Bit Parts

Copyright Infringement/Parody Defense

Fredrik Colting's new novel 60 Years Later: Coming Through the Rye (written as John David California) includes J.D. Salinger, author of the classic novel The Catcher in the Rye, as a character. In finding Colting's work wasn't a fair use parody of Catcher in the Rye, the U.S. District Court for the Southern District of New York noted in part: “Defendants' use of Salinger as a character, in order to criticize his reclusive nature and alleged desire to exercise 'iron-clad control over his intellectual property, refusing to allow others to adapt any of his characters or stories in other media,' ' is at most, a tool with which to criticize and comment upon the author, J.D. Salinger, and his supposed idiosyncracies. It does not, however, direct that criticism toward Catcher and [the Salinger novel's central character Holden] Caulfield themselves, and thus is not an example of parody.” Salinger v. Colting, 09 Civ. 5095(DAB). As for Colting's rendering of an elder Holden Caulfield, the Southern District of New York emphasized that “it can be argued that the contrast between Holden's authentic but critical and rebellious nature and his tendency toward depressive alienation is one of the key themes of Catcher. That many readers and critics have apparently idolized Caulfield for the former, despite ' or perhaps because of ' the latter, does not change the fact that those elements were already apparent in Catcher. ' It is hardly parodic to repeat that same exercise in contrast, just because society and the characters have aged.” 

Film Production Insurance/Green-Light Endorsement

The California Court of Appeal, Second District, affirmed dismissal of a production company's suit for its insurer to defend or indemnify against copyright infringement and related claims filed against the insured production company over the movie The Last Samurai. The Bedford Falls Co. v. Fireman's Fund Insurance Co., B208352. Bedford Falls purchased an errors-and-omissions policy from Firemen's Fund covering April 22, 2002 to April 22, 2006. The suit over Last Samurai was filed against Bedford Falls in February 2006. A “green light endorsement” in the E&O policy provided that coverage “does not apply to any film project once it is 'Green Lit' (90 day[s] prior to principal photography) and we shall have no obligation to defend or indemnify any claims made against this policy after a project is green lighted.” The court of appeal noted in its unpublished opinion: “The exhibits to the SAC [i.e., Bedford Falls' second amended complaint against Fireman's Fund] revealed a complete defense. They demonstrated that plaintiffs had paid only the Minimum Annual Premium under the producers endorsement, and that under the green light provision, their coverage was limited to the pre-green light time period. Judicial notice of plaintiffs' own discovery responses and the copyright registration for The Last Samurai further revealed the completion date for that film, which was before inception of the April 22, 2005-April 22, 2006 policy term. ' Similarly, as to defendant's other annual policies in effect during the April 22, 2002-April, 22, 2005 time period, the SAC and attached exhibits revealed that plaintiffs never made or reported the claims in [The Last Samurai dispute] during any of those policy periods.”

Right of Publicity/Newsworthiness Defense

The U.S. Court of Appeals for the Eleventh Circuit decided that Hustler Magazine's publication of nude photographs of murdered professional wrestler Nancy Benoit weren't allowed under the newsworthiness exception to the right of publicity of Benoit estate's under Georgia law. Toffoloni v. LFP Publishing Group LLC, 08-16148. Benoit and her son were murdered in 2007 by her husband Christopher Benoit, also a professional wrestler, who then killed himself. In March 2008, Hustler published nude photographs of Nancy Benoit from about two decades earlier and which her mother, Maureen Toffolini, claimed Nancy had asked to be destroyed. Hustler argued that the nude photos and an accompanying article about Nancy Benoit were of high public interest. But the federal appeals court explained: “LFP's brief biography of Benoit's life, even with its reference to her youthful pursuit of modeling, is merely incidental to its publication of her nude photographs. Therefore, the biographical piece cannot suffice to render the nude photographs newsworthy. ' LFP may not make public private, nude images of Benoit that she, allegedly, expressly did not wish made public, simply because she once wished to be a model and was then murdered.” The Eleventh Circuit further noted: “Crude though the concept may seem in this context, Toffoloni is entitled to control when and whether images of her daughter are made public in order to maximize the economic benefit to be derived from her daughter's posthumous fame.”

Copyright Infringement/Parody Defense

Fredrik Colting's new novel 60 Years Later: Coming Through the Rye (written as John David California) includes J.D. Salinger, author of the classic novel The Catcher in the Rye, as a character. In finding Colting's work wasn't a fair use parody of Catcher in the Rye, the U.S. District Court for the Southern District of New York noted in part: “Defendants' use of Salinger as a character, in order to criticize his reclusive nature and alleged desire to exercise 'iron-clad control over his intellectual property, refusing to allow others to adapt any of his characters or stories in other media,' ' is at most, a tool with which to criticize and comment upon the author, J.D. Salinger, and his supposed idiosyncracies. It does not, however, direct that criticism toward Catcher and [the Salinger novel's central character Holden] Caulfield themselves, and thus is not an example of parody.” Salinger v. Colting, 09 Civ. 5095(DAB). As for Colting's rendering of an elder Holden Caulfield, the Southern District of New York emphasized that “it can be argued that the contrast between Holden's authentic but critical and rebellious nature and his tendency toward depressive alienation is one of the key themes of Catcher. That many readers and critics have apparently idolized Caulfield for the former, despite ' or perhaps because of ' the latter, does not change the fact that those elements were already apparent in Catcher. ' It is hardly parodic to repeat that same exercise in contrast, just because society and the characters have aged.” 

Film Production Insurance/Green-Light Endorsement

The California Court of Appeal, Second District, affirmed dismissal of a production company's suit for its insurer to defend or indemnify against copyright infringement and related claims filed against the insured production company over the movie The Last Samurai. The Bedford Falls Co. v. Fireman's Fund Insurance Co., B208352. Bedford Falls purchased an errors-and-omissions policy from Firemen's Fund covering April 22, 2002 to April 22, 2006. The suit over Last Samurai was filed against Bedford Falls in February 2006. A “green light endorsement” in the E&O policy provided that coverage “does not apply to any film project once it is 'Green Lit' (90 day[s] prior to principal photography) and we shall have no obligation to defend or indemnify any claims made against this policy after a project is green lighted.” The court of appeal noted in its unpublished opinion: “The exhibits to the SAC [i.e., Bedford Falls' second amended complaint against Fireman's Fund] revealed a complete defense. They demonstrated that plaintiffs had paid only the Minimum Annual Premium under the producers endorsement, and that under the green light provision, their coverage was limited to the pre-green light time period. Judicial notice of plaintiffs' own discovery responses and the copyright registration for The Last Samurai further revealed the completion date for that film, which was before inception of the April 22, 2005-April 22, 2006 policy term. ' Similarly, as to defendant's other annual policies in effect during the April 22, 2002-April, 22, 2005 time period, the SAC and attached exhibits revealed that plaintiffs never made or reported the claims in [The Last Samurai dispute] during any of those policy periods.”

Right of Publicity/Newsworthiness Defense

The U.S. Court of Appeals for the Eleventh Circuit decided that Hustler Magazine's publication of nude photographs of murdered professional wrestler Nancy Benoit weren't allowed under the newsworthiness exception to the right of publicity of Benoit estate's under Georgia law. Toffoloni v. LFP Publishing Group LLC, 08-16148. Benoit and her son were murdered in 2007 by her husband Christopher Benoit, also a professional wrestler, who then killed himself. In March 2008, Hustler published nude photographs of Nancy Benoit from about two decades earlier and which her mother, Maureen Toffolini, claimed Nancy had asked to be destroyed. Hustler argued that the nude photos and an accompanying article about Nancy Benoit were of high public interest. But the federal appeals court explained: “LFP's brief biography of Benoit's life, even with its reference to her youthful pursuit of modeling, is merely incidental to its publication of her nude photographs. Therefore, the biographical piece cannot suffice to render the nude photographs newsworthy. ' LFP may not make public private, nude images of Benoit that she, allegedly, expressly did not wish made public, simply because she once wished to be a model and was then murdered.” The Eleventh Circuit further noted: “Crude though the concept may seem in this context, Toffoloni is entitled to control when and whether images of her daughter are made public in order to maximize the economic benefit to be derived from her daughter's posthumous fame.”