Bit Parts

Batman Film's Fictional Software Doesn't Confuse Consumers as to Plaintiff's Trademark

The U.S. Court of Appeal for the Seventh Circuit affirmed a district ruling that the references to a fictional “clean slate” hacking software in the 2012 Batman film The Dark Knight Rises weren't likely to confuse consumers as to the trademark for the plaintiff's security management software “Clean Slate.” Fortres Grand Corp. v. Warner Bros. Entertainment Inc., 13-2337. The District Court for the Northern District of Indiana had noted in its ruling “that it's somewhat surprising that this is a relatively uncharted territory of trademark law.” The Seventh Circuit observed: “There is little authority on how to treat the 'similarity of the products' factor when one of them is fictional, ' but what few cases have confronted the issue have considered the likelihood of confusion between the senior user's product [ i.e. , in this case Fortres Grande] and the junior user's creative work [i.e., the movie itself as a product] ' not any fictional product therein.” The appeals court then found it unlikely “that a super-hero movie and desktop management software are 'goods related in the minds of consumers in the sense that a single producer is likely to put out both goods.'” The Seventh Circuit decided the case without also determining whether Warner Bros had a viable First Amendment defense.

Excessive Management Term, Commission Make Any Debts Artist Might Owe Manager Dischargeable Through Bankruptcy

The U.S. Bankruptcy Court for the Western District of Missouri decided that a musician/impressionist could discharge through bankruptcy any monies he may owe his personal manager under what the court found to be an unconscionable management contract. In Re: Walker, 12-61614. Joseph Wilson began managing artist Michael Aubrey Walker in 2002. The last of the three management agreements between the two contained a 25-year management term (three to five years is typical in the music industry) and a provision requiring third parties to pay Wilson $10 million to buy out his rights under the Walker management contract. Further, Wilson obtained a right to a commission of 50% of Walker's gross income but the contract gave Walker no termination rights. After Walker filed a Chapter 7 bankruptcy petition, Wilson filed an adversary proceeding. Chief Bankruptcy Judge Arthur B. Federman noted that Wilson claimed the lengthy contract term was justified “by arguing that it takes longer to develop the career of an impressionist (as opposed to a typical singer/recording artist) and that, once developed, an impressionist's career tends to last longer. But Wilson had no experience managing impressionists, and little experience managing other performers.” Judge Federman also observed that, during the adversary proceeding, country artist Mickey Gilley “testified that the typical fee under a management agreement would be 10-25%. He did testify that he and his original manager had a 50/50 deal at one point, but ' that was only because they also owned a nightclub together.” The bankruptcy court concluded that the key provisions of the Wilson/Walker management relationship were “so grossly inequitable as to shock the conscience. They are, therefore, void and unenforceable.”

Federal Court Backs BET's Role in Shutdown of Fan-Developed Facebook and Twitter Accounts for TV Series

The U.S. District Court for the Southern District of Florida decided that Black Entertainment Television (BET) didn't act wrongfully in having Facebook terminate a fan's Web page for the TV series The Game and transfer the “likes” to a different, BET Facebook account. Mattocks v. Black Entertainment Television LLC, 13-61582. Stacey Mattocks and BET had entered into an agreement regarding the administration of the Facebook fan page she developed, though she restricted BET's access while engaged in employment negotiations with the network. BET then got Facebook to shut down Mattocks' Facebook page and Twitter to close her Game account. After Mattocks sued, District Judge James I. Cohn granted summary judgment for BET by noting in part: “[T]he record establishes that BET's requests to terminate the FB Page and Twitter account were motivated, at least in part, by Mattocks revoking BET's full access to the FB Page. That action affected BET's economic interests by depriving the network of control over its intellectual property on the Page and how the Series was officially promoted there. While BET may also have had other financial motives in disabling the Page and Twitter account, no record evidence shows that BET took these steps for purely malicious reasons.”

Batman Film's Fictional Software Doesn't Confuse Consumers as to Plaintiff's Trademark

The U.S. Court of Appeal for the Seventh Circuit affirmed a district ruling that the references to a fictional “clean slate” hacking software in the 2012 Batman film The Dark Knight Rises weren't likely to confuse consumers as to the trademark for the plaintiff's security management software “Clean Slate.” Fortres Grand Corp. v. Warner Bros. Entertainment Inc., 13-2337. The District Court for the Northern District of Indiana had noted in its ruling “that it's somewhat surprising that this is a relatively uncharted territory of trademark law.” The Seventh Circuit observed: “There is little authority on how to treat the 'similarity of the products' factor when one of them is fictional, ' but what few cases have confronted the issue have considered the likelihood of confusion between the senior user's product [ i.e. , in this case Fortres Grande] and the junior user's creative work [i.e., the movie itself as a product] ' not any fictional product therein.” The appeals court then found it unlikely “that a super-hero movie and desktop management software are 'goods related in the minds of consumers in the sense that a single producer is likely to put out both goods.'” The Seventh Circuit decided the case without also determining whether Warner Bros had a viable First Amendment defense.

Excessive Management Term, Commission Make Any Debts Artist Might Owe Manager Dischargeable Through Bankruptcy

The U.S. Bankruptcy Court for the Western District of Missouri decided that a musician/impressionist could discharge through bankruptcy any monies he may owe his personal manager under what the court found to be an unconscionable management contract. In Re: Walker, 12-61614. Joseph Wilson began managing artist Michael Aubrey Walker in 2002. The last of the three management agreements between the two contained a 25-year management term (three to five years is typical in the music industry) and a provision requiring third parties to pay Wilson $10 million to buy out his rights under the Walker management contract. Further, Wilson obtained a right to a commission of 50% of Walker's gross income but the contract gave Walker no termination rights. After Walker filed a Chapter 7 bankruptcy petition, Wilson filed an adversary proceeding. Chief Bankruptcy Judge Arthur B. Federman noted that Wilson claimed the lengthy contract term was justified “by arguing that it takes longer to develop the career of an impressionist (as opposed to a typical singer/recording artist) and that, once developed, an impressionist's career tends to last longer. But Wilson had no experience managing impressionists, and little experience managing other performers.” Judge Federman also observed that, during the adversary proceeding, country artist Mickey Gilley “testified that the typical fee under a management agreement would be 10-25%. He did testify that he and his original manager had a 50/50 deal at one point, but ' that was only because they also owned a nightclub together.” The bankruptcy court concluded that the key provisions of the Wilson/Walker management relationship were “so grossly inequitable as to shock the conscience. They are, therefore, void and unenforceable.”

Federal Court Backs BET's Role in Shutdown of Fan-Developed Facebook and Twitter Accounts for TV Series

The U.S. District Court for the Southern District of Florida decided that Black Entertainment Television (BET) didn't act wrongfully in having Facebook terminate a fan's Web page for the TV series The Game and transfer the “likes” to a different, BET Facebook account. Mattocks v. Black Entertainment Television LLC, 13-61582. Stacey Mattocks and BET had entered into an agreement regarding the administration of the Facebook fan page she developed, though she restricted BET's access while engaged in employment negotiations with the network. BET then got Facebook to shut down Mattocks' Facebook page and Twitter to close her Game account. After Mattocks sued, District Judge James I. Cohn granted summary judgment for BET by noting in part: “[T]he record establishes that BET's requests to terminate the FB Page and Twitter account were motivated, at least in part, by Mattocks revoking BET's full access to the FB Page. That action affected BET's economic interests by depriving the network of control over its intellectual property on the Page and how the Series was officially promoted there. While BET may also have had other financial motives in disabling the Page and Twitter account, no record evidence shows that BET took these steps for purely malicious reasons.”