This week, I had
the opportunity to listen to two different podcasts from entertainment attorney
Gordon P. Firemark, from his Entertainment
Law Update. For this blog post, I will be discussing the liability issues that
I not only found to be interesting, but also that will be of use as I develop my
company’s business plan.
The first
podcast that I reviewed was Entertainment Law Update: Podcast 13. The first case that I found to be
interesting in his podcast was Sofa Entertainment v. Dodger Productions. Sofa Entertainment, who produced the
play, The Jersey Boys used at least
6-7 seconds of Ed Sullivan’s introduction of the group, The Four Seasons.
Dodger Productions, who owns all the rights to The Ed Sullivan Show alleged a claim of copyright infringement and
filed a summary judgment motion, on the basis of the fair use defense. The
judge found in favor of Sofa Entertainment stating that “their use of the
introduction of the Four Seasons was a commercial use.” The judge also stated
that: “the clip used was only a brief historical reference, and that Sofa
Entertainment only used a small portion from the Ed Sullivan Show.” The
knowledge that was shared from Gordon P. Firemark was, had Sofa Entertainment
used the Four Seasons performance from The
Ed Sullivan Show, then the judge
probably would have found in favor of Dodger Productions, because they owned
all the rights to the show. My thoughts are to always make sure you first have
the owners consent before proceeding, no matter how much of a clip you use. You
do not want to take something that is substantially similar. This could cause
someone to file a lawsuit, which can become very costly.
The second case
that I reviewed was Davis v. American Broadcasting Companies,
Inc. Author David Davis,
alleged copyright infringement for a book he wrote called Ely Stone. The American
Broadcasting Companies, Inc., produced a show with the same name but with a
different spelling, Eli Stone. The judge at first wanted to see if there were
any substantial similarities between the book and the television show. In the
end, the judge said there were not enough similarities and that what the
American Broadcasting Companies did, was not considered to be an infringement
on Davis’ copyright. The takeaway for here was that American Broadcasting
Companies should have checked first for all of the similarities between the
book and the television show before proceeding. My advice would be not to bother
with filming a television show that is similar to that of the book with a
similar name. I would rather create something fresh and new instead of taking
something that someone else has created. This would not only prevent a lawsuit
but it would also prevent a lot of legal confusion.
The second
podcast that I reviewed was, Entertainment Law Update Podcast: Episode
33, Cease and desist, but nicely.
The first case that I found to be very interesting from this podcast was the
case of Mine O’ Mine Inc., v. Calmese. Shaquille O’neal and his Mine O’ Mine
Inc. alleged trademark infringement, cybersquatting, and right of publicity
against Michael Calmese and Dan Mortensen and their company True Fan Logo.
Shaquille O’neal licensed his “Shaq” trademarks. After he began playing for the
Phoenix Suns, True Fan Logo purchased the domain name SHAQTUS and even created
a character that was later put onto t-shirts. In the end, the court first found
in favor of Shaquille O’neal, and believed that his trademark was a very strong
mark. For the alleged trademark infringement claim, the judge also thought this
Shaquille O’neal’s trademark could be considered to be a family of marks
and that the defendants would more than likely cause some kind of confusion. On
the other hand, for the right of publicity claims, the judge found in favor of
True Fan Logo stating that: “Nevada state law provides every person with a
statutory right of publicity in his name, voice, signature photograph and
likeness.” The Ninth Circuit also recognized a transformative use of defense
when cartoons depicting real people are distorted for purposes of lampoon,
parody, and or caricature. The knowledge that was given by Gordon P. Firemark
in regards to this case was that the court ruled too narrowly because the image
or character that was used had Shaq’s likeness, had the number 32 on it, and
was also bouncing a ball. The advice that I would would be to make sure that
you first get the consent of the trademark owner, so that you will not be sued
for a claim of trademark infringement.
The second case
that I found to be interesting from the second podcast was Zen Bear, Inc. v. Dreamworks. Terence Dunn pitched a film concept to
Dreamworks, who was not interested in the idea. A few years after Dunn pitched
his idea to Dreamworks, a film that was remotely similar to his concept, had
been stolen. Dunn felt as though he should have been compensated for his
concept and been involved in the filming of the movie. The judge found in favor
of Dreamworks, stating that they did not enter into an implied contract with
Terence Dunn, and that Dreamworks did not use Mr. Dunn’s ideas. The knowledge
that I took from this podcast was that Terence Dunn probably should appeal, and
that there were obviously errors in the findings. The advice that I would give
is to make sure that when pitching a concept or an idea is to always have a
contract in place. When there is something in writing, you always have
something to refer back to, especially if an issue should arise.
