Sunday, March 25, 2007


An Alabama District Court has held that a radio broadcast of recordings without an ASCAP license amounted to copyright infringement. The Court disagreed with the Defendant’s claim that the broadcast of a promotional CD was not an infringing use, and stated that while a CD itself could be promotional, the licensing of a public performance was not. In other words, when a copyright holder grants a recording company the right to make and distribute promotional copies, it does not necessarily include the right to publicly broadcast those promotional copies without paying the licensing fees is also granted. Simpleville Music v. Mizell, 451 F. Supp. 2d 1293; 2006 U.S. Dist. LEXIS 65944.


“Chitty Chitty Bang Bang” was the subject of a copyright infringement suit recently filed by the trustees of writer Ian Fleming’s estate. The suit against MGM claimed that upon the expiration of the initial term of copyright the rights reverted to the estate, which made MGM’s continued distribution of the movie based on Fleming’s story an infringement of is rights.

MGM acquired the rights to “Chitty Chitty Bang Bang” through a book trust created by Fleming, but the renewal right passed directly to Fleming’s estate. Under 17 U.S.C. §304, renewal rights pass to the executor of an author's estate when the author and his immediate family die during the initial term of copyright. Fleming’s estate sued because the rights no longer existed in the book trust; they belonged to the estate.

The District Court held that although the estate controlled the copyright to the story, MGM had spent millions to promote the movie since the renewal term had gone into effect. Additionally, because the estate did not file the claim until years after the renewal term took effect, the Court held that the defense of equitable estoppel was available to MGM. Legislator 1357 Ltd. v. MGM, 452 F. Supp. 2d 382; 2006 U.S. Dist. LEXIS 67799.

Sunday, March 04, 2007

Videogame Producer Can Base Game Character on A Real Celebrity

Keirin Kirby (“Kirby”), professionally known as “Lady Miss Kier,” was the lead singer of a retro-funk-dance musical group known as “Deee-Lite” which was popular in the early 1990’s. Deee-Lite produced five albums which were distributed and sold throughout the world.

Sega of America, Inc., is a distributor of a videogame called “Space Channel 5” (SC5). The game was created by an employee of Sega Japan. Sega denied using Kirby as the basis for one of its characters. Kirby sued alleging that, in creating a character in the video game, Sega had misappropriated her likeness and identity in violation of state and federal law. The distributors moved for summary judgment asserting the First Amendment provided a complete defense to each of the celebrity plaintiff’s claims. The trial court agreed, granted the motions, and subsequently awarded the distributor’s mandatory attorney’s fees. On appeal, the trail court’s ruling was affirmed.

The court found that the First Amendment afforded a complete defense to Kirby’s claims. The court stated “The freedom of expression protected by the First Amendment exists to preserve an uninhibited marketplace of ideas and to further individual rights of self expression…The protections may extend to all forms of expression, including written and spoken words (fact or fiction), music, films, paintings, and entertainment, whether or not sold for a profit…Video games are expressive works entitled to as much First Amendment protection as the most profound literature.” The court held that the videogame contained significant transformative elements. Celebrities are only protected from literal depictions or imitations for commercial gain by works which do not add significant new expression. Kirby v. Sega of America, Inc., 144 Cal. App. 4th 47, 2006 Cal. App. LEXIS 1672; (Cal.Ct.App. 2006)

Congratulations to Our Clients

Writer/Director Craig Brewer whose film “Black Snake Moan,” premiered at Sundance and opened this weekend on 1200 screens with rave reviews.

Documentary Filmmaker Anne Aghion who has recently returned from Antarctica where she filmed a documentary. On March 10 at 3pm and March 11 at 1pm, she will show the very first images of Antarctica film during the New York City International Polar Weekend at the American Museum of Natural History in New York. During the 45-minute presentation, "Living Antarctica: Filming Extreme Science... on Ice", she will show a short clip from the upcoming film, and photos of her four months filming in Antarctica, including seven weeks in a tent in the mountains above the Dry Valleys. The New York City International Polar Weekend includes lectures and panels, a film series and a polar fair, and is organized by the Museum in partnership with Columbia University, Barnard College, Wings WorldQuest, and the Explorers Club. The event is free with Museum admission.

Director Reed R. McCants, and producers Neema Barnette, Daisy Lawrence and Thomas Karl whose feature film Cuttin’ Da Mustard premiered at the Pan African Film Festival last week and won the Festival Choice Award For Best Feature. The picture stars Keshia Knight Pulliam (Beauty Shop, The Gospel, The Cosby Show), Wesley Jonathan (Divine Intervention, Queen of Media, Steppin: The Movie), Charles S. Dutton (Alien 3, Tony Nominee for Ma Rainey’s Black Bottom and The Piano Lesson), Adrienne Bailon (The Cheetah Girls, The Cheetah Girls 2), Sinbad (Jingle All the Way, Houseguest, and First Kid),), Brandon T. Jackson (Roll Bounce, host for Up Close and Personal Tour ), Kym Whitley (The Perfect Man, The Salon, Next Friday), Debra Wilson (City Girls, Scary Movie 4, Ice Age 2), Chico Benymon (Ali), and Lil’ Zane (Finding Forrester, Dr. Dolittle 2).

UCLA Self Defense Seminar May 5 & 6

Mark will once again present his annual legal self defense seminar at U.C.L.A.

Writers and filmmakers will learn how to make shrewd business decisions and protect their interests in negotiations with production and distribution companies. Instruction covers how to anticipate problems before they arise and how to encourage other parties to live up to their contractual obligations through performance incentives, default penalties, and arbitration.

In the event of a dispute, learn what remedies are available to enforce your rights. Topics include creative accounting; customary terms of contracts; negotiating tactics and strategies; properly securing rights to your work; and how to avoid being sued for copyright infringement, defamation, or invasion of privacy.

Attention is paid to how to protect oneself by modifying warranties, obtaining E & O coverage, using lab access letters to retain control of masters, and utilizing termination clauses. The seminar includes an extensive handout with sample forms, contracts. and a self-defense checklist.

Applies toward Business and Legal Affairs requirement in Certificate Program in the Business and Management of Film, Television, and Digital Entertainment Media.

Advance enrollment required; no enrollment at the door. 8.75 hours of MCLE credit available for lawyers.

Registration number: S8428U. Additional info online at: