Posts In "Film and Television"

Film and Television




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 Companythreatening 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 Brothersover 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 . . . »

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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 klingonfree).  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.

Clearance Culture

Helping to falsify reality in films and television to avoid the risk of litigation is actually a full time job for some people in Hollywood.  Sadly, we live in a clearance culture, where every scene must be analyzed from top to bottom for potential trademarked or copyrighted works that could give rise to infringement claims.  If third-party intellectual property appears in a film or television show, there is often a license involved.  While at first blush this practice of obtaining a license for anything and everything may seem as crazy as kittens fighting each other with lightsabers, creators actually have a very good reason to be cautious.

Examples of film and television producers being sued for using other peoples’ creations are not difficult to find.  Some notable examples include:  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 Recordsover the song “Barbie Girl.”  In one particularly famous case, an artist named Faith Ringgold, who created a distinctive silk screen on a quilt, successfully sued BET and HBO over a film that showed her art in the background for less than 30 seconds of total air time.

In the case of the recent Happy Birthday lawsuit, however, the issue is not about whether the work can or cannot be used without permission.  Instead, the issue is whether the song is even entitled to copyright protection at all.

The Happy Birthday Lawsuit

Earlier this month, a documentary film company called “Good Morning to You Productions Corp.” filed a lawsuit in New York federal court seeking, among other things, a declaration that the song “Happy Birthday to You” is in the public domain.  The documentary film company is making a documentary about the Happy Birthday song which apparently started out as a song called “Good Morning to You” back in 1893.  The company claims that it has “irrefutable documentary evidence, some dating back to 1893, [which] shows that the copyright to ‘Happy Birthday,’ if there ever was a valid copyright to any part of the song, expired no later than 1921 and that if defendant Warner/Chappell owns any rights to ‘Happy Birthday,’ those rights are limited to the extremely narrow right to reproduce and distribute specific piano arrangements for the song published in 1935.”

According to the documentary filmmakers, people started using the song “Good Morning to You” with the words “Happy Birthday to You” as early as 1901.  The filmmakers also claim that the lyrics to Happy Birthday to You were first published in 1911 by the Board of Sunday Schools of the Methodist Episcopal Church and that a copyright application was filed the following year.  These facts, if true, prove two things.  First, you can apparently make a documentary film about any subject these days regardless of how esoteric the topic might be.  And second, the Happy Birthday song may actually have fallen into the public domain.

The legal arguments involved in this case will involve the vagaries of pre-1976 Copyright Act law that, for most non-IP lawyers, would give Ambien a run for its money.  Of greater general interest, though, is the broader hypothetical question about whether singing Happy Birthday in a film or television show ordinarily can be done without permission.  In other words, is this lawsuit even necessary?

Happy Birthday Without Permission

Analyzing copyright issues can be complicated because there are always numerous points to consider.  For example, you might wonder why Happy Birthday is entitled to protection at all if people use it in a functional way (i.e., to wish someone a happy birthday).  The sculptural design of a “Ribbon®” bike rack, for example, is not copyrightable because it is a “useful article.”  There is a related concept in trademark law that applies to trademarks that have become so common that they now just refer to a generic product type.  Words like “Aspirin,” “Zipper,” “Heroin,” “Escalator,” “Yo-yo,” and “Thermos,” for example, all used to be entitled to trademark protection but have now become “genericized” and can be used by anyone.

However, the “useful article” doctrine in copyright law does not apply to music.  This means you cannot simply contend that using the Happy Birthday song is permissible without a license just because the song serves a useful function.

What’s left is a “fair use” defense.  As we have blogged about before, fair use is extremely context specific and must be analyzed on a case-by-case basis.  In any particular case, you would have to examine numerous factors, including how the song was used, i.e., whether the use was “transformative,” and how much of the song was used.  For example, a four or five second clip that shows a family member delivering a cake to another family member while singing Happy Birthday could be viewed quite differently than say a 30 second clip of a choir singing the entire song outside the context of celebrating someone’s birthday.  (Although query why anyone would ever sing Happy Birthday outside the context of celebrating someone’s birthday….)

Ultimately, while one may conclude that singing Happy Birthday in a film or television show might constitute a fair use under particular circumstances, there would always be the threat of a lawsuit from the rights holder.

On the other hand, after this new lawsuit is over, there may not be a rights holder to worry about.


Meet Five Celebrities Who Have Had Worse Tax Days Than Yours

In celebration of Tax Day today, we here at Law Law Land offer tribute to our favorite celebrity/IRS run-ins.  Now, lest you think this is just another list airing dirty celebrity tax laundry, think again.  This is a classy publication, as you well know, so if you’re looking for dirt on which celebrities owe what, look elsewhere. . . like here, or here, or here.  Instead, on this national day of tax collection, Law Law Land is pleased recognize five (or more) of our favorite celebrity tax stories of all time… so far.

