Second Circuit: Zohan Messes With Jaymes Blonde Crime Fighting Hairdresser A Concept Not Protected By Copyright

Jaymes Blonde Messed With by the Zohan

 

In Cabell v. Sony Pictures Ent. Inc., 10-2690-cv (June 24, 2011), the Second Circuit in a summary order affirmed the trial court's grant of summary judgment in a suit for copyright infringment.

Aside from the unprotectable ideas of (1) brandishing a blow dryer as a weapon, and (2) the characters’ fighting poses, there is no plausible basis
for a reasonable jury to find that the parties’ respective expressions of the concept of a crimefightinghairdresser are substantially similar. See Peter F. Gaito Architecture, LLC v. Simone Dev. Corp., 602 F.3d 57, 63 (2d Cir. 2010); see also Walker v. Time Life Films, Inc., 784 F.2d 44, 48 (2d Cir. 1986) (“....

Cabell v SONY Pictures


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Ninth Circuit Reverses Panel in Landmark Hollywood Theft of Ideas Case

If you submit a script to a Hollywood producer who doesn't buy it, but uses the concept, do you have a claim?

On May 4, 2010, a panel of the Ninth Circuit Court of Appeals killed Hollywood by holding that implied contracts for the sale of ideas that were previously protected under California state law (pitch meetings for films) were preempted by the Copyright Act.  My post here.

The Ninth Circuit granted rehearing en banc (before every judge on the court).   My post linking to the video of the hearing en banc here.

Yesterday, in Montz v. Pilgrim (9th Cir. May 4, 2011) one year after the original Ninth Circuit three-year panel killed the Hollywood pitch claim, the full Ninth Circuit reversed the panel and held that implied contracts for the sale of ideas under California state law are not preempted by the Copyright Act.   Decision below, with two dissents, required reading.

If you care about this area of law, watch the video of oral argument before the Ninth Circuit, it is excellent.

If you want to learn about how Hollywood really works, read one of the great American novels: What Makes Sammy Run? by Budd Schulberg. They say that the novel is so true to life that Hollywood will never make the film. It of course involves theft of ideas, exploitation of writers, unbridled ambition and chicanery.

Montz v Pilgrim Films


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Copyright PSA From A Talented Filmmaker

A very touching Copyright PSA from Krista Dzialoszynski.


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Fair Use Fridays: Ripping DVDs For Documentary Films - Is There A Right To High Quality Free Speech?

We know from the recent Salinger/Colting case discussed here that prior restraints on speech must be weighed when we look at injunctions in the copyright infringement context.

But what about in the fair use context?  Let's look at the statute and think about a documentary filmmaker who wants to make a "fair use" of someone else's copyrighted work:

Section 107 of the Copright Act - 17 U.S.C. § 107. Limitations on exclusive rights: Fair use provides:


Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—


(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;


(2) the nature of the copyrighted work;


(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and


(4) the effect of the use upon the potential market for or value of the copyrighted work.


The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
 
The Digital Millenium Copyright Act makes it a crime to circumvent encryption to rip someone else's copyrighted materials.  So isn't that criminal statute an impermissible prior restraint on free speech?
 
Doc filmmakers can't make good quality films without ripping DVDs.  They can get lower quality elsewhere.
 
The Copyright Office should act soon because the International Documentary Association has asked that the exemptions to the DMCA be reviewed.  HT to Techdirt, Hillicon Valley, reports here.  Mike Masnick at Techdirt is pessimistic, read the link:

Documentary Filmmakers Want DMCA Exemption; But Almost Definitely Won't Get It Techdirt

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Copyright Litigation Blog on Google - Number One "Copyright Litigation" Search

Search results from Google put Copyright Litigation Blog and Copyright Litigation Handbook at number one in search engine results for the search "copyright litigation".

Thanks, Google, and thanks to everyone who enjoys the content, your readership, comments and feedback are all appreciated.

