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.

These 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 . . . »

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We here at Law Law Land are big fans of Halloween, the drunkest, sluttiest, most creative and fun-loving holiday of the year.  Law Law Land HQ itself is awash in cat ears and warlock coats today, and your editor is looking forward to a heaven-vs.-hell, angel-vs.-devil ping pong grudge match of epic proportions tonight.  But if you’re looking for a real fright on Halloween night, just consider some of the following truly scary cases and claims.

If the Past Is Never Dead, Does That Mean the Past Is Undead?

William Faulkner famously wrote, “The past is never dead.  It’s not even past.”  Woody Allen-mouthpiece Owen Wilson less-famously said, in 2011’s Midnight in Paris, “The past is not dead!  Actually, it’s not even past.  You know who said that?  Faulkner.  And he was right.  And I met him, too.  I ran into him at a dinner party.”  And Faulkner’s estate is now infamously saying that, if you use Faulkner’s line (ish) in a movie, with attribution, you have broken the law.

Faulkner’s estate is suing Sony Pictures Classics for copyright infringement and trademark infringement, claiming that Midnight in Paris’s misquote of Faulkner’s famous aphorism from 1950’s Requiem for a Nun not only infringes their copyright, but also violates the federal trademark statute by deceiving viewers into believing that the movie was affiliated, endorsed, or authorized by the Faulkner estate.  So are Sony’s lawyers running scared into the night?  Not likely.  But the distant howls you might be hearing are actually the pained wails of frustrated intellectual property law professors everywhere.

(Special kudos to the usually-dry-as-a-skeleton Courthouse News Service for observing, “at risk of offending the shade, or estate, of Charles Dickens:  This is a far, far weirder thing than Sony has ever done.”) Continue reading the full story . . . »

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Elisabeth Moriarty

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My daughter has always been squeamish about eyeballs.

Ask her to name the scariest movie of all time?  Who Framed Roger Rabbit, of course.  She saw it once (and only once) at the age of four, and the scene near the end, in which the flattened Judge Doom re-inflates himself and reveals the malevolent Toon lurking beneath his popped-out prosthetic eyeballs, scarred her for life.  And so, our family will always fast-forward past the melting of Nazi agent Toht in Raiders of the Lost Ark, decline to mourn the loss of Mad-Eye Moody in Harry Potter and The Deathly Hallows, Part I, and just steer clear of the absolute abomination that is Large Marge in Pee Wee’s Big Adventure.

I mention all this so that you will understand the sense of abject horror and dread I experienced when, several weeks ago, I drove to work down Motor Avenue and found myself face to face with a giant, eerie nun, her face as white as alabaster, crying (or bleeding?) black liquid from alien-like eyes.  It was a (thoroughly disturbing) billboard for American Horror Story: Asylum looming over the entrance to Fox Studios.  Adjacent to our beloved dog park.  Big as the Times Square Jumbotron.  I knew my daughter would freak out, and freak she did.

She insisted that I call the studio and demand that the billboard be removed immediately, which gave us the perfect opportunity to discuss that little thing called the First Amendment.  Once I got going, she quickly went from billboard-ed to bored, and ultimately resolved to cover her eyes with a sweatshirt if I would simply shut up.  But the issue stuck with me.  As an attorney, I’m comfortable with the fact that First Amendment expression should not be unduly chilled by a ten-year-old with a (perhaps unreasonable) eye phobia.  But the mom in me took umbrage at this offensive (or at least unsettling) billboard content.  Should Fox have the right to upset my kid on a daily basis in its attempt to bring more “eyeballs” to its advertisers? Continue reading the full story . . . »

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Jesse Saivar

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Q:  For some 10 years now, I’ve been trying to penetrate the 10 foot thick wall called “unsolicited.”  How do I get through it? I have no agent.

A:  We can answer your question, but frankly, you may not like what we’re going to say.  Unfortunately, that 10 foot thick wall is probably as old as the Great Wall of China and is equally as impenetrable.  For those of you who haven’t had the pleasure of submitting a script to an individual, production company, studio or, god forbid, law firm only to have it returned to you with a letter classifying it as an “unsolicited submission,” we can give you a little background. Continue reading the full story . . . »

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Jesse Saivar

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Q:  I’m a writer/director.  I wrote a script that’s getting some traction.  I obviously want to sell it but on one condition:  I have to direct the movie.  I don’t think anyone else can do it justice…  A producer just presented me with an option agreement.  In our conversations, he agreed that I could be the director.  In the option agreement, it says that in the event the project receives financing and if a few other conditions are met, I’ll be engaged to direct the film on a “pay or play” basis.  I know that “pay or play” is a good thing so does this mean the producer is essentially agreeing that I’m the director?

A:  When I first started practicing entertainment law, I believed the term “Pay or Play” referred to the next hot NBC primetime game show, which I assumed would be hosted by Gallagher.  Fortunately for all of us, it’s not.  However, I’ve found that while it is a very commonly used contract term, and everyone wants it in their agreements, there is (as evidenced by your question) some confusion about the full extent of its implications. Continue reading the full story . . . »

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Ken Basin

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Sure, most of America might be abuzz about how poor NFL refereeing definitely may or may not have swung the outcome of this week’s showdown between the Green Bay Packers and the Seattle Seahawks on Monday Night Football.  But this week, the NFL doesn’t have a monopoly on sports-and-games fairness scandals (even if its scandals might have the most effect on Vegas betting lines and home fantasy football leagues everywhere).  That’s because of a new case that will surely rock the (narrow, quirky, cloistered) world of game show and trivia nerds everywhere.

So here’s a trivia question for you:  what happens when producers of a game show tell two contestants there will be no trick questions on the show, and then throw something that might be considered a “trick question,” causing those contestants to blow $580,000 in potential winnings?  Do the contestants:

(A)  Quietly retreat to their homes and try never to look at the chain of excoriating comments on the YouTube video of their defeat.

(B)  Launch an inspiring grassroots campaign on the Internet to get a second run on the show.

(C)  Reevaluate their personal choices and embrace new lives of monastic asceticism, untempted by the siren’s call of game show winnings.

(D)  Sue.

If you guessed D, congratulations!  You win…the rest of this article.  So can two contestants who lost it all on TV win it back in the courtroom?

Before we answer that question, you must understand:  I’m a particularly qualified expert to opine on this subject.  Sure, the law degree is nice, but lots of people have those.  I, on the other hand, have particular insight on the question of what happens when you, oh, I don’t know, lose a half-million dollars in winnings (give or take) in the span of about 4 minutes in front of a national network primetime audience.  So I think these plaintiffs can take it from me when I say, Run from this lawsuit.  Run like the wind. Continue reading the full story . . . »

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