Cameo Clips

Life-Story Rights/General Release

The U.S. Circuit Court of Appeals for the Ninth Circuit ruled that a general release signed by the individual on whom the film 'Flashdance' was based barred her claim to a co-authorship interest in the film copyright, as well as her additional claims. Marder v. Lopez, 04-55615. Maureen Marder sued over a 2003 music video featuring Jennifer Lopez that recreated scenes from 'Flashdance.' Marder's complaint included copyright, Lanham Act, unfair competition and right of publicity claims. The appeals court noted that the language of the 1982 release that Marder had signed with Paramount Pictures was 'exceptionally broad and we hold that it is fatal to each of Marder's claims against Paramount. ' [T]hough in hindsight the agreement appears to be unfair to Marder ' she only received $2300 in exchange for a release of all claims relating to a movie that grossed over $150 million ' there is simply no evidence that her consent was obtained by fraud, deception, misrepresentation, duress, or undue influence. Indeed, when she signed the Release, Marder was represented by counsel. She has not asserted that her counsel in 1983 was incompetent or deficient in any way.'

The release stated in part that Marder 'releases and discharges Paramount Pictures Corporation ' of and from each and every claim, demand, debt, liability, cost and expense of any kind or character which have arisen or are based in whole or in part on any matters occurring at any time prior to the date of this Release.' The appeals court noted that Marder's copyright claims were based on her contributions to the film screenplay, and this involved 'matter' from before the date she signed the release. The court added that it wasn't 'impermissibly redundant to secure a waiver of claims and a grant of rights in the same document.'

The Supreme Court of New York, New York County, decided that the producers of several films by Woody Allen had the right, under a settlement agreement between Allen and the producers, to make a modified version of each movie for network television and airline exhibition. Moses Productions Inc. v. Sweetland Films, 602330/01. The settlement agreement had been reached after Allen's personal services corporation sued the producers to collect monies from the films. Allen's original creative-control clause with the producers stated in essence that Allen would have 'final and complete creative control over the [films].' The movies at issue in the settlement-agreement dispute included 'Bullets Over Broadway,' 'Celebrity,' 'Deconstructing Harry' and 'Mighty Aphrodite.'

The court initially explained in its unpublished opinion that in the settlement agreement, 'the parties agreed to the creation of one modified version of each film, subject to generally accepted network television censorship and/or standards and practices requirements. At issue is whether the modifications proposed by Defendants meet the requirements of the parties' agreement. This dispute is not about whether making a network version of the films is the best way to preserve Woody Allen's artistic vision; rather, it is one of contract interpretation.' The court went on to note that while Moses Productions had put forth 'no alternative list of proposed modifications to the films[,] ' it has nonetheless taken the unreasonable position that few or no modifications are permissible for these four films. ' Plaintiff bases its objections on the premise that the modifications proposed by Defendant are 'more restrictive and extreme than what Network Practices would require.”

But, the court found: '[I]n light of Plaintiff's total opposition to Defendants' proposed edits to these four films, it seems futile to go through the proposed edits line by line, only to conclude that an insignificant number of words in this gray category might survive network scrutiny. ' In any case, the Settlement Agreement permits Defendants to create only one modified version of each film. Therefore, Defendants' single modified version of each film might well have to satisfy the more conservative standards for daytime programming.' Allen's company also argued that the producers' right to make the modified versions nevertheless was limited by the creative-control clauses in their original agreements with Allen. The court acknowledged that it was 'undeniable that Defendants have proposed not insignificant modifications to these four films.' But the court emphasized that under the settlement agreement, 'Moses consented, 'notwithstanding anything set forth in any agreements related to the Pictures,' to the development of 'one (1) modified version [of each of the films] that complies with generally accepted Network Television censorship and/or standards and practices requirements.' ' [T]he parties' consent to the creation of a network version of the films in the Settlement Agreement supercedes any contrary provisions in previous agreements.'

