April 1, 2004
In this newsletter:
TIMES SQUARE BUILDING AND BILLBOARD OWNERS GET A SECOND SHOT AT SONY
The owners of buildings and billboards in Times Square filed claims against Sony Pictures for altering the way the building and billboards appeared in real life at the time the movie was filmed. In “Spider Man,” images of the buildings and billboards were digitally altered.
Owners of the buildings and billboards claim that in the movie scenes of Times Square, Sony digitally inserted other companies’ ads and signs in order to “generate revenue.” Sony, on the other hand, argues that the reason they changed the appearance of Times Square is in order to create a more “artistically satisfying [in] appearance.” The real appearance of Times Square was too “advertising-encrusted” for the movie.
Sony scanned the images of the Times Square buildings and billboards with a laser light beam, and then digitally created new images for the movie. Owners of the buildings and billboards claim that under New York state law, this digital alteration violated their trademark and trade dress rights and amounted to “trespass.” They also filed federal law claims against Sony.
Both federal and state law claims of the Times Square’s owners were dismissed by federal District Judge Richard Owen. Times Square’s owners appealed and the federal appellate court affirmed the dismissal of federal causes of action. However, in a Summary Order marked “May Not be Cited as Precedential Authority,” the appellate court has vacated Judge Owen’s dismissal of the owners’ state law claims “with prejudice” and remanded the state law claims with instructions that they be dismissed “without prejudice.” For the owners, dismissal “without prejudice” means that they may file their claims in state court, if they decide to do so.
In its decision, the Court of Appeals concluded that the owners’ state law claims should not be dismissed because their allegations of trespass were “an unsettled question of state law.” The case was dismissed before Sony could show that its digital alterations had “artistic relevance” to the movie and were therefore protected under the First Amendment. Sherwood 48 Associates v. Sony Corp., 76 Fed.Appx. 389, 2003 U.S.App.LEXIS 20106 (2nd Cir. 2003).
CLARIFICATION
In my last newsletter, I discussed the arbitration award won by my client, Florida Film Investment Company against RGH/Lions Share. Mention was made of a license between RGH/Lions Share to a home video label, Singa Home Entertainment, which is also managed by Eric Louzil a principal of RGH/Lions Share. Singa, in turn, attempted to license the film to Pathfinder Pictures, which is not a company affiliated or connected in any way with RGH/Lions Share, Singa or Eric Louzil. I want to make it clear to my readers that Pathfinder was not a party to the arbitration proceeding, and was not accused of any wrongdoing in this matter at all.