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Justia Ranks Copyright Litigation Blog in Top 10 Copyright Blogs

Of the 59 copyright blogs tracked by the Justia Blawsearch the Copyright Litigation Blog now ranks number 8 in popularity.   Below, the top 10 with their respective Justia Blawgsearch rankings:

1. IPKat 37

2. Recording Industry v the People 95

3. Plagiarism Today 117

4. Chilling Effects Clearinghouse 124

5. Nolo Presents the Law 183

6. Chicago IP Litigation Blog 207

7. Likelihood of Confusion 215

8. Copyright Litigation Blog 292

9. Lessig Blog 359

10. TechnoLlama 360

Unfortunately, Bill Patry stopped publishing his copyright blog, it was unquestionably the strongest player in the field.

ABA Journal Blawg Review: Thanks for Covering Copyright Litigation Blog

You can access the Copyright Litigation Blog through the ABA Journal Blawgs directory here.

Copyright Infringement PSA: Do Porn Stars Lose Royalties From Illegal Downloads?

Somehow this PSA video seems exploitative of the talent.  Are porn stars protected by agreements that give them shares in royalties?  Are they SAG?  If not, this video is really misleading.  A strange appeal to prurience in the battle against infringement.

SDNY Judge Whacks Limewire, Holds Founder Personally Liable

Opinion here courtesy WSJ Law blog, article here.

SCOTUS - Congress Lacks Power to Criminalize Depictions of Killing Wounding and Torturing Animals

In an attempt to stop "crush videos" (explanation of a sexual fetish involving a dominatrix stomping on animals in high heels or bare feet here and here ), Congress passed a law reading as follows:

18 U.S.C. §48. Depiction of animal cruelty


“(a) CREATION, SALE, OR POSSESSION.—Whoever knowingly creates,sells, or possesses a depiction of animal cruelty with the intention of placing that depiction in interstate or foreign commerce for commercial gain, shall be fined under this title or imprisoned not more than 5years, or both. “(b) EXCEPTION.—Subsection (a) does not apply to any depictionthat has serious religious, political, scientific, educational, journalistic, historical, or artistic value. “(c) DEFINITIONS.—In this section— “(1) the term ‘depiction of animal cruelty’ means any visual orauditory depiction, including any photograph, motion-picture film, video recording, electronic image, or sound recording of conduct in which a living animal is intentionally maimed, mutilated, tortured,wounded, or killed, if such conduct is illegal under Federal law or the law of the State in which the creation, sale, or possession takes place,regardless of whether the maiming, mutilation, torture, wounding, or killing took place in the State; and ( ... ***)
 
In United States v. Stevens, 559 U.S. ___ (April 20, 2010) found here, Congress affirmed the Third Circuit's striking the statute down as overbroad and unconstitutional.  From the decision:
 
The First Amendment provides that “Congress shall make no law . . . abridging the freedom of speech.” “[A]s a general matter, the First Amendment means that gov-ernment has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” Ashcroft v. American Civil Liberties Union, 535 U. S. 564, 573 (2002) (internal quotation marks omitted). Section 48 explicitly regulates expression based on content: The statute restricts “visual [and] auditory depiction[s],” such as photographs, videos, or sound recordings, depending on whether they depict conduct in which a living animal isintentionally harmed. As such, §48 is “‘presumptively invalid,’ and the Government bears the burden to rebut that presumption.” United States v. Playboy Entertainment Group, Inc., 529 U. S. 803, 817 (2000) (quoting R. A. V. v. St. Paul, 505 U. S. 377, 382 (1992); citation omitted).
 
The Supreme Court goes on to analyze how the statute may be used to apply to situations involving perfectly legal and ethical behavior having nothing to do with crush videos.   The defendant was prosecuted for inter alia distributing videos of legal Japanese dogfights from decades past.
 
The decision shows a healthy skepticism of the government's claims that prosecutorial discretion will be used in the enforcement of an overbroad statute.   It is amazing how many Americans watch hunting videos (for recreation, not instruction), and the decision is interesting for its exploration of the depth and breadth of human cruelty for enjoyment's sake.
 