Moses Productions then argued that under the settlement agreement, modifications could only be made if the modified versions of the films would be profitable in the settlement trustee's 'reasonable good faith business judgment.' The court noted, however: 'Defendants argue that enforcement of this provision of the Settlement Agreement would be premature, because the determination of the profitability of the modified films is to be made separately by the Trustee, and only after the instant dispute over Defendants' proposed modifications to the films has been resolved. ' I agree with Defendants.'

The U.S. District Court for the Western District of Texas, Austin Division, ruled that, as a matter of law, two radio personalities didn't breach their contract with an Austin Spanish-language station by bringing their show to a Los Angeles Spanish-language station. Amigo Broadcasting L.P. v. Spanish Broadcasting System Inc. (SBS), A-05-CV-193-JN. Defendant Joaquin Garza created the radio show 'El Chulo y La Bola,' which featured fictional characters played by Garza and Raul Bernal. Garza and Bernal entered into a 3-year employment contract for the show to be aired on Amigo Broadcasting's Spanish-language station in Austin. But Garza and Bernal resigned before 3 years were up and brought the show to a Los Angeles station owned by SBS.

The district court found no breach of Amigo's trade secrets because 'nothing in the [employment] Agreements grants to Amigo any rights to the Show, the Show's characters, the Show's content, or any intellectual property related to the Show. Indeed, ' 1.1 of the Agreements provides only that[:] 'Employee hereby grants Employer a nonexclusive royalty free license to use Employee's name and/or likeness to promote the Station and its programming, including any program hosted by Employee or syndicated by Employer, during the term of this Agreement.'

The district court also concluded: 'Nor is there legally sufficient evidence that Garza and Bernal breached their Agreements by resigning from Amigo. ' In their clear, unambiguous terms, the Agreements provide that Garza and Bernal could resign. This provision of the Agreements is bolstered further by the fact that Amigo drafted the Agreements at Garza's and Bernal's request, for Garza's and Bernal's protection. In addition, Amigo's own Policy Manual, which Amigo issued to both Garza and Bernal after they had signed their Agreements, unequivocally states that all employees have the right to resign unless they are covered by collective bargaining agreements. Garza and Bernal were not covered by a collective bargaining agreement, and thus were free to resign.'

And Garza and Bernal didn't violate the non-compete clause of their agreements with Amigo because, the court noted: 'The evidence presented at trial established conclusively that after resigning from Amigo Garza and Bernal did not broadcast the show from either the Austin, Texas broadcast area or any of the markets in which Amigo had previously broadcast the Show.'

Finally, the court found no tortuous interference with contract by SBS, because 'the evidence presented at trial established concretely that SBS offered employment to Garza and Bernal in December 2003, nearly a month after Garza and Bernal had resigned from Amigo in November 2003. As such, Garza and Bernal were no longer bound by their Agreements with Amigo, and their Agreements were no longer subject to interference when SBS offered them employment.'

The U.S. District Court for the Southern District of New York held that a film's parody of a trademark didn't violate the plaintiffs' rights. GTFM v. Universal Studios Inc., 02 CV 0506 (RO). The plaintiffs used 'FUBU,' an acronym for 'For Us By Us,' for its multicultural youth products. Characters in the defendants' marijuana-film 'How High,' used the term 'BUFU' as an acronym for 'By Us, Fuck You.' GTFM sued under the federal Lanham Act and related state claims. The district court explained: 'Parodies of trademarks necessarily incorporate the original mark's likeness in order for consumers to get the joke. ' Universal Studios was, indisputably, not acting as a competitor of plaintiffs' by attempting to sell products or services under the name 'BUFU.' Furthermore, plaintiffs' FUBU marks appear nowhere in the film, and thus, plaintiffs have no claim that FUBU was used in a manner injurious to the mark and to its reputation and good will. To whatever extent, if any, one regards the parody as lewd or offensive, or whether one actually appreciates its comedic value, is entirely irrelevant to the issue of whether this expression of ideas should be afforded First Amendment protection, and judicial evaluations of the former sort will not be made. ' There being no likelihood of confusion, and no tarnishing or dilution of the FUBU mark, there is no genuine issue of material fact with respect to any of plaintiffs' claims.'

