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Bit Parts
DGA's "Qualification List" Isn't a "Labor Organization" Under Georgia Law
The U.S. District Court for the Northern District of Georgia decided that the "Qualification List" created under the Directors Guild of America collective bargaining Basic Agreement doesn't qualify as a "labor organization" for purposes of a claim by a unit production manager (UPM) under Georgia's right-to-work statute, Ga. Code Ann. §34-6-21(a). Town v. Directors Guild of America (DGA), 1:19-cv-03248. Plaintiff Marvin Towns Jr., a UPM and DGA member, was hired by production company And Action, which signed the Basic Agreement, to work in Georgia on a TV show. But Towns was fired after the DGA allegedly informed And Action that he wasn't on the Qualification List. Northern District Judge Michael L. Brown explained about the Qualification List: "The Basic Agreement states that a person can be included on this list if he or she has worked as a First Assistant Director (a lower-level position) for 240 days or as a UPM for 120 days. If a UPM on the list applies for a job, the employer must give that person a preference over any non-listed UPM." Georgia law prohibits employers from requiring employees to be members or quit being a member of a labor organization. Section 34-6-21(a) defines a labor organization as "any organization of any kind or any agency or employee representation, committee, or plan in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work." Dismissing Towns' claim that the DGA and And Action had violated the Georgia right-to-work law, District Judge Brown found: "Plaintiff alleges that, because the Qualification List 'acts as a gateway to wages, pay, and work itself,' it qualifies as a 'labor organization' as contemplated by the Georgia statute. Other than a legal conclusion, he includes no factual allegations that — taken as true — would establish the lists as a labor organization under Georgia law." The district judge added, "while Plaintiff is a member of DGA, he was not required to be a member in order to be included on the Qualification List." The district judge further found that Towns' additional state law claims including tortious interference with business relationship, were preempted by §301 of the federal Labor Management Relations Act. But the court denied And Action's motion to dismiss Towns' promissory estoppel and negligent misrepresentation claims against the production company.
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|Unlicensed Use of Van Halen Photo in Conjunction With Museum Exhibit Ruled Fair Use
The U.S. District Court for the Southern District of New York ruled that the online posting of an unlicensed photo of rock musician Eddie Van Halen's "Frankenstein" guitar in conjunction with an exhibit at the Metropolitan Museum of Art was a copyright fair use. Marano v. The Metropolitan Museum of Art, 19-CV-8606. Lawrence Marano filed his copyright infringement suit over the Met's inclusion of an in-concert photo Marano had previously taken of Van Halen in the museum's online catalogue for its 2019 in-person exhibit Play It Loud: Instruments of Rock & Roll. Dismissing Marano's complaint under the fair use factors of 17 U.S.C. §107 of the U.S. Copyright Act, Southern District Judge Valerie Caproni emphasized in finding a "transformative" fair use: "Plaintiff and the Met used the Photo for entirely different purposes. Plaintiff asserts that he created the Photo to show 'what Van Halen looks like in Performance' and that 'the original meaning' behind the Photo was to 'convey the message that Van Halen is a groundbreaking and unorthodox musician.'" In contrast, District Judge Caproni noted, "the Met used Plaintiff's Photo in a scholarly context. Considering that the 'instruments used in rock and roll had a profound impact on this art form that forever changed music,' the 'Frankenstein' guitar is historically significant within the world of hard rock music." Additionally, the district judge explained that Marano's photo "constitutes an 'inconsequential portion' of the Met's online catalogue. Plaintiff's Photo is a single image surrounded by pages of navigable textual, visual, and audio content. The Photo is located several page-clicks within the actual catalogue of 185 object pages. And even on the 'Frankenstein' guitar's page — the primary focus of which is historical and descriptive text and photographs of the guitar — the Photo is almost an afterthought. In short, the online catalogue's layout is designed to enrich and elaborate the guitar's historical significance, primarily utilizing other photographs and text to do so." As to any impact on the potential licensing market for Marano's photo, Judge Caproni concluded: "A traditional market for the Photo would be collectors of photographs of rock legends or other persons seeking to showcase Van Halen. Being generous, that market might even extend to museums exhibiting musicians. But the Met's use of the Photo to visualize the 'Frankenstein' guitar as played by Van Halen falls into a different, transformative market. It is thus unlikely that markets for the Photo's original expressive purpose would be affected in any way."
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Stan Soocher is Editor-in-Chief of Entertainment Law & Finance and Professor of Music & Entertainment Studies at the University of Colorado's Denver Campus. For more information: http://www.stansoocher.com.
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