MP3Tunes Founder Must Pay $41 Million per Jury Verdict

Newsflash from your Hollywood Attorney:

MP3Tunes founder Michael Robertson has been ordered by a New York jury to pay about $41 million in damages for massive copyright infringement.

The ruling on Wednesday comes a week after he was found liable in a lawsuit brought by Capitol Records, EMI and other record labels and music publishers. Reuters reports that verdict issued was complex and could take some time to figure out exactly how much was awarded. The record labels brought many claims over songs and cover art and there could be some nuance around a calculation of statutory damages and lost profits.

Robertson is expected to appeal the ruling.

Martin Bandier, Chairman and CEO of Sony/ATV Music, praised the ruling.

"Sony/ATV Music Publishing commends the jury on their careful consideration of the facts and their decision in theMP3Tunes.com case," Bandier said in a statement to The Hollywood Reporter. "The judicial process has worked in favor of the songwriter and demonstrated a respect for the copyrights laws. We will continue to vigorously pursue action against those who have disregarded the copyright laws of the works entrusted in our care.”

Here's what we wrote last week about the trial...
Robertson operated two websites, MP3Tunes.com and Sideload.com, that once boasted a catalog of more than 400,000 recordings by 40,000 artists. In some respects an early version of cloud services, Robertson's sites allowed its users to upload music, listen to music, and transfer or "sideload" music from third-party websites to storage lockers.

The plaintiffs brought the copyright case in 2007, the same year that Viacom sued YouTube. In its nearly seven years on the court docket, Capitol Records v. MP3Tunes became incredibly complex. Thanks in large part to the lawsuit, MP3Tunes filed for bankruptcy in 2012 with Robertson later challenging the court's jurisdiction over him. Further, Robertson attempted to raise all sorts of issues relating to whether the record labels had properly registered copyrights on their songs.

The judge in the case determined on summary judgment that MP3Tunes and Robertson were liable for direct infringement for personally uploading some of the songs in question, but the main trial drama revolved around issues of "willful blindness" and "red flag knowledge" with regards to thousands of other hit songs.

As explored in the recently settled Viacom v. YouTube case, the Digital Millennium Copyright Act provides safe harbor from copyright liability under certain conditions. Most famously, Internet service providers that respond expeditiously upon the actual knowledge that comes from takedown notices can claim a safe harbor defense. But then there are points where the immunity can be attacked including when a service provider is aware of a high probability of infringement and consciously avoids to confirm that fact or when a service provider has a right and ability to control infringing activity.

In 2012, the 2nd Circuit Court of Appeals addressed this in the YouTube case and hinted that something less than a DMCA takedown notice could trigger legal obligations.

Afterward, the judge in the MP3Tunes case withdrew his prior grant of summary judgment in favor of the defendants on the possibility they exhibited willful blindness and had red flag knowledge.

Robertson countered this triable issue with evidence that the record companies had distributed free songs online as part of marketing campaigns, which he believed might exonerate him as a innocent infringer. After all, perhaps his infringements didn't rise to the level of a standard known as what's "objectively obvious to a reasonable person."

Unfortunately for him, a jury came back with a ruling that MP3tunes was willfully blind -- a determination that will be cheered by the entertainment industry's fiercest copyright advocates. It's pretty much the exact outcome that Viacom had hoped to get against YouTube before abandoning the case.

Robertson, who was also the founder of MP3.com, successfully defended a few claims including ones over whether he should have removed files from users' lockers, but the trial now moves on to a determination of damages.

UPDATED: A jury punishes the owner of the once-popular website for hosting thousands of stolen songs.

Source.... HR

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Famed Hanging from the Clock Scene gets into Copyright Infringement Lawsuit

Newsflash from your Hollywood Attorney:

 Harold Lloyd Entertainment filed a copyright infringement lawsuit against Cupecoy Home Fashion Inc., which allegedly has been selling a clock that is "a direct appropriation of the iconic clock scene."

See for yourself. On the left is the the scene from from the 1923 film. On the right is the alleged copyright infringement.

The silent film stars Harold Lloyd and has been celebrated as one of the top 100 films ever made by the American Film Institute. The most famous image from the movie is of Lloyd dangling perilously from the hands of a giant clock.

