Fifty-Six Hope Road Music v. A.V.E.L.A.

The panel affirmed the district court’s judgment after a jury trial on claims under the Lanham Act and Nevada state law regarding the use of Bob Marley images on apparel and other merchandise.

Affirming the denial of defendants’ post-trial motion for judgment as a matter of law on a false endorsement claim, the panel held that sufficient evidence supported the jury’s finding that defendants violated the Lanham Act because they (a) used Marley’s image (b) on their t-shirts and other merchandise, (c) in a manner likely to cause confusion as to plaintiffs’ sponsorship or approval of these t-shirts and other merchandise. The panel held that defendants waived several defenses. It rejected the argument that allowing a plaintiff to vindicate a false endorsement claim based on the use of a deceased celebrity’s persona essentially creates a federal right of publicity.

The panel held that the district court did not abuse its broad discretion in determining the profits for three defendants. There was sufficient evidence to find that defendant Freeze willfully infringed plaintiffs’ rights. The Seventh Amendment did not require that a jury calculate these profits. The panel held that the district court did not abuse its discretion by ordering three defendants to pay attorneys’ fees to plaintiffs because (1) plaintiffs were prevailing parties, and (2) the case was exceptional, as these defendants’ conduct was willful.

The panel affirmed the district court’s grant of summary judgment to defendants on a right of publicity claim under Nevada law.

The panel held that there was sufficient evidence to support the jury’s finding that three defendants interfered with plaintiffs’ prospective economic advantage.

The panel held that the district court did not err in granting defendants’ motion for judgment as a matter of law on the issue of punitive damages.

Concurring in part and dissenting in part, Judge Christen concurred in the result but did not join the reasoning in Subsection I.B.2 of the majority’s opinion, addressing likelihood of confusion. Judge Christen wrote that the narrow holding in Part I, concluding that the evidence presented at trial was sufficient for the jury to find that defendants violated the Lanham Act by using Marley’s likeness, was dictated by the standard of review on appeal, and by the defenses actually pursued by defendants.

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Magi XXI, Inc. v. Stato della Citta del Vaticano

Sublicensee to an agreement allowing reproductions of the Vatican library collection brought action against the licensee, the licensee’s president, and the Vatican State, alleging breach of contract and related torts. The United States District Court for the Eastern District of New York (Mauskopf, J.) dismissed the claims against the Vatican State based on forum selection clauses contained in sublicense agreements. We hold the Vatican State may invoke the forum selection clauses in the sublicense agreements because the licensee and the Vatican State were “closely related” parties and it was foreseeable that the Vatican State would enforce the forum selection clauses. Accordingly, the judgment of the district court is AFFIRMED.

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n 2009, Paula Petrella filed an action for copyright infringement, unjust enrichment and accounting against Metro-Goldwyn-Mayer, Inc.; Metro-Goldwyn-Mayer Studios, Inc.; Metro-Goldwyn-Mayer Home Entertainment, LLC; Metro-Goldwyn-Mayer Home Entertainment Distribution Corporation; United Artists Corporation; and 20th Century Fox Home Entertainment, LLC (“the defendants”). According to Petrella, the defendants infringed her purported interest in a book and two screenplays that together allegedly formed the basis for the 1980 motion picture Raging Bull. The district court granted summary judgment in favor of the defendants, holding that Petrella’s claims are barred by the equitable defense of laches. The district court also denied the defendants’ motions for sanctions and attorney’s fees. We affirm.


Fox Stands Trial in $10 Million 'Napoleon Dynamite' Case

The outcome of a dispute over home video revenue depends on how a judge reads a contract negotiated at the 2004 Sundance Film Festival.

9:13 AM PDT 6/19/2012 by Eriq Gardner

A trial is underway in a case that will determine whether Fox Searchlight shortchanged producers of the hit 2004 comedy Napoleon Dynamite.

Napoleon Pictures, the production company behind the film, filed a lawsuit against Fox in August that claimed it is owed $10 million for allegedly underreported royalties and improper revenue deductions from the indie comedy that grossed $44.5 million domestic. Last month, a judge rejected Fox's attempt to defeat the lawsuit on summary judgment, setting the stage for a trial by judge that will determine exactly what was negotiated when the studio acquired rights to the picture in a bidding war at the 2004 Sundance Film Festival.

Full story.

Single software licence shared 774,651 times

By Nicole Kobie

Posted on 6 Dec 2010 at 12:21

A single licence for Avast security software has been used by 774,651 people after it went viral on a file-sharing site, according to the company.

