Posts In "Litigation"

Litigation




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.

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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 Lakers Beat the Who?

Seattle sports fans recently rejoiced when the Maloof family announced that they have (finally) agreed to sell their stake in the Sacramento Kings to a Seattle-based investment group that (spoiler alert) intends to move the team back to the Emerald City.  Considering how well the former Seattle SuperSonics are doing as the new OKC Thunder, coupled with the fact that the Seahawks recently blew what could have been the most amazing comeback in recent memory, who could possibly deny Seattle’s sports fans this fantastic opportunity?

For starters, there are the Sacramento Kings’ fans, who fully appreciate the irony of Seattle trying to poach an existing team while still bemoaning the fact that their Sonics team got poached by Oklahoma City.  Rest assured that Kings fans will stop at nothing to keep the team in “Cowbell Kingdom,” if for no other reason than to continue persisting in their ridiculous fantasy that a “rivalry” exists between the Kings and the Lakers.  (Of course, what’s really going on is an all-too-obvious ploy to support the struggling cowbell industry, which the rest of America — except for maybe The Bruce Dickinson — will just never understand).  Leading the Cowbell Kingdom movement is former Phoenix Suns superstar and now-mayor of Sacramento, Kevin Johnson, who not only has a political science degree from U.C. Berkley, but also blew my 12-year-old mind back in 1994 when he posterized Hakeem Olajuwon.

Just one day after this week’s announcement of the sale, mayor KJ warned Seattle fans:  “Don’t celebrate too early.”  Because if KJ gets his way, the Kings will be staying in Sacramento (and the cowbell industry will be saved).  Such a result would not only devastate the hopes and dreams of Seattle NBA fans, but would also totally obviate all of the hypothetical legal stuff I may or may not eventually get around to discussing later in this article.

KJ’s Plan

KJ’s “Playing to Win” plan has four steps, none of which apparently require the use of complete sentences:  (1) identify local ownership group; (2) identify major equity partner; (3) demonstrate City’s commitment to partner on new downtown arena; (4) demonstrate viability and strength of the Sacramento market.  KJ has also located a prominent Sacramento law firm that is willing to get paid entirely in cowbells work on a pro bono basis to help keep the team in town.

In order to keep the Kings in Sacramento, KJ must ultimately convince the NBA board of governors to reject the proposed sale and relocation plan.  According to the Sacramento Bee (a far more trusted news source than the Cowbell Herald), the Maloofs have a binding agreement with the Seattle-based investors, which would mean that the Maloofs would not be able to change their minds about who to sell to unless the NBA rejects the sale (or the Maloofs want to breach their contract).  According to Fox Sports, however, the “Maloofs are still allowed to receive other offers until the league approves the sale….”  Meanwhile, other observers are speculating that the Kings’ minority owners may have a right to match the Seattle group’s offer — and that, even if the current minority owners are unwilling or unable to do so, new cowbell-loving partners (including business magnate/part-owner of the Pittsburgh Penguins Ron Burkle) could step in and exercise that right by taking over a 7% stake in the franchise that is currently available via bankruptcy auction.

In any event, the NBA board of governors will reportedly meet in New York in mid-April.  At that time, the board of governors will probably hear a relocation pitch from the Maloofs and the Seattle-based investors, as well as a counter-offer from KJ.  KJ’s counteroffer will likely include a summary of his four-point plan (no reports on the anticipated use of complete sentences), and hopefully some additional footage of him posterizing Hakeem Olajuwon.  Hopefully, KJ will have the good sense notto show the board of governors the Bubble Gum Bandits’ corny music video, which supports keeping the Kings in Sac-town.

Legal Challenges

Even if the Kings-to-Seattle move is approved by the NBA, and isn’t scuttled from within the Kings ownership group, two lawsuits threaten the construction of a new 700,000 square feet arena in Seattle.  According to the Seattle Times, the first lawsuit deals with a Washington State Initiative that requires the city to make a profit on any investment in a sports facility.  The second lawsuit seeks to void the contract because the investors failed to complete an environmental impact report and because nonindustrial traffic and development in the “Sodo” area would impair cargo movement.

Although we California lawyers can normally predict the outcome of lawsuits with absolute certainty* these lawsuits are different because they involve topics like the impairment of cargo movement — which, when rigorously analyzed, immediately force us to either take a nap or think of something more interesting before we can complete our analysis.

Even if these lawsuits are defeated, the new arena wouldn’t be ready for at least a few years — which would mean that the team would be back in the aging KeyArena.  Unfortunately, KeyArena is already booked with numerous exciting events such as Seattle University men’s basketball games, WNBA Storm games, Pac-12 Women’s college basketball tournament games, various musical concerts, and last but not least, “Rat City Rollergirls” games.  This means that instead of watching DeMarcus Cousins, Tyreke Evans and Jimmer Fredette, Seattle fans might just get to keep watching the “Throttle Rockets” versus “Sockit Wenches.”

