Monday, March 24, 2008

KIRBY v. SEGA (2006)

A recent case has found that videogame developers can base game characters are real celebrities provided they are transformed sufficiently. Keirin Kirby was the lead singer of a retro-funk-dance musical group known as “Deee-Lite,” who had a diva-like artistic character reminiscent of the 1960’s. Sega of America, Inc. developed a videogame in 1999 called “Space Channel 5” set in outer space and featuring a character named “Ulala,” who shared many attributes of Kirby’s character. Kirby claimed Ulala was a direct appropriation of her character’s unique public identity, and she sued Sega under an invasion of privacy claim.

Some of Ulala's characteristics and computer-generated features resemble Kirby, and her name is a phonetic variant of “ooh la la”- a phrase associated with Kirby. However, aspects of each character’s costuming and style are different- Ulala dons a jetpack, blue headset, and the number five on her outfit as opposed to Kirby’s 60’s flair. Kirby conceded she has no singular identity; her appearance and visual style are “continually moving.”

Sega contended that the First Amendment is a complete bar to the invasion of privacy claim. A defendant may raise the First Amendment as an affirmative defense to an allegation of appropriation if the defendant's work “adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message.” This is known as the “transformative test” and was applied here by the court. Based on the differences stated above, the court found that Ulala is “transformative” from Kirby’s likeness and constitutionally protected.

Thus, given the many dissimilarities between Ulala and Kirby, any public confusion arising from a mistaken assumption that Kirby endorsed the videogame is easily outweighed by the public interest in free artistic expression. Kirby v. Sega of America, Inc., 144 Cal. App. 4th 47 , 2006 Cal. App. LEXIS 1672 (Cal.Ct.App. 2006)

Entertainment Software Association v. Swanson (2008)

The 8th Circuit Court of Appeals affirmed the District Court’s ruling, striking down a part of the Minnesota Restricted Video Games Act. Provisions of the Act prohibited the sale of video games to minors if the games were rated “M” for mature or “AO” for adults only. The Entertainment Software Association challenged the constitutionality of the Act, while the State defended, citing numerous studies linking media violence and aggressive behavior.

The court followed Interactive Digital Software Ass’n v. St. Louis County, and held that violent video games are protected free speech. Thus, any restrictions were subject to strict scrutiny analysis; requiring the law to be necessary to serve a compelling state interest and narrowly tailored to achieve that end.

The State argued that safeguarding both the psychological well-being and the moral and ethical development of minors were compelling interests and the court agreed. However, an interest in safeguarding the psychological well-being of minors must be real and not merely abstract. In other words, the State must prove that the law will in fact protect minors in a direct and material way and present more than anecdote and supposition.

Here, the court found that the State could not prove that violent video games actually negatively affected the psyche of minors. Without indisputable proof of causation between the exposure to video game violence and subsequent psychological dysfunction, the State did not meet its burden to satisfy strict scrutiny and the law was struck down.

Entertainment Software Association v. Swanson

Upcoming Speaking Engagements

Mark will be moderating a panel on International Co-Productions held by the Producers Guild of America on March 26, 2008 at the DeMill Screening Room at 9336 W. Washington Blvd., Culver City. Non PGA members and students can attend by paying a fee. To attend or inquire RSVP by March 24, 2008 to
Please put your first and last name in the subject line of your “RSVP” email response.

Mark will be speaking at a film finance seminar titled “Getting Films Funded” held at the WGA theater on March 29, 2008.

On June 25, 2008, Mark will moderate a panel on Intellectual Property In Entertainment & Media" put on by the California State Bar Intellectual Property Section at the Beverly Hills Hotel. The panel will discuss clearance issues in documentary filmmaking.

Monday, March 03, 2008

Tolkein Trust Sues New Line Cinema Over “Lord of the Rings” Profits

The trust that manages the estate of J.R.R. Tolkein, the author of the massively popular trilogy, has not received any profits from New Line Cinema, the distributor of the three films which have grossed nearly $6 billion.

The suit claims that New Line has engaged in various “bookkeeping” practices in order to avoid paying the trust and other gross revenue participants, including director Peter Jackson.

According to the lawsuit, a series of 1969 agreements granted the underlying rights to the books to United Artists in exchange for 7.5% of the gross receipts of any films based on the works. New Line subsequently acquired the rights.

The suits asks for over $150 million in damages and other remedies for breach of contract.

Judge Reverses Decision In Regard To Restraining Website

Website Wikileaks: ( blows the whistle by exposing corporate and government wrongdoing. It focuses mainly on oppressive regimes in Asia, the former Soviet bloc, Sub-Saharan Africa and the Middle East. The site was completely shut down when Judge Jeffrey S. White ordered that the entire site be taken offline. The site allowed whistleblowers to disclose sensitive documents without them being traced back to their source. It has received more than 1.2 million documents from dissident communities and anonymous sources.

The judge completely reversed himself, however, after several organizations including the Electronic Frontier Foundation, The Reporters Committee for Freedom of the Press, The Associated Press and the ACLU filed briefs contending that such an order was an unlawful prior restraint.

The Feb. 15 order required the required domain name service provider stop all access to the Wikileaks site, disabling its Web address. A Swiss bank had asked the court to require the site to be taken down on the grounds that it had disclosed private banking records. The site was allowed to resume when the judge dissolved his previous order.

The media coalition's brief in the case can be found at:
State Bar Conference

Mark Litwak will be moderating a panel at a one-day conference entitled "Intellectual Property In Entertainment & Media" put on by the California Bar Intellectual Property Section on March 25th at the Beverly Hills Hotel.

Self Defense for Writers and Filmmakers Comes to New York April 26, 2008

Volunteer Lawyers for the Arts is sponsoring a one day seminar with Mark Litwak on Saturday, April 26, 2008: 10 am – 5 pm in Manhattan.

Writers and filmmakers need to understand their legal rights and how to defend themselves from those who may seek to exploit them. Production companies and distributors often know all the tricks of the trade, while writers and filmmakers know little about how to protect themselves.

This seminar explains how writers and filmmakers can prevent problems from arising by properly securing underlying rights, and by encouraging the other party to live up to agreements by adding performance incentives, default penalties and arbitration clauses. Participants learn what remedies are available to enforce their rights in the event of a dispute.

Related topics include creative approvals, typical compensation and terms of studio contracts, merchandising deals, and negotiating tactics and strategies. The seminar includes more than 100 pages of useful contracts, checklists, forms and materials.

Speaker: Mark Litwak is a veteran entertainment attorney with offices in Beverly Hills, California. His practice includes work in the areas of copyright, trademark, contract, multimedia law, intellectual property, and book publishing. Litwak also functions as a Producer's Rep, assisting filmmakers in the financing, marketing and distribution of their films. For more information about Mark Litwak, please see

Lawyers can receive Eight (8) New York CLE "Areas of Professional Practice" credits.

Artists and Full-Time Students: $100 if registering on or before Friday, March 28th; $125 after March 28th.

Attorneys (including 8 CLE credits): $275 if registering on or before Friday, March 28th; $375 after March 28th.
To register, please complete the registration form at:

Since 1969, Volunteer Lawyers for the Arts has been the leading provider of pro bono legal services, mediation services, educational programs and publications, and advocacy to the arts community in New York. The first arts-related legal aid organization, VLA is the model for similar organizations around the world. For more information about Volunteer Lawyers for the Arts, please see