Legal briefing: hot topics in entertainment law - Biederman Blog

Biederman Blog editors Max H. Hacker and Sherrie C. Fields filed this report:

If you?re trying to stay atop developments in Entertainment Law, the Biederman Entertainment and Media Law Institute? and the Media Law Resource Center hosted their 10th annual Entertainment & Media Law Conference a few days ago. On the agenda: Three lively panels on copyright law in light of modern technology, obstacles encountered in producing or distributing a film in a foreign territory and the current state (and ambiguity) of misappropriation law. Here?s a quick rundown:TV everywhere ? copyright protection, nowhere or somewhere?

Panelists in this part of the program tackled copyright issues that have arisen with new technologies such as DVRs and internet live streaming services, allowing consumers to choose when they watch their favorite shows and whether to skip advertisements. The panel, moderated by Southwestern Prof. Michael Scott, included R. David Hosp?(Fish & Richardson P.C.),?Michael H. Page?(Durie Tangri LLP), and?Richard Stone?(Jenner & Block LLP).

Discussion focused on the implications of?Sony Corp. of America v. Universal Studios Inc., where the U.S. Supreme Court held it was fair use to allow viewers to ?time shift? when recording television content on VCRs.

Also under scrutiny was the expansion of?Cartoon Network LP LLP v. CSC Holdings Inc.?(Cablevision). Panelists expressed a broad range of views, from the fear that this case threatens copyright by eroding the public performance right to the idea that the case preserves the licensing right.??In?Cablevision, the U.S. Court of Appeals for the Second Circuit in New York held that the playback to the consumer of a television program copy made on a central hard drive?and transmitted through the internet?was not a public performance.

Cases involving streaming service companies, such as Aereo?and?Aereokiller, as well as Dish?s Hopper DVR, yet may make it to the U.S. Supreme Court and lead to a revisit of Sony to deal with issues such when copying television content should considered as authorized or unauthorized.

Content without borders: issues in international production and distribution

This panel took on issues and obstacles related to filming in foreign territories and what occurs subsequently in distributing those movies. The panel, moderated by?F. Jay Dougherty?of Loyola Law School, included?Laine R. Kline?(Fox International Productions),?Tim Suter?(Perspective Associates) and?Shelly Tremain?(NBC Universal).

Panelists underscored the need to retain a production service partner in each territory where shooting occurs. Such a relationship helps in logistics ? bringing in equipment and personnel and securing visas. Contracting with a local partner helps make the long process of setting up bank accounts in those areas easier, especially in countries like China where this process alone can take months.

Contract and employment issues abroad also were part of the conversation, as, film distributors typically must conform to agreements that locals draft and send to them;? these contracts often lack legal elements that American practitioners may consider the norm, including terms on royalty payments or work made for hire provisions. It may prove wise but costly to hire local counsel, panelists said.

Suter, the only international member of the panel, hit on three areas on which international film regulators express concern: protections for children and vulnerable audiences; respect for different cultural values; and journalistic standards. What is permissible and shown in one country can prove offensive in another, Suter said. Regulators must be concerned with the audiences in each territory and their values and vulnerabilities.

An interesting exchange ensued when Suter explained that in Europe, product placement long has been illegal; producers, with greater frequency, are finding work-arounds to this obstacle.

Rights (and wrongs) of publicity: the evolving law of misappropriation

This panel tackled misappropriation law, fair use and the conflicting authorities on what is actionable in privacy torts in general. The panel, moderated by?Nathan Siegel?(Levine Sullivan Koch & Schulz, LLP), included?Vineeta Gajwani?(Electronic Arts Inc.),?Bruce E.H. Johnson?(Davis Wright Tremaine LLP),?Brid Jordan?(Reynolds Porter Chamberlain LLP),?Robert C. O?Brien?(Arent Fox LLP), and?Rebecca Sanhueza?(Time Inc.)

Panelists examined the benefits and drawbacks of the?Grimaldi?test from?Rogers v. Grimaldi,? where actress Ginger Rogers sued over Federico Fellini?s 1986 Italian film, ?Ginger and Fred.? The U.S. Court of Appeals for the Second Circuit in New York denied her claim, holding that, while the film?s title was relevant to the underlying story, it did not indicate that Rogers endorsed nor was connected to the project. Jordan, a panelist and a Briton, noted that in the United Kingdom, Rogers? claim would certainly fail under their right of publicity counterpart theory: passing off.

Also under scrutiny in this session were: misappropriation on a magazine cover; and right of privacy in film. Sanhueza discussed a Baywatch cast member who appeared on the cover of Playgirl, hinting he would be shown nude inside the magazine; he was not but?defendants won.

O?Brien showed a Dog the Bounty Hunter clip, in which football coaches reluctantly were caught on tape.Plaintiffs lost an action over this filming; though common folks have a right of publicity, defendants showed their work was ?newsworthy,? and, thus, a fair use. Johnson noted that entertainment is continuously protected as news.

Panelists also took up a hotly disputed class-action case involving?retired football players and the NFL Films library. Jordan noted again that a similar action had been pursued by European soccer stars ? but was quickly dismissed.

Siegel showed images disputed in litigation on right of publicity-misappropriation claims and whether defendants prevailed, including: the??Three Stooges? shirt?from?Saderup?(no); the painting from the Tiger Woods case?(yes, applying?Grimaldi?or transformative test), a?Paris Hilton cartoon?(no), a character from Spawn (yes, applying predominant use test), and more.

Sanhueza said a work can be shown to be transformative when there is a likeness related to an original work but an individual has gone beyond and done something to it. This is a distinction in the eye of the beholder ? judges think they know it is when they see it, said O?Brien, evoking U.S. Supreme Court Justice Potter Stewart?s much-quoted remark about what?s pornographic or not in?Jacobellis v. Ohio. This is a developing area of law, which Johnson called the ?Wild, wild West,? and it will be much affected by ever-changing new technology (just think PhotoShop), as well as where courts, lawmakers and the public draw boundaries regarding the First Amendment and commercial speech.

As for a number of lawsuits filed by former NFL players against Electronic Arts over use of the athletes? images in videogames, Gajwani argued that the games are transformative ?users can change players? appearances and the outcomes of historic contests in which they played. But should video games be protected like books and movies (see Brown v.?EMA)??O?Brien said these issues may be resolved in a different fashion than expected ? in players? future collective-bargaining agreements.

In response to the audience, panelists also took a stiff upper lip on holograms and privacy issues they might pose. Is a hologram Sean Connery, as James Bond, actionable for misappropriation? Jordan hinted there might be a viable ?passing off? claim in Britain, though this might be averted by giving audiences due, clear notice that they would see an avatar, not Connery/Bond.

Source: http://biedermanblog.com/technology/legal-briefing-hot-topics-in-entertainment-law/

spanx aurora borealis gcb mary j blige dionne warwick patricia heaton arsenic and old lace