Thanks to the fact that the movie came out in 1923, it is in copyright for 95 years, or until 2018. Had the film been released one year earlier, the film would be in the public domain. Though it wasn't the intention of the filmmakers to express this in the movie, a man hanging from a clock seems appropriate.

Interestingly, the lawsuit says that the plaintiff has licensed rights to make derivatives of this famous scene to other filmmakers.

"The 1985 blockbuster Back to the Future licensed the rights to create a derivative version of the clock scene when it obtained permission from HLE to feature a scene where star Christopher Lloyd dangled perilously from the hands of a giant clock," says the lawsuit.

The lawsuit adds, "Martin Scorsese's critically acclaimed children's movie Hugo licensed the rights to create a derivative version of the clock scene when it obtained permission from HLE to feature a scene where star Asa Butterfield dangled perilously from the hands of a giant clock."

Now a lawsuit has been filed over a clock from Cupecoy, which advertises itself as a seller of "innovative gift and home accessories suitable for any contemporary interior."

The film industry is now full of "talking pictures," but according to the complaint (read here), not everyone is speaking.

"HLE has attempted to resolve this case short of litigation," says the lawsuit filed by attorney John Tehranian. "After months of efforts on that front, Defendants have gone completely silent and failed to respond to Plaintiff's continuing inquiries and attempts to settle this matter."

Source....HRClock

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Disney Suing Musicals that are Featuring "Spider-Man", "Mary Poppins", "Lion King"

Newsflash from your Hollywood Attorney:

A Pennsylvania theatre group draws the company's by showcasing its popular works.

The company is now drawing the line at a musical that attempts to showcase the glories of the genre with tributes to famous characters and songs. On Tuesday, in Pennsylvania federal court, Disney and some of its partners filed a lawsuit against Entertainment Theatre Group, doing business as American Music Theatre.

The defendants are staging Broadway: Now and Forever, which includes references to The Producers, Billy Elliot, Wicked, Jersey Boys and more. Disney is upset about the inclusion of Mary Poppins, The Lion King and Spider-Man.

The show is advertised as providing theater-goers with a "larger-than-life theatrical compilation of unforgettable music from the hottest new blockbusters to all-time favorite classics... Broadway: Now & Forever recreates the greatest moments ever on stage."

Disney won't stand for Broadway piracy.  A movie that shows iconic Disney characters doing things like attempting to crush a child is one thing. More horrifying perhaps is a theatrical production that is described in the complaint as presenting six actor-dancers dressed in Spider-Man costumes performing a choreographed dance routine. This is said to be unfair competition. Spider-Man: Turn off the Dark is the most expensive production in Broadway history. This new show apparently shows off the more famous one on a video screen.

The appearance of Mary Poppins is no less concerning for Disney. In the complaint, Disney provides photographic proof that a woman portraying Ms. Poppins dances with children and flies above the stage with her umbrella open.

Read Full Complaint here.... http://www.scribd.com/doc/171196860/Poppins

Disney is suing for copyright infringement, trademark infringement, unfair trade practices and more, seeking damages for willful infringement after saying the defendants have refused to stop the show even after being warned. Disney says this is an "exceptional case" under trademark law. The defendant hasn't yet responded to a request for comment.

Source.... http://www.hollywoodreporter.com

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Disney's Unauthorized Disneyland Horror Movie Will There Be a Legal Battle?

Newsflash from your Hollywood Attorney:

Sundance breakout "Escape From Tomorrow," which depicts Disney princesses as prostitutes and was filmed without permission inside Disney's parks, fails to provoke a legal response from a studio unwilling to dole out free press.

The movie's backstory has all the ingredients of a classic Hollywood lawsuit: Escape From Tomorrow, a microbudgeted horror pic set for release Oct. 11, was filmed without permission inside Disneyland and Disney World and incorporates several of The Walt Disney Co.'s iconic (and copyrighted) characters doing things like attempting to crush a child.

What's more, Producers Distribution Agency, an arm of indie player John Sloss' Cinetic Media (along with Abramorama and FilmBuff), is brazenly provoking Disney's legal pit bulls with a poster that spells out the title in the company's familiar bubbly handwriting, above which looms an image of a Mickey Mouse-like blood-soaked hand.

