Posts In "Litigation"


A Fight for Your Sole

Ask a fashionista what a red soled shoe means and they’ve got two words for you: Christian Louboutin. (On the other hand, ask a guy what a shoe with a red sole means and they’ll probably answer: dirty shoes). Christian Louboutin believes the red sole defines his brands identity, so in 2008 he trademarked his red sole with the US Trademark office. Today, Christian Louboutin has a “zero tolerance policy” when it comes to enforcing his trademark (and if you’re looking for a working definition of “zero tolerance,” it might look something like this video of a monster truck rolling over thousands of counterfeit Louboutins). He has even sued brands such as Carmen SteffensOh. . . Deer, and more recently Yves Saint Laurent for violating this trademark.

Is Louboutin overreaching by claiming proprietary rights in red shoe soles? The answer might have Yves Saint Laurent’s lawyers seeing red. Continue reading the full story . . . »


Agents vs. Talent: Money For Nothing?

A little over a year ago, I wrote about a rash of lawsuits brought by managers against former talent clients. If 2010 was, as I suggested, the year of managers suing their ex-clients for unpaid commissions, then 2011 appears to be year of agents suing their ex-clients for the exact same thing. This time, though, the agents are in the driver’s seat.

Last week, one of the biggest agencies in the world, United Talent Agency, sued Adam Herz, a writer and producer on American Pie 3, for at least $700,000 in unpaid commissions. A few days later, a story broke about Paula Abdul firing UTA and refusing to pay UTA commissions on her income from X-Factor. UTA seems ready to fire off another lawsuit against Paula. So, what gives? Why is UTA all of a sudden getting stiffed (or, to quote the terrible pun making its way around the Internet, “Stifler’d”)? Continue reading the full story . . . »

Apple’s Appetite for Trademark Warfare

This isn’t a rhetorical or philosophical question, nor is it the proper response to a clue on Jeopardy! In fact, it may soon be decided in a court of law.

On March 18, 2011, Apple Inc. filed a complaint in federal court against over Amazon’s “unauthorized use of Apple’s APP STORE™ trademark.” Apple claims that Amazon has been unlawfully using the term “APP STORE” in connection with Amazon’s “Appstore Developer Portal” and “Angry Birds Rio” software. Of course, what this is really about is that Apple is annoyed by Amazon’s “Appstore for Android” — whose name bears a certain resemblance to Apple’s own iTunes App Store.

Phones with Google’s Android operating system are a major competitive concern for Apple. The obvious solution to this would be for Apple to take advantage of its marketing juggernaut and already superior market share to beat out Android in the marketplace. But there are no lawyers involved in that, rendering it totally un-American. So instead, Apple has followed in the proud footsteps of luminaries like Donald Trump (tried to trademark “you’re fired!”), Paris Hilton (tried to control the phrases “that’s huge” and “that’s hot”), and Subway (claimed to own the word “footlong”), by going to court to claim trademark rights in the phrase “APP STORE.” Continue reading the full story . . . »

The Hangover 2 and the Tyson Tattoo: Lessons in Copyright, Contract, and Clearance

This month, the legal blogosphere has been all atwitter about aMissouri tattoo artist’s lawsuit against the studio behind The Hangover 2, and the artist’s attempt to stop not only the release of the film, but even block the studio’s ads and promotional materials. In case you aren’t up-to-date on your face art-related news (there’s just so much out there!), let’s catch you up: St. Louis tattoo artist S. Victor Whitmill has sued Warner Bros. claiming that a tattoo featured on the face of one of The Hangover’s main characters, Stu Price, played by Ed Helms, infringed Whitmill’s copyright in a very similar tattoo he placed on boxing-champ Mike Tyson’s face back in 2003. A cursory comparison of the two tattoos shows how strikingly similar they are, and when coupled with Whitmill’s allegations, perhaps how worried WB should be. (Hat tip to TMZ for the side-by-side comparison.)

Whitmill alleges that in 2003 he created “one of the most distinctive tattoos in the nation” — one that looks nothing like a facial version of the tramp stamp gracing the lower back of half of the current denizens of Hollywood nightclubs — by placing an original “tribal tattoo” (the registered name of the copyrighted work) on the upper left side of Tyson’s face. At the time he applied the tattoo, Whitmill apparently had Tyson sign a release (attached as an exhibit toWhitmill’s complaint). Although the release primarily contains typical tattoo/piercing CYA language (the signing client represents they’re over 18, not under the influence of drugs or alcohol, etc.) it also contains a provision stating “I understand that all artwork, sketches and drawings related to my tattoo and any photographs of my tattoo are property of Paradox-Studio of Dermagraphics” (Whitmill’s d/b/a, which pretty ingeniously linguistically science-ifies tattoo artistry).