Life-Story Rights/General Release

The U.S. Circuit Court of Appeals for the Ninth Circuit ruled that a general release signed by the individual on whom the film 'Flashdance' was based barred her claim to a co-authorship interest in the film copyright, as well as her additional claims. Marder v. Lopez, 04-55615. Maureen Marder sued over a 2003 music video featuring Jennifer Lopez that recreated scenes from 'Flashdance.' Marder's complaint included copyright, Lanham Act, unfair competition and right of publicity claims. The appeals court noted that the language of the 1982 release that Marder had signed with Paramount Pictures was 'exceptionally broad and we hold that it is fatal to each of Marder's claims against Paramount. ' [T]hough in hindsight the agreement appears to be unfair to Marder ' she only received $2300 in exchange for a release of all claims relating to a movie that grossed over $150 million ' there is simply no evidence that her consent was obtained by fraud, deception, misrepresentation, duress, or undue influence. Indeed, when she signed the Release, Marder was represented by counsel. She has not asserted that her counsel in 1983 was incompetent or deficient in any way.'

The release stated in part that Marder 'releases and discharges Paramount Pictures Corporation ' of and from each and every claim, demand, debt, liability, cost and expense of any kind or character which have arisen or are based in whole or in part on any matters occurring at any time prior to the date of this Release.' The appeals court noted that Marder's copyright claims were based on her contributions to the film screenplay, and this involved 'matter' from before the date she signed the release. The court added that it wasn't 'impermissibly redundant to secure a waiver of claims and a grant of rights in the same document.'

The Supreme Court of New York, New York County, decided that the producers of several films by Woody Allen had the right, under a settlement agreement between Allen and the producers, to make a modified version of each movie for network television and airline exhibition. Moses Productions Inc. v. Sweetland Films, 602330/01. The settlement agreement had been reached after Allen's personal services corporation sued the producers to collect monies from the films. Allen's original creative-control clause with the producers stated in essence that Allen would have 'final and complete creative control over the [films].' The movies at issue in the settlement-agreement dispute included 'Bullets Over Broadway,' 'Celebrity,' 'Deconstructing Harry' and 'Mighty Aphrodite.'

The court initially explained in its unpublished opinion that in the settlement agreement, 'the parties agreed to the creation of one modified version of each film, subject to generally accepted network television censorship and/or standards and practices requirements. At issue is whether the modifications proposed by Defendants meet the requirements of the parties' agreement. This dispute is not about whether making a network version of the films is the best way to preserve Woody Allen's artistic vision; rather, it is one of contract interpretation.' The court went on to note that while Moses Productions had put forth 'no alternative list of proposed modifications to the films[,] ' it has nonetheless taken the unreasonable position that few or no modifications are permissible for these four films. ' Plaintiff bases its objections on the premise that the modifications proposed by Defendant are 'more restrictive and extreme than what Network Practices would require.”

But, the court found: '[I]n light of Plaintiff's total opposition to Defendants' proposed edits to these four films, it seems futile to go through the proposed edits line by line, only to conclude that an insignificant number of words in this gray category might survive network scrutiny. ' In any case, the Settlement Agreement permits Defendants to create only one modified version of each film. Therefore, Defendants' single modified version of each film might well have to satisfy the more conservative standards for daytime programming.' Allen's company also argued that the producers' right to make the modified versions nevertheless was limited by the creative-control clauses in their original agreements with Allen. The court acknowledged that it was 'undeniable that Defendants have proposed not insignificant modifications to these four films.' But the court emphasized that under the settlement agreement, 'Moses consented, 'notwithstanding anything set forth in any agreements related to the Pictures,' to the development of 'one (1) modified version [of each of the films] that complies with generally accepted Network Television censorship and/or standards and practices requirements.' ' [T]he parties' consent to the creation of a network version of the films in the Settlement Agreement supercedes any contrary provisions in previous agreements.'

