Cameo Clips

FILM PRODUCTION/DEFAMATION

The U.S. District Court for the Southern District of New York decided that a legend at the end of the movie 'American Gangster' ' stating that events depicted 'led to the conviction of three quarters of New York City's Drug Enforcement Agency' ' was non-defamatory because it wasn't 'of and concerning' any particular individual. Diaz v. NBC Universal Inc., 08 Civ. 401(CM). 'American Gangster,' starring Denzel Washington and Russell Crowe, was based on the real-life story of one-time heroin dealer Frank Lucas, who cooperated with law-enforcement officials. The plaintiffs, who had worked for the DEA, filed suit on behalf of 'approximately 400 present and former Special Agents of the New York office of the United States Drug Enforcement Administration.' The statement in the movie about the convictions wasn't true, but the district court dismissed the complaint under the 'group libel doctrine.' The court noted: 'When a reference is made to a large group of people, no individual within that group can fairly say that the statement is about him, nor can the 'group' as a whole state a claim for defamation.'

In the Southern District of New York, courts apply the group-libel doctrine to suits brought by groups exceeding 60 members. But the Diaz plaintiffs argued that 'each of them can be identified by an average viewer because the film depicts as corrupt virtually the entire New York City narcotics law enforcement community.' The district court emphasized, however, that 'the legend did not cast a cloud over the entire (non-existent) 'New York City DEA'; it said that a fraction (albeit a substantial fraction) of the members of that group were convicted.'

The plaintiffs also argued that nine DEA agents who had conducted a search of Lucas' home should be allowed to proceed with the case. But the court noted: 'In the film, the nine DEA agents who participated in the search are not identifiable. The film never names the DEA agents who searched Lucas' home. Nor does the film mention that DEA agents (or anyone else) stole 'nine or ten million dollars' from Lucas' home. The movie does not show a single person who is identifiable as a DEA agent. The person who steals the money is an NYPD officer.' The court added that 'since plaintiffs' emotional distress claims rely on the same underlying facts and are variations on the libel claim, these causes of action are entirely superfluous and do no state a separate claim for relief.'

The U.S. District Court for the Northern District of Georgia dismissed trademark-infringement claims over a TV movie about the legendary racehorse Ruffian. Thoroughbred Legends LLC v. The Walt Disney Co., 1:07-CV-1275-BBM. In 2004, Thoroughbred Legends applied for federal registration of 'Ruffian' as an entertainment service mark. In 2006, Thoroughbred Legends offered the defendants a license to use the name for the TV movie. The defendants declined and proceeded to produce 'Ruffian,' which aired on ABC-TV in June
2007 and is available on DVD. Thoroughbred Legends filed suit just before the movie aired and in August 2007, the U.S. Patent and Trademark Office granted federal registration to Thoroughbred Legends. The district court noted in part: 'Plaintiffs fail to show trademark use of 'RUFFIAN.' Plaintiffs desired to make a movie about Ruffian, and took steps toward that goal by attempting to license what they called a service mark, among other things. But Plaintiffs fail to show that the alleged 'RUFFIAN' mark was in fact ever used to signify origin to customers and competitors. ' Registration without actual use does not confer rights to a trademark.'

The district court also dismissed invasion-of-privacy/right-of-publicity claims by Jacinto Vasquez, a jockey who rode Ruffian, and Frank Whiteley Jr., the horse's trainer. The court based the dismissal on the fact that the TV movie was 'a dramatization about past newsworthy events.' But the court allowed the jockey and trainer to proceed with discovery on false endorsement and defamation claims, noting nevertheless of the former that 'the court has doubts as to whether Plaintiffs will prevail on a claim of false endorsement.' Of the latter claim, the district court noted: 'Defendants point to the disclaimer at the end of the film and argue that the statements [that Vasquez and Whiteley allege made them appear unethical] were not held out as fact, but as a dramatized story based on actual events, often termed a 'docudrama.' The court's own review demonstrates that this disclaimer passes over the screen very quickly. Furthermore, the disclaimer appears not only at the end of the film, but at the end of the credits. The synopsis on the back of the DVD cover describes the film as 'the extraordinary true story of the greatest filly racehorse of all time,' without using qualifying terms such as 'based on' or 'adapted from.' In this context, the court is not now willing to hold that no one could reasonably understand the scenes as 'describing actual facts about [Mr. Vasquez and Mr. Whiteley] or actual events in which [they] participated.”