I agree with Clancco that the decision is a correct one.  The decision will be misread by popular media as endorsing cruelty to animals, it does no such thing and it speaks approvingly of state statutes regulating cruelty to animals. 
 
 
 
 

De Minimus Copying in Copyright and Trademark Law

In Gottlieb Development LLC v. Paramount Pictures Corp., 2008 WL 5396360 (S.D.N.Y. December 29, 2008), Judge Denny Chin tossed out a copyright and trademark infringement claim brought by a manufacturer of pinball games against a film production company on a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. The claim was that Paramount put a Gottlieb pinball machine in the background of a scene featuring Mel Gibson in the film "What Women Want".

The defendant attached a copy of the DVD to its motion to dismiss. The court looked at the offending footage and found that the fleeting glimpse of the pinball machine was so trivial that he could throw out the copyright infringement claim and the trademark infringement (false endorsement) claim, even though the complaint had adequately pleaded the unauthorized copying claim.

Significantly, in determining the motion to dismiss, Judge Chin applied the U.S. Supreme Court's "plausibility" standard to the set of facts alleged in the complaint. See Bell Atlantic Corp. v. Twombly, 125 S. Ct. 1955, 1969 (2007), stating "...the Silver Slugger was filmed in such a manner and appears so fleetingly that I conclude there is no plausible claim for copyright infringement here" and "Because Gottlieb does not amplify its trademark claim with factual allegations to rise 'above the speculative level' [ ] its trademark infringement claim is hereby dismissed.

Two cases to compare are Ringgold v. Black Entertainment Television, Inc., 126 F.3d 70, 75 (2d Cir. 1997) and Sandoval v. New Line Cinema Corp., 147 F.3d 215, 217 (2d Cir. 1998).

Film Production, Rights of Publicity and Borat

Lemerond v. Twentieth Century Fox Film Corp., 2008 WL 918579, 87 U.S.P.Q.2d 1219 (S.D.N.Y.)(LAP). Psenicska v. Twentieth Century Fox, 07 Civ. 10972 S.D.N.Y, September 3, 2007 (Preska, J.) found here courtesy of How Appealing.
When you make a film, do you need a person's permission before you put that person's image in your film? Can you "commercialize" the person's image without their consent? And if you do obtain a "release" from the person, are there limits to what you can use the image for?
Not surprisingly, Sacha Baron Cohen of Borat and Da Ali G Show fame has pushed everyone's limits on these issues.
In making the film Borat: Cultural Learnings of America for Make Benefit Glorious Nation of Kazakhstan, Cohen went out into the streets dressed up as his fictional Borat character, accosted a man in the streets of New York City, and included the footage of the encounter in both the film and the trailer. Is that ok?
New York's Civil Rights Law Section 51 creates a cause of actions for "[a]ny person whose name, portrait, picture or voice is used within [New York] for advertising purposes or for the purposes of trade without" their written consent. There is a broad "newsworthiness" exception to the statute. In dismissing plaintiff's claims, Judge Loretta Preska found that Borat's childish and vulgar character was engaging in a commentary on American society and was accordingly, newsworthy.
In the Psenicska case, numerous plaintiffs executed releases that were sprung on them at the last minute before filming. The releases were detailed and indicated a consent to participate in a "documentary-style" film. During each segment, each plaintiff was subjected to offensive, humiliating and outrageous behavior from Cohen. Analyzing the question under New York contract law, the court found the term "documentary-style" - to accurately portray the Borat film's content. The court dismissed the fraudulent inducement claims, noting that such claims were specifically waived by the language in the release.
In producing a copyrighted work such as a film, one must take care to ensure that it consists of underlying content that is obtained properly. Had these issues not been litigated in New York, or release not been obtained, the result would surely have been different. The broad language of New York's Civil Rights law is narrowed substantially by the case law.