Cameo Clips

BOOK COPYRIGHTS/FAIR USE DEFENSE

The U.S. District Court for the Southern District of New York ruled against a finding of copyright fair use by the author of “The Lexicon,” a comprehensive guide to the popular Harry Potter books. The district court also found “The Lexicon” infringed on companion books by Potter author J.K. Rowling about an imaginary sport and fictional beings in the Potter series. Warner Bros. Entertainment Inc. v. RDR Books, 07 Civ. 9667(RPP). Looking at the fair-use factors under Sec. 107 of the Copyright Act, the district court concluded: “The first factor [i.e., the defendant's purpose and character of use] does not completely weigh in favor of Defendant because although 'The Lexicon' has a transformative purpose, its actual use of the copyrighted works is not consistently transformative. ' [M]any portions of 'The Lexicon' take more of the copyrighted works than is reasonably necessary in relation to 'The Lexicon's' purpose. ' [In addition, t]he creative nature of the copyrighted works and the harm to the market for Rowling's companion books weigh in favor of Plaintiffs. In striking the balance between the property rights of original authors and the freedom of expression of secondary authors, reference guides to works of literature should generally be encouraged by copyright law as they provide a benefit to readers and students; but to borrow from Rowling's overstated views, they should not be permitted to 'plunder' the works of original authors.”

The U.S. Court of Appeals for the Third Circuit ruled that the First Amendment didn't serve as a defense to a false endorsement claim over use of sound clips of the voice of legendary football announcer John Facenda in a promotional film about the video game “Madden NFL 06.” Facenda v. N.F.L. Films Inc., 07-3269. In 1984, Facenda had signed a release giving N.F.L. Films “the unequivocal rights to use the audio and visual film sequences recorded of me, or any part of them ' in perpetuity and by whatever media or manner NFL Films ' sees fit, provided, however, such use does not constitute an endorsement of any product or service.” Facenda's estate alleged the use of the late announcer's voice constituted false endorsement under Sec. 43(a) of the Lanham Act and violation of Pennsylvania's right-of-publicity statute, 42 Pa. Cons.Stat. Ann. Sec. 8316.

On N.F.L. Film's First Amendment defense, the Third Circuit noted the case “presents a novel issue, because the program is not a traditional 30- or 60-second television advertisement. But ultimately the question is not close. The Estate's comparison of the program to a late-night, half-hour-long 'infomercial' is apt. Like an infomercial, the program focuses on one product, explaining both how it works and the source of its innovations, all in a positive tone. ' Furthermore, the program was only broadcast eight times in a three-day span immediately before the release of the video game to retail stores-much like an advertisement for an upcoming film. ' In this context, we deem 'The Making of Madden NFL 06' to be commercial speech.” The appeals court remanded the case for a factual determination of whether the use of Facenda's voice created a likelihood of consumer confusion regarding false endorsement.

The Third Circuit then agreed that N.F.L Films violated the Pennsylvania right-of-publicity statute and that the claim wasn't preempted by federal copyright law, even though Facenda had announced for copyrighted sports works. According to the appeals court: “While performing artists should have the burden of reserving publicity rights when contracting away any rights under copyright law they might have, we hold that Facenda successfully bore that burden here and preserved his state-law right-to-publicity claim. ' [H]e did not grant the NFL the right to use his voice in a promotional television program.”

BOOK COPYRIGHTS/FAIR USE DEFENSE

The U.S. District Court for the Southern District of New York ruled against a finding of copyright fair use by the author of “The Lexicon,” a comprehensive guide to the popular Harry Potter books. The district court also found “The Lexicon” infringed on companion books by Potter author J.K. Rowling about an imaginary sport and fictional beings in the Potter series. Warner Bros. Entertainment Inc. v. RDR Books, 07 Civ. 9667(RPP). Looking at the fair-use factors under Sec. 107 of the Copyright Act, the district court concluded: “The first factor [i.e., the defendant's purpose and character of use] does not completely weigh in favor of Defendant because although 'The Lexicon' has a transformative purpose, its actual use of the copyrighted works is not consistently transformative. ' [M]any portions of 'The Lexicon' take more of the copyrighted works than is reasonably necessary in relation to 'The Lexicon's' purpose. ' [In addition, t]he creative nature of the copyrighted works and the harm to the market for Rowling's companion books weigh in favor of Plaintiffs. In striking the balance between the property rights of original authors and the freedom of expression of secondary authors, reference guides to works of literature should generally be encouraged by copyright law as they provide a benefit to readers and students; but to borrow from Rowling's overstated views, they should not be permitted to 'plunder' the works of original authors.”

The U.S. Court of Appeals for the Third Circuit ruled that the First Amendment didn't serve as a defense to a false endorsement claim over use of sound clips of the voice of legendary football announcer John Facenda in a promotional film about the video game “Madden NFL 06.” Facenda v. N.F.L. Films Inc., 07-3269. In 1984, Facenda had signed a release giving N.F.L. Films “the unequivocal rights to use the audio and visual film sequences recorded of me, or any part of them ' in perpetuity and by whatever media or manner NFL Films ' sees fit, provided, however, such use does not constitute an endorsement of any product or service.” Facenda's estate alleged the use of the late announcer's voice constituted false endorsement under Sec. 43(a) of the Lanham Act and violation of Pennsylvania's right-of-publicity statute, 42 Pa. Cons.Stat. Ann. Sec. 8316.

On N.F.L. Film's First Amendment defense, the Third Circuit noted the case “presents a novel issue, because the program is not a traditional 30- or 60-second television advertisement. But ultimately the question is not close. The Estate's comparison of the program to a late-night, half-hour-long 'infomercial' is apt. Like an infomercial, the program focuses on one product, explaining both how it works and the source of its innovations, all in a positive tone. ' Furthermore, the program was only broadcast eight times in a three-day span immediately before the release of the video game to retail stores-much like an advertisement for an upcoming film. ' In this context, we deem 'The Making of Madden NFL 06' to be commercial speech.” The appeals court remanded the case for a factual determination of whether the use of Facenda's voice created a likelihood of consumer confusion regarding false endorsement.

The Third Circuit then agreed that N.F.L Films violated the Pennsylvania right-of-publicity statute and that the claim wasn't preempted by federal copyright law, even though Facenda had announced for copyrighted sports works. According to the appeals court: “While performing artists should have the burden of reserving publicity rights when contracting away any rights under copyright law they might have, we hold that Facenda successfully bore that burden here and preserved his state-law right-to-publicity claim. ' [H]e did not grant the NFL the right to use his voice in a promotional television program.”