing on film copyrights. The U.S. Court of Appeals for the Ninth Circuit had concluded that the good-faith belief of Sec. 512(c)(3)(A)(v) is a subjective, rather than objective, test. Rossi v. Motion Picture Association of America Inc., 04-1166.

Film Clips/Copyright Fair Use

A Manhattan federal district court ruled that displaying brief, unlicensed clips of the plaintiff's science fiction films in a “Good Morning America” segment on how space aliens have been portrayed in American films was a fair use. The district court noted that there was “no issue of fact as to whether ABC's use of plaintiff's films was a fair use. The segment was a transformative work that commented on and criticized plaintiff's films in the context of their genre. [Film critic Joel] Siegel used short clips of plaintiff's films in making his points, and would certainly not have harmed the market for future sales or licensures of the films in whole or in part.” Wade Williams Distribution Inc. v. American Broadcasting Co. Inc., 00 Civ. 5002 (LMM).

Music Publishing/ Composition Sales

The U.S. Court of Appeals for the Second Circuit affirmed a lower court ruling that Vinnie Vincent conveyed to defendant Horipro Entertainment Group both the publisher's and writer's shares of compositions he co-wrote while a member of the band KISS. Vincent claimed that he had instructed his attorney to negotiate the sale of just the publisher's share. But in its unpublished opinion, the Second Circuit emphasized: “The contract of sale to Horipro is unambiguously incompatible with Cusano's claims.” Cusano v. Horipro Entertainment Group, 04-0575.

Music Publishing/Insurance

The U.S. Court of Appeals for the Ninth Circuit held, in an unpublished opinion, that while the “Music Recording and Publishing” provisions of an insurance policy purchased by a music publishing company covered copyright infringement claims, the policy didn't protect against co-ownership claims. According to the court: “The plain meaning of the terms of the insurance contract do not provide coverage for what are in essence property disputes … as to ownership of the copyright of [the 1960s hit] 'Girl Watcher.' Moreover, as the district court correctly held, co-owners in a copyright cannot sue each other for copyright infringement.” Drive-In Music Co. Inc. v. Columbia Casualty Co., 03-56077.

BOOK RELEASE

“Entertainment Law & Practice” by Jon M. Garon. Published by Carolina Academic Press. Includes chapters on the theater, film, music and TV industries as well as on ethics and international law issues. For further information: www.cap-press.com; 919-489-7486.

Book Publishing/Libel and Negligence

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

The U.S. Supreme Court denied a petition for writ of certiorari to a federal appeals court ruling that the Motion Picture Association of America (MPAA) acted in other than good faith in informing an Internet service provider (ISP) under the “notice and takedown” procedures of the Digital Millennium Copyright Act (DMCA), 17 U.S.C. Sec. 512, that a Web site operator was allegedly infringing on film copyrights. The U.S. Court of Appeals for the Ninth Circuit had concluded that the good-faith belief of Sec. 512(c)(3)(A)(v) is a subjective, rather than objective, test. Rossi v. Motion Picture Association of America Inc., 04-1166.

Film Clips/Copyright Fair Use

A Manhattan federal district court ruled that displaying brief, unlicensed clips of the plaintiff's science fiction films in a “Good Morning America” segment on how space aliens have been portrayed in American films was a fair use. The district court noted that there was “no issue of fact as to whether ABC's use of plaintiff's films was a fair use. The segment was a transformative work that commented on and criticized plaintiff's films in the context of their genre. [Film critic Joel] Siegel used short clips of plaintiff's films in making his points, and would certainly not have harmed the market for future sales or licensures of the films in whole or in part.” Wade Williams Distribution Inc. v. American Broadcasting Co. Inc., 00 Civ. 5002 (LMM).

Music Publishing/ Composition Sales

The U.S. Court of Appeals for the Second Circuit affirmed a lower court ruling that Vinnie Vincent conveyed to defendant Horipro Entertainment Group both the publisher's and writer's shares of compositions he co-wrote while a member of the band KISS. Vincent claimed that he had instructed his attorney to negotiate the sale of just the publisher's share. But in its unpublished opinion, the Second Circuit emphasized: “The contract of sale to Horipro is unambiguously incompatible with Cusano's claims.” Cusano v. Horipro Entertainment Group, 04-0575.

Music Publishing/Insurance

The U.S. Court of Appeals for the Ninth Circuit held, in an unpublished opinion, that while the “Music Recording and Publishing” provisions of an insurance policy purchased by a music publishing company covered copyright infringement claims, the policy didn't protect against co-ownership claims. According to the court: “The plain meaning of the terms of the insurance contract do not provide coverage for what are in essence property disputes … as to ownership of the copyright of [the 1960s hit] 'Girl Watcher.' Moreover, as the district court correctly held, co-owners in a copyright cannot sue each other for copyright infringement.” Drive-In Music Co. Inc. v. Columbia Casualty Co., 03-56077.

BOOK RELEASE

“Entertainment Law & Practice” by Jon M. Garon. Published by Carolina Academic Press. Includes chapters on the theater, film, music and TV industries as well as on ethics and international law issues. For further information: www.cap-press.com; 919-489-7486.