Category Archives: Copyright

Admitting Testimony Regarding Business Records

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Proving the Existence of a Contract

If the parties dispute whether a contract was formed, ordinarily testimony about the parties’ oral and written communications, and actions consistent or inconsistent with contract formation, would come into evidence.  “Whether parties have reached a contractual agreement and on what terms are questions for the fact finder when conflicting versions of the parties’ negotiations require a determination of credibility.”  Hebberd-Kulow Enterprises, Inc. v. Kelomar, Inc., 218 Cal.App.4th 272, 283 (2013).  I represented a plaintiff which proved formation of an oral joint venture through oral testimony, follow up emails and a pre-dispute pattern of profit splitting. read more

A SIMPLE VIEW OF MUSIC COPYRIGHT INFRINGEMENT

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The legal news wires are “rocking” with headlines in music copyright infringement cases.  The Ninth Circuit, sitting en banc, found for Led Zeppelin in the “Stairway to Heaven” litigation and euthanized the “inverse ratio rule.”  In a connected world of nearly universal access to copyrighted works, a plaintiff must show real plagiarism, not merely plausible similarities.  

Soon thereafter Judge Snyder threw out the jury’s verdict that Katy Perry’s “Dark Horse” copied a bass ostinato from Christian rapper Flame’s “Joyful Noise.”  

For copyright lawyers this news creates the sort of excitement that NFL fans experience over a tie in the last two minutes of the Super Bowl.  read more

Supreme Court Slightly Smooths Difficult Path for Copyright Plaintiffs in Kirtsaeng

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I’ve had the pleasure of representing both plaintiffs and defendants in copyright cases.  See https://spillaneplc.com/ten-year-old-perfect-10-v-ccbill-decision-withstands-test-of-time/  The intake conversation varies dramatically, however, depending on which side of a case I am asked to represent, because of the court’s discretion to award attorneys’ fees to the prevailing party in a copyright case.  17 USC § 505.

On the defense side, I have represented companies with significant operating capital.  Having been sued, unless there is an immediate settlement available they have no choice but to appear and defend the case.  While the risk of paying not only damages but attorneys’ fees to a prevailing plaintiff is an important consideration, this would not have been catastrophic to my clients.  read more

Music copyright cases illustrate the potential for confusion in business trials

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I have high regard for my personal injury and employment trial colleagues.  However, in one respect I believe their jobs are easier than that of the business trial lawyer.  In a case involving injury or, say, employment discrimination, I think the issues and values at stake are clear and within the juries’ general knowledge.  Did the defendant act negligently and thus injure another?  Was the plaintiff fired for reasons legitimate or unlawful discriminatory reasons?  It may be hard for juries to get far off track when these are the questions to decide.

This is not always the case in business trials.  read more

Contracts can Limit Ability to Use Otherwise Freely Available Facts or Ideas

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Here in Tinsel Town, I regularly read about lawsuits where the plaintiff claims that his or her screenplay was revealed to someone who turned it into a hit film or show without consent or payment.  Just as regularly, I read that the case ended in judgment for the defense, as the judge granted a motion finding insufficient similarity between the plaintiff’s writing and the film or show.

These rulings are often grounded in a distinction in the law that copyright only protects original expressions but not ideas.  In other words, one cannot copyright the general idea of a mild-mannered person who doubles as a superhero with prodigious powers, but copyright law will protect the writings and images in “Superman” comics and stories.  read more

Anti-SLAPP Motions: a Powerful Tool for Media Defendants

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Actor Frank Sivero sued Fox over his claim that “The Simpsons” character “Louie” was based upon Sivero’s character Frankie Carbone in “Goodfellas.” Sivero’s case was thrown out of court by a California state judge. (See “Fox Gets $250M ‘Simpsons’ Lawsuit From ‘Goodfellas’ Actor Tossed.”) No jury heard his claim. Nor was he defeated by a motion for summary judgment, a traditional pretrial motion to dismiss a claim that should be rejected if there is any triable dispute of fact for a jury to resolve. Instead, Sivero’s claim was dismissed pursuant to an “anti-SLAPP” motion, a powerful procedural device that was originally intended to benefit public interest groups, but has become the courtroom weapon of choice for media companies. read more

The Snore of the Century: Mayweather-Pacquiao Promoters v. Streaming Services

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The promoters of the recent Mayweather-Pacquiao boxing match took one on the chin for raking in big dollars promoting the “Fight of the Century,” which instead was a technically masterful but tedious defensive performance by Mayweather, marred by reports that Pacquiao was fighting with an undisclosed injury. Not content with being knocked on the canvas for the quality of the fight, the promoters are sticking their chins out for another knockdown punch by threatening to sue those who pushed bootlegged streams of the fight, possibly including streaming apps Periscope and Meerkat.

Copyright owners have spent decades and millions of dollars taking technology companies to court over alleged facilitation of infringement through technology, with choppy results. read more

Hollywood Meets Silicon Valley

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In “Hollywood Versus Silicon Valley,” I wrote of a series of epic court battles – Napster, Grokster, Youtube – that pitted Hollywood companies, owners of copyrighted content, in court against Silicon Valley innovators, creators of Internet technologies that enabled information sharing but also trading in infringing works.  The court battles against Napster and Grokster lead to the demise of those services.  In the case of Youtube, by contrast, Youtube co-opted some potential adversaries by engaging them with licensing/channel agreements, and has largely convinced the courts that it has complied with copyright law by acting promptly in response to takedown notices from copyright owners. read more

U.S. Supreme Court’s Petrella Presages Significant Increase in Copyright Lawsuits

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Frank Petrella wrote three works, including a 1963 screenplay, about the life of boxer Jake LaMotta. Both Petrella and LaMotta assigned rights to make a motion picture based upon these works. United Artists, a division of MGM, used the rights to make the hit 1980 film “Raging Bull.” Petrella died in 1981.

A twist in the copyright law provides that under certain circumstances a deceased author’s heirs may renew copyright in the author’s work free of any assignments the author made during his lifetime.

Paula Petrella, Frank Patella’s daughter and heir, renewed the copyright in the 1963 screenplay in 1991. Beginning in 1998, Paula Petrella’s counsel wrote MGM to assert that she now owned the rights to the 1963 screenplay, which MGM needed to license from her for any continued exploitation of “Raging Bull.” read more

Ten-Year-Old ‘Perfect 10 v. CCBill’ Decision Withstands Test of Time

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June marked the ten-year anniversary of the trial court’s Perfect 10 v. CCBill decision, one of the earliest — and still one of the most important — decisions determining Internet Service Providers (“ISP’s”) liability for the content of third parties on hosted sites. I had the privilege of being part of the team representing CCBill in this bet-the-company case, accomplishing a win that helped establish the Internet as the ubiquitous place it is today.

The Internet has afforded astonishing new channels for lawful commerce as well as unlawful activities. Previously, to engage in widespread libel or infringement one needed access to print media.  read more