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“Procure Employment” Clause in California Talent Agencies Act Survives “Vagueness” Challenge

The U.S. District Court for the Central District of California decided that the term “procure employment” in the California Talent Agencies Act (TAA), Calif. Labor Code '1700.44, isn't unconstitutionally vague. See, National Conference of Personal Managers Inc. (NCPM) v. Brown, 12-09620. The TAA requires a state license for legally obtaining engagements for talent. The personal managers' organization argued: “Almost any act undertaken by [a manager], even as innocuous as helping choose a headshot, could and has been linked to the ultimate goal of any artist represented by [the manager] to get a job.” But District Judge Dean D. Pregerson found: “This breadth does not render the statute standardless; it may indicate that the activities of personal managers and talent agents have significant overlap with respect to procuring employment for artists.” The district judge continued: “Even if such an allegation were sufficient to be the basis for a claim that the statute is standardless, it is not sufficient to state a claim when California courts have previously interpreted the phrase [in the TAA] and determined that its meaning is not vague.” See, Wachs v. Curry, 13 Cal. App. 4th 616 (1993). The district court additionally rejected the personal managers' other constitutional arguments that included involuntary servitude, and commerce clause and First Amendment violations.

Stan Soocher'is Editor-in-Chief of Entertainment Law & Finance'and a tenured Associate Professor of Music & Entertainment Industry Studies at the University of Colorado's Denver Campus. He is the 2014 recipient of the State Bar of Texas Entertainment & Sports Law Section's 'Texas Star Award.' His new book is Baby You're a Rich Man: Suing the Beatles for Fun & Profit'(ForeEdge/University Press of New England). Stan can be reached at [email protected]. For more, visit www.stansoocher.com.

Consumer Suit Over Beats Music App Sent to Arbitration

The U.S. District Court for the Northern District of Illinois, Eastern Division, granted Beat Music's motion to send a class-action consumer dispute to arbitration. Craddock v. Beats Music LLC, 14 C 10301. Class plaintiff Megan Craddock had signed up for a one-week, free trial of Beats Music's streaming application on her cell phone. District Judge Joan H. Lefkow explained that Craddock sued after she “received a text message from an unidentified number, reading, 'Beats Music Free Msg. You may qualify for special offers on Beats Music through AT&T. Redeem here ' '” The class action was based on the federal Telephone Consumer Protection Act'(TCPA), 47 U.S.C. '227 et seq. . But Beats argued Craddock was subject to its Term of Use, which mandated arbitration. District Judge Lefkow found: “Craddock's downloading of the application gave rise to the text message at issue, and the content of the message itself referred to Beats Music's website, which is included in the definition of 'Service' set forth in the Terms of Use. Craddock's claims must be arbitrated.” The district judge added: “Craddock argues that her claims should not be arbitrated because her registration for the free trial is, at most, a but-for cause of the text message, which is insufficient to invoke the arbitration clause. Controlling authority, however, makes clear that Craddock's claims are sufficiently related to the services offered by Beats Music.”

No Right of Publicity Claim for Company, But Individual with Same Name as Company Can Proceed

A magistrate for the U.S. District Court for the Northern District of California declined to extend right of publicity protection to a corporation. But the district court did decide in part that an individual may proceed with a right of publicity claim based on the alleged unauthorized use of a trademark related to the individual's name. Virag S.R.L. v. Sony Computer Entertainment America LLC, 3:15-cv-01729. The flooring company Virag, which sponsors auto-racing events, and one of its principals, race-car driver Mirco Virag, sued over the inclusion of the “VIRAG” name in Sony's Gran Turismo 5 and Gran Turismo 6 auto-racing videogames. Magistrate Laurel Beeler first found that “no court has held or even suggested that the right of publicity extends to non-human beings.” Magistrate Beeler emphasized that “[t]o the extent that a corporate plaintiff” in the judicial opinions the plaintiffs cited “was allowed to assert the right of publicity of a human being or group of human beings, the corporate plaintiff was allowed to do so because a human being or group of human beings transferred or assigned his or their right of publicity to the corporate plaintiff.” But Magistrate Beeler went on to note that allege that, in the international racing world, the VIRAG' mark has become a 'personification' of Mirco Virag.” The magistrate then concluded “the court believes Mirco Virag's allegations connecting his identity to the VIRAG' mark are sufficient to defeat the defendants' motion to dismiss '” But the magistrate decided in dismissing the flooring company's trademark claim under the federal Lanham Act: “Based on the plaintiffs' allegations and Gran Turismo 5 and Gran Turismo 6 in their entirety, the court finds that the defendants' use of the VIRAG' mark has at least some artistic relevance to Gran Turismo 5 and Gran Turismo 6.”

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“Procure Employment” Clause in California Talent Agencies Act Survives “Vagueness” Challenge

The U.S. District Court for the Central District of California decided that the term “procure employment” in the California Talent Agencies Act (TAA), Calif. Labor Code '1700.44, isn't unconstitutionally vague. See, National Conference of Personal Managers Inc. (NCPM) v. Brown, 12-09620. The TAA requires a state license for legally obtaining engagements for talent. The personal managers' organization argued: “Almost any act undertaken by [a manager], even as innocuous as helping choose a headshot, could and has been linked to the ultimate goal of any artist represented by [the manager] to get a job.” But District Judge Dean D. Pregerson found: “This breadth does not render the statute standardless; it may indicate that the activities of personal managers and talent agents have significant overlap with respect to procuring employment for artists.” The district judge continued: “Even if such an allegation were sufficient to be the basis for a claim that the statute is standardless, it is not sufficient to state a claim when California courts have previously interpreted the phrase [in the TAA] and determined that its meaning is not vague.” See, Wachs v. Curry, 13 Cal. App. 4th 616 (1993). The district court additionally rejected the personal managers' other constitutional arguments that included involuntary servitude, and commerce clause and First Amendment violations.

Stan Soocher'is Editor-in-Chief of Entertainment Law & Finance'and a tenured Associate Professor of Music & Entertainment Industry Studies at the University of Colorado's Denver Campus. He is the 2014 recipient of the State Bar of Texas Entertainment & Sports Law Section's 'Texas Star Award.' His new book is Baby You're a Rich Man: Suing the Beatles for Fun & Profit'(ForeEdge/University Press of New England). Stan can be reached at [email protected]. For more, visit www.stansoocher.com.