Kelly-Brown v. Winfrey

On appeal from judgment entered pursuant to an Order dated March 6, 2012 by the United States District Court for the Southern District of New York (Paul A. Crotty, Judge) granting Defendants-Appellees’ motion to dismiss. Plaintiff is the owner of a motivational services business named “Own Your Power Communications, Inc.,” and has a registered service mark in “Own Your Power.” Defendants published a magazine cover, hosted an event, and built a section of a website all utilizing the phrase “Own Your Power.” Plaintiffs bring suit alleging trademark infringement under the Lanham Act. The District Court held that the defendants’ use of the phrase “Own Your Power” constituted fair use and also held that plaintiffs’ claims failed because she failed to meet the threshold requirement of showing use as a mark. We disagree with the District Court’s holding that the defendants have demonstrated fair use and also with its holding that plaintiffs are required to make a threshold showing that defendants’ used “Own Your Power” as a mark in order to state a claim for trademark infringement. We therefore VACATE the judgment of the District Court with respect to plaintiffs’ trademark infringement, false designation of origin, and reverse confusion claims and REMAND for further proceedings not inconsistent with this opinion. The District Court granted defendants’ motion to dismiss plaintiffs’ counterfeiting, vicarious infringement, and contributory infringement claims on separate grounds, and we AFFIRM with respect to these claims.

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Copyright Ruling Rings With Echo of Betamax


Before Napster and LimeWire, before Megauploads and the Pirate Bay, media companies’ epic struggle against copying, piracy and generally losing control over their creations can be traced to a legal fight more than 30 years ago over a device that has long since passed on to the great trash heap in the sky: the Sony Betamax.

When the Betamax videocassette recorder hit American living rooms in 1976, consumers, for the first time, could tape their favorite TV shows and watch them later. Hollywood hated it.

“The VCR is to the American film producer and the American public as the Boston strangler is to the woman home alone,” Jack Valenti, the garrulous head of the Motion Picture Association of America, told Congress.

The Supreme Court almost bought the argument that because it was illegal to copy shows without the copyright holder’s consent, the Betamax must be an accessory to crime. At the last minute, however, Justice Sandra Day O’Connor changed her mind. In a 5-to-4 ruling in 1984, the technology survived.

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'Walking Dead' War: Creator Robert Kirkman Sued By Collaborator

by Matthew Belloni

Robert Kirkman, the famed comic book writer who helped create AMC's hit zombie series The Walking Dead, has been sued by a childhood friend and collaborator who claims he is entitled to as much as half the proceeds from the lucrative franchise.

Michael Anthony ("Tony") Moore, a fellow comic book artist, filed suit Thursday in Los Angeles Superior Court. In the complaint, a copy of which was obtained by THR, Moore says he was duped into assigning his interest in the material over to Kirkman, who has since gone on to fame and fortune. Moore, on the other hand, has received very little compensation and has not be able to access profit statements from properties including Walking Dead, he says.

"Each of these works was prepared by [Moore] and Kirkman with the intention that their contributions be merged into inseparable or independent parts of a unitary whole," the complaint states. "[Moore] and Kirkman were thus joint authors and co-owners of the copyrights in these works."

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Lawsuit Dismissed Over Virtual Furniture On HGTV's 'Selling New York'

To entice a buyer for a high-end property in New York, a real estate broker featured on HGTV digitally recreated what the apartment would look like furnished. The furniture maker sued.

by Eriq Gardner

A design company that specializes in high-end furniture has failed in its effort to show that virtual furniture displayed on HGTV's Selling New York constitutes copyright infringement, trade dress infringement and unfair competition.

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'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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