Instant litigation, right? Not this time. Unlike so many knee-jerk studio reactions, sources tell THR that Disney will give this movie a free pass.

It's not that the company doesn't have a case. When the David Lynch-ian black-and-white film premiered at Sundance in January, many assumed it would be blocked by Disney lawyers faster than the Queen of Hearts could shout, "Off with their heads!" Director Randy Moore's dark vision is brimming with racy perversions of studio property, including Disney princesses depicted as high-class prostitutes and a parkwide outbreak of a deadly flu virus.

Loyola Law School professor Jay Dougherty says shooting the film inside a Disney park isn't necessarily actionable (beyond a possible trespassing claim on violation of park rules), and "fair use" exceptions to copyright law could be a defense for using the characters in a larger narrative. But "Disney could have a stronger case regarding trademark law and trademark dilution," he adds.

The trailer for Tomorrow slyly notes that the film has not been approved by Disney, but the poster bears no disclaimer distancing the studio from the movie -- and its Disney-esque font might confuse moviegoers into thinking it is studio-approved.

Regardless, Disney -- set to release its own Disneyland-set movie, Saving Mr. Banks, in December -- has decided the less attention paid, the better. A spokesperson did not respond to a request for comment, but a studio source says the strategy is to avoid giving Tomorrow attention that could lead to bigger box office. After all, The Weinstein Co. this year parlayed Warner Bros.' objections to using the title The Butler, which Warners owns, into a mountain of media that put its film on the public's radar.

Disney's silence, rather than legal might, ultimately could hurt Tomorrow, according to studio marketing executives surveyed by THR. Because so much of the film's fascination hinges on its Disney-defying reputation, a shrug of the studio's shoulders could deflate that buzz like a three-day-old Mylar balloon.

Source.... http://www.hollywoodreporter.com

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Elton John's Copyright Infringement Lawsuit Against the Singer and Writing Partner Fails

Newsflash from your Hollywood Attorney:

Unfortunately for a man who composed a song entitled "Natasha" and sued Elton John and Bernie Taupin for ripping it off, there's more than one.

On Wednesday, the Seventh Circuit Court of Appeals affirmed the dismissal of a copyright lawsuit against the music legends after determining that substantial similarity couldn't be established in analyzing the work of plaintiff Guy Hobbs with Elton John's own "Nikita" song.

In the lawsuit, Hobbs asked a court to look at his song inspired by a brief love affair he had with a Russian waitress.

The plaintiff attempted to steer the judge to looking at the "unique combination" of elements allegedly similar in both songs. The list included things like a common theme of impossible love between a Western man and a Communist woman during the Cold War, descriptions of the beloved's light eyes, the phonetically-similar Russian female name in the title, and phrases such as "I need you" as well as versions of "you will never know."

But the argument fails because Seventh Circuit judge Daniel Manion reiterates the principle that copyright law does not protect general ideas, only the particular expression of an idea. The judge adds that copyright law doesn't protect "incidents, characters or settings which are as a practical matter indispensable, or at least standard, in the treatment of a given topic."

The appeals court decides it doesn't have to address Hobbs' "unique combination" theory because the plaintiff hasn't made the threshold showing of similarity in the particular elements.

Going into more detail, and showcasing not only why copyright lawsuits often fail but also the many trappings of love in a tough geo-political climate, Judge Manion says that the two songs:

                     "tell different stories about impossible romances during the Cold War.... 'Natasha' tells the story of two people who briefly become intimate, but who are forced to part ways because one is not free (presumably because of the Iron Curtain) and must sail away... 'Nikita' tells the tale of a man who sees and desires a woman whom he can never meet because she is on the other side of a 'line' held in by 'guns and gates' (perhaps the Berlin Wall)." He could only imagine and wish for a chance to hold her, to tell her about his home, and if the border guards were to leave and set her free then to find and meet her, but he thinks that will never happen."  

