Bit Parts

Celebrity Indicia/Licensee's Web Site

The U.S. District Court for the Southern District of New York ruled, in a motion for reconsideration, that an agreement for the defendant to use the right-of-publicity indicia of late baseball hero Mickey Mantle in a documentary and for related merchandise didn't authorize the way the defendant's Web site was designed. The Estate of Mantle v. Rothgeb, 04 CV 4310(KMW)(HBP). The district court noted that the 1989 agreement at issue in the case 'unambiguously requires that the Mantle Indicia be used only in reference to the Picture, and specifically prohibits using the Mantle Indicia for endorsing anything but the Picture itself. The court concludes that the following alleged Web site activities are not authorized by the Amended Agreement (1) Defendants' manufacture and sale of merchandise that uses the Mantle Indicia without referencing the Picture's title or logo; (2) Defendants' sale through the Web site of merchandise, produced by other manufacturers, which uses the Mantle Indicia without referencing the Picture's title or logo (the 'third-party merchandise'), and links through the Web site to products and services that have no relation to the Picture; (3) the Web site's failure to directly reference the Picture on approximately fifty percent of its pages; and (4) the Web site's self-description as 'The Official Mickey Mantle Website' and 'The Official Licensed Web Site and Catalogue.” But the district court nevertheless concluded that questions of material fact remained on the Mantle estate's breach-of-contract, contract termination and trademark-related claims over the Web site.

Film Exhibition/Use Tax

The Colorado Court of Appeals decided that a movie theater was subject to a city use tax on tangible property for income from films shown at the theater. Cinemark USA Inc. v. Seest, 06CA2549. The court of appeals noted in an unpublished opinion 'that the totality of the circumstances shows that the clear purpose of [exhibitor] Cinemark's transactions with the film distributors is Cinemark's use of a physical product, the motion picture film reel, and that this purpose renders the transactions taxable events. ' Cinemark is not buying an option to use an idea of the film distributors; the ideas and the artistic expression for the movie has already been used, edited, and published by the time it reaches Cinemark's theater in the form of a film reel.'

Film Production/Copyright, Unfair-Competition Claims

The U.S. District Court for the Northern District of California granted a motion to dismiss a copyright-infringement claim over the movie 'Finding Nemo.' Thomas v. Disney, C-07-4392 CW. The district court decided that the defendants' film wasn't substantially similar to the plaintiff's work 'Squisher the Fish.' The court also found that the plaintiff failed to state a separate claim under California's unfair competition statute, Calif. Bus. and Prof. Code Sec. 17200, which she based on a confidential relationship. The court stated: 'This case does not support a finding of a confidential relationship where, as here, Plaintiff alleges that she submitted an unsolicited work to Defendants, which was then returned with a cover letter stating that Defendants do not accept such submissions.'

Right of Publicity/Counting Statutory Claims

The California Court of Appeal, Fourth District, decided that under Calif. Civ. Code Sec. 3344(a), plaintiff William Miller's misappropriation claim ' for the unauthorized use of his name on 14,060 certificates of authentication (COAs) for collectible memorabilia ' constituted just one cause of action. This limited Miller to $750 in statutory damages. Miller v. Collectors Universe Inc., 159 Cal.App.4th 988. Miller argued that he was entitled to $10.545 million in statutory damages. But the court of appeal noted that the COAs 'were all issued for a common purpose pursuant to a common plan: to use Miller's name as a member of the panel of authentication experts. ' The COAs were printed at the same time ' only the serial numbers were different ' and they were issued seriatim as authentication services were purchased by the customers. Miller's injury, the worry and uncertainty regarding his reputation and his potential liability for improperly authenticated items, occurred when Collectors' knowingly issued its first COA without his prior consent. The number of COAs issued may be relevant to his actual damages, if any, and to punitive damages. But with regard to his statutory damages, the issuance of subsequent improper COAs did not give rise to new causes of action.'

