Posts Tagged ‘copyright infringement’

‘THE LAST SAMURAI’ INFRINGEMENT CASE DECIDED

Tuesday, 10 April, 2012 05:55 Written by danieldavidson 0 Comments
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By Daniel Davidson

The trial, which started in Mach of this year, has finally ended with the accused being the victors.  The suit which was filed by brothers and writers, Aaron and Mathew Benay, accused producers Marshall Herskovitz, Ed Zwick, and their production company, of stealing the script that their agent pitched, also titled ‘The Last Samurai,’ and including an American civil war hero becoming a samurai.

The jury, after seven days, finally came to a decision that the script was never put in front of Bedford Falls, and therefore, could have never been stolen.  This left the remaining matters of the lawsuit, including the issue that an implied contract existed between the parties, moot.

Earlier in this drawn out litigation, an appeals court affirmed the dismissal of a copyright infringement allegation and remanded the matter to the lower court to ultimately determine if there was any implied contract between the parties.  The answer to that question was no, without the question ever being answered.  From the jury’s deliberation, they came to the conclusion that the initial element of there even being a potential implied contract was lacking.  No script, no contract, no money for the brothers.

It must be huge relief for the producers that have been battling the allegation for more than six years.  Also, they were the last defendants on the hook after a judge dismissed Warner Brothers from any liability in the matter.

Although the brothers have lost a copyright infringement battle for a script that could have potentially made them a vast amount of money with ‘The Last Samurai’ grossing close to $400 million, not all is lost.  Well, maybe it is.  Cheers.

GINGRICH WITH THE UPPERHAND IN COPYRIGHT INFRINGEMENT CASE?

Thursday, 05 April, 2012 06:00 Written by danieldavidson 0 Comments
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By Daniel Davidson

On January 31, 2012, I reported that, like many others before him, Newt Gingrich was sued for copyright infringement by Frank Sullivan.  Sullivan is the co-author, and former member of Survivor, of the rock ballad, “Eye of the Tiger.”

Gingrich, sued for copyright infringement for his use of the rock song as entrance music at some of his presidential nomination rallies, has finally responded to the complaint filed by Rude Music, Inc.  As I predicted in my last post, a major defense to the allegations is that Newt’s campaign purchased an ASCAP license which would allow for him to use songs, such as “Eye of the Tiger,” that are affiliated with ASCAP.  Why would you need any other defense?  A license is a license.

Well, the response didn’t stop there.  They also included that Jim Peterik, the only other co-author of the song, has been very vocal in his opposition to the lawsuit.  Even quoting him as saying, “’Eye of the Tiger’ as a ‘motivational’ song which he felt was appropriate for use in motivating people into action like voting and to ‘shake ‘em out of their doldrums.’”

I had commented in my previous post that I was hoping to see this instance of copyright infringement go to the end so that it could answer the question of whether political candidates were covered under fair use when using songs at their campaign rallies.  John McCain and Charlie Crist settled their suits out of court, leaving the question unanswered, and it looks like the question will remain unanswered because, inevitably, the question going to be answered is whether there was a valid license to use the song.

To me it seems that this complaint was filed with the sole end game being to receive a monetary settlement.  With Sullivan jumping at the opportunity to follow the likes of Jackson Brown and David Byrne, he seems to have not done the homework.  If the ASCAP license exists, I could see the pages being turned on Sullivan, and him looking to settle this case.

Federal law allows for a prevailing party in a copyright case to collect attorney’s fees.  Therefore, if Rude Music goes down, they could be on the hook for Newt’s bill.  Although this is true, it is my understanding that judges are very hesitant in awarding attorney’s fees unless it can be shown that the lawsuit was frivolously filed.  In the case at hand, if Sullivan’s attorney’s fired off a cease and desist letter, and Newt’s attorney’s came back with a license, then the suit was filed anyways, there could be a better chance that Newt could collect his attorney’s fees and costs.

COPYRIGHT INFRINGEMENT BY CHRYSLER?

Tuesday, 07 February, 2012 16:43 Written by danieldavidson 3 Comments
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By Daniel Davidson

The Big Game (I will attempt to not use any of the words that you are banned from using in a commercial during football’s final event) does not just draw crowds for the battle of two teams scrapping for the glory of number 1.  The game also attracts because of the zillion dollar commercials.  With over 100 million viewers, companies make sure they create a lasting impression in their commercials. 

The past few years, Chrysler has made some epic commercials which last approximately 2 minutes.  This year, they used Clint Eastwood to narrate a commercial that refers to the American economic downturn as “halftime.”   Portraying Detroit and their losses due to the financial crisis, Clint gives hope for a new tomorrow, or “second half.”  Unfortunately, the commercial almost didn’t see a second half.

In the subsequent days since the game the G-Men won a silver trophy, Chrysler made the commercial available on their YouTube page.  The page featured interactive buttons to share the commercial on social media sites.  This would be cool and all except for the fact that instead of a commercial, there was a notice which read, “This video is no longer available due to a copyright claim by NFL Properties, LLC.”