Honorable Mention:  Timothy Geithner

In our Honorable Mention category of “Really, Are You Kidding Me?,” we recognize former Treasury Secretary (i.e., head of the U.S. Treasury, the folks you make that tax check out to) Timothy Geithner, who underpaid his personal federal income taxes from 2001 to 2004 by failing to report and pay social security and self-employment tax on income received from the International Monetary Fund.  Mr. Former Secretary subsequently amended his returns since he “should have been more careful.”  We imagine he regretted his “unintentional” decision not to report that income when appearing before the Senate Finance Committee during his confirmation hearings to control the United States’ piggy bank.

Honorable Mention:  Nick Diaz

In our Honorable Mention category of “How Dumb Can You Be?,” the award goes to MMA fighter Nick Diaz, who recently announced during a post-match press conference that he has “never paid taxes in his life” and “is probably going to jail.”  Well, if Nick had only read about some of the other people on this list, then he definitely would have seen that coming! 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 . . . »


The Secret World of Copyright

What do Avril Lavigne cover songs, Dish Network’s AutoHop feature, celebrity sex tapes, apartment hunting websites, and ad-serving browser skinning programs have in common?

Each of them is a window into how copyright, an 18th century concept, drafted into a 20th century law, impacts the products we use and the way we experience life in a 21st century world.

The Simplest, Most Complicated Law You Know

Non-lawyers usually think of copyright as a pretty simple and intuitive area of the law, and in many ways, it’s one of the easiest areas to break down into easy, digestible (if somewhat oversimplified) terms.  What’s a copyright?  The exclusive right to control and exploit creative works.  How do you infringe a copyright?  Copy or perform a work without permission/payment, or steal it to create your own new, too-similar work.  Putting aside people’s chronic tendency to confuse copyrights and trademarks — helpful hint:  copyrights are for creative works, trademarks are for brand name, logos, and slogans — copyright is an area of law that, at least initially, the general public can intuitively “get.”

Of course, when the breakneck speed of technological development meets the languorous pace of national lawmaking, things can get a bit more complicated. For example, when the copyright infringement case against file-sharing service Grokster finally came before the Supreme Court in 2005, the Court’s nine justices required three separate opinions and the invention of an entire new theory of copyright liability to explain why Grokster was illegal, but other, less offensive services might not be illegal.  (Headline:  “Supreme Court Rules ‘Unanimously’ Against Grokster 3-3-3.”)

To be fair, though, things started getting wacky long before the Internet was invented.  For instance, most people know that any musician can cover any other musician’s song, without permission (for a small, statutorily-defined fee).  Why?  Because in 1909, Congress created a special “compulsory license” scheme to allow player piano roll makers to sell song rolls without having to separately seek permission from the original songwriters.  Somewhere along the way, some clever lawyer figured out the law was drafted broadly enough to allow for unauthorized cover songs, and now we all have to deal with Avril Lavigne defiling John Lennon’s “Imagine” in the name of Darfur relief.  (Miley Cyrus’s evisceration of Nirvana’s “Smells Like Teen Spirit” and Celine Dion’s desecration of AC/DC’s “You Shook Me All Night Long” were, to my knowledge, only ever performed live, and so we have adifferent quirk of copyright law — the proliferation of blanket “public performance” licenses  managed by performing rights organizations ASCAP and BMI — to blame for those abominations.)

Continue reading the full story . . . »


Haunted House Doesn’t Scare Off Filmmaker

Many people consult with psychics.  Not an unusual thing to do (certainly not in California).  But not a lot of people spend the next 38 years adding rooms to their houses because the soothsayer said spirits would kill them if construction ever stopped.  At least one person is reported to have done so:  Sarah Winchester, the widow of the son of the famed gunmaker.  By the time the heiress died in 1922 at age 82, her seven-room farmhouse had become a seven-story, 160-room Victorian-style mansion, replete with winding dead-end passageways, interior windows, and doors to nowhere.

hauntedThese types of legends make good movies, which is why a production company approached the owner of the Winchester Mystery House in San Jose, California, to request permission to film there.  The owner turned it down, stating that another company had already acquired the rights to the Winchester story.  The filmmakers went ahead and made their movie anyway, calling it Haunting of Winchester House and putting a Victorian-style mansion on the DVD cover.  You can guess what happened next.

The case that followed, Winchester Mystery House, LLC v. Global Asylum, Inc., represents a classic battle seen frequently in the world of entertainment litigation:  the trademark owner who wishes to preserve his exclusive rights to a particular name vs. the artist who wishes to use that name as part of a creative work.  And the battleground?  The First Amendment, of course.  So what happens when the owners of one of America’s most famous haunted houses take on the filmmakers who have gone renegade to tell its (highly fictionalized) story?

Continue reading the full story . . . »