Since I only go to Seattle to visit family and Pike Place Market, you might assume I have no dog in this fight.  But given that (1) as a Laker fan, I must constantly endure Kings fans bringing up the “rivalry” we all know never existed, and (2) I feel dated whenever I listen to Ice Cube’s “It Was a Good Day,” I would actually like to see this move happen.

But, as a German train-ticket collector once told a professor of mine when told by the professor that he was going to a certain city in Germany:  “We shall see.”

* Disclaimer:  This statement is not actually true.


You Can’t Sue Your Favorite Team for Stinking, But Can You Sue Them for Intentionally Stinking?

My wife is very excited about tonight’s Laker game.  Not because she is a Laker fan.  Indeed, any actual Laker fan (like me) knows that now is a decidedly bad time to be a Laker fan.  True, during the last off-season we acquired Superman a/k/a D12 a/k/a Dwight Howard, and two-time MVP Steve Nash season.  True, we still have the Black Mamba.  And yes, we still have (at least for the moment) Pau Gasol.  We even replaced former-coach-of-the-year Mike Brown with different former-coach-of-the-year Mike D’Antoni as our new head coach (although it meant passing on other former-coach-of-the-year Phil Jackson).  So why are the Clippers the L.A. basketball team going on franchise winning streaks, while the Lakers are a sub .500 team?  Why does the classic and hilarious Onion video about a Staples’ Center collapse scenario which mercifully brings about an early end to a Clippers game now seem like it should only apply to the Lakers?

Whatever the reason, my wife couldn’t care less.  Like I said, she’s not a Laker fan — she’s a Steve Nash fan.  It’s so bad, in fact, that she won’t even watch the game when Steve Nash is not on the floor.  She’ll just pick up her iPhone and look at cute animal pictures or surf Pinterest.com for whatever it is that people do on Pinterest.com.  Maybe looking for pictures of Steve Nash?  In short, she completely loses interest.  So I can understand her paranoia about whether Steve Nash will suit up tonight (especially given his recent trouble with injuries).

But would my wife and I ever sue the Lakers for a refund if they decided to bench Steve Nash?  Of course not.  It’s not like we live in Miami!

Because these days, people apparently do that kind of thing in Miami…

Miami Lawyer Sues San Antonio Spurs for Benching Players

Finding a “fun” news story about the San Antonia Spurs is kind of like finding a copy of the L.A. Times Entertainment section with no mention of Lindsay Lohan getting arrested.  It just doesn’t happen very often.  Even though the Spurs have a fantastic head coach in Gregg Popovich and the best power forward the game of basketball has ever seen, they’ve just never been that exciting of a team.  They’re just a really, fundamentally sound team.  Frankly, the most fun article I have ever read about the Spurs (also from the Onion) was titled:  “Injured Manu Ginobili Only Flopping at 85%.”

But today, something wonderfully exciting happened in the world of Spurs sports news.  A Miami lawyer named Larry McGuinness filed a lawsuit against the Spurs on the grounds that Gregg Popovich “intentionally and surreptitiously” sent the team’s best players home to rest without the knowledge of the NBA and the fans attending the game.  Although the league already fined the team a controversial and unprecedented $250,000 for its decision to rest its top stars, Mr. McGuinness is claiming his own “economic damages” as a result of paying a premium price for a ticket that shouldn’t have cost so much.  McGuinness, who bought his ticket on the resale market, alleges:

“It was like going to Morton’s Steakhouse and paying $63 for porterhouse and they bring out cube steak.”

The irony, of course, is that the Spurs’ bench players almost beat the Miami Heat (one of the league’s best teams) that night.  In other words, it was more “like going to Morton’s Steakhouse and paying $63 for porterhouse and they bring out the most delicious cube steak you’ve ever had in your life.”  Still, McGuinness was understandably ticked off (even Pop had to admit the gripe was legitimate).

Spurned by the Spurs, and Soon to be Spurned by the Law

I am no expert on death penalty Texas state law (which McGuinness bases his claims on), but this kind of thing almost certainly would never fly in a California court room.  Mr. McGuinness may argue that the Spurs harmed him by breaking the league’s rules and benching their players.  But everyone knows that sometimes players don’t play for a variety of reasons:  e.g., injuries resulting from punching glass cases for fire extinguishers, flu-like symptoms, suspension for throwing unnecessary elbows at other players, suspension for brawling with fans, (yes, that’s two Artest references in a row), being benched for “conduct detrimental to the team,” getting suspended for drawing guns at a Christmas eve argument, etc, etc.  The NBA:  where totally crazy player conduct happens.

Given all of these examples, McGuinness seems to be positioning this as an “intentional” decision by the team rather than an irrational and unpredictable choice made by a player.  In support of his argument, he can point to David Stern’s punitive fine of $250,000 for breaking league policy.  Nevertheless, his argument is still a loser.  He paid to see the Spurs basketball team play basketball against the Miami Heat basketball team.  And that’s what he got.  He didn’t buy a ticket to see a game played by a five-man roster consisting of Manu Ginobili, Tim Duncan, Tony Parker, and whoever else he wanted to see — he paid to see the team.

