January 2007
Volume 28 Number 8
  

International Developments

European hotels publicly perform programs shown on television sets located in their hotel bedrooms, and thus must pay royalties to the societies that represent the owners of the copyrights to those programs, the European Court of Justice has ruled in a case brought by the Spanish collecting society against Rafael Hoteles.  

Sociedad General de Autores y Editores de España (SGAE)
v. Rafael Hoteles Case C-306/05

http://eur-ex.europa.eu/LexUriServ/ LexUriServ.do?uri=CELEX:62005J0306:EN:HTML

Recent Cases

Videogame makers have a First Amendment right to base their game characters on real celebrities, so long as they are transformed somewhat, a California appellate court has held in a case in which Lady Miss Kier, the former lead singer for the group Deee-Lite, alleged that the character “Ulala” in the game “Space Channel 5” is a “mere emulation” of her.

Kirby v. Sega of America, Inc.

144 Cal. App. 4th 47

2006 Cal. App. LEXIS 1672

http://www.courtinfo.ca.gov/opinions/documents/B183820.PDF

(Cal.Ct.App. 2006)

The National Football League is entitled to be reimbursed by its insurance company for the legal costs it incurred in successfully defending itself in the antitrust lawsuit filed against it by former Ohio State player Maurice Clarett, who complained about an NFL rule that made him ineligible to be drafted when he wanted to be, even though the insurance policy excluded coverage for claims asserting “wrongful deprivation of a career opportunity,” a New York appellate court has ruled.

National Football League v. Vigilant Insurance Co.

824 N.Y.S.2d 72

2006 N.Y. App. Div. LEXIS 13446

http://www.nycourts.gov/reporter/3dseries/2006/2006_08197.htm

(N.Y.App.Div. 2006)

The renewal copyright to the song “Disco Inferno” belongs to Dimensional Music Publishing – the company to which renewal rights were assigned when songwriter Ron “Have Mercy” Kersey was still alive – because the company filed a renewal application early in the 28th year of the first term before Kersey died, even though he later died before the end of the 28th year, a federal District Court has held. In a separate ruling, the court refused to dismiss Dimensional Music’s malpractice claim against the lawyer who represented it when it acquired the song’s copyright, though the court did stay further proceedings in the malpractice claim until the copyright ownership part of the case is concluded.

Dimensional Music Publishing v. Kersey

435 F.Supp.2d 452

2006 U.S. Dist. LEXIS 42610

448 F.Supp.2d 643

2006 U.S. Dist. LEXIS 61334

(E.D.Pa. 2006)

A computer user committed willful infringement of copyrights belonging to Universal and Paramount by downloading digital copies of “Coach Carter” and “Half Baked” from the online P2P service KaZaA, and by storing those movies in the “shared files” directory of his computer from which they could be downloaded by other KaZaA users, a federal District Court has ruled.

Universal City Studios v. Bigwood

441 F.Supp.2d 185

2006 U.S. Dist. LEXIS 51315

(D.Me. 2006)

The California Supreme Court has agreed to review decisions disqualifying two Santa Barbara district attorneys from prosecuting cases on which they had been working, because of entertainment industry activities they undertook while working on those cases. One D.A. wrote a self-published novel entitled “Intoxicating Agent” based on a rape case she was then prosecuting. The other consulted with the writer-director of “Alpha Dog,” a movie about about the Jesse James Hollywood murder case the D.A. was then handling.

Haraguchi v. Superior Court

2006 Cal. LEXIS 15058

ordering review of

143 Cal. App. 4th 846

2006 Cal. App. LEXIS 1543

http://www.courtinfo.ca.gov/opinions/documents/B191161.DOC

(Cal.Ct.App. 2006)

Hollywood v. Superior Court

2006 Cal. LEXIS 4934

ordering review of

143 Cal. App. 4th 858

2006 Cal. App. LEXIS 1545

http://www.courtinfo.ca.gov/opinions/documents/B188550.DOC

 (Cal.Ct.App. 2006)

The History Channel did not defame the Catholic Church by broadcasting the program “Beyond the Da Vinci Code,” nor did the broadcast violate the Communications Decency Act or Child Online Protection Act, a federal District Court has held.