The U.S. Court of Appeals for the Ninth Circuit decided that a producer of karaoke recordings couldn't bring suit against its competitors under the Lanham Act or for
copyright infringement. Sybersound Records Inc. v. UAV Corp., 06-55221. Sybersound claimed that competing karaoke-record producers misrepresented to customers that they had obtained all necessary song licenses. Affirming dismissal of Sybersounds' misrepresentation claim under the federal Lanham Act, the Ninth Circuit explained: '[T]o avoid overlap between the Lanham and Copyright Acts, the nature, characteristics, and qualities of karaoke recordings under the Lanham Act are more properly construed to mean characteristics of the good itself, such as the original song and artist of the karaoke recording, and the quality of its audio and visual effects. Construing the Lanham Act to cover misrepresentations about copyright licensing status as Sybersound urges would allow competitors engaged in the distribution of copyrightable materials to litigate the underlying copyright infringement when they have no standing to do so because they are nonexclusive licensees or third party strangers under copyright law, and we decline to do so.'

Sybersound claimed it had obtained a copyright interest in songs used by the defendants when it negotiated an agreement with TVT Music Publishing, a co-owner of the song copyrights, to be the exclusive licensee of the compositions for karaoke uses. But the appeals court noted: 'If TVT were the sole copyright owner of the nine referenced songs and had transferred an exclusive karaoke-use interest to Sybersound (assuming such a divisible interest exists), Sybersound would have had standing as the exclusive licensee to sue the Corporation Defendants for infringement. However, even if a karaoke-use is a properly divisible interest in a copyright, TVT is not the exclusive owner of the karaoke-use interest in the copyright. ' Sybersound does not allege that it has received the consent of the other co-owners to become the exclusive licensee for the karaoke-use interest.'

Sybersound also alleged that executives at the defendant companies had violated the federal Racketeer Influenced and Corrupt Organizations Act (RICO) by committing copyright infringement, not paying royalties, and engaging in mail and wire fraud in communications with the executives' customers. But the appeals court noted that in determining proximate cause under RICO injury, 'the court would have to engage in a speculative and complicated analysis to determine what percentage of Sybersound's decreased sales, if any, were attributable to the Corporation Defendants' decision to lower their prices or a Customer's preference for a competitor's products over Sybersound's, instead of to acts of copyright infringement or mail and wire fraud.'

The appeals court also affirmed dismissal of Sybersound's claim for intentional interference with prospective economic relations, noting in part: 'In its complaint, Sybersound merely states in a conclusory manner that it 'has been harmed because its ongoing business and economic relationships with Customers have been disrupted.' Sybersound does not allege, for example, that it lost a contract nor that a negotiation with a Customer failed.' The court went on to support dismissal of Sybersound's claims for California statutory and common-law unfair competition and state unfair-trade practices.

FILM PRODUCTION/DEFAMATION

The U.S. District Court for the Southern District of New York decided that a legend at the end of the movie 'American Gangster' ' stating that events depicted 'led to the conviction of three quarters of New York City's Drug Enforcement Agency' ' was non-defamatory because it wasn't 'of and concerning' any particular individual. Diaz v. NBC Universal Inc., 08 Civ. 401(CM). 'American Gangster,' starring Denzel Washington and Russell Crowe, was based on the real-life story of one-time heroin dealer Frank Lucas, who cooperated with law-enforcement officials. The plaintiffs, who had worked for the DEA, filed suit on behalf of 'approximately 400 present and former Special Agents of the New York office of the United States Drug Enforcement Administration.' The statement in the movie about the convictions wasn't true, but the district court dismissed the complaint under the 'group libel doctrine.' The court noted: 'When a reference is made to a large group of people, no individual within that group can fairly say that the statement is about him, nor can the 'group' as a whole state a claim for defamation.'

In the Southern District of New York, courts apply the group-libel doctrine to suits brought by groups exceeding 60 members. But the Diaz plaintiffs argued that 'each of them can be identified by an average viewer because the film depicts as corrupt virtually the entire New York City narcotics law enforcement community.' The district court emphasized, however, that 'the legend did not cast a cloud over the entire (non-existent) 'New York City DEA'; it said that a fraction (albeit a substantial fraction) of the members of that group were convicted.'

The plaintiffs also argued that nine DEA agents who had conducted a search of Lucas' home should be allowed to proceed with the case. But the court noted: 'In the film, the nine DEA agents who participated in the search are not identifiable. The film never names the DEA agents who searched Lucas' home. Nor does the film mention that DEA agents (or anyone else) stole 'nine or ten million dollars' from Lucas' home. The movie does not show a single person who is identifiable as a DEA agent. The person who steals the money is an NYPD officer.' The court added that 'since plaintiffs' emotional distress claims rely on the same underlying facts and are variations on the libel claim, these causes of action are entirely superfluous and do no state a separate claim for relief.'