Now, if only my wife was interested in seeing the Lakers team, instead of just Steve Nash, I might not have to explain all of this to her in the oh-man-I-hope-not-event that Steve Nash doesn’t play tonight.  Something tells me a lawsuit wouldn’t even begin to satisfy her outrage.


A Law Law Land Correction (and a Litigant Speaks!)

An interesting footnote to last week’s post, revisiting our “5 Cases to Watch” for 2012.

Last week, I wrote that while talent manager Rick Siegel’s legal war with his former client — which had since morphed into a crusade against California’s Talent Agencies Act writ large — was over, the fight had been taken up by Siegel’s colleagues at the National Conference of Personal Managers, which, in November 2012, brought a direct constitutional challenge against the Talent Agencies Act in federal court.  As part of my preview of the case, I noted that the case “may still be a long shot — anytime someone tries to claim that a law violates the Thirteenth Amendment’s prohibition on slavery, you have to raise your eyebrows a little.”  But this week, I received a reader correction from Mr. Siegel himself, who writes:

Ken,

The 13th Amendment claim isn’t about slavery.

The 13th Amendment of the United States Constitution states in part:  “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.”

So to be constitutionally compliant, the benefit of one’s labor can only be voided should there exist: (1) a statute stating that such labor was criminal; and (2) a finding been forfeited must have been found duly convicted of that crime.  Every other California occupational licensing scheme where one loses the right to contract has statutory notice that the unlicensed engagement of activity is a criminal offense and makes that engagement either misdemeanor or felony, the TAA expressly states that per § 1700.44(b) that no TAA violation can be considered criminal.  As the action can’t be seen as criminal, the penalty violates the 13th Amendment.

The original post has been revised to refer to “involuntary servitude” instead of slavery.  Lawyers for the State of California, the Association of Talent Agencies, and celebrities who just like being able to not pay their estranged personal managers may, of course, disagree with Mr. Siegel’s interpretation of the Thirteenth Amendment, but let it never be said that Law Law Land doesn’t strive to be fair and precise in its snark.

As for me, I’m just psyched to have gotten (politely) called out by a celebrity of recent history in California law.  Can’t wait for Kim Kardashian to email the blog next!


Miss Universe Pageant Scores Big Against Former Contestant

The Quaker State can be proud of many things.  The Liberty Bell.  Andy Warhol.  Tastykake.  Trading Places.  The Immaculate Reception.  But one part of its history that Pennsylvania may wish to forget (besides dog killer Michael Vick) is the garrulous young woman chosen to represent the state in the Miss USA pageant — Sheena Monnin.  Last month, a New York arbitrator found that Monnin defamed the Miss Universe organization when she claimed that the show had been rigged and ordered her to pay $5 million in damages.  Everyone knows that beauty pageants are big business (and were even before Honey Boo Boo tragically became a household name).  But how did they suddenly become the setting for big damages awards too?

“Fraudulent, Lacking in Morals, Inconsistent, and in Many Ways Trashy”

Monnin participated in the Miss USA competition and was not one of the semifinalists selected by the pageant judges.  A different panel of celebrity judges then chose the five finalists, including the eventual Miss Universe, Olivia Culpo of Rhode Island.

Sheena-MonninMoments after learning she had not been chosen as a semifinalist, Monnin sent an email to the director of the Miss Pennsylvania USA Pageant, Randy Sanders, claiming that the contest had been “f-ing rigged Randy.”  (Wouldn’t be surprised if this phrase becomes part of the vernacular.)  Monnin resigned as Miss Pennsylvania the next day.  As her reason, she stated that the pageant system had “removed itself from its foundational principles” by allowing transgendered contestants.  That night, she publicly announced her resignation on Facebook, stating that she wanted no affiliation with an organization that was “fraudulent, lacking in morals, inconsistent, and in many ways trashy” — a sentiment that sounds like it could just as easily be a review of the clientele at many Hollywood nightclubs.

In a second Facebook post, she provided a new rationale for her resignation:  the show had been rigged.  As evidence, Monnin gave details of a conversation with another contestant who purportedly had found a list naming the top five finalists prior to the final judging.

Not surprisingly, these comments received much media attention.  Monnin repeated her accusations on NBC’s Today Show, which is broadcast nationally.

Given that allegations of corruption in judging are nothing new and are rarely substantiated (the 2002 Winter Olympics figure skating scandal notwithstanding), the Miss Universe officials might have let this go after Monnin ignored the group’s offer to review the judging process with her.  Forgiveness, however, was no longer on the agenda after the organization allegedly lost a potential $5 million sponsor who purportedly pulled out after expressing concern about the “rigging” allegations.

Continue reading the full story . . . »