While Whitmill’s release language seemingly purports to grant him ownership of any image of Tyson in which the tattoo is displayed (the actual photographers might have something to say about that, I think), Whitmill kept silent as Tyson and his tattoo made their big cameo in 2009’s summer juggernaut, The Hangover. It wasn’t until a look-a-like tattoo appeared on Ed Helms’ (extremely pained-looking) face in ads for The Hangover 2 that Whitmill decided to bring an infringement claim. And already, bemused legal eagles are wondering if it’s “the best copyright complaint ever.” Continue reading the full story . . . »

At Least One Girl Didn’t Want to Grow Up to Be Barbie

Now listen to my story ‘bout an actress named Donna.

In case you don’t recall The Beverly Hillbillies (read: are under the age of 40), the series (which ran on CBS from 1962 to 1971, and which has enjoyed a long life in syndication) followed the Clampett family, a group of poor yokels who strike it rich after accidentally discovering oil (“Texas tea”) on their generically Southern swamp, move to Beverly Hills, and inexplicably continue to drive around in a jalopy and dress like extras from The Grapes of Wrath. One of the show’s highlights was buxom, come-hither Clampett daughter Elly May, played by an actress named Donna Douglas, whose principal non-Elly May-related claim to fame is some obscure on-set philosophizing with Elvis during the shooting of Frankie and Johnny. (And one of its lowlights was a tragic 1993 attempt at a feature film — with Playboy model and Baywatch babe Erika Eleniak reprising the role of Elly May — which garnered such rave reviews as “Unbearable,” “Was this really necessary?” and “Four writers worked on the script, and they all should hang their heads in shame.”)

Last week, Douglas sued Mattel in federal court in Baton Rouge, Louisiana over the toymaker’s recent release of an “Elly May” Barbie, asserting claims for false endorsement under the Lanham Act, violation of the Louisiana right of publicity statute, common law misappropriation, and unjust enrichment. In her complaint, Douglas asserts that the packaging and publicity for the Elly May Barbie use Douglas’s photograph and name, and that the doll itself copies Douglas’s “distinctive attributes in the portrayal of the Elly May character.” Douglas also claims that she never endorsed the doll or gave Mattel permission to use her name or likeness to promote sales of the Elly May Barbie. As Elly May herself might say: “Well, come on, baby. Let’s wrassle.”

Aside from raising questions about Mattel’s marketing strategy here — I’m guessing this is a “collector’s item,” because have any adolescent girls ever even heard of The Beverly Hillbillies? — Douglas’s lawsuit highlights a potential collision between the right of publicity and the rights granted to copyright owners. Continue reading the full story . . . »

The New Twilight Saga: Summit Gets Serious Over Social Media Leaks

Sorry for vanishing this week, dear readers. Between Kate Middleton locking down Prince Wills and Navy Seals taking down Osama, it’s been a nonstop news frenzy, and there’s very little we have to say about any of it — except, perhaps, to wonder what sort of legal claim the extremely unhappy-looking little girl in the bottom-left of this photomight assert, or to discuss my potential claims for intentional infliction of emotional distress based on being subjected to the rogues gallery ofRoyal Wedding hats (egad!). But now that the Duke and Duchess of Cambridge are busy living happily ever after, it’s time to look forward to the next big wedding, coming soon to a theater near you: the marriage of Bella Swan and Edward Cullen. (Big sigh from Team Jacob.)

Twilight fans are dying to witness the magical wedding of the innocent Bella to her sexy vampire boyfriend Edward (previously known as Cedric Diggory), as well as other monumental events that occur in Breaking Dawn, the final book in the Twilight Saga. (Umm, of course I wouldn’t know anything about that…it’s not like I read the entire series cover to cover. Nope, definitely not me!). The first installment, The Twilight Saga: Breaking Dawn, Part 1, is scheduled to hit theaters on November 18, and Part 2 will follow in November 2012 (way to milk the franchise, Summit Entertainment). Just as the excitement for the film is building, someone always has to go and ruin the fun.

Several weeks ago, several unauthorized screenshots from Breaking Dawn were leaked and illegally posted on Twitter by anonymous users. Needless to say, Summit Entertainment was not happy. Filmmakers issued a statement pleading with fans not to view the photos or distribute them online. Robert Pattinson even made his own Cullen-like appeal to fans, asking them to “punish” the infringers and to “police your own.” (Of course, producers have let someofficially-sanctioned scraps out for the well-behaved Twi-hards of the world.) And most producers would stop there, with only their angry-sounding statements and impassioned pleas to fans to protect themselves. But Summit, you’ll recall is the studio that sued the makers of high-profile wardrobe pieces from the Twilight movies for advertising them as high-profile wardrobe pieces from the Twilight movies. It’s the studio that came after a lonely defendant for statutory damages for copyright infringement for leaking photos from last year’sEclipse. And now, it’s the studio that has taken the uncommonly aggressive step of filing a lawsuit against ten “John Doe” defendants. What does this mean? Continue reading the full story . . . »