Viola v. A & E Television Networks

433 F.Supp.2d 613

2006 U.S. Dist. LEXIS 37220

(W.D.Pa. 2006)

Dancer Martha Graham transferred her rights in seven dances – ownership of which was left unresolved by earlier judicial decisions – to the Martha Graham Center, a federal Court of Appeals has affirmed, thereby defeating the ownership claims of a Foundation created by Ronald Protas, Graham’s one-time companion and spokesman.

Martha Graham School v. Martha Graham Center

466 F.3d 97

2006 U.S. App. LEXIS 24856

(2nd Cir. 2006)

Although rights of publicity and trademarks may not be sub-licensed without their owners’ consent, a federal appeals court has affirmed the dismissal of a lawsuit filed by the adopted children of band leader Glenn Miller against a trademark and right of publicity licensee, objecting to unauthorized sub-licenses, because the children’s claims were barred by laches and estoppel.

Miller v. Glenn Miller Productions, Inc.

454 F.3d 975

2006 U.S. App. LEXIS 18072

(9th Cir. 2006)

Amazon.com is not liable for displaying the image of a girl whose photo is on the cover of the book “Anjos Proibidos” (“Forbidden Angels”), even though the girl asserts that she did not authorize the use of her photo on the book, because Amazon’s display was incidental to selling the book, and thus was not a violation of the Florida right of publicity statute, a federal appellate court has ruled.

Almeida v. Amazon.com, Inc.

456 F.3d 1316

2006 U.S. App. LEXIS 17989

(11th Cir. 2006)

Trademark infringement claims filed by former players for the Harlem Globetrotters against a clothing manufacturer have been dismissed, because the players failed to show a likelihood of confusion; but the players’ right of publicity claims have not been dismissed, because there are fact disputes about whether the players’ contracts gave the team their publicity rights, and whether the team’s current owner acquired those contracts when the original team went bankrupt.

Lemon v. Harlem Globetrotters International, Inc.

437 F.Supp.2d 1089

2006 U.S. Dist. LEXIS 44699

(D.Ariz. 2006)

LSU, Oklahoma, Ohio State and USC have won a trademark infringement lawsuit against a clothing manufacturer that sold shirts bearing the schools’ distinctive colors, logos and designs.

Board of Supervisors of Louisiana State University

438 F.Supp.2d 653

2006 U.S. Dist. LEXIS 51023

(E.D.La. 2006)

A record company has been awarded $170,000 in a copyright infringement suit against a rack jobber that sold infringing recordings to Big Lots stores, in a case that was complicated by disputes about whether the works were properly registered and assigned, and about whether the rack jobber had access to masters of the record company’s original recordings.

King Records, Inc. v. Bennett

438 F.Supp.2d 812

2006 U.S. Dist. LEXIS 41922

(M.D.Tenn. 2006)

Bridgeport Music did not breach a mechanical licensing agreement it granted to PolyGram Records by suing PolyGram’s successor, UMG, for copyright infringement when UMG issued digital download licenses to Apple, Yahoo! And Napster. A federal District Court has held that if the mechanical license authorized digital downloads, UMG will win the case; but Bridgeport’s claim that the license does not authorize downloads does not breach the license.

Bridgeport Music, Inc. v. Universal Music Group

440 F.Supp.2d 342

2006 U.S. Dist. LEXIS 53680

(S.D.N.Y. 2006)

The Michigan High School Athletic Association violated the Equal Protection rights of female athletes by scheduling girls’ sports to be played during non-traditional or inferior seasons, a federal appellate court has reaffirmed after the Supreme Court remanded the case for reconsideration.

Communities for Equity v. Michigan High School Athletic Association

459 F.3d 676

2006 U.S. App. LEXIS 20918

(6th Cir. 2006)

A real estate company has been permitted to remove site-specific sculptures from South Boston’s Eastport Park, because neither the federal Visual Artists Rights Act nor the Massachusetts Art Preservation Act gave the sculptures’ creator, artist David Phillips, the right to prevent their removal, a federal appellate court has affirmed.

Phillips v. Pembroke Real Estate, Inc.

459 F.3d 128

2006 U.S. App. LEXIS 21423

(1st Cir. 2006)

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