5 Important Cases You Should Watch in 2012…and 5 Totally Unimportant Cases You Might Not Be Able to Stop Watching Even if You Tried (Part 1 of 2)
‘Tis the season.
‘Tis the season to be jolly. ‘Tis the season to go shopping. ‘Tis the season for political gaffes. ‘Tis for hilarious gifting of intentionally awful presents. Yes, ‘tis the season for lots of things, but most of all, ‘tis the season for top-ten lists.
It seems only fitting, then, to embrace the spirit of the season, and look ahead to 2012 in obligatory list form. But let’s mix it up a little by breaking up our list into two parts. Today, we bring you five important cases you should watch in 2012. On Friday, we’ll follow up with five totally unimportant trainwrecks of cases you might not be able to pry your eyes away from.
Five Cases to Watch Because You Should
Viacom v. YouTube: Sure, this billion-dollar lawsuit — which was filed back in March 2007 — is hardly new. But things are just getting good. In June 2010, Judge Louis Stanton of the Southern District of New York granted summary judgment in favor of Google (YouTube’s owner), holding that the site was shielded from liability for years of rampant uploading and consumption of copyrighted content by the “safe harbor” provisions of the Digital Millennium Copyright Act, which protects websites from liability for copyright infringement as long as they comply with so-called “notice-and-takedown” procedures for removing infringing content from their services. Viacom, of course, appealed, with arguments finally being heard by the Second Circuit in October 2011.
The key issue is whether the so-called “red flag knowledge” provision of the DMCA, which denies safe harbor to websites or Internet service providers who are “aware of facts or circumstances from which infringing activity is apparent,” puts YouTube back on the hook in spite of its day-to-day compliance with takedown requests from copyright owners. According to Viacom, if YouTube gets off scot-free for its “Wild West” early years of unfiltered, infringement-heavy content, even the dreaded Grokster could reemerge as a so-called “storage” site that eschews filtering and technology and implicitly promotes rampant copyright infringement, as long as it complies with the piecemeal attempts of content owners to police the presence of their copyrighted works on the site. While it’s easy to dismiss the argument as courtroom histrionics, many industry observers have also expressed concerns that Judge Stanton’s decision, if it stands, could do just that. The Second Circuit’s decision is expected early next year.
Marathon v. Fox & Spillane: While the long and winding history of this case is a bit complicated, underneath that mess is a big issue for the entertainment industry. From 2003 to 2008, talent manager Rick Siegel was locked in a dispute with his former client, actress Rosa Blasi, over unpaid commissions. The case eventually went to the California Supreme Court, with Blasi ultimately prevailing based on the tough provisions of California’s Talent Agencies Act, which allows clients to void contracts with, and even reclaim previously-paid commissions from, managers who “procure employment” for them without an agency license. These tough rules have long been the bane of talent managers’ existence, essentially putting the talent in the driver’s seat whenever clients and their one-time BFF managers get nasty.
Siegel then turned around and sued his lawyers for allegedly failing to raise key arguments against the Talent Agencies Act in their appeal of the Blasi case. His lawsuit against the lawyers fell flat in arbitration too, but now that the case is up for review before the California Supreme Court, Siegel is once again taking aim directly at the harsh provisions of the Talent Agencies Act — but this time, he has back-up. Almost 200 talent managers, including major companies like Generate and Thruline — are now backing Siegel’s appeal. While the direct assault on the TAA is a long shot (for both substantive and procedural reasons), if this concerted effort by Los Angeles’s talent management community succeeds, it could dramatically shift the balance of power between agents, managers, and talent in the entertainment industry.
Scorpio Music v. Willis: If you aren’t an entertainment lawyer, there’s a pretty good chance you’ve never even heard the phrase “copyright termination.” But in the next few years, the phrase is going to become very familiar to you. The U.S. Copyright Act gives artists and their heirs the right to terminate grants of copyrighted works (and therefore reclaim their rights) after 35 years. On January 1, 2013, the first generation of copyrighted works governed by the 1976 Copyright Act (which became effective on January 1, 1978) will come up for termination. And when they do, a lot of artists are going to be looking for guidance from the Cop — that is, Victor Willis, the original “Police Officer”/lead singer of the Village People.
