Posts by Dan Nabel

Dan Nabel represents individuals, partnerships and companies of all sizes in federal and state court, in mediations, and before arbitration tribunals. His practice focuses primarily on real estate, entertainment and business disputes.



U.S. Supreme Court Leaves Important Fair Use Ruling Undisturbed

More than a century ago, Justice Oliver Wendell Holmes warned that it would be dangerous for people trained only in the law to decide the worth of a work of art—at least outside of the narrowest and most obvious limits.  As Holmes said:  “At the one extreme some works of genius would be sure to miss appreciation. Their very novelty would make them repulsive until the public had learned the new language in which their author spoke.”

Perhaps anticipating the arrival of such works as Tom Forsythe’s “Barbie Enchiladas” and Jeff Koons’ “Balloon Dog (Orange),” Holmes’ statement rings particularly true in today’s “appropriation art” scene.  Indeed, the growth of appropriation art, which the Museum of Modern Art (MoMA) defines as “the intentional borrowing, copying, and alteration of preexisting images and objects,” has been stunning.  As just one example, when Andy Warhol premiered his Campbell’s Soup Cans work back in 1962 (which is a painting of a bunch of soup cans in a row), the canvasses only sold for only $100.  But in 1996, (at what must have been the height of America’s craze for salty soups), the paintings sold for $15 million.

Earlier this week, the debate over judges deciding the worth of works of art was reinvigorated as the United States Supreme Court decided not to hear an appeal of an extremely high profile fair use case called Cariou v. Prince.  In Cariou, a federal court of appeals in New York ruled, in a 2-to-1 decision, that 25 out of 30 paintings by Richard Prince made fair uses of copyrighted photographs by Patrick Cariou.  With respect to the other five Prince paintings, the appellate court sent the case back to the district court for a closer examination.  But as the dissenting judge recognized:  the line between the 25 fair uses and the five questionable ones is very thin—and might be better left to art experts to define rather than judges.

Continue reading the full story . . . »



Electronic Arts Fumbles in Lawsuit Brought by College Athletes (again)

College sports is big business.  Student-athletes generate truckloads of cash for their schools, but are prohibited by NCAA rules from sharing in the haul.  In fact, if the student-athlete learns that someone is commercially exploiting his or her name or picture, NCAA rules require the student “to take steps to stop such an activity in order to retain his or her eligibility for intercollegiate athletics.”  (Wouldn’t we all have loved to have had that problem in college….)

Given this state of affairs, when Electronic Arts made its NCAA Football games using the likenesses of college athletes, it could not have obtained licenses from the students even if it had wanted to.  That would have violated NCAA rules.  So what happens when EA uses the likenesses of college athletes without permission, makes a bunch of money, and then doesn’t compensate the students?  After graduation, once they are no longer bound by NCAA rules, they all sue, of course!

Continue reading the full story . . . »



Requiem for a Ridiculous Lawsuit

Last month, I wrote about some notable examples of film and television producers being sued or threatened for using other peoples’ creations without permission.  Examples included Emerson Electric suing NBC after Claire from Heroes stuck her hand in an “InSinkErator” brand garbage disposal; Coca Cola Company threatening legal action against an Italian film distributor over a film in which Jesus drinks a can of Coke in the desert; Louis Vuitton suing Warner Brothers over the unauthorized use of their luggage being used by a character who pronounced it “Luis” Vuitton in The Hangover Part II;  and Mattel suing MCA Records over the song “Barbie Girl.”  As if on cue, another such example has just arrived.

This month, a judge ruled on a lawsuit brought by Faulkner Literary Rights, LLC against Sony Pictures, Inc. for the studio’s use of a single line from the book Requiem for a Nun (written by that Nobel Prize winning William Faulkner guy) that was paraphrased and attributed to the author in the movie Midnight in Paris (directed by that controversial Woody Allen guy):

 

Original quote from Requiem for a Nun

Paraphrased quote in Midnight in Paris

“The past is never dead.  It’s not even past.” “The past is not dead.  Actually it’s not even past.  You know who said that?  Faulkner, and he was right.  I met him too.  I ran into him at a dinner party.”

Continue reading the full story . . . »



Happy Birthday…You’re Being Sued!

Have you ever noticed how people rarely sing “Happy Birthday to You” in movies and television?  Instead, people usually sing “For He’s a Jolly Good Fellow,” even though no one actually sings that song in real life.  Nevertheless, this falsification of reality happens all the time.  My favorite example was when the crew of the Enterprise sang “For He’s a Jolly Good Fellow” to Worf on his birthday (in Klingon, naturally).  At the end of the song, Worf observed, “that is not a Klingon song.”  Worf’s observation is ironic, of course, because even humans don’t really sing “For He’s a Jolly Good Fellow” to each other on their birthdays.  (Well, maybe the humans who speak Klingon do….)

The reason for this falsification of reality is two-fold.  First, “For He’s a Jolly Good Fellow” is clearly in the public domain (which means you can use it for free).  Second, Warner/Chappell Music claims to own the copyright to the song “Happy Birthday to You” and charges $1,500 for a “synch license” whenever someone wants to use it on screen.

And until now, no one has ever formally challenged Warner/Chappell’s copyright to the Happy Birthday song.

Continue reading the full story . . . »



Leggo My Likeness, Part Four

There are so many fun things you can do with celebrities.  In addition to the traditional things like writing books about them, you can also use their catchphrases to make greeting cards; make movies about them using puppets; or even use claymation television to have them fight each other to the death.  But what about including digital representations of them in a video game?

A new case reinforces the holding of a previous case which stands for the proposition that you can’t put celebrities in a video game and then have them do exactly what they normally do in real life.  (For example, a game like “Lindsay Lohan:  Escape from Rehab” simply would not work).

Unfortunately, the case also sets a bad new precedent.

Continue reading the full story . . . »



Bill Maher Prevails Over Donald Trump Lawsuit By Sitting and Waiting for the Donald to Figure Out to Drop It Himself

In February, I wrote about a particularly fake-haired boneheaded lawsuit that Donald Trump brought against comedian Bill Maher.  As you may recall, Trump accused Maher of breach of contract based on a joke that Maher had made on The Tonight Show with Jay Leno, in which he had jokingly — really, completely obviously, jokingly — offered $5 million to the charity of Trump’s choice (the Hair Club for Men was Maher’s suggestion) if the real-estate mogul-turned-reality-TV-star-turned-national-punchline could provide proof that he was not, in fact, “the spawn of his mother having sex with an orangutan.”  Ignoring the scientific impossibility of humans and orangutans being capable of producing offspring, and surely torturing his poor lawyer (whom he conscripted to respond to Maher), Trump purported to “accept” this offer by sending Maher a letter enclosing a copy of his birth certificate (short form only, though!) and demanding payment of the $5 million.  When Maher did not respond to the letter, Trump went bananas and filed a lawsuit.

After recounting Bill Maher’s hilarious response to the lawsuit, I boldly joined the near-consensus of legal observers in predicting that Trump would lose the lawsuit.  And I’m here to report, I was wrong — Trump never even had a chance to lose the case, because he dismissed the lawsuit himself, perhaps as a result of his lawyers reaching the same conclusion I did.  (Or perhaps, Trump’s simian brain finally realized that the situation had evolved beyond his control.)

Continue reading the full story . . . »



WP Like Button Plugin by Free WordPress Templates