Thursday, March 12, 2015

"Blurred Lines" is clear infringement

Am I the only one in the world who thinks the Blurred Lines judgment is right? From the Internet, it sure seems that way.

Robin Thicke and Pharrell Williams broke into jail here. From a litigator's perspective I have no hesitation in saying they are reaping what they sowed.
"Blurred Lines" ended up in court when Pharrell and Thicke sued the estate of Marvin Gaye for a declaratory judgment, which is where you ask a judge to say "this thing you claim isn't true". And from a copyright lawyer's perspective I say this is a judgment that shows you can create a derivative work of something without actually incorporating that work.

And that principle is nothing new.

Thursday, January 1, 2015

The California Civil War - first glance at the random thoughts leading to my upcoming book

Up early on New Year's Day. Starting the "outline" (by which I mean random thoughts) for my book that I'll write this year.

The working title, which anyone who took my Entertainment Law class in 2012 or 2013 will recall, is The California Civil War. It's on the desire for entertainment content companies (Southern California) to ensure that the Internet content pipelines (Northern California) behave in the ways that Southern CA has found so mutually profitable in the past, why Northern CA is fighting back (foreshadowing: it's because of their business model), and why the way it's likely to end won't be in the best interests of consumers.

Put another way: it's a view from the inside of both the content creation and distribution industry on why the future of the entertainment content that you want to see won't likely be the one you want to see.

An early hint at what's to come...

Wednesday, June 25, 2014

Quick thoughts on the Aereo judgment, more to come

I'll give a more full post imminently, but my initial thoughts

  1. The majority opinion is policy, not law. It's telling that they never once reference the prior precedent, Cablevision, except to note that it was the prior precedent. That means they're not giving any meaningful guidance, which is what you do when you're trying to reach a targeted result.
  2. Justice Scalia is 100% right: the Court's ruling replaces widely-accepted rules for service-provider liability with an improvised standard of "looks like cable TV".
  3. There is no reason to limit this reasoning to cable TV. Although the Court takes great pains to say it's not ruling on cloud computing or any other technology, I'm not talking about technology. I'm talking about a method of legal reasoning. If "looks like cable TV therefore is regulated like cable TV" is the test for determining the scope and ambit of a law, then why stop with cable TV? "Uber looks like a taxi therefore it should be regulated like a taxi and be forced to get medallions.". "Food trucks look like a restaurant therefore they should be regulated like a restaurant and be forced to provide restrooms."

Like I said, more to come, but especially #3 concerns me.

Aereo judgment

Wednesday, June 4, 2014

The final exam question for my Entertainment Law class

As I've mentioned in this space, I teach Entertainment Law at the University of Washington every Spring. This year's final exam question is below the jump. Over the next few posts I'll put up some aspects of the answer that I think might be of interest to those of you who are interested in that kind of thing...

Tuesday, March 4, 2014

From 12 Years a Slave to collective agreements: one possible explanation for the script controversy

On the weekend, 12 Years a Slave won the Academy Award for Best Adapted Screenplay as well as Best Picture. There has been some controversy around the authorship of the screenplay. Apparently Steve McQueen believed at one point that he should have received a writer credit, John Ridley disagreed, and so Ridley ended up with the credit and therefore the award.

These kinds of things usually don't happen. The Writers' Guild of America has literally over 50 pages in its Collective Bargaining Agreement setting out the criteria for assigning credit and, if there's a dispute between writers, the arbitration method for settling it. So why didn't that happen here?

Believe it or not, the answer may be found in labor law.

Monday, February 24, 2014

Netflix and Comcast enter agreement to speed up streaming: 5 consequences for you and me

I hope you like Netflix. I know I do. Good thing. Because this week the world changed in a way to make Netflix even more likely to be your only real option in streaming media.

Tuesday, February 11, 2014

Jimi Hendrix merchandise sales shows two risks all creators face when basing characters on real people

Yes, I'll admit it, that title is a horrible and tortured pun. You should never have to experience anything like it again. (Okay, I'll stop.) But one seller of Jimi Hendrix merchandise had an experience in Washington State that teaches two valuable lessons to creators of content using the name, image, or likeness of real people.

(Okay, I promise, I'll really stop now.)

Experience Hendrix is one of two companies formed by the estate of Jimi Hendrix to exploit the rights to his name, image, and likeness through a series of trademarks the company has registered on certain images of Hendrix, his name, and his signature. They use these marks for basically every Jimi Hendrix product you've ever seen: their business is prolific and quite profitable. But of course as with all famous brands Experience Hendrix isn't the only entity trying to profit from Jimi Hendrix. Andrew Pitsicalis owns or has licenses to several works of art either created by Hendrix or showing him in them, and through various websites (including he would sell copies of these works of art, onto which he had placed Hendrix's name, signature, and/or headshot.

Experience Hendrix sued Pitiscalis for state and federal trademark infringement, and Pitsicalis countersued seeking a declaration that Washington's right of publicity statute (which gives Experience Hendrix the right to be the only one to benefit from Hendrix's right of publicity even after death) was unconstitutional. At trial the judge held that the Washington right of publicity statute was unconstitutional. Each side appealed to the Ninth Circuit Court of Appeals.