Cameo Clips

BOOK PUBLISHING/PERSONAL JURISDICTION

The U.S. District Court for the Southern District of New York ruled that it lacked personal jurisdiction over an Oregon-based, not-for-profit operator of a Web site that made unauthorized downloads of books of a New York-based publisher available to the public. Penguin Group (USA) Inc. v. American Buddha, 09 Civ. 528(GEL). Penguin Group filed suit charging copyright infringement by the defendant's www.naderlibrary.com, of books by authors Upton Sinclair, Sinclair Lewis and others. The district court noted in dismissing the suit: “Plaintiff does not allege that any infringement occurred in New York. Rather, its theory of jurisdiction is that because it is based in New York, infringement occurring anywhere in the world necessarily injures plaintiff in New York. ' That position is unsustainable.” The court reasoned that “while the electronic nature of the alleged infringement may make it possible for others acting in New York to infringe plaintiff's copyrights here, plaintiff has not alleged such a New York infringement, and bases its claim of injury solely on the economic effect of an injury inflicted by defendant elsewhere.”

The U.S. District Court for the Eastern District of New York ruled there was no substantial similarity between the screen treatment Go November by political commentator Bradley Blakeman and the defendants' motion picture Swing Vote. Blakeman v. The Walt Disney Co., 08-CV-3212 (JFB)(ETB). Blakeman alleged that he had met with actor Kelsey Grammer and Steven Stark, the president of Grammnet Productions, in California to talk about developing the Go November treatment into a movie, but that didn't happen. Blakeman later filed suit after the release of Swing Vote, starring Kevin Costner, who was also named a defendant in Blakeman's complaint.

The defendants moved to dismiss the suit on the pleadings under Rule 12(b)(6) of the Federal Rules of Civil Procedure. The district court acknowledged that, “in the copyright context, when analyzing the issue of substantial similarity based upon a comparison of the two works, it is clear that courts may decide the issue without permitting discovery.” But the court continued: “Nevertheless, in an abundance of caution, the court provided notice to the parties at oral argument that it was converting the Rule 12(b)(6) motion to dismiss into a motion for summary judgment and was going to consider the 'Go November' and 'Swing Vote' works in connection with that motion (which had already been submitted to the court), as well as any other evidence the parties wished to submit on the issue of substantial similarity.”

The district court then decided it had long-arm jurisdiction over Grammnet Productions and Stark under N.Y. C.P.L.R. '302(a), explaining that “plaintiff has alleged that Grammnet and Stark supplied the plaintiff's work ' i.e., the treatment and amplification of 'Go November' ' to the other defendants with full knowledge that the other defendants were going to infringe on plaintiff's work by developing the motion picture 'Swing Vote' and distribute the infringing work throughout the nation (including the State of New York).”

The court observed in part that Go November “centers around a series of 'dirty tricks' undertaken by both campaigns,” but that Swing Vote “is a sentimental comedy that examines a presidential race through the lens of an 'Everyman' figure, using both the election as well as his relationship with his daughter to track his journey from irresponsible oaf to concerned citizen. In short, the themes of the movies share nothing in common other than the backdrop of a Presidential election. To say that these movies are substantially similar because of the common theme of a Presidential election would be as irrational as saying the movie 'Animal House' is substantially similar to 'Rudy' or 'Good Will Hunting' because the movies all focus on college life.”

The U.S. District Court for the District of Minnesota ruled that CBS Interactive didn't need a license to use personal indicia of NFL players for a fantasy football game on CBSSports.com. CBS Interactive Inc. v. National Football League Players Association Inc. (NFLPA), 08-5097 ADM/SRN. CBS Interactive had obtained licenses from the NFLPA-majority owned National Football League Players Inc. (Players) to use the “names, likenesses (including without limitation, [jersey] numbers), pictures, photographs, voices, facsimile signatures and/or biographical information” of league players. But CBS Interactive refused to renew its license after the Eighth Circuit decided in C.B.C. Distributing & Marketing Inc. v. Major League Baseball Advanced Media L.P., 505 F.3d 818 (8^th Cir. 2006), that no license was required to use the name and statistics of league players for fantasy baseball products. CBS Interactive also filed for a declaratory judgment of its right to operate without a license from Players.

Granting partial summary judgment for the Web site operator, the district court noted: “The package of player information that CBS Interactive uses is no different than that described by the Eighth Circuit ' it consists of names, player profiles, up-to-date statistics, injury reports, participant blogs, pictures, images, and biographical information. ' Thus, like in C.B.C. Distribution, the package of information used here comes within the ambit of the First Amendment. The court discerns no difference between the package of information at issue here and that which was at issue in C.B.C. Distribution that would impact the balancing of publicity rights against First Amendment considerations.”

The court added: “The printouts of CBS Interactive's [W]eb site fail to demonstrate specific facts that support the assertion that the manner in which CBS Interactive presents the package of player information could give the false impression of an endorsement. The manner in which the information appears does not demonstrate or imply any connection between the players and the advertisement such that one could mistakenly believe that an endorsement is being made. Indeed, as CBS Interactive persuasively argues, the manner in which the player information is presented is akin to newspapers and magazines, which routinely display pictures and information about celebrities, including professional athletes; however, '[n]o one seriously believes that the subjects of news reports are endorsing the company that provides the report' nor the products and services advertised by third parties who have purchased advertising space in the newspaper or magazine.”

