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Entertainment Law
University of Dayton School of Law
Greene, Dennis

Greene- Entertainment Law Fall 2013
 
 
Topics 1-14
The Lanham Act, 15 U.S.C. §1125(a) – Civil action
                (1) Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which–
                (A) is likely 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, or
(B) in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person's goods, services, or commercial activities, 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.
 (2) As used in this subsection, the term “any person” includes any State, instrumentality of a State or employee of a State or instrumentality of a State acting in his or her official capacity.  Any State, and any such instrumentality, officer, or employee, shall be subject to the provisions of this chapter in the same manner and to the same extent as any nongovernmental entity.
 
 
Representation: Lawyers, Agents, and Managers
 
Manager- the person who the artist depends upon; deals with the drama in the artist’s life
                -the relationship is 24/7; deals with business or personal issues to make the artist’s life                                                  smoother
Agent- provides work for the artist; gets the jobs; fiduciary duty because he makes money if he makes                 the artist money; certain states make sure that the agent has a license because of the fiduciary    relationship
                -having two agents is not feasible
Business manager- usually CPA’s, restrict themselves to financial aspects; advises on investments, pays                bills, etc.
Lawyer- dominant dealmaker in music and records publishing (also personal managers)
 
The power dynamics are very different:
                -artist will have exclusive relationship with manager in the beginning, the relationship will not be                                              as strong as they go on because the manager will take on more clients
                -the relationship between artist and agent will always be strong unless one decides to pull                                          another agent in for a certain type of event
 
Marshak v. Green
 
Facts: the former manager, Marshak, as well as two members of the Drifter, Thomas and Hobbs, sued a former member, Green, and his manager David Rick for using the Drifters name for another group claiming infringement and unfair-competition
-Marshak had all three members sign an agreement that if they agreed to sign their rights under the application to him he would continue to be their manager and patent the name; this was done on January 3rd, 1978
-there was a lawsuit in 1971 against Marshak by “The Drifters” previous manager’s wife claiming she had a right to the name; the lawsuit found that she was allowed to use the name and do performances in Europe; there is also an agreement with a former member of the group, Bill Pinckney, to use the name only for a group in the South
 
Issue: determining whether an appreciable number of ordinarily prudent prospective customers are likely to be confused or misled
 
Opinion: must consider the strength of the prior user’s mark, the degree of similarity, and the defendants’ good faith in adopting the mark
-plaintiff proved there was confusion because the defendants were performing in the same areas as the plaintiff which allowed for confusion; defendant’s even had a flyer in which they said they would play the same songs that “The Drifters” were famous for decades before; people booking the group testified that they got confused as to who would really show when they tried booking “The Drifters”
-defendant showed an express intention to capitalize on plaintiff’s goodwill by using the name when Green came to Rick saying “the only thing that draws is a name that is well known or halfway known or whatever”
-plaintiff’s proved the name was valuable and so therefore it is defendants burden to prove the validity of the patent on the name
-defendants were not able to meet their burden; they could not prove that others used the name and had the right to do so; plaintiff has made no intention to abandon the name
-there was consideration in the agreement that all three members originally signed in that Marshak represented them adequately
-Green signed the contract and knew of Marshak’s patent on the name
Holding: plaintiffs have proven infringement in that use of the name by defendant would confuse the public and constitutes unfair-competition; their infringement was intentional; plaintiff does not get attorney’s fees but does get a prohibition against use of the mark “The Drifters” as well as a further hearing to determine an appropriate amount to award plaintiff from the deductible expenses from the defendants gross income
 
Snipes v. Robinson
 
Facts: Snipes was represented by Creative Artists Agency in which he wanted Donna Chavous to be his manager; Donna suggested he meet with Mrs. Robinson in which he then decided to retain her as his artist manager and signed an agreement
-plaintiff claims defendant negotiated major film deals on plaintiff’s behalf as well as compensation for a commercial and offers for large movie roles; she also obtained perquisites when he worked on films as well as made negotiations for bigger offers
-he claims all proposals went through her
-Chavous claims that she, Robinson, and Snipe’s attorney worked as a team; she claims that she made the deals and Robinson attended to Snipes’ personal needs after the deals were already done; Robinson claims she made suggestions on the major deals but CAA and Hirsch, Snipes’ attorney, did the negotiating
 
Issue: was Robinson acting as a talent agent; if so, did she act in conjunction with, and at the request of a licensed talent agent; is the petition barred by the one year statute of limitations contained in the Labor Code
 
Opinion: for the “at the request of” requirement, Robinson was clearly working at the request of Chavous because Chavous recommended Robinson to Snipes; she was working at the request of CAA
-the exhibits show that Hirsch and CAA were intimately involved in making the negotiations and Robinson worked closely with them; this shows that Robinson was “acting in conjunction with” CAA in performing her services
-based on correspond

rmed plaintiff that he fired the manager and hired Weise but plaintiff’s salary was never resumed
-plaintiff tried to get his musical equipment but was told Manson had told the storage employees to not allow him access; after getting in to play a show plaintiff did not play with the band again
-before leaving the band, plaintiff needed medical attention from injuries incurred while with the band; manager told plaintiff that he was not a partner but merely an employee and therefore refused to pay
-plaintiff learned that his bills that were previously getting paid for from his salary were no longer being paid; plaintiff was using the band credit card for daily expenses in lieu of regular salary payments but was cut off from the card by Weise
-plaintiff had received a letter from Grodsky saying the band was making a new album without him and his employment contract with the band expired because he was an at will employee, and he had stolen the band equipment from the storage unit earlier in the day; the letter also stated that he had made threats to institute meritless litigation and the relationship with him and the band had experienced irreparable damage
Issue:
-plaintiff sued G&O who produced six boxes of documents which included the partnership agreement showing plaintiff was a partner not an employee; he sued Manson’s law firm for breach of fiduciary duty by conspiring with Manson and failing to avoid conflict of interests
-Grodsky told plaintiff he no longer worked for Manson, but plaintiff sued him for allegedly knowing about the agreement mentioned above because he represented Manson in previous years
-plaintiff also sued G&O for unfair competition and violation of the Civil Code and public policy “by maintaining a partnership
-plaintiff claims G&O also knew of the agreement and intentionally lied in their threat letter to plaintiff
acknowledgment of that agreement
-G&O filed for motion to strike
 
Opinion: -plaintiff did not show any likelihood of him prevailing on his claims
-plaintiff has failed to show that he disclosed any confidences to G&O in former litigation; defendant showed that they once represented plaintiff and Manson separately
-the court found that yes G&O represented plaintiff but they represented him and Manson separately and the agreement was used for a different purpose not for the partnership purpose; the agreement was used to pinpoint a date in prior litigation
-there was no evidence that G&O or Grodsky continued to represent plaintiff showing any adversity
-the attorney client privilege allows for G&O to keep any acknowledgment with Manson private
-Grodsky represented both parties and saw the agreement but did not know who was bound by it and if it was still valid