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Entertainment Law
University of Mississippi School of Law
Lantagne, Stacey M.

ENTERTAINMENT LAW – SPRING 2016

PROFESSOR STACEY LANTAGNE

BASIC INTELLECTUAL PROPERTY/ENTERTAINMENT CONCEPTS
INDUSTRY SPECIFIC CURIOSITIES

THEATRE AND ENTRENCHED UNIONS (THIS IS ME)
PUBLISHING INFORMATION WANTS TO BE FREE
VISUAL ARTS (GETTING SHORT END OF STICK)
MOVIES—LOTS OF PLAYERS, ANTITRUST SPECTRE
TELEVISION (CONTRACTS EVEN FOR IDEAS
MUSIC (UNCONSIONABLE CONTRACTS)

ORIGINALITY IN COPYRIGHT

COPYRIGHTABLE SUBJECT MATTER
FACTS LIMITATIONS (FEIST AND COMPUTER ASSOCIATION)
USEFUL ARTICLES LIMITATIONS (BRANDIR AND SEPERABILITY AND MERGER DOCTRINE
IDEA/EXPRESSION DICHOTOMY—ABSTRACTION

COPYRIGHT IN OPERATION—SPLITTIMG UP RESULTS AND PROCEEDS

DERIVATIVE WORKS VERSUS INFRINGEMENT
VERSUS JOINT WORKS
VERSUS COAUTHORSHIP
VERSUS WORKS MADE FOR HIRE (TWO TYPES)

CREDIT: AUTHORSHIP DISPUTES AND ISSUES CONTINUED
EXCLUSIVE RIGHTS: FEDERAL AND STATE, STATUTES AND COMMON LAW

RIGHT OF REPRODUCTION
RIGHT TO DERIVATIVE WORKS
PUBLIC PERFORMANCE/DISPLAY RIGHT – VARA STATUTE TOO
DISTRIBUTION AND IMPORTATION RIGHT

INTERPLAY OF EXCLSUIVE RIGHTS AND THEIR LIMITATIONS ON SPECIFIC CLASSES OF OWNERSHIP ALLOCATION SCHEDULES

WORKS FOR HIRE

MISSAPPROPROATION OF OWNERSHIP
TRANSFERS, LICENSES, AND TERMINATION RIGHTS

INFRINGEMENT: EