Burstyn v. Wilson

huskyshiveringInternet and Web Development

Dec 11, 2013 (3 years and 7 months ago)

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1


Part One: Legal Restraints on Entertainment

Sex and Violence

1)

Entertainment and the 1
st

Amendment

-

Burstyn v. Wilson
(17)


First case asking whether motion pictures w/in the scope of the 1
st

Amendment through the 14
th
? Yes.


o

Facts: Girl raped by man she thinks is saint. Catholics call it sarcasm/sacrilege. Film got
permit in 1950


critics liked it. NY film board revoked license b/c pressure from Church.
P appealed.

o

Issue: Are movies protected by the 1
st

Amendment?

o

Holding: Y
es.


being sold for profit doesn’t prevent 1
st

Amendment Protections. Film
should be treated like books, paper, etc…

1.

Motion pictures are a significant medium for the communication ideas
-

not lessened by the fact that they are for entertainment

Problem w
ith the Statute at Issue: Prior Restraint


NY didn’t have an overwhelming
justification. Protection of a religious sensibility isn’t enough


mixes church and state. Board
members had too much discretion.

-

New York Times Inc. v. Sullivan (1964)
: Tort la
w of defamation is constrained by a

commitment to free speech in dealing w/public issues even if it means defaming a public officer.
Sullivan was an Alabama rep angry about an article calling Southern efforts to oppose MLK a
“wave of terror”

hate speech i
s ok, so long as there is no incitement (the same as pornography is allowed, 1
st

amendment right issue).

-

Brandenburg v. Ohio


Incitement case

Constitutional protection to Ku Klux Klan leaders. It would violate the 1
st

amendment to punish
the pure advoc
acy of illegal force.
Only “advocacy directed to inciting or producing imminent
lawless action that is likely to INCITE or produce such action could constitutionally be made
illegal.”

Incitement case


relied on by authors, film makers, rappers…

-

City of
Dallas

Facts: Ordinance required rating by board to classify if something his suitable for young
audiences.

Holding: Ordinance didn’t have clear enough standard for the board


“vice of vagueness” is a
detriment to the constitutional rights of the motion p
icture industry and its fans.
System of
informal censorship.
This case prompted MPAA rating system.

Judge Easterbrook’s opinion on an Indianapolis law banning certain kinds of porn, both print and
film.

Not a content neutral statute

Statute approves certain ways of looking at women and excludes different material.

Can punish the acts that result from speech, but not the speech itself.

2.

When people see a murder take place on screen, they don’t think it
actually happened.

2)

Entertaining

Sex

a.

Miller v. California led to the Obscenity Guidelines

Miller Obscenity Test:

1. Would the average person, applying contemporary community standards find that the work,
taken as a whole,
appeals to the prurient interests
?

2. Does the work,
depict or
describe in a patently offensive way, sexual conduct

specifically
defined by applicable state law?

3. Does the work, taken as a whole
, lack social, political, artistic, scientific value
?

This pretty much limits government regulation to movies that constitute hard core porn.

Skywalker Records v. Navarro

i.

Facts: 2 Live Crew Album



2

ii.

Holding: Album is Obscene


Failed the Miller Obscenity Test

iii.

Prior restraint


the Florida sheriff’s warnings to
the music stores constituted unconstitutional
prior restraint and the court issued an injunction against future behavior w/respect to recordings.

New York v. Ferber



held that the Miller obscenity standard did not bind the gov’ts power to prohbit
child po
rnography. _

-

The state can prohibit the sale and production of child pornography and pursue those who are
involved in the traffic of it…

-

1996: Child Pornography Prevention Act: includes any technology (visual depiction) of children
having sex, appearing to
, anyone under 18.

Ashcroft v. Free Speech Coalition

iv.

Facts: Child Pornography Prevention Act prohibits the visual depiction of children under 18
engaging in sexual activity. Romeo and Juliet, Traffic, American Beauty

1.

Different from Ferber


can’t have th
ought control, pedophile’s appetites
will be whetted by this type of speech does not make it unprotected.

v.

Holding: Violation of the 1
st

Amendment

1.

CPAA prohibits protected speech that falls outside of the Miller Test.

2.

This was a legitimate theme in art
and literature

3.

Under Miller, the work must be judged in its entirety: a single portion
doesn’t make the entire thing obscene and unprotected.

4.

Different from
Ferber

because that case actually dealt w/child porn


the
scenes in the film aren’t intrinsically
related to the sexual abuse of
children.

a.

No action


no incitement/solicitation

b.

Connection b/w the speech and any resulting action (child abuse) is too weak.

c.

The mere tendency of speech to encourage lawful acts is not a sufficient reason
for banning it.

5.

Over
-
breadth Doctrine:

You can’t suppress legal speech as a byproduct
of suppressing unlawful speech/activities?

Cases regarding free speech and sexually offensive/religiously offensive art:

NEA: National Endowment for the Arts Act


controversy awarding
gov’t grants to artist whose
work depicted sexual indecency. She didn’t get the grant.

RAV v. St.Paul: struck down an ordinance as facially invalid prohibiting anyone placinga symbol
on property like a swastika that would arose anger, alarm, or resentment

in others

Sensation: Virgin Mary w/elephant dung around it at NY museum. Giuliana called it anti
-
catholic.
Doesn’t matter


shouldn’t have gov’t determine what is religious or anti
-
religious.

FCC v. Pacifica: Why are some words allowed and some not? Lice
nsing Question. It’s a scarce
resource to get a license…

vi.

Facts: Pacifica radio station broadcast George Carlin’s “7 Dirty Words” in the afternoon. FCC
sanctioned them under the Communications Act


provides sanctions for indecent, profane and
obscene broad
casts. FCC sanctioned Pacifica after a complaint from a boy’s pastor father.

vii.

Holding: The broadcast was indecent. No 1
st

Amendment when FCC sanctions a licensee.

1.

Pacifica was under license from the FCC putting them under FCC
control.

2.

Carlin and Pacifica

argue it as content
-
based regulation: the words can be
used in other non
-
offensive ways

3.

FCC says that non
-
obscene speech can be regulated


children are
listening, radio is pervasive

a.

Indecency; not necessarily obscenity

b.

Patently offensive words dealing w/
sex may be regulated

c.

Court doesn’t give much guidance, just says FCC can make regulations (can
only broadcast at certain times)

4.

Safe Harbor Time: usually starts at 10pm when those words can air

5.

Communications Decency Act: The internet isn’t regulated



3


3)

Entertaining Violence

-

Defenses to these cases will almost always be
Brandenburg:

that there is no incitement

-

Plaintiff will have to show incitement/advocacy and that is a difficult burden.

Ent. Lawyers most powerful argument: 1
st

Amendment
-

call it spe
ech. Prior restraint? We don’t like that
either. If the government wants to justify prior restraint it must show that it was justified on the highest
levels. It can be justified only if the justification is so intense it can override all constitutional gua
rantees
of 1
st

amendment. (If judge grants prio restraint almost always appealed and found problematic).

-

Weirum v. RKO General:

Facts: Radio contest; kids see car, chase it and end up killing 3
rd

party

Holding: Radio station created a foreseeable and u
nreasonable risk that someone else would
endanger a 3
rd

party.

FCC


What would you expect to happen aside from a tort action? Example of Wii competiton having
people drink as much water as possible


kid ended up dying from drinking too much water.

-

Tu
pac Case:

Facts: kid listening to Tupac lyrics about killing police; gets pulled over and shoots police officer

Holding: no liability for Tupac

-

Byers v. Edmonson

Facts: Natural Born Killers case.

Holding: You must show a causal link to create tort liab
ility. In this situation the Plaintiff wasn’t
able to.

-

James v. Meow Media

Facts: Basketball Diaries case; family of the dead proceeds against the video game manufacturer

Holding: no tort liability. 1
st

Amendment protection.

Court Analysis: Tort Liabili
ty & 1
st

Amendment

Tort Liability: P must show a causal connection b/w playing the video game/watching the
movie and killing.

a.

Leap from movies and games to killing is too much


P couldn’t do that here

b.

Doesn’t help to hold manufacturer liable, should hold
criminal liable


otherwise you are defeating purpose of criminal justice system

2.

1
st

Amendment Analysis: Is it protected speech?

a.

Protected Speech: Political, religious, artistic, scientific, commercial
-

all ideas

b.

Unprotected Speech: lies, fighting words,

obscenity, national security speech
that would endanger, incitement (Miller test)

c.

The court won’t extend the obscenity analysis to violence.

d.

Rejects incitement argument for lack of imminence


can’t tie the game directly
to the behavior. No advocacy/immi
nence under
Brandenburg
. Game isn’t
likely to cause people to kill.

e.

This isn’t a products liability case either


no analysis in that sense.

Herceg v. Hustler Magazine

ii.

Facts: Orgasm of Death article


had warnings not to try; kid died trying it; parents s
ue Hustler
for negligence

iii.

Majority: Protected Speech


it was aimed at adults. Hustler specifically warned about the fatality
of practice.

iv.

Dissent/Concurrence


Justice Jones: Hustler should have known young people would get the
article


appeals to adoles
cent males. Article provided instructions, Hustler is obscenity not
entitled to 1
st

Amendment protection. Chilling effect resulting from allowing this tort liability
would be worth protecting society from loss of life


she says state interest is legitimat
e.

Sanders (Columbine Case)

v.

Facts: Family sues video game manufacturer for negligence in aftermath of Columbine

vi.

Holding: video games entitled 1
st

Amend. Protections same as other forms of entertainment, like
movies…



4

Makers of imagination including video g
ames and movies may not be held liable in tort based
merely on the content/ideas expressed.


Imposing a duty of care would create a chilling effect on free speech.


Self Regulation of the Entertainment Industry

-

MPAA created a production code regime as a r
esult of a backlash of pressure from different
interest groups

-

1950s Backlash to Codes: people expected movies to reflect what they knew about the world


taboos weren’t being broken in movies

-

MPAA Rating System: Filmmakers didn’t have to submit films for
rating, but if they didn’t
theaters might not show it, face economic backlash

b.

Miramax Films Corp. v. MPAA

(state court)

i.

Facts: MPAA gave “Tie Me Up, Tie Me Down” an X rating

ii.

Holding: No rational basis shown by petitioners for the rating

1.

Court said gov’t already protects free speech and regulates to a certain
extent. Obscenity is already unprotected.

2.

Court criticizes MPAA rating system:

a.

Uses average American parent

b.

Violence is condoned more than sex

c.

MPAA failed to trademark X rating so it

was taken over by porn industry and
consumer can’t distinguish b/w Porn and MPAA rated X film

d.

Rating system used as a marketing tool


Entertaining the Public with Individual Lives

1)

Defamation:

Elements of a Defamation Claim:

1.

Statement has been made by de
fendant of and concerning plaintiff

2.

Statement has been published (published means made to a 3
rd

party


communicated)

3.

Statement must be false

4.

Statement has to harm plaintiffs reputation in the community

Burden of proof is on the plaintiff

ii.

Three parties: de
fendant, plaintiff and third party.

iii.

Public Official
: Actual Malice by Defendant

1.

Actual Malice: Statement made with knowledge that it was false or with
reckless disregard of whether it was false or not…

a.

If you don’t create this rule of having actual malice
, you would
deter people from discussing important ideas, politics, etc...There
would be a chilling effect that would violate the central meaning
of the 1
st

amendment protecting political speech.

iv.

Public Figure
: Actual Malice by Defendant

1.

Extended from pub
lic officials to public figures in Curtis Publishing

2.

All purpose public figure


there must be “clear evidence of general fame
or notoriety in the community and pervasive involvement in the affairs of
society. From
Gertz



one who has pervasive fame and no
toriety such that
they are public figures for all purposes and contexts

3.

They have access to the media

a.

Street v. National Broadcast Co.:

Once a person becomes a
public figure in connection with a particular controversy, they
remain a public figure afterwards for purposes of commentary on
that controversy.



5

4.

If you are involved in a big controversy then you may assume the risk of
being a pub
lic figure for some issues, even when you are not normally a
public figure, generally.

Reality Stars are public figures


so long as you thrust yourself into the vortex of public
controversy, you are public figure.

v.

Limited Public Figure
: Public figure on
ly with regard to a particular set of circumstances.
They either voluntarily inject themselves or are drawn into public controversy


public
figures for a limited range of issues (
Gertz
).

1.

Courts have a harder time setting exact standards for when one has
become a limited public figure.

2.

Public Figures can defend themselves much easier
, they can use the
media to respond.

vi.

Private Figure
: No actual malice, only recklessness, most states set it at negligence.

1.

Policy reasoning is that if you are famous you h
ave access to the
media…if you are defamed you can call up CNN, NBC, etc…as a result;
self
-
help should be your first avenue of recourse rather than the courts.
However, private individuals don’t have this available.

vii.

Involuntary Public Figure:

Actual Malic
e Standard

1.

The person has not invited the attention

2.

Higher standard applies here because we want to encourage discourse


the 1
st

amendment is important.

b.

Defense to Defamation:
Statements were hyperbolic, not real…

c.

Defamation in Entertainment

i.

Newton v. NB
C:

1.

Actual malice test is very difficult to pass for a public figure

ii.

Wheeler v. Dell Publishing

1.

Facts: book/movie based on real life murder


widow was embellished in
movie and portrayed in an unsavory manner.

2.

Holding: widow can’t sue for defamation


wid
ow’s friends and family
knew that wasn’t how she was.

iii.

Davis v. Constantin Costa
-
Gravas:
Had to show actual malice! Reckless diregard or
knowledge that the statement is false which is very hard to show

1.

Facts: Movie develops a victim’s father’s theory that U
S troops in Chile
knew about the killing of his son by Pinochet’s troops. Davis was
commander of US military at time; film never mentions Davis. Plaintiff
argues that a fictional character is supposed to be him


sues for
defamation.

2.

P was a public figure



had military power

3.

P argues 4 reasons to find actual malice:

a.

Purpose of movie was to show P’s responsibility for the death

b.

D’s reliance on the books was unreasonable

c.

D never consulted with P

d.

Movie had facts that D knew were embroidered

4.

Holding: No Defamation


the D wasn’t making a non
-
fictional
documentary. D’s had no responsibility to check facts from the book.

a.

Author of book did a lot of research


was an atty.

b.

No evidence to the contrary

c.

P should have sued the victim’s father or
the author of the book,
not the film that is a docudrama the filmmakers made.

Note: opinion is not automatically protected: Milkovich v. Lorain Journal pg. 147

2)

Infliction of Emotional Distress

-

To recover for IIED by reason of publication of a particular s
tatement, public figure
must show: ELEMENTS:



6

o

1. False statement of fact made with actual malice

o

2. All Elements of IIED Claim
Hustler v. Falwell



1. Utterance intended to inflict distress



2. Outrageous



3. Actually inflict emotional distress

a.

Hustler v. Falw
ell

i.

Facts: Campari liquor ad


Falwell files for defamation, invasion of privacy, IIED

ii.

Holding: No IIED, defamation or invasion of privacy

1.

Falwell was a public figure


must leave room for 1
st

Amendment

2.

Political cartoons/parodies/satires are another way
of commenting and
being part of the discourse

iii.

It is the intent to cause injury that makes it an intentional infliction of emotional distress.

3)

Invasion of Privacy Generally

a.

Four Privacy Claims: 1. Intrusion into Seclusion; 2. Publication of Private Facts;
3.
False Light; 4. Misappropriation (Stems from Right of Privacy)

i.

Intrusion on Seclusion/Solitude

1.

Elements
Shulman

a.

Reasonable expectation of seclusion/solitude in the place,
conversation or data source

b.

Defendant penetrated the zone of physical/sensory pri
vacy
surrounding or obtained unwanted access to data about P.

2.

Dietemann v. Time, Inc.

a.

Facts: Reporters did story on P practicing medicine w/out a
license. Undercover reporters went into P’s home and
electronically submitted conversation

b.

Electronic intrus
ion is different from physical intrusion


using
outside devices to intrude on his privacy though so he won on the
intrusion charge.

3.

Shulman v. Group W. Productions

a.

Facts: Emergency reality show; woman in car that falls off
freeway; paramedics being taped
, woman ends up on TV


sues
for publication of private facts and invasion of privacy by
intrusion.

b.

Woman taped loses on publication of private facts

c.

Wins on the intrusion claim

4.

Test to Determine if Intrusion into Seclusion/Solitude is Improper:

a.

Unauthor
ized intrusion or prying into seclusion

b.

Intrusion was offensive to or objectionable to a reasonable person

c.

Matter intruded upon was private

d.

Intrusion caused anguish and suffering

5.

Bartnicki v. Vopper:

If media has access to information and it comes by it
w
/out any unlawful behavior, and the information is newsworthy, then the
media can publish it.

a.

This was an illegal taping, then delivered to media


since the
media didn’t do anything illegal they can play it. It dealt with a
matter of public interest.

ii.

Pu
blic Disclosure of Private Fact


Public Disclosure of Embarrassing Personal Facts

-

Once a fact is in the public record, that the public has a legal right of access
to, the media can broadcast that fact w/out subjecting themselves to liability
for invasio
n of privacy by public disclosure of private fact.

1.

Elements You Must Prove to Recover for Public Disclosure of Private
Fact
!!!!

(Ross v. Midwest Communications, Inc.)

a.

Publicity was given to matters concerning private life



7

b.

Publication of which would be
highly offensive to a
reasonable person of ordinary sensibilities

c.

The matter publicized is not of legitimate public concern

i.

Only has to be “reasonably intriguing to a concerned
public”
Ross: ross was raped, never found her rapist.
Specific man she failed
to ID was found guilty of raping
2 other women during same period. Court said details of
the rape needed to show the guy may be
innocent…Once information is out there it can get
republished.

iii.

False Light:

Elements:

1)

Publication made with actual malice

2)

By a

defendant that is deemed highly offensive by a reasonable person

3)

Places the plaintiff in a “false light”

-

This is all objective


the burden of persuasion is very high


difficult for plaintiff to
prove.


-

You run into this often with sitcoms.

Time v. Hi
ll
:
You must show malice and reckless disregard to sue the press
. This is important for the
entertainment Industry b/c you are talking about something real that is turned into a movie, film, play


private individuals who are subjects and aren’t happy with

the portrayal.

NY Times actual malice standard applies to public figures bringing a false light invasion of privacy claim.
Plaintiff must show actual malice


knowing or reckless disregard of the falsity. No tort liability
innocent/negligent misstatement
s


so as not to create a chilling effect on the press.

Spahn v. Messner
: Bio written about MLB pitcher. Author never interviewed him. Made up
dramatic details. Author made no effort to research or tell truth, actual malice standard met


false light
win.

i.

Public Figures Under Defamation and Privacy Law:

1.

The public has a legitimate interest in facts about past crimes, their investigaton and
prosecution

2.

Once a person becomes a public figure in connection with a particular controversy, they
remain a public fi
gure afterwards for purposes of commentary on that controversy.

3.

Dresbach v. Doubleday & Company
: Subject matter does not necessarily become
private with time. Lee’s brother murdered his family. Lee went to live with Mewshaw
who wrote a book about it. Lee
sues under False Light
-

Mewshaw wins


public’s right
to know about rehabilitative process.

4.

Street v
.
National Broadcasting Co
.: Street was in infamous altercation in 1930 train
ride


she claimed 9 black men raped her. Under Gertz she was a public figu
re because
she had a major role and A LOT of access to the media. She remained a public figure b/c
the race controversy was still relevant.
You remain linked to your controversy
.

-

Seditious Libel: pg. 30


Protected unless it is imminent
.

o

You can listen o
r not listen but the response isn’t to take people to court to shut them
down unless it is imminently dangerous. From Easterbrooks opinion


a landmark for
free speech. We don’t want “thought control.”

Celebrity Publicity Rights

-

Used to be misappropriation

-

Right of Publicity: The right of an individual (some jurisdictions, only celebrities) to control
any commercial use of his/her name, image, likeness or some other aspect of identity.

-

There is no common law right of privacy


New York has created a statut
e for this.

1)

Elements of Misappropriation of Publicity Rights:

o

1. Appropriation of Another’s Name and Likeness

o

2. Without Consent and the plaintiff can be identified from it

o

3. For Financial Gain of the Appropriator



8

2)

MLK, Jr. Center for Social Change v. Am
erican Heritage Products
: man sold info and busts
about MLK


MLK estate sued for violation of publicity rights. They won, but question is now how
far the King families right to publicity goes?

a.

Does the right of publicity survive the death of the person w/
whom it is associated
? In
this case yes.

Lugosi Case/ Babe Ruth Case: pg. 304


NY statute says that family of decedent can’t control the
commercial use of the name


it is confined to a living person


3)

Comedy III Productions v. Saderup
:

4)


Artistic Expressio
n



a.

if the celebrity likeness is a depiction/imitation of the sum and substance

b.

if the work is transformative

c.

if the marketability of the work doesn’t derive primarily from the face of the
celebrity…

i.

then probably no actionable claim!!!

5)

Tiger Woods Case
;

Rush painted golf picture featuring Woods. Court said there was enough
artistic interpretation.

6)

Elvis Impersonator
s: sued by his estate. Court says if there is nothing that they add to the
impersonation, then they owe money. They are making money. SO lon
g as they add their own
creative interpretation it will be unique and bypass liability.

7)

Ginger Rodgers
: Fellini makes film about dancers. Names it Ginger and Fred. She sues. Loses.
Movie has really nothing to do with her.

8)

The question ultimately is, how i
s the work interpreted? Is it interpreted as artistic
uniqueness? If so, probably no celebrity publicity right.

Publicity Rights and Entertainment Shows:

1)

Matthews v. Wozencraft:

movie Rush


one of the drug addict/undercover cops writes a book
about it a
nd turned into a movie. Other cop tries to sue for misappropriation. Court said there was
none since it was all public record. “Protection of name or likeness under Texas Law doesn’t
include a persons life story.

2)

Hicks v Casablanca Records
: Movie/book
made about Agatha Christie’s life. Short time when she
went missing


someone made a fictional account of what happened. Daughter argued violation of
right of publicity, does it attach to a name or likeness in connection w/movie or book. Held


no
violatio
n. Book was clearly novel and fiction. 1
st

amendment applies

3)

Disney Pocahontas Case
: Disney uses likeness of one of it’s

students for Pocahontas and pays
200. She knew she was posing and what it would be used for. Probably just a standard contract.
She was at Disney’s institute and knew
.

Criminal Celebrities:
Limiting the Use of the Right of Publicity

1)

Son of Sam Laws:

To p
revent criminals from profiting from their crimes.

a.

David Berkowitz sold the movie rights for his story and NY legislature passes law
requiring all proceeds that would go to perpetrator must go to the NY Crime Victim’s
Board and then the family/victims cou
ld come forward to get it. However, this tramples on
people’s rights so state must show a compelling interest in doing so.

2)

OJ Simpson



“I Want to Tell you” Book he was paid over $1million for. Family ended up
getting the assets from the book.

a.

Nicole’s f
amily ended up getting a Lien on the book

3)

Changed after
-

Simon & Shuster, Inc. v. New York State Crime Victim’s Board
:

a.

Henry Hill mafia member. Worked w/writer and had his story transformed into a book and
a movie. Son of Sam statute made profits go to
Board. Publisher and Hill sued the board.

b.

Court determined they could keep going after his money for anything else he does just
until the victim is made whole again.

c.

Victims now have 3 years from the date that such profit
-
making venture is disclosed to
s
ue and collect damages.

i.

California law: applied only to felony convicts. All money earned goes to fund for
victim’s benefit.



9

ii.

No Son of Sam law in Louisiana.

4)

Keenan v. Superior Court of LA County:

Frank Sinatra, Jr. kidnapped. Kidnappers wrote book
turne
d into a movie. Jr. sued under CA Son of Sam Law


California law seizes the money
forever. CA determined that the statute was unconstitutional. Statute points to the story of the
crime, not the mere mention of the crime.

Differences between Simon & Shust
er ruling and Keenan Case:

-

Simon: could apply to a number of different people and categories.

-

Keenan: applies to those who are convicted or acquitted but insane???

Celebrity Publicity as a Marketing Vehicle:

1)

Johnny Carson v. Here’s Johnny Portable Toile
ts
: Publicity right was violated by the toilet
people using Johnny’s well
-
known introduction “Here’s Johnny”


his identity was so
recognizable by that association even though his name/likeness wasn’t used.

2)

Cardtoons v. MLB Players Association
: parody of c
artoons violates the rights of the baseball
players? 10
th

circuit finds in favor of Cardtoons


1
st

amendment right. The cards were parody, this
won’t hurt the MLB players right of publicity that much
.
When balancing the right of publicity,
which courts ac
knowledge does exist here look to see what harm would be done to the right of free
speech, in this case not allowing the parody cards would end up hurting free speech greatly.

3)

Vanna White v. Samsung
: The court doesn’t like the parody defense, said the paro
dy was too
minor. The ad wasn’t created to spoof Samsung; it was created to sell VCR’s

a.

If you are selling something 3344 (California Statute) says you have to pay for some
things and not others. If it is commercial use, if you are selling and producing a p
roduct,
you need to obtain consent. Making money off someone’s face, image, and likeness in a
situation where otherwise they would be able to sell it, requires consent.
Parody defense
only works if you are commenting on something, not selling some unrelate
d
product…

4)

Senate Bill 771: Proposal to extend right of publicity to deceased personalities.

5)

Comedy II Productions v. Gary Saderup:

3 stooges t
-
shirts. Violation of right to publicity. The
images were protected. He didn’t do anything to artistically contribute to it. “Depictions of celebs
amounting to little more than the appropriation of the celebrity’s economic value are not protect
ed
expression under the 1
st

amendment.” Saderup was using an image that was already there,
subordinating his creative talents.

a.

Sets out what an artist can and can’t do when using a celebrities likeness.


B.

RIGHT OF PUBLICITY T
EST:

I.

IS THE CELEBRITY LIK
ENESS

ONE OF RAW MATERIALS

OR THE
DEPICTION/IMITATION
OF THE SUM & SUBSTAN
CE?

II.

IS THE WORK TRANSFOR
MATIVE?

III.

DOES THE MARKETABILI
TY OF THE WORK DERIV
E FROM THE
FAME OF THE CELEBRIT
Y?

Part II: Intellectual Property in Entertainment Assets

Elements of Copyright Pr
otection

1)

Copyrightable Works

a.

Elements:

i.

Originality:

Independent Creation of new intellectual products: something
intrinsically different from research and discovery of already existing facts. (
Feist
Publicatons
)

1.

The dividing line b/w fact and fiction.

Originality requires independent
creation of new intellectual products, something that is intrinsically
different from research and discovery of already
-
existing facts.

2.

Research CAN’T be copyrighted (
Miller v. Universal City Studios
)

ii.

Fixation
: work must
be fixed in a tangible medium of expression.

1.

On paper, in a copy on a phonorecord…a way that is sufficiently
permanent or stable to permit it to be perceived, reproduced, or otherwise
communicated for a period of more than a transitory duration.



10

2.

Doesn’t ha
ve to be published.

3.

Horgan v. MacMIllan
: Executor of Balanchine’s estate. Balanchine
choreographed Nutcracker and copyrighted it. D made book w/pictures of
the ballet. Executor sued for copyright infringement. Held


copyright
infringement


choreography
is copyrightable, can be fixed via videotape.

iii.

Works subject to copyright protection under Copyright Act:

1.

Literary, dramatic, pictorial, graphic, sculptural, motion pictures

Alternative Sources of Entertainment Property Rights (modes of protection for autho
rs of creative
works)

Moral Rights and Creator Control

-

artists want to be able to determine/control the content of works their names are attached to.

-

VARA: Visual Artists Rights Act of 1990:

Doesn’t apply to movies. Guarantees artists right
of attribution, right of integrity


prevents mutilation, distortion, or modification.

Doesn’t
protect works for hire b/c these are sold.

1)

Cleanflix Case
: Company was taking films and editing them to be “f
amily friendly.” Directors
sued, said the movies were made to have those scenes in them. Studios sued and won b/c it was a
copyright violation.
You can’t just alter intellectual property, even if it’s not permanent w/out
permission and a license
. (Family E
ntertainment & Copyright Act of 2005 does provide some
protection for Cleanflix process but that has recently come under scrutiny).

2)

Granz v. Harris
: Granz produced a concert and had it recorded. Granz licenses D to manufacture a
certain size record of the

performance. D cut part of the performance out. Granz is mad since it
isn’t what he intended to put out so he sues to block the release. Held


breach of contract, not
what P contracted to have his name on
.

3)

Preminger v
.
Columbia Pictures:

P made movie fo
r D, contract gave P final cut of movie. D had
right to show it on TV. Final cut clause wasn’t explicitly applied to changes required for TV
broadcast. Held


If he knew it was common practice he should have put a stipulation in his
contract that pertained

to TV as well as final cut clause
.

4)

Gilliam v
.
American Broadcasting Companies
, Inc.:
M
ONTY
P
YTHON

wrote special scripts and
licensed them to BBC to be shown on TV. BBC had right to re
-
license to Time
-
Life films in US.
Time
-
Life took out material. Monty P
ython sued to stop further broadcasts. Held


Injunction
gratned. BBC could only transfer the right it had. They had to consult w/Monty Python to OK any
changes. Time had the same rights as BBC so they had to get permission to.
Artists have the
right to ha
ve what they created put out, rather than a deviation that takes away from the
artistic integrity
.

Other Moral Rights Issues:

-

Virtual Advertising:

o

Movie scenes/Product Placement are altered after the piece is completed in order to
comply w/tastes of demog
raphics, etc…Should it be directors decision?

-

Changing Potentially Offensive Scenes after the fact:

o

CleanFlicks


Directors Guild upset with this. CleanFlicks said they could do what
they want, however they are making money off of the deviated product.





Chapter 6

-

modes of protectio
n for authors of creative works
-

Trademark and Unfair Competition
Law

.
Who gets credit for what
-

(p 539)



Artistic Credit

-

Even though an individual author may not have the right to determine where and how
a work is to be
distributed, the author may have a claim to receive artistic credit for the work



Film industry
-

credits are of crucial importance
. Its very important to people in what order they are
listed!



Gold Leaf Group v Stigwood Group.
9th circuit noted
-

Actors' sa
laries

and their
ability to get work at all is based on the drawing power their names will have on the
box office, so being accurately credited in films is of critical importance in enabling
them to sell themselves



11



Lanham Act, §43(a)

-

Trademark violation
law
.

the "
likelihood of confusion" standard:



Any person who, on or in connection with any goods or services…used in commerce any
word, term, name, symbol, or device…or any false designation of origin, false or misleading
description of fact, or false or misleading
representation of fact, which
is lik
ely to cause
confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of
such person with another person, or as to the origin, sponsorship or approval of his or her
goods, services, or commercial activities by another

person,
shall be liable in a civil action

by
any person who believes that he or she is or is likely to be damaged by such act.



Lanham Act provides a
way for artists
, in place of or in addition
individual/collective contracts, to
secure appropriate credits



A

P who alleges that a D has presented to the public a distorted version of P's work has a
cause of action under the Lanham Act



Palming/passing off

-

the selling of a good or service of one's own creation under the
name or mark of another



Reverse passing
off

-

occurs when a person removes or obliterates the original
trademark, without authorization, before reselling goods produced by someone else



Express reverse passing off

-

the wrongdoer removes the name or
trademark on another party's product and sells
that product under a
name chosen by the wrongdoer



Implied reverse passing off
-

the wrongdoer simply removes or
otherwise obliterates the name of the manufacturer or source and sells
the product in an unbranded state



Writers may have a copyright backup



Smi
th v Montoro

(p544)
-

9th circuit held that actor Pual Smith had a claim under 43a when
his name was removed from a movie's screen credits and advertising material, and another
name was substituted for his (Express reverse passing off)



Paramount
Productions v Smith

-

Smith sold entire story and ALL the rights to Paramount. In return
for conveyance of rights, he was supposed to get credit and he didn’t get it so he sued and was
awarded it; this is a HUGE problem is Hollywood; who gets credit for th
ings



Dissent
-

movie wasn't sufficiently based on Smith's story to justify giving him screen credit.
Giving the credit to a play which has been substantially changed would be a
falsehood
intending to deceive the public.



Present day movie industry
-

principa
l sources of artistic credit are labor agreements that Performer
unions negotiate under the Labor Relations Act



Lamothe v. Atlantic Recording Corp.

p545



Facts: some composers wrote a song; 2 of the composers started a new band and licensed the song's
sheet

music; the sheet music left the 2 P's names off ("passing off"); D argues they didn't violate the
Lanham Act because they simply omitted some of the authors from the sheet music
. Court held its
wrong and deceptive



Passing off
-

selling a good or service

of one person's creation under the name or mark of
another (
Smith v. Montoro
)



Holding:

(i)

A mark/trademark doesn't have to be registered to recover under Lanham Act

(ii)

For false designation cases, the actionable conduct must be both unfair and
discernibly comp
etitive

(iii)

The D didn't properly attribute credit/authorship

(iv)

False designation of origin

(v)

Making an omission is fraudulent and is express passing off

(vi)

Being a licensee doesn't purge liability

Moral Rights & Creative Control


-

Alteration of Artistic Works
(p553
)



Artists want to be able to determine/control the content of works their names are attached to
. Ant to
prevent any subsequent alterations of their work that may materially affect the quality



Before you start negotiating, make sure you know what your clien
t wants



12



Big difference in how US and Europe handle moral rights for artists.
US didn't adopt part of Berne
Convention Implementation Act, reasoning that US already protects the moral rights (
droit moral

principle) in existing laws
. But in actuality, US

doe
sn't really recognize moral rights



Visual Artists Rights Act of 1990


(VARA)
-

Applies to painters, sculptors, photographers, but not the
movie industry.
Prevents mutilation, distortion, or modification



Granz v. Harris
-

Artist doesn't want credit for the
altered work
-

doesn't want to be associated with it
(p557)



Holding: breach of contract: Even if the contract with the artist expressly authorizes
reasonable modifications, it is an actionable wrong to present the artist of the version which
substantially
departs from the original."



Chesler v Avon Book Division

-

Chesler claiming mutilation of her book. NY SC said author did have
a property right and that it shouldn’t be used in a manner that does not fairly represent the creation of
the author. So Avon mus
t include a notice to purchasers that it has been altered or abridged. Court
wouldn't give her an injunction against publication because of the contract she signed with Doubleday.



Practical lesson: Talk to your clients about alterations to their works and
how far a publisher can go
and still use the client's name, so you can include this in the contract. Artistic control provisions must
be included in the K



Preminger v. Columbia Pictures

(p561)
-

case that convinced the movie industry that it needed legal
m
oral rights protection . TV time segment requirements cause alterations



Facts: P made movie for D; contract gave P final cut of the movie; D had right to show the
movie on TV; the final cut clause wasn't explicitly applied to changes required for TV
broadc
ast; to show on TV, much had to be cut out



Issue: Does P's final cut right apply to deletions required for TV, or just to the original
movie as shown in theaters?



Holding: Director loses bc could have put it into contract and didn’t.



Standard: the common p
ractice and custom at the time the parties herein signed their
contract

-

common practice to cut movies for advertisements on TV



Final Cut


another source of rights; directors are very concerned about this and try to get it
written into a contract; normal
ly final cut goes to the studio; studios want to control the content
so that they can head off lawsuits, marketing, etc.; director is concerned for their “vision” but
unless you are a big time director, it is quite different



Gilliam v. American Broadcastin
g Companies, Inc.

-

Monty Python p 563



Facts: Monty Python wrote special scripts and licensed them to BBC to be shown on TV;
BBC had right to re
-
license to Time
-
Life films in USA; Time
-
Life took some of the material
out of the episodes (took out about 1/3,

ruined jokes, etc.); Monty Python sued to stop further
broadcasts



Holding: injunction granted
. Contract was breached, contractual provision for limiting the
network's right to edit . Also copyright infringement. Possible Lantham act violation
(mutiliation
)



The BBC could only transfer the right it actually had

(i)

They had to consult with Monty Python before making any changes

(ii)

Since Time had the same rights as the BBC, they shouldn't have edited the shows
without permission from Monty Python



A

P who alleges tha
t a D has presented to the public a distorted
version of P's work has a cause of action under the Lanham Act



Artists have a right to have what they created, and only what they
created, out there



Court also discusses mutilation claim under the Lantham Act
-

says appellants would likely
succeed
. Concurrence disagrees



Other moral rights issues
:



Virtual advertising

p575



Movie scenes (product placement) are altered after the piece is completed in order to
comply with the tastes of certain demographics, for adver
tising purposes



13



Changing potentially offensive scenes after the fact



CleanFlicks

-

religious organizations
hiring companies to alter
movies
to make them "family friendly"

(i)

Directors Guild was very upset about this

(ii)

CleanFlicks says that what they do is a fai
r use of each of the movies they
purchased



Court said: no, they didn’t have the right to take films and edit them to their
liking without permission of the copyright holders



Religious orgs buying it themselves and altering okay, but can't have a
company do

it for you



Family Entertainment & Copyright Act
-

provides some protection for the
CleanFlicks process



Rogers v Grimaldi

p 585

-

Trademark law and Freedom of Speech



Facts: Fellini made a movie about 2 Italian cabaret performers who imitated and were at
one
time known as Ginger and Fred; Ginger Rogers sued the movie distributor for violation of her
trademark rights



Holding: no trademark violation, because Fellini had an artistic reason for using the names



Standard: movie, book, or song titles are a
violation of the trademark laws only if they have no
artistic relevance to the underlying work, or even when they have some relevance, they are
explicitly misleading as to the source or content of the work



Must be a balance between the Lanham Act right of
trademark owners and the 1st am rights of
film producers



Dastar v. 20th Century Fox

(SCOTUS)

p 587



Facts: Dastar repackaged Fox products and put its name on them; the product was a TV show
on war

bought from Doubleday Publisher who got from Eisenhower
; Das
tar sold it under a
different name

(reverse passing off)
; Fox sued for trademark and copyright infringement



Holding: Fox had no copyright claim and there was no trademark infringement



The material in the Fox show was in the public domain
-

it was shot by t
he US
army/navy, not Fox



Rule:

Bodily appropriation of a work is not a violation of trademark (lantham act) unless there
is proof of
consumer confusion.



Hormel Foods Corp. v. Jim Henson Productions, Inc.
p 589
-

2nd cir.
-

applying trademark law to
merchand
ising



Facts: Muppet movie character Spa'am;
Hormel (
P
)

says there will be confusion between the
character and Spam; P sued for trademark infringement, and trademark dilution



Holding: no trademark infringement



Central inquiry is whether there is a
likelihoo
d of confusion

(a likelihood that an appreciable
number of ordinarily prudent purchasers are likely to be misled, or indeed simply confused, as
to the source of the goods in question) (
Mushroom Makers, Inc.
)



Used the 8
-
factor
Polaroid
test for trademark in
fringement:



1)
Strength of the mark
-

the more deeply a P's mark is embedded in the consumer's mind,
the more likely it is that the D's mark will conjure up the image of the P's product instead
of that of the junior user

o

But this doesn't always lead to con
fusion



Parody
-

relies on a lack of confusion to make its point



2)
Degree of similarity between the marks



Also look at the settings they're used in

o

3)
Proximity of the products



Are they in similar markets?

o

4)
Bridging the gap



Refers to the senior user's
interest in preserving avenues of expansion and
entering into related fields

o

5)
Actual confusion



14

o

6)
Bad faith



Does the junior user want people to think it's the real thing?

o

7)
Quality of the products



Inferior product may cause injury to P trademark owner
because people
may think that the senior and junior products came from the same source



Products of equal quality may tend to create confusion as to source

o

8)
Consumer sophistication



No Likelihood of confusion here.

o

*
Hormel v Henson
again p 607
-

trademark
dilution
-

No consumer confusion, but did the muppet movie "dilute"
the distinctive quality of SPAM by "
blurring or tarnishing"

the name?



Dilution by blurring

-

when customers see the mark on a plethora of different goods and services, thereby
raising the
possibility that the mark will lose its ability to serve as a unique identifier of the product



Tarnishment

-

A trademark may be tarnished when it is linked to products of shoddy quality, or is
portrayed in an unwholesome or unsavory context, causing the ma
rk to lose its ability as a "wholesome
identifier" of plaintiff's product.



Important factor
-

if challenged product is in direct competition with P's product

o

Contract Rights in Story Ideas

p 612



Refers to the issue of "stolen" ideas
. Idea
-
submission cases



You can't copyright ideas, but you may be able to proceed on an implied contract claim when someone
steals your idea, and get damages



Elements of the implied contract
: (
Desney v. Wilder
)

p 614

o

Before or after disclosure the P has obtained an express promis
e to pay,
or

o

The circumstances preceding and attending disclosure, together with the conduct of the
offeree acting with knowledge of the circumstances, show a promise of the type usually
referred to as implied or implied in fact



The offeree must have a cha
nce to reject the idea before he can be said to have accepted

o

Art Buchwald v. Paramount Pictures Corp.


p 621



Facts: P wrote screen treatment and sent to a friend; the friend met with the head of Paramount and pitched
the story; Paramount made deal with P;

after looking for a writer for a long time, D decided to abandon the
project; D decided to release "Coming to America," which P thought was based on his treatment; P sued
for breach of contract and wanted compensation because the studio produced a movie b
ased on his
treatment
. Was there a contract?



Holding: breach of contract



There was
access and similarity
.

Proof of access to the material with a showing of similarity
.
(copyright analysis)

o

Further Development of idea
-
submission claims (p 634) Conflicting d
ecisions by 3rd and 9th circuit:



9th circuit, NY
Grosso v Miramax

-

to establish a Desney claim for breach of implied contract
-

must
show plaintiff disclosed work to the offeree "under circumstances from which it could be concluded that
the offeree voluntarily accepted the disclosure knowing the conditions on which it
was tendered and the
reasonable value of the work."
An express promise to pay is not necessary.



3rd Circuit, NJ
Baer v Chase

-

The Sopranos case
-

"An implied
-
in
-
fact contract is an idea submission case
has to be definite as to price and duration
" Contract

principles that the

enforceability of a contract requires definiteness with respect to the

essential terms of the contract

o

Mann v Columbia Pictures
(p635)
-

Shampoo

case
-

Plaintiff told a friend of a friend of a friend about story idea;
story gets made;

there is no evidence that the screenwriter or studio knew of the other guy’s idea or that there was
any sort of implied contract. No evidence of access to the actual script. There
was

evidence of parts of the film that
were "independent creations"

o

EXAM
-

idea submission issue
-

Try to show access and similarity and use Desney rules to show an implied
contract. Also discuss defendant's ability to rebut inference of actual use by showing evidence of independent
creation

Ch 7
CONTRACT FORMATION AND DURATION

-

How far can the agents commit the talent?

o

Industry norms p 645

o

Basinger Case

p 646



15

o

Facts: Basinger got a scripts, met with the director, and said she loved the movie; another meeting where issues
were resolved, Basinger said she would play the role; the
y made a deal memo that Basinger never signed; lawyers
negotiated a long form contract over the next few months and sent it to Basinger; Basinger didn't sign and backed
out of the movie; as a result, investors backed out too, and so did her costar; Movieli
ne sued Basinger for damages;
Movieline had to rely on an oral contract theory; Movieline showed that Basinger had provided promotional
pictures, written song lyrics, etc.; Basinger said that material terms of the contract were undecided



Holding: Basinger
breached

. Court just makes her pay damages, won't really enforce personal services
contracts because results will just be bad (Basinger would have done sub
-
par work)

o

Statute of frauds



Requires that personal service contracts to performable within one year

of the contract being made must be
reduced to writing to be binding



This is an obstacle to the enforcement of oral contracts



Often used as a defense to breach of contract claims

o

Elvin Associates v. Aretha Franklin

p 653



Facts: Mahalia Jackson play; Aretha

acts like she's going to play the role; P takes steps towards this,
spends money, etc.,; Aretha backs out; P sues for damages based on estoppel theory



Holding: D (Franklin)
liable for breach of contract based on promissory estoppel
. P relied on her to his

detriment.



Elements of promissory estoppel claim:



Clear and unambiguous promise



Reasonable and foreseeable reliance by the party to whom the promise was made



The injury sustained by the party asserting the estoppel was by reason of his reliance

o

Gold Seal
Productions v. RKO Radio Pic
tures

p 660

-

deal collapsed after the shaking of hands but before contract
actually executed.



Facts: movie deal; contract not yet reduced to writing, but production company and producer said "we
have a deal,"; they agreed the
contract terms would be like previous contracts



Holding: there was an oral contract
.
The parties had done it this way in the past
. Agreed on the main
points, only minor details to be worked out later.

o

Oral Contract Standard

-

whether the oral agreement be
fore execution of the actual contract is binding depends
on the intention of the parties, determined by the surrounding facts and circumstances of each particular case.
Previous contracts en
tered into is a factor. (p662)

o

Definiteness
-

disputes over meanin
g of contract provisions.
Pinnacle
case and best efforts clause (p 666)



Best efforts clauses are unenforceable, unless K includes guidelines against which the parties best efforts
may be measured (can be implied)


o

Consideration & Mutuality

p 673

o

Binding co
ntracts must be supported by consideration



Consideration
= in return for a promise, the other party has provided a reciprocal promise or some
expected tangible performance

o

Consideration has 2 functions:



Enforceability
-
Show the court objective evidence of
the parties' intentions to enter into a contract
.



The parties will act more carefully if they know that providing consideration will make their promises
enforceable
-

the cautionary function

o

Mutuality

-

Whether both sides are giving up something (legal detriment)

o

M. Witmark & Sons v. Peters

p 673



Holding: music contract lacked mutuality because the musician had to permanently hand over all music
written during the contract's duration, but the company o
nly had to publish 3 of them and didn’t have to
sell a minimum
. BUT, this case is from 1914.

o

Bonner v. Westbound Records

-

contemporary analysis of mutuality



Facts: a music group

(D)

enters into a recording contract; the group had to record for P exclusive
ly for 5
years; P advanced much money to the group; D signed an exclusive deal with another company before the
first contract ended; P sued for breach of contract; D argued lack of consideration



Holding: breach of contract
.
There was consideration

consisti
ng of cash advances and the mutual promises
of the parties. Agreement also upheld by doctrine of promissory estoppel.



16



D was a very unknown group and P advanced a lot of money
. They acted in reliance on the promises of
music group.



"Consistent pattern of g
ood faith efforts exerted by the parties during the first third of if the term of the K
demonstrates that they intended to be bound and to bind each other, Even contracts which are defective
due to a lack of mutuality at inception may be cured by performan
ce in conformance therewith."



Wood v Lucy

(674 and in Bonner case)
-

Finding of consideration through an implied promise
-

undertaking to use reasonable efforts to market someone

o

Contract Parties: Minors



Scott Eden Management v. Kavovit

p 683



Facts: child
actor

(D)

wants to get out of a contract with his manager; breaks contract and tries to
use the defense to breach of contract of being a minor when he entered into it; P

sues to get
payment on jobs D
negotiated while still employed

by them



Holding: P must
be paid the percentage he earned
.
The D child can't be unjustly enriched
.
If D got
to keep the percentage he would be getting something for nothing



Case demonstrates that minors may not use their power to disaffirm a K (children can't be
contractually cons
trained under common law) to gain financial advantage over a party that has
already performed. Can't use minor status as a sword, only as a shield.

o

There are laws that allow companies to get contracts with minors judicially approved, to
reduce that legal

uncertainty
-

p682
-
683

o

BUT
-

these laws require public disclosure of the terms of the K and other related
financial information that parties may wish to keep secret:

o

Home Alone case with Culkins and Fox
-

court allowed privacy in that case, but whether
or

not to keep info private is made on a case by case basis (p686
-
87)

o

De Haviland v. Warner Brothers Pictures

-

Duration (p 690)
-
7 year contract problem



Facts:

P

signed a 1

year contract
and WB renewed for 6 years
(Labor code §1980 sets 7 year max). Was
sick

for some time and Studio wants to tack on 25 more weeks at the end of the 7 years. WB says §1980
didn't apply to K for "exceptional services". P sues for declaration that K was required to be terminated in
7 years by §1980



Held: Declaration granted. The
contract was for 7 years of service and so you cannot just tack on extra
time that wasn’t specified initially. If they are to reread the contract the way WB wants, it leaves it open
for lots of employers to change employment contracts into service contract
s.

o

George Michael case (696)
-

Michael sued saying record K was an undue restraint of trade (not assigned)

CH 8
ENTERTAINMENT CONTRACT OBLIGATIONS

p 716

o

A court will always view a contract dispute in the light most favorable to the party that did not draft

the K. And
also put themselves in the shoes of the parties at the time the K was made.



Dispute is over whether a party has breached a contract, not whether there is one



Mostly happens in disputes between performers and producers in the context of personal

service contracts
.
Personal service contract

-

performers are hired because of their unique talent, and because of the way they
express themselves through their acting, singing, or writing



Must be a
material breach
, factors considered by courts p 720. CA
has different standards for personal
service contracts

o

Goudal v. Cecil B. DeMille Pictures

(720)



Facts: personal

service contract; P movie star
; D fired P based on unwanted creative input, tardiness, etc.;
contract said the director wanted creative inpu
t;

P sued for wrongful dismissal



Holding: breach of contract
.
The company encouraged thinking and
input,
The company exercised its
option to renew after the incidents happened

o

Morals clauses

-

standard caluse p 726. Can't do anything to attract public
contempt

o

Loew's, Inc. v. Cole

o

Facts: P refused to answer questions re: Communism; the studio wanted him to go back to HUAC and deny
membership; P refused and was fired pursuant to morals clause
-

fired for being in contempt for not answering; P
sued for wr
ongful dismissal; P had relied on MGM's behavior and thought refusal to answer would be ok



Issue: was P entitled to rely on the company's actions?



17



Holding: no wrongful discharge
.
P could have gone back to Congress and purged self of contempt
.
The P's
emplo
yment status was totally within the P's control

o

Civil rights in entertaining roles

-

Casting minority actors in roles of that nationality



Raises questions about the interaction between artistic freedom and equal artistic opportunities



Caucasian actors play
ing minorities



Hunter Tylo and Spelling Entertainment case

-

fired her for being pregnant. She won(736)



Peckinpaugh case and WGA case
-

age discrimination p 738



To win a discrimination case, you must show that discriminated on the basis of (race, gender, et
c) and that
was the
only
reason for firing. Need employees to testify usually, which could be problem

o

Non
-
competition clauses

-

restrict performer's ability to work for a particular industry and to produce work of the
same type for a fixed time following t
ermination of contract with previous employer

(740)



Only valid if ancillary to an independent agreement (e.g. employment in a position)



Clause must be specifically related to tangible interests of the other party, and must not impose unduly
broad and long
restrictions on the party who has made the commitment



Harlequin v WB

(740)
-
action writer
, Pendleton,

of
The Execution

series
started new series with new
company (WB). Old publisher, Harlequin sued for violation of non
-
competition clause. Court analyzed
un
der 2 part test, examining (1) whether contents of the books appeal to similar readerships, and (2)
whether the manner in which they are promoted caused them to compete.



Violation of non
-
competition clause analysis:



Whether the new and old projects are to
o much alike



Whether the new and old projects would compete with each other for profits

o

Studio
-
Publisher Obligations
-

whether they can reject artists' work for not being
satisfactory

(741)



Comes up when there are long contracts and up front money
. Mostly
book publishing cases.

o

Harcourt (HBJ) v Barry Goldwater
-

(745) HBJ rejects the memoirs of Goldwater, co
-
written with another author
as unsatisfactory. A $65K initial advance was paid, and HBJ suing to get it back. Court found breach of contract
by HBJ for
failing to provide editorial feedback as the K provided. Can't reject it for being unsatisfactory if you
don't give the authors feedback and allow them to improve it to satisfactory level. Also of note, Goldwater and co
-
author sold the work to another publ
isher, and it was a best
-
seller.

o

Royalties and Profits

p762

o

Net v. gross

profits
:
Getting part of the gross is better

(hard unless big star)

Gross=before costs subtracted

o

Net profits are profits after deducting ALL expenses. Better to get small % of gross,

than high % net.

o

Contract of adhesion

-

One party has superior bargaining position. Take or leave it deals. P 766 defines



Analyze whether a K is a contract of adhesion by considering:



1) Does the challenged provision fall within the reasonable expectation
s of weaker party?



2) Considered in its context, is the K unduly oppressive or unconscionable?

o

If the K is found to do either one of these things, it will be found to be a K of adhesion.



Unconscionable

-

a contract or provision even if consistent with the
reasonable expectations of the parties,
will be denied enforcement if its unduly oppressive
-

inequality in bargaining power which results in no
real negotiation and "an absence of meaningful choice"

o

Art
Buchwald v. Paramount Pictures

p764



Facts
: P contrac
ted for up
-
front money and 19% of net; the net profit formula wasn't negotiated the movie
didn't technically net anything, but it grossed a lot at the box office; P wants to have the industry standard
of "net profit" dec
lared
unconscionable
; P says it a K
of adhesion



Holding: some parts of the contract were unconscionable
,
But if the P wants to work/contract, he must take
the net profits formula as it is
-

it's a standard industry formula



If you're Paramount's lawyer, you say:

P not new to this
,
P didn't even try to negotiate

o

CH 9
Entertainment Contract Remedies and Liabilities

p 794

o

Injunctive Enforcement of Personal Service Contracts

o

-
General equity doctrine
-

not to grant specific performance of personal service contracts. (would do a bad job)

o

Lumley v Wagner

(p795) allows for an
injunction

against performer working for anyone else during the period
they are contracted to employer. To get an injunction remedy, it isn't necessary to show that performer agreed
specifically not to work for another

company, as long as contract shows that performer was to perform
exclusively

for the original party.



18

o

Rogers Theatrical Enterprisers v. Comstock

(795)



Facts: P had a personal service performance contract with D; D contracted with another while the first
co
ntract with P was still in effect; P wants an injunction to stop D from performing for the other person
while he's s
upposed to be performing for P



Holding: you can use an injunction during the period of the 1st contract to prevent performance for another
w
hen there
's a personal services contract.
injunction granted for the remainder of D's contract with P

o

Gennaro

-

(801) Performer wants the injunction against employer, to block them from showing play that they
hire
d him to choreograph originally. He loses
because he can’t show irreparable harm.



Standard for an injunction:



Irreparable harm



Likelihood of success on the merits



2
nd

Circuit uses the
sufficiently Serious Notice test:



An injunction requires a showing of (a) irreparable harm and (b) either (1) lik
elihood of success on the
merits or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and
a balance of hardships tipping decidedly toward the party requesting the preliminary relief.

o

California injunctive relief legislation
(§3423)
standards
-

$6000 per year rule (p802)

o

Motown v. Tina Marie

(p802)

-

an options clause

to renew K by paying $6K

does not satisfy §3423



Facts: personal services contract; Motown agrees to pay the statutory
minimum of $6k/year; D wants to
stop recording for Motown; if P exercises their option, D is bound and P can wait until the end of the year
to exercise the option; P says that exercising the option creates a new contract and it's protecting this right
with

the $6k payments; P didn't pay D when they exercised the option



Holding: the payment doesn't create a new contract
. The option clause allows record companies to avoid
payment of minimum compensation while retaining the power of economic coercion over the
artist.

o

Vanessa Redgrave v. Boston Symphony Orchestra

p 817
-

Damages for Contract Breach:



Facts: P had contract to perform with BSO; her support of the PLO led BSO to cancel her performance; P
says that she lost professional opportunities because of the l
ost contract; reputation damages not usually
allowed in contract actions; P put on evidence of the losses she
says she suffered; P wants

damages for
harm done ot future professional opportunities.
Holding
: no damages allowed



Standard: must introduce eviden
ce for a jury to reasonably infer that any drop in [offers] was proximately
caused by the [cancellation] and not by other, independent factors
. Must show loss of an
identifiable

opp.



P's evidence doesn't show proximate cause to the lack of work after cance
llation



P's political views

could have been the reason for loss of opportunity. Not the fact that she was fired.

o

Parker v. Twentieth Century Fox Film
p825
-

Mitigation of Damages by offering other roles
-

Can't be inferior



Facts: P had movie contract; movie

company decided not to make the first movie, but offered her a lead
role in another movie; 2nd movie was a different genre and filmed in a different location

(Australia v CA)
;
P didn't get director approval on 2nd movie; P didn't want to be in the second
movie, so sued for payment
on 1st contract and damages



Holding: P wins
.
The second mode of employment was "both different and inferior"

o

Raquel Welch v. Metro
-
Goldwin
-
Mayer Film Co.

(830)
-

Breach of contract damages, good lawyering



Facts: P fired from movi
e; looked at as a contract breaker; P sued and was awarded damaged for loss of
income; D appeals saying the damages award was insufficiently supported, because she didn't have a
reasonably certain career as a serious film actress



Holding: award was
justified
. No one wanted to work with her after the MGM firing, hurt her
reputation seriously. Looking at evidence like absence of film offers after incident, and expert
testimony that she would have received certain offers had it not been for that
incident.

o


CH 10
ENTERTAINER REPRESENTATION & REGULATION


o

respective roles of agents, managers, and lawyers p 847

o

Pamela Anderson case p 850
-

Anderson objects to gratuitous sex and nudity scenes. Meeting to finalize contracts
-

she isn't there, but her ag
ent and manager are there, They reach an agreement. Then she backs out again and ends
up doing another movie with vivid sex scenes. So Private Movies sues her
-

but couldn’t convince a CA trial judge
that a binding contract had ever been reached

o

Talent ag
encies must have agency licenses
. Intention to be an agent does NOT matter.

o

State Regulation of Entertainer Representatives
-

NY v CA
. Both laws exempt recording deals.



19



NY's Employment Agent Regulation

(p.853)

-

NY has
incidental exception



Defines a theatri
cal employment agency as:

"any person…who procures or attempts to procure
employment or engagements for circus, vaudeville, the variety field, the legitimate theater, motion
pictures, radio, television, phonograph recordings, transcriptions, opera, concert
, ballet, modeling
or other entertainments or exhibitions or performances
, but

such term
does not include

the
business of managing such entertainments, exhibitions or performances, or the artists or attractions
constituting the same, where such business
on
ly incidentally

involves the seeking of employment
therefore"



If violate the statute by not having a license, it's a misdemeanor



Question is:
Was it incidental or habitual?

Incidental procurement not defined as an agent under
NY law



Mandel v. Liebman

-

NY
agency statute case

-

scope of
incidental procurement

o

Facts: P an agent/attorney for D; contract that P would get 10%; the parties dissolved the
contract; P sued to get earnings due from jobs he set up during time of contract, but that
weren't completed ti
ll after dissolved;

o

Holding: compensation due
.
P rendered services, so contract not unconscionable



Not invalid because P didn't have an agent's license, because he contracted to be a
personal manager, didn't contract to find the D work
.
Contract said that

if they
ever needed an agent, they would find another person to do it



California Talent Agencies Act

p 860



Similar to NY statute, but no exception for personal managers

acting incidentally

(see Wachs)



Raden v. Laurie



Facts: minor performer D makes
representation agreeme
nt with P to be business
manage
/advisor/etc.; they made a subsequent agreement too; D terminated relationship, and P sued
to get commission never paid; D claims P promised to find employment for D



Holding: P isn't an agent
.
The second

agreement specifically stated that P had no authority to get
employment, but would help her find an agent



Buchwald v. Superior Court of San Francisco

p 863

Jefferson airplane case



If the person acts like an agent, they are an agent, in spite of what their

actual agreement
says
.
If you are procuring employment, you must have an agent
. If you are procuring employment,
then you are acting as an agent and must have a license!

o

Wachs v. Curry

(865)
-

upholds constitutionality of Talents Agency Act



Facts: Arsenio

Hall signs management agreement with D; the D actually got him a lot of big deals, and
took 15% commission; Hall found out and terminated the relationship and sued; Ds tried to say that Hall
was aware of what was going on and he consented; Ds tried to say

the California agent statute was
unconstitutional due to vagueness and doesn't have rational basis for excluding recording contracts; D says
statute is vague because they don't know what "procure employment" exactly means, so they wouldn't
know if they we
re engaging in it and falling under the statute;



Holding:

The statute is not vague
,
There's never been a problem interpreting it before



There is a rational basis for excluding recording contracts



A recording contract is of a different nature
than most o
f the other contracts in the industry. There are problems with attempting to license or regulate
the activities of managers/agents of recording artists because of the ambiguities and imprecisions of the
activities involved in these contracts.

o

Sometimes pro
vided financial support for entertainers. Personal managers often
negotiate contracts rather than talent agents
-
history of the industry



Exception to CA Regulation
-

Can be incidental, and not require license
--
if "counseling and
directing" their clients'

careers constitutes the significant part of the agent's business, then he or she is
not subject to the licensing requirement of the act (even if counseling was incidental to one particular
client, and you procured employment)

o

Conflict of Interest In Enter
tainer Representation

(875)

o

Croce v. Kurnit



Facts:
P(Croce) is a musician, dies in plane crash.
D

(lawyer)

discussed a contract at length with P; P signs
contract; Ps don't pay D at all

but was introduced as "the lawyer"
, and D doesn't tell Ps to get their

own


20

attorney; D works for the recording company; the contract is exclusive, only gives P $700/yer and the D
has option to renew; P goes to talk to other attorney to find how to break recording contract; P died in
plane crash; widow then had trouble gettin
g royalties and had other problems after the death; widow sues
for violation of the royalty terms and breach of fiduciary duty and Unconscionability



Holding: there was a fiduciary duty
.
"A fiduciary duty arises when a lawyer deals with persons who,
althoug
h not strictly his clients, he has or should have reason to believe rely on him."

A fiduciary duty is
based on trust and exists in all cases in which influence has been acquired and abused, in which confidence
has been reposed and betrayed
. Kurnit should h
ave told them to get their own lawyer.



No Unconscionability of contract
.
It was a hard bargain, but didn't affront decency

o

Union Regulation of Entertainer Representation

o

HA Artists & Assoc., Inc. v. Actors' Equity Association

(899)



Facts: Equity is union r
epresenting stage actors; Equity established a licensing system for agents; a union
member was prohibited from dealing with an unlicensed agent; Equity was trying to regulate a group (the
agents) not technically part of it



Holding: labor unions are immune
from prosecution under anti
-
trust statute
s (e.g. Clayton Act) for
monopol
y
-
like behavior

.
There is a statutory exemption

in Clayton Act

o

CH 11
PERFORMER ORGANIZATION

p912
-

Entertainment industry is one of the most unionized industries.
Lots of powerful and

important unions. Screen Actor's Guild. Might be more financially advantageous for
entertainers to be independent contractors
-

you can set your own terms

o

The Entertainer Labor Market

-

Is the entertainer an independent contractor?

o

Residuals



compensatio
n for reuse of a film product in a variety of settings other than the one for which it was
originally produced; you want to negotiate how much you will get for residuals



-
Almost all of this additional revenue is pure profit after the original creative serv
ices have been paid for

o

National Labor Relations Act (NLRA)


set standards on who could work, minimum wages, conditions of working

o

Labor Law in the Entertainment World



3 tier compensation system:



First tier: collectively bargained minimum salary rate



Seco
nd tier: individually negotiated compensation

o

May include gross revenues or profits



Third tier: union
-
negotiated right to a percentage of revenues from residual uses of the film
product

o

Marino v. Writers Guild of America, East, Inc., Francis Ford Coppola,
and Mario Puzo

(922)
-

artistic credit



Facts: P a screenwriter and member of the union; didn't get writing credit on the movie; the writers union
says that if you have a problem with the screen writing credit, you must go through arbitration; P says the
requirement of arbitration isn't fair bec
ause the contract is adhesive, and thinks he should be able to know
the identity/qualifications of the arbitrators; the process allowed the parties to the arbitration to voir dire
people off the list of potential arbitrators;



Holding:

The P's claim loses
validity because he didn't lodge complaint until after he got unfavorable
result from arbitration
.
He should have raised the concern over the arbitrators at the stage when they were
being chosen



Arbitration is quick procedure that's necessary for these kin
ds of disputes

o

Labor Solidarity & Entertainment Hyphenates



Residuals have been negotiated by labors throughout the years. Collective bargaining, sometimes labors
gain the upper hand by strikes or lockouts. Solidarity among union members is crucial to the s
uccess of
such strikes. Unions have rules and impose disciplinary measures (fines and suspensions) for crossing the
line during legal strikes.



A
hyphenate

-

performers with multiple job titles. Usually managerial Ex: producer
-
director
-
screenwriter



Under N
LRA, supervisors and managers are excluded. So are entertainment labor unions barred from
enforcing the rules to prevent their hyphenate members fro
m going to work during a strike?
--



American Broadcasting Companies v Writers Guild of America

(p931)
-

hel
d that the Writer's
Guild discipline of hyphenates for crossing the picket lines did violate the NLRA.



21

o

Ct. used the addressing of grievance provision of NLRA. In film industry, hyphenates
handle employee grievances and deal with the unions on resolving iss
ues, so they were
exempt under NLRA.



if someone doesn't want to join a union
, they can't be forced to

-

p932
-
933

o

Judicial Control of Entertainment Labor Power



The main legal avenue for parties purchasing performer services, who want to be protected from un
ion
power, is federal anti
-
trust law



AFM = American Federation of Musicians

Union)

o

Graham v. Scissor
-
Tail, Inc.

(p935)



Facts: P was music promoter
, and not a member of the AFM
; P set up two dates for D' contract said that D
would get the greater of 85% of
gross receipts of the AFM scale; one concert made money, one lost
money; the contract didn't say what to do in this situation; the contract said that all issues must be
arbitrated; the D didn't like P's proposed solution, so they wanted to go to arbitratio
n; the arbitrator was
aligned with the D (everyone in union uses this contract, and the arbitrator will also be a member of the
union); P says the contract is adhesive and unenforceable; D argues that P knew what he was getting into
when he signed the cont
ract



Holding: the contract is adhesive and unenforceable

o

Everyone in the music union uses this contract

o

Even if the P had objected to the use of this contract, he still would have had to sign it
because it's what everyone in the industry used

o

"minimum leve
ls of integrity" not met

-

bc had to use the union as arbitrator

o

Its not fair to have the guild arbitrating the dispute when one of the parties is not a
member.

o

American Federation of Musicians v. Carroll

(943)



Facts: AFM is music union; AFM made standard
set of regulations for one time only club dates (deals not
long enough to negotiate for); regulations include a mandatory price list; asks whether band leaders can be
forced to follow union standards, or whether they are independent contractors

Holding: th
e band leaders must follow union standards
.
The price list is a labor
-
group type exception to
anti
-
trust law
. Court is saying the union is setting prices just to ensure that prices remain at a rate where
the leader cannot screw over his employees; this justifies the exemption!

-
If the leader could set prices, he may cut the wages of the sidemen and screw everyo
ne else over

-
By having a set rate for them, they will always get paid

The leader also benefits in that he is a member of the Union and gets the same jobs at the same prices

They are setting a floor on how many people he must use and on how much he must pa
y them

He can negotiate prices higher and keep it, but they will always get at least the minimum

Carrol was mad and argued that she should be able to negotiate her own prices

But court says this is all justified because it works out for everyone; its valid

in the way they are doing it



They offered legitimate reasons for their price list

o

Contingent Workers:
Employees or Contractors



Home Box Office, Inc. v. Directors Guild of America

(958)



Issue: Can a freelance director get the same benefits as directors who

are employees of particular
studios?



Holding: freelance directors are employees, not independent contractors or entrepreneurs



The directors didn't get to make certain decisions
-

network producers did

The decisions are those that would be made by a direct
or if he were an independent contractor



Types of decisions


Where the work took place
,
Budget
,
Participants
,
The content of the show

o

Loan
-
out companies



Directors establish personal service corporations to sell their services

o

Producer
-
director



If they're ac
ting in a directing capacity, the Guild can control them



If more of a producer capacity (allocating budget), they are independent
contractors

o

Director
-
packagers



22



They put the film together, and then do other things afterwards (pitching,
marketing, etc.)



If
just acting in the other capacities, then the guild can't say anything



But because of the hyphenate, if he's acting in a director capacity, the guild can
control him

o

Performing Rights Societies

p 968



ASCAP
-

American Society of Composers, Authors and Publi
shers



BMI
-

Broadcast Music Inc.



Rivals ASCAP



Represents music composers and publishers for licensing purposes



Members of the societies grant copyrights in their songs to them, and the societies then grant licenses to
any user who wishes to publicly play
the copyrighted music, for a fee



Societies deduct a fee, and then distribute the remainder to members
. P973
-

how they collect $

o

Antitrust Challenges to Performing Rights Societies

973



Brought against ASCAP and BMI because of blanket licenses



An artist wil
l exclusively license all of its music to them



Challenge usually brought under §1 of Sherman Act



Prohibits competitors from acting together to restrain trade



2 lines of analysis under this:

o

Per se rule



Plainly anti
-
competitive activities are per se illegal

o

Rule of reason



Court evaluates the impact a business practice has on competition to determine if
the activity unreasonably restrains trade



Is there a substantial restrain on trade?



If so, is there a less restrictive alternative that would achieve the same

positive result for the D?



If so, the challenged practice violates anti
-
trust law



Always in 2nd circuit

o

Columbia Broadcasting System, Inc. v. ASCAP

p 981

o

CBS challenges the way music is offered to it under this blanket licensing arrangement. They think
they end up
paying more for this blanket material and they wind up with a lot of music that they do not really use



Is the license a restraint on the potential competition? Is it hurting performance/chances of competitors



Court asks if CBS has ever tried to

be the music directly from copyright owners. CBS doesn’t do this
because it would be REALLY time consuming



Court says this doesn’t matter; CBS COULD do it, they just choose not to. Court also says there is no
restraint on trade because there IS an alterna
tive option; just deal exclusively with the copyright owners!



Issue is whether competition among the copyright owners is realistically feasible under these
circumstances



IT IS as they are still free to negotiate



CBS was perfectly fine with this system for

a long time but things change and evolve so this is not
that powerful an argument



Local television stations challenge
, 988



Cable companies challenge
, 989












23