BOOK PUBLISHING/PERSONAL JURISDICTION

The U.S. District Court for the Southern District of New York ruled that it lacked personal jurisdiction over an Oregon-based, not-for-profit operator of a Web site that made unauthorized downloads of books of a New York-based publisher available to the public. Penguin Group (USA) Inc. v. American Buddha, 09 Civ. 528(GEL). Penguin Group filed suit charging copyright infringement by the defendant's www.naderlibrary.com, of books by authors Upton Sinclair, Sinclair Lewis and others. The district court noted in dismissing the suit: “Plaintiff does not allege that any infringement occurred in New York. Rather, its theory of jurisdiction is that because it is based in New York, infringement occurring anywhere in the world necessarily injures plaintiff in New York. ' That position is unsustainable.” The court reasoned that “while the electronic nature of the alleged infringement may make it possible for others acting in New York to infringe plaintiff's copyrights here, plaintiff has not alleged such a New York infringement, and bases its claim of injury solely on the economic effect of an injury inflicted by defendant elsewhere.”

The U.S. District Court for the Eastern District of New York ruled there was no substantial similarity between the screen treatment Go November by political commentator Bradley Blakeman and the defendants' motion picture Swing Vote. Blakeman v. The Walt Disney Co., 08-CV-3212 (JFB)(ETB). Blakeman alleged that he had met with actor Kelsey Grammer and Steven Stark, the president of Grammnet Productions, in California to talk about developing the Go November treatment into a movie, but that didn't happen. Blakeman later filed suit after the release of Swing Vote, starring Kevin Costner, who was also named a defendant in Blakeman's complaint.

The defendants moved to dismiss the suit on the pleadings under Rule 12(b)(6) of the Federal Rules of Civil Procedure. The district court acknowledged that, “in the copyright context, when analyzing the issue of substantial similarity based upon a comparison of the two works, it is clear that courts may decide the issue without permitting discovery.” But the court continued: “Nevertheless, in an abundance of caution, the court provided notice to the parties at oral argument that it was converting the Rule 12(b)(6) motion to dismiss into a motion for summary judgment and was going to consider the 'Go November' and 'Swing Vote' works in connection with that motion (which had already been submitted to the court), as well as any other evidence the parties wished to submit on the issue of substantial similarity.”

The district court then decided it had long-arm jurisdiction over Grammnet Productions and Stark under N.Y. C.P.L.R. '302(a), explaining that “plaintiff has alleged that Grammnet and Stark supplied the plaintiff's work ' i.e., the treatment and amplification of 'Go November' ' to the other defendants with full knowledge that the other defendants were going to infringe on plaintiff's work by developing the motion picture 'Swing Vote' and distribute the infringing work throughout the nation (including the State of New York).”

The court observed in part that Go November “centers around a series of 'dirty tricks' undertaken by both campaigns,” but that Swing Vote “is a sentimental comedy that examines a presidential race through the lens of an 'Everyman' figure, using both the election as well as his relationship with his daughter to track his journey from irresponsible oaf to concerned citizen. In short, the themes of the movies share nothing in common other than the backdrop of a Presidential election. To say that these movies are substantially similar because of the common theme of a Presidential election would be as irrational as saying the movie 'Animal House' is substantially similar to 'Rudy' or 'Good Will Hunting' because the movies all focus on college life.”

The U.S. District Court for the District of Minnesota ruled that CBS Interactive didn't need a license to use personal indicia of NFL players for a fantasy football game on CBSSports.com. CBS Interactive Inc. v. National Football League Players Association Inc. (NFLPA), 08-5097 ADM/SRN. CBS Interactive had obtained licenses from the NFLPA-majority owned National Football League Players Inc. (Players) to use the “names, likenesses (including without limitation, [jersey] numbers), pictures, photographs, voices, facsimile signatures and/or biographical information” of league players. But CBS Interactive refused to renew its license after the Eighth Circuit decided in C.B.C. Distributing & Marketing Inc. v. Major League Baseball Advanced Media L.P. , 505 F.3d 818 (8 th Cir. 2006), that no license was required to use the name and statistics of league players for fantasy baseball products. CBS Interactive also filed for a declaratory judgment of its right to operate without a license from Players.

Granting partial summary judgment for the Web site operator, the district court noted: “The package of player information that CBS Interactive uses is no different than that described by the Eighth Circuit ' it consists of names, player profiles, up-to-date statistics, injury reports, participant blogs, pictures, images, and biographical information. ' Thus, like in C.B.C. Distribution, the package of information used here comes within the ambit of the First Amendment. The court discerns no difference between the package of information at issue here and that which was at issue in C.B.C. Distribution that would impact the balancing of publicity rights against First Amendment considerations.”

The court added: “The printouts of CBS Interactive's [W]eb site fail to demonstrate specific facts that support the assertion that the manner in which CBS Interactive presents the package of player information could give the false impression of an endorsement. The manner in which the information appears does not demonstrate or imply any connection between the players and the advertisement such that one could mistakenly believe that an endorsement is being made. Indeed, as CBS Interactive persuasively argues, the manner in which the player information is presented is akin to newspapers and magazines, which routinely display pictures and information about celebrities, including professional athletes; however, '[n]o one seriously believes that the subjects of news reports are endorsing the company that provides the report' nor the products and services advertised by third parties who have purchased advertising space in the newspaper or magazine.”