Celebrity Indicia/Licensee's Web Site

The U.S. District Court for the Southern District of New York ruled, in a motion for reconsideration, that an agreement for the defendant to use the right-of-publicity indicia of late baseball hero Mickey Mantle in a documentary and for related merchandise didn't authorize the way the defendant's Web site was designed. The Estate of Mantle v. Rothgeb, 04 CV 4310(KMW)(HBP). The district court noted that the 1989 agreement at issue in the case 'unambiguously requires that the Mantle Indicia be used only in reference to the Picture, and specifically prohibits using the Mantle Indicia for endorsing anything but the Picture itself. The court concludes that the following alleged Web site activities are not authorized by the Amended Agreement (1) Defendants' manufacture and sale of merchandise that uses the Mantle Indicia without referencing the Picture's title or logo; (2) Defendants' sale through the Web site of merchandise, produced by other manufacturers, which uses the Mantle Indicia without referencing the Picture's title or logo (the 'third-party merchandise'), and links through the Web site to products and services that have no relation to the Picture; (3) the Web site's failure to directly reference the Picture on approximately fifty percent of its pages; and (4) the Web site's self-description as 'The Official Mickey Mantle Website' and 'The Official Licensed Web Site and Catalogue.” But the district court nevertheless concluded that questions of material fact remained on the Mantle estate's breach-of-contract, contract termination and trademark-related claims over the Web site.

Film Exhibition/Use Tax

The Colorado Court of Appeals decided that a movie theater was subject to a city use tax on tangible property for income from films shown at the theater. Cinemark USA Inc. v. Seest, 06CA2549. The court of appeals noted in an unpublished opinion 'that the totality of the circumstances shows that the clear purpose of [exhibitor] Cinemark's transactions with the film distributors is Cinemark's use of a physical product, the motion picture film reel, and that this purpose renders the transactions taxable events. ' Cinemark is not buying an option to use an idea of the film distributors; the ideas and the artistic expression for the movie has already been used, edited, and published by the time it reaches Cinemark's theater in the form of a film reel.'

Film Production/Copyright, Unfair-Competition Claims

The U.S. District Court for the Northern District of California granted a motion to dismiss a copyright-infringement claim over the movie 'Finding Nemo.' Thomas v. Disney, C-07-4392 CW. The district court decided that the defendants' film wasn't substantially similar to the plaintiff's work 'Squisher the Fish.' The court also found that the plaintiff failed to state a separate claim under California's unfair competition statute, Calif. Bus. and Prof. Code Sec. 17200, which she based on a confidential relationship. The court stated: 'This case does not support a finding of a confidential relationship where, as here, Plaintiff alleges that she submitted an unsolicited work to Defendants, which was then returned with a cover letter stating that Defendants do not accept such submissions.'

Right of Publicity/Counting Statutory Claims

The California Court of Appeal, Fourth District, decided that under Calif. Civ. Code Sec. 3344(a), plaintiff William Miller's misappropriation claim ' for the unauthorized use of his name on 14,060 certificates of authentication (COAs) for collectible memorabilia ' constituted just one cause of action. This limited Miller to $750 in statutory damages. Miller v. Collectors Universe Inc. , 159 Cal.App.4th 988. Miller argued that he was entitled to $10.545 million in statutory damages. But the court of appeal noted that the COAs 'were all issued for a common purpose pursuant to a common plan: to use Miller's name as a member of the panel of authentication experts. ' The COAs were printed at the same time ' only the serial numbers were different ' and they were issued seriatim as authentication services were purchased by the customers. Miller's injury, the worry and uncertainty regarding his reputation and his potential liability for improperly authenticated items, occurred when Collectors' knowingly issued its first COA without his prior consent. The number of COAs issued may be relevant to his actual damages, if any, and to punitive damages. But with regard to his statutory damages, the issuance of subsequent improper COAs did not give rise to new causes of action.'