Read the Ruling here... http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2013/D07-17/C:12-3652:J:Manion:aut:T:fnOp:N:1169984:S:0

Source.... http://www.hollywoodreporter.com/thr-esq/elton-john-convinces-judges-uniqueness-587655

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Controversial Video "Innocence of Muslims" Who is Looking to Punish Google for Copyright Infringement

Innocence of Muslims is more than just an important footnote in the tragedy of the Benghazi attack that killed an American diplomat; the film could also create precedent on determining what rights actors have or don't in controlling use of their performances.

On Wednesday, the Ninth Circuit Court of Appeals considered the case of Innocence of Muslims actress Cindy Lee Garcia who sued after a trailer for the film was posted on YouTube. She says the video subjected her to death threats. Garcia alleges that because she didn't sign a release, she owns a copyright in her performance. She contends that after she sent a takedown notice to Google's YouTube, the website had a legal obligation to remove the video.
Last autumn, a federal judge rejected that theory for the purpose of deciding whether to grant a preliminary injunction, saying that the nature of Garcia's alleged copyright interest wasn't clear, and that as a result, she wasn't likely to win the case on the merits.

Garcia has appealed the decision, and a forthcoming ruling from the Ninth Circuit could clear up that confusion, provide guidance on the types of licenses that producers need to get from actors and influence what websites do when they get takedown requests from performers in videos.

At the hearing on Wednesday, the appeals judges asked Garcia's attorney Cris Armenta to clear up her authority. "What bothers me about this case," said one judge, "[is] I'm trying to understand why does she have a copyright license in first place? When she goes to work, why does she get a copyright in what's produced."

Armenta's position is that when actors perform for film, they fix their performance in a medium of tangible expression -- which is one of the requirements for copyright protection. As such, producers must get actors to sign over their rights in releases.

In the absence of express consent, there might still be an implied license that actors give producers, but in the Innocence of Muslims case, filmmaker Mark Basseley Youssef is alleged in Armenta's words to have "exceeded the scope of the license by taking the performance that she delivered for something that was innocuous and placed it into something that was so offensive to her given her background, given her values."

Armenta also compared it to a situation where an actor is asked to perform for a cartoon show only to find their image being used in a porno.

One of the judges noted that the theory of exceeding the license might make it very difficult for movies to get out. Ninth Circuit judge Ronald Gould proposed that the hypothetical of an actor shooting a Jell-O commercial only to find the TV ad not to his or her liking. (The judge probably wasn't aware of this, but an actress last year sued Belvedere Vodka after unwillingly becoming the face of an advertising campaign that joked about rape.)

The judges also questioned attorney Timothy Alger, who was representing Google, and brought up another big issue of the times -- YouTube's response to takedown requests.

"Why does Google care?" asked one judge. "Why doesn't Google just pull this thing and save themselves attorney fees if nothing else?"

Alger answered that his client doesn't just pull down stuff based on "defective DMCA notices." The attorney also said that Google takes seriously its role as a "forum of free speech," and then made a slippery slope argument. "If YouTube takes down just because of the say-so of someone who had a five-second appearance in a film like this, where do we stop?"

That wasn't satisfying for one judge, who noted that the film was inflammatory and that Google could reserve its rights while accommodating special circumstances. "There's no principle from preventing Google from doing the right thing," commented that judge.

Read More.... http://www.hollywoodreporter.com/thr-esq/innocence-muslims-appeal-examines-rights-576458

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Police Claim that NBC's "Stars Earn Stripes" Was Stolen, Judge Says...

Rejecting a motion to dismiss, the judge says he can't conclude at this stage that the military-themed reality TV show isn't substantially similar to the plaintiff's own pitch.

A lawsuit brought by a former New York police detective that alleges that NBC's Stars Earn Stripes was stolen is moving to the next round.

Richard Dillon, who worked for the NYPD for 20 years and has been a consultant on TV shows, brought the lawsuit last November. He came up with an idea for a reality TV show that pitted celebrity contestants against one another in competitive events designed to mimic the training received by Navy SEALs. Among those he's suing for taking his WGA-registered treatment is NBCUniversal and series producers Dick Wolf and Mark Burnett.

The defendants in the lawsuit urged California federal judge James Otero to dismiss various claims on the ground that they had insufficient access to Dillon's treatment and that the material wasn't sufficiently similar to Stars Earn Stripes, but in a ruling on Tuesday, the judge finds enough in the allegations to largely leave the lawsuit intact.
More times than not, federal judges will dismiss idea theft claims because the bar for substantial similarity is high. So it's fairly notable anytime a judge takes the time in a theft case to write a detailed ruling that denies a motion by a major entertainment studio.