Moses Productions then argued that under the settlement agreement, modifications could only be made if the modified versions of the films would be profitable in the settlement trustee's 'reasonable good faith business judgment.' The court noted, however: 'Defendants argue that enforcement of this provision of the Settlement Agreement would be premature, because the determination of the profitability of the modified films is to be made separately by the Trustee, and only after the instant dispute over Defendants' proposed modifications to the films has been resolved. ' I agree with Defendants.'

The U.S. District Court for the Western District of Texas, Austin Division, ruled that, as a matter of law, two radio personalities didn't breach their contract with an Austin Spanish-language station by bringing their show to a Los Angeles Spanish-language station. Amigo Broadcasting L.P. v. Spanish Broadcasting System Inc. (SBS), A-05-CV-193-JN. Defendant Joaquin Garza created the radio show 'El Chulo y La Bola,' which featured fictional characters played by Garza and Raul Bernal. Garza and Bernal entered into a 3-year employment contract for the show to be aired on Amigo Broadcasting's Spanish-language station in Austin. But Garza and Bernal resigned before 3 years were up and brought the show to a Los Angeles station owned by SBS.

The district court found no breach of Amigo's trade secrets because 'nothing in the [employment] Agreements grants to Amigo any rights to the Show, the Show's characters, the Show's content, or any intellectual property related to the Show. Indeed, ' 1.1 of the Agreements provides only that[:] 'Employee hereby grants Employer a nonexclusive royalty free license to use Employee's name and/or likeness to promote the Station and its programming, including any program hosted by Employee or syndicated by Employer, during the term of this Agreement.'

The district court also concluded: 'Nor is there legally sufficient evidence that Garza and Bernal breached their Agreements by resigning from Amigo. ' In their clear, unambiguous terms, the Agreements provide that Garza and Bernal could resign. This provision of the Agreements is bolstered further by the fact that Amigo drafted the Agreements at Garza's and Bernal's request, for Garza's and Bernal's protection. In addition, Amigo's own Policy Manual, which Amigo issued to both Garza and Bernal after they had signed their Agreements, unequivocally states that all employees have the right to resign unless they are covered by collective bargaining agreements. Garza and Bernal were not covered by a collective bargaining agreement, and thus were free to resign.'

And Garza and Bernal didn't violate the non-compete clause of their agreements with Amigo because, the court noted: 'The evidence presented at trial established conclusively that after resigning from Amigo Garza and Bernal did not broadcast the show from either the Austin, Texas broadcast area or any of the markets in which Amigo had previously broadcast the Show.'

Finally, the court found no tortuous interference with contract by SBS, because 'the evidence presented at trial established concretely that SBS offered employment to Garza and Bernal in December 2003, nearly a month after Garza and Bernal had resigned from Amigo in November 2003. As such, Garza and Bernal were no longer bound by their Agreements with Amigo, and their Agreements were no longer subject to interference when SBS offered them employment.'

The U.S. District Court for the Southern District of New York held that a film's parody of a trademark didn't violate the plaintiffs' rights. GTFM v. Universal Studios Inc., 02 CV 0506 (RO). The plaintiffs used 'FUBU,' an acronym for 'For Us By Us,' for its multicultural youth products. Characters in the defendants' marijuana-film 'How High,' used the term 'BUFU' as an acronym for 'By Us, Fuck You.' GTFM sued under the federal Lanham Act and related state claims. The district court explained: 'Parodies of trademarks necessarily incorporate the original mark's likeness in order for consumers to get the joke. ' Universal Studios was, indisputably, not acting as a competitor of plaintiffs' by attempting to sell products or services under the name 'BUFU.' Furthermore, plaintiffs' FUBU marks appear nowhere in the film, and thus, plaintiffs have no claim that FUBU was used in a manner injurious to the mark and to its reputation and good will. To whatever extent, if any, one regards the parody as lewd or offensive, or whether one actually appreciates its comedic value, is entirely irrelevant to the issue of whether this expression of ideas should be afforded First Amendment protection, and judicial evaluations of the former sort will not be made. ' There being no likelihood of confusion, and no tarnishing or dilution of the FUBU mark, there is no genuine issue of material fact with respect to any of plaintiffs' claims.'