Earlier this year, Willis filed notice that he was seeking to reclaim the copyright in the iconic “YMCA,” among several other Village People hits. Music publishers Scorpio Music and Can’t Stop Productions responded by suing Willis, seeking a judicial declaration that his termination notices were invalid for a variety of reasons. Virtually anyone with a stake in the music industry is watching closely — in November, the Songwriters Guild of America sought to file an amicus brief before the judge had even made a ruling on any preliminary motions in the case. While the legal issues raised by this case could fill out a whole article or 12, if it goes all the way, the case will require the court to face such novel legal issues as whether rights to a song created by multiple authors can be terminated by a single co-author; whether producers, sound engineers, and other technical personnel who contribute to a master recording might have rights in that recording; and whether sound recordings can even be considered “works-for-hire” under the Copyright Act.
(Or the case will settle, and leave all these legal questions unresolved as ever.)
Viacom v. Time Warner Cable: Leave it to Viacom to make our list twice. In April, Viacom and Time Warner Cable filed dueling lawsuits against one another over Time Warner Cable’s launch of an iPad app that allowed subscribers to view Viacom channels on their mobile devices. Over the summer, things seemed to be moving toward a settlement, and Viacom even filed and settled a similar lawsuit against Cablevision over Cabelvision’s own iPad app. This fall, though, talks between Viacom and Time Warner Cable broke down, and the parties seem to be digging their heels in for a fight.
The actual legal issues involved in the case are pretty straightforward and uninteresting — at its heart, the case is simply about the interpretation of the scope of the grant of rights in the carriage agreement between Viacom and Time Warner Cable. The last time we tried to talk about a legal issue this unstimulating, we wound up giving up and posting an awesome Chris Farley sketch from YouTube instead. But the way the case goes (or settles) is likely to set an important precedent for who will get to truly control — and therefore truly profit from — emerging distribution streams for entertainment content: content owners, or content distributors?
Zuffa v. New York: Are burly, scantily-clad men in brightly-colored shorts beating each other senseless in a caged octagon engaging in a constitutionally-protected form of expression? So claims the owner of Ultimate Fighting Championship, which, in November 2011, filed a lawsuit against the state of New York, arguing that the state’s 14-year-old ban on the public exhibition of mixed martial arts violates UFC’s First Amendment rights. According to the complaint: “A live professional MMA event is both sport and theater. Fighters express themselves in every aspect of the live performance — from the entrances they stage and the walkout music they select, to the clothes they wear, to the way they conduct themselves inside the arena and towards their opponent. Fans come not just for the fights, but also for this entire unified show.”
The case is a spiritual successor to recent litigation about the extent of First Amendment protection for violent video games, an issue that made it all the way to the U.S. Supreme Court earlier this year (where the court struck down California’s ban on the sale or rental of violent video games to minors). But it also raises interesting questions about the extent of constitutional protection for other forms of sports and entertainment, and, for example, could theoretically pose a challenge to decades-old regimes for the regulation of boxing. It could also allow MMA fights to come with some pretty interesting descriptions of what they do for a living for use on the cocktail party circuit. (“Oh, me? I’m a pugilistic thespian…err, a thespian pugilist…um, I wear bright shorts and kick stuff.”)
- 5 Important Cases You Should Watch in 2012…and 5 Totally Unimportant Cases You Might Not Be Able to Stop Watching Even if You Tried (Part 2 of 2)
- “Where Are They Now”: Law Law Land Edition
- The View from Three Years Out: Viacom’s YouTube Litigation, Then and Now
- Managers vs. Talent, or, When BFFs Turn Nasty
- Q&A: Should I Agree to Give My Actor a Stop Date?