The U.S. District Court for the Northern District of Georgia dismissed trademark-infringement claims over a TV movie about the legendary racehorse Ruffian. Thoroughbred Legends LLC v. The Walt Disney Co., 1:07-CV-1275-BBM. In 2004, Thoroughbred Legends applied for federal registration of 'Ruffian' as an entertainment service mark. In 2006, Thoroughbred Legends offered the defendants a license to use the name for the TV movie. The defendants declined and proceeded to produce 'Ruffian,' which aired on ABC-TV in June
2007 and is available on DVD. Thoroughbred Legends filed suit just before the movie aired and in August 2007, the U.S. Patent and Trademark Office granted federal registration to Thoroughbred Legends. The district court noted in part: 'Plaintiffs fail to show trademark use of 'RUFFIAN.' Plaintiffs desired to make a movie about Ruffian, and took steps toward that goal by attempting to license what they called a service mark, among other things. But Plaintiffs fail to show that the alleged 'RUFFIAN' mark was in fact ever used to signify origin to customers and competitors. ' Registration without actual use does not confer rights to a trademark.'

The district court also dismissed invasion-of-privacy/right-of-publicity claims by Jacinto Vasquez, a jockey who rode Ruffian, and Frank Whiteley Jr., the horse's trainer. The court based the dismissal on the fact that the TV movie was 'a dramatization about past newsworthy events.' But the court allowed the jockey and trainer to proceed with discovery on false endorsement and defamation claims, noting nevertheless of the former that 'the court has doubts as to whether Plaintiffs will prevail on a claim of false endorsement.' Of the latter claim, the district court noted: 'Defendants point to the disclaimer at the end of the film and argue that the statements [that Vasquez and Whiteley allege made them appear unethical] were not held out as fact, but as a dramatized story based on actual events, often termed a 'docudrama.' The court's own review demonstrates that this disclaimer passes over the screen very quickly. Furthermore, the disclaimer appears not only at the end of the film, but at the end of the credits. The synopsis on the back of the DVD cover describes the film as 'the extraordinary true story of the greatest filly racehorse of all time,' without using qualifying terms such as 'based on' or 'adapted from.' In this context, the court is not now willing to hold that no one could reasonably understand the scenes as 'describing actual facts about [Mr. Vasquez and Mr. Whiteley] or actual events in which [they] participated.”

The U.S. Court of Appeals for the Ninth Circuit decided that a producer of karaoke recordings couldn't bring suit against its competitors under the Lanham Act or for
copyright infringement. Sybersound Records Inc. v. UAV Corp., 06-55221. Sybersound claimed that competing karaoke-record producers misrepresented to customers that they had obtained all necessary song licenses. Affirming dismissal of Sybersounds' misrepresentation claim under the federal Lanham Act, the Ninth Circuit explained: '[T]o avoid overlap between the Lanham and Copyright Acts, the nature, characteristics, and qualities of karaoke recordings under the Lanham Act are more properly construed to mean characteristics of the good itself, such as the original song and artist of the karaoke recording, and the quality of its audio and visual effects. Construing the Lanham Act to cover misrepresentations about copyright licensing status as Sybersound urges would allow competitors engaged in the distribution of copyrightable materials to litigate the underlying copyright infringement when they have no standing to do so because they are nonexclusive licensees or third party strangers under copyright law, and we decline to do so.'

Sybersound claimed it had obtained a copyright interest in songs used by the defendants when it negotiated an agreement with TVT Music Publishing, a co-owner of the song copyrights, to be the exclusive licensee of the compositions for karaoke uses. But the appeals court noted: 'If TVT were the sole copyright owner of the nine referenced songs and had transferred an exclusive karaoke-use interest to Sybersound (assuming such a divisible interest exists), Sybersound would have had standing as the exclusive licensee to sue the Corporation Defendants for infringement. However, even if a karaoke-use is a properly divisible interest in a copyright, TVT is not the exclusive owner of the karaoke-use interest in the copyright. ' Sybersound does not allege that it has received the consent of the other co-owners to become the exclusive licensee for the karaoke-use interest.'

Sybersound also alleged that executives at the defendant companies had violated the federal Racketeer Influenced and Corrupt Organizations Act (RICO) by committing copyright infringement, not paying royalties, and engaging in mail and wire fraud in communications with the executives' customers. But the appeals court noted that in determining proximate cause under RICO injury, 'the court would have to engage in a speculative and complicated analysis to determine what percentage of Sybersound's decreased sales, if any, were attributable to the Corporation Defendants' decision to lower their prices or a Customer's preference for a competitor's products over Sybersound's, instead of to acts of copyright infringement or mail and wire fraud.'

The appeals court also affirmed dismissal of Sybersound's claim for intentional interference with prospective economic relations, noting in part: 'In its complaint, Sybersound merely states in a conclusory manner that it 'has been harmed because its ongoing business and economic relationships with Customers have been disrupted.' Sybersound does not allege, for example, that it lost a contract nor that a negotiation with a Customer failed.' The court went on to support dismissal of Sybersound's claims for California statutory and common-law unfair competition and state unfair-trade practices.