Avast noticed that a license for its paid-for security software, sold to a 14-user firm in Arizona, was being distributed online. Rather than shut down the piracy, the company decided to see how far the software would spread.

The Avast Pro licence showed up on file-sharing sites, and a year and a half later it had topped three-quarters of a million active users.

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Vernor v. Autodesk, Inc.

Timothy Vernor purchased several used copies of Autodesk, Inc.’s AutoCAD Release 14 software (“Release 14”) from one of Autodesk’s direct customers, and he resold the Release 14 copies on eBay. Vernor brought this declaratory judgment action against Autodesk to establish that these resales did not infringe Autodesk’s copyright. The district court issued the requested declaratory judgment, holding that Vernor’s sales were lawful because of two of the Copyright Act’s affirmative defenses that apply to owners of copies of copyrighted works, the first sale doctrine and the essential step defense.

Autodesk distributes Release 14 pursuant to a limited license agreement in which it reserves title to the software copies and imposes significant use and transfer restrictions on its customers. We determine that Autodesk’s direct customers are licensees of their copies of the software rather than owners, which has two ramifications. Because Vernor did not purchase the Release 14 copies from an owner, he may not invoke the first sale doctrine, and he also may not assert an essential step defense on behalf of his customers. For these reasons, we vacate the district court’s grant of summary judgment to Vernor and remand for further proceedings.

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F.B.T. Prods., LLC v. Aftermath Records

This dispute concerns the percentage of royalties due to Plaintiffs F.B.T. Productions, LLC, and Em2M, LLC, under their contracts with Defendant Aftermath in connection with the recordings of Marshal B. Mathers, III, professionally known as the rap artist Eminem.1 Specifically, F.B.T. and Aftermath disagree on whether the contracts’ “Records Sold” provision or “Masters Licensed” provision sets the royalty rate for sales of Eminem’s records in the form of permanent downloads and mastertones. Before trial, F.B.T. moved for summary judgment that the Masters Licensed provision unambiguously applied to permanent downloads and mastertones. The district court denied the motion. At the close of evidence, F.B.T. did not move for judgment as a matter of law, and the jury returned a verdict in favor of Aftermath. On appeal, F.B.T. reasserts that the Masters Licensed provision unambiguously applies to permanent downloads and mastertones. We agree that the contracts are unambiguous and that the district court should have granted summary judgment to F.B.T. We therefore reverse the judgment and vacate the district court’s order awarding Aftermath its attorneys’ fees.

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RIAA Accounting: Why Even Major Label Musicians Rarely Make Money From Album Sales

from the going-behind-the-veil dept

We recently had a fun post about Hollywood accounting, about how the movie industry makes sure even big hit movies "lose money" on paper. So how about the recording industry? Well, they're pretty famous for doing something quite similar. Reader Jay pointed out in the comments an article from The Root that goes through who gets paid what for music sales, and the basic answer is not the musician. That report suggests that for every $1,000 sold, the average musician gets $23.40.

Full story.

'Hollywood Accounting' Losing In The Courts

If you follow the entertainment business at all, you're probably well aware of "Hollywood accounting," whereby very, very, very few entertainment products are technically "profitable," even as they earn studios millions of dollars. A couple months ago, the Planet Money folks did a great episode explaining how this works in very simple terms. The really, really, really simplified version is that Hollywood sets up a separate corporation for each movie with the intent that this corporation will take on losses. The studio then charges the "film corporation" a huge fee (which creates a large part of the "expense" that leads to the loss). The end result is that the studio still rakes in the cash, but for accounting purposes the film is a money "loser" -- which matters quite a bit for anyone who is supposed to get a cut of any profits.

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RIAA v. Library of Congress

By law, the Copyright Royalty Board sets the terms and rates for copyright royalties when copyright owners and licensees fail to negotiate terms and rates themselves. As part of its statutory mandate, the Board sets royalty terms and rates for what is known as the § 115 statutory license. That license allows individuals to make their own recordings of copyrighted musical works for distribution to the public without the consent of the copyright owner.

In carrying out its statutory responsibilities under 17 U.S.C. § 115, the Board instituted a 1.5 percent per month late fee for late royalty payments. It also implemented a pennyrate royalty structure for cell phone ringtones, under which copyright owners receive 24 cents for every ringtone sold using their copyrighted work.

The Recording Industry Association of America challenges those two aspects of the Board’s decision, arguing that they were arbitrary and capricious for purposes of the Administrative Procedure Act. We conclude that the Board’s decision was reasonable and reasonably explained. We therefore affirm the Board’s determination.

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