Read Full Ruling ...  http://www.scribd.com/doc/149054496/Stars-Stripes

In this case, according to allegations laid out by Judge Otero, Dillon and a co-creator named Jonathan Moss began contacting television producers about their idea. They were referred to David Hurwitz, a producer of reality TV whose previous work includes Fear Factor and who would later be credited with co-creating Stars Earn Stripes.

In August, 2011, a conference call was held and Hurwitz praised Dillon's idea for "Celebrity SEALs." Later, Hurwitz would e-mail Moss and stated, "I look forward to reading the treatment and seeing if we can't make something happen."

More e-mails bounced around and by the end of that month, Hurwitz said he was too busy working on Fear Factor to "do right by you." Hurwitz wished them luck. He's now a co-defendant in this lawsuit.

Read More... http://www.hollywoodreporter.com/thr-esq/judge-allows-cops-claim-nbcs-572628

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Paramount & MGM Sued by Writers of "G.I. Joe" Sequel

Two of the three writers who worked on the 2009 film seek $23 million for work on "G.I. Joe: Retaliation," which was allegedly taken without credit or compensation.

David Elliot and Paul Lovett, two of the credited screenwriters on the 2009 film G.I. Joe: The Rise of Cobra, have filed a massive lawsuit against Paramount, MGM, Hasbro and producer Lorenzo Di Bonaventura.

According to a complaint filed in California federal court late last week and obtained by The Hollywood Reporter, Elliot and Lovett had a contractual "first opportunity" to write the first sequel to the Joe Cobra movie if they were the sole writers. But they weren't. Stuart Beattie was also given a co-screenwriting credit.

Nevertheless, the two writers say that shortly after the premiere of the 2009 film, the defendant film companies asked them to present plotlines, themes, characters and more for a potential sequel "with the stated intent that the PDH Defendants would hire Plaintiffs to write the screenplay if they liked Plaintiffs' proposed Sequel."

Elliot and Lovett said that they did just that, and now after seeing their work allegedly taken without credit, they are seeking more than $23 million in damages for copyright infringement and breach of implied contract.

Read Full Complaint... http://www.hollywoodreporter.com/sites/default/files/custom/Documents/ESQ/joe1.pdf

The lawsuit says that when Elliot and Lovett saw the results of the 2009 movie, they were "shocked to see how completely the Joe Cobra Movie had departed from" their script.

As a result, when it came time to work on the sequel, the writers said they got more granular in their pitch, "presenting not just suggestions for possible storylines and character arcs but a comprehensive vision to completely reimagine the G.I. Joe franchise from the live-action films to the toy line."

Included in the enhanced pitch, says the complaint, were an "exhaustive array of documents, verbal presentations, original conceptual art, photo collages, video clips, mock movie posters with suggested subtitles, marketing images and mock marketing trailers."

The writers also say that more than 100 phone calls as well as emails detail the extent of their pitch over a two-month period.

But the plaintiffs see their pitched ideas in the final film.

"Even the most cursory review of the Joe Retaliation Movie and the Plaintiffs' Work reveals that they are substantially similar in every material way," says the complaint. "While Plaintiffs make no claims to the elements of the Joe Retailiation Movie that are subject to Hasbro's pre-existing copyrights in the G.I. Joe characters, Plaintiffs take great issue with those elements of the Joe Retailiation Movie that are the expression of Plaintiffs' personal creativity and Plaintiffs' unique creation of Plaintiffs' Proposed Sequel that were not part of the Joe Cobra Movie and that were not scenes a faire of the genre."

The lawsuit goes into detail about how "nearly every aspect of the Joe Retailiation Movie, from the beginning to the end" incorporates their work and includes a side-by-side comparison of the similarities. The writers say it was their idea, among other things, to take the franchise "back to a simpler time, where the focus is less about high-tech wizardry and gadgetry and more about nostalgic, grounded characters."

Read More... http://www.hollywoodreporter.com/thr-esq/gi-joe-writers-sue-paramount-496444