NFL Properties, LLC is a subsidiary of the National Football League, Inc. which handles its trademarks and such (I have lost my attempt at refraining from using words not allowed in Super Bowl commercials).

I went ahead and watched the commercial multiple times to see what, if any, part of the commercial could infringe upon an NFL copyright.  In my attempt, I found none.  I am sure many others have done the same.  This is probably why the commercial has been reinstated on Chrysler’s YouTube page.

Did the NFL maybe believe they were the owners of the rights to the commercial since it was aired during the Super Bowl?  Maybe they thought they owned the rights to the word “halftime?”  Nonetheless, it seems that the NFL has retracted their copyright infringement claim, for now.  Cheers.

POISON SUED FOR COPYRIGHT INFRINGEMENT

Tuesday, 25 October, 2011 18:01 Written by danieldavidson 0 Comments
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By Daniel Davidson

The hair and eyeliner boys of Poison have been handed a lawsuit for copyright infringement.  The lawsuit comes from another glam rock band of the ‘80s, Kid Rocker. 

 

Members, Billy McCarthy and James Stonich, allege that Poison guitar player Bruce Anthony Johannesson, better known as C.C. DeVille, was trying out for their band, Kid Rocker.  Thereafter, the Kid Rocker duo gave C.C. a mix tape of some of the songs so that he could rehearse, and wouldn’t you know it, C.C.’s borrowed tape of Kid Rocker’s songs was never returned (probably got lost under his George Michaels tape).  After Kid Rocker didn’t work out, C.C. DeVille and McCarthy formed the band known as Screamin’ Mimi’s.  This time, the Plaintiff and now famous guitar player wrote songs together.

 

Well, it’s no secret that DeVille went on to be extremely famous in the band Poison and has made a ton of money.  As for McCarthy, he just wants to get paid for what he claims is his.  McCarthy and Stonich are claiming that they are owed for the music that was stolen by C.C. and eventually used on Poison’s “Look What The Cat Dragged In” and subsequent release of “Open Up and Say…Ahh!”

 

Now, there is a very good chance that the Plaintiffs’ music was stolen and used in Poison’s albums, but being that the band released their songs in the ‘80s, wouldn’t there be a statute of limitations claim for Poison?

 

In order for a statute of limitations defense to be used by Poison (and the record labels, which were obviously sued too), the Defendants will have to prove that the infringement has stopped and the copyright owner knew or should have known the infringement was happening.  In most cases with popular music acts, their infringement does not stop. 

 

On a side note, Bobby Dall of Poison is a resident of Zies Widerman & Malek’s hometown of Brevard County, Florida.  Pretty cool.  Cheers.

MAN ALLEGES HANGOVER II BASED ON HIS COPYRIGHT

Wednesday, 19 October, 2011 17:51 Written by danieldavidson 0 Comments
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By Daniel Davidson

A movie that has already been plagued by lawsuits, first with the claim by a tattoo artist that the tattoo appearing on Ed Helms’ face infringed his copyrighted tattoo (as used on Mike Tyson’s face), and a horrible accident that has caused substantial damage to a stunt man, which is still in court, can now add another one to its list.

 

Michael Alan Rubin has recently filed a suit against Warner Brothers, among others, claiming that the premise of the movie was stolen from a script he wrote and submitted to the Writers Guild.  In Rubin’s story, he allegedly married a woman in Japan in 2007 and honeymooned in Thailand and India.  During their trip, the two began not to see eye-to-eye, and that is where his “Robinson Crusoe” begins.  His story was cleverly titled, “Mickey and Kirin.”

 

Once he found out about the movie, he filed suit for copyright infringement, misappropriation of his publicity rights, and defamation.  Also, I do want to note that Rubin is going it alone (I wonder if he learned to be an attorney on his adventures in the East?).

 

As some of you may know, one way to prove ownership of a copyright and bring a lawsuit for copyright infringement is through a copyright registration.  In Rubin’s case, he holds a copyright registration for “Mickey and Kirin” through a Registration Certificate issued by the U.S. Copyright Office.  The date of creation is claimed as 2009 and the date of registration is July 1, 2011.

 

As for misappropriation of his publicity rights and defamation, I see a tougher road ahead of the man.  I have not read the complaint, but I will have to assume that Rubin is claiming that the group of the Hangover is representing his likeness as a whole.  If not, I wonder which actor he claims his likeness to (from what the ladies say, I would think he would go with Bradley Cooper).  The defamation claim, in particular, will be difficult because one of the main defenses to defamation is “truth.”  If his story was used like he said it was, then the story is being claimed as a real life experience, and the movie is simply portraying a “truth.”

 

I would go out on a limb and predict that this claim would settle out of court, but Rubin is representing himself in this case.  I can see pride becoming an issue with Rubin, and since he doesn’t have to pay a monthly lawyer bill, he may be able to take this case to the end (withstanding all the motions to dismiss, motions for summary judgment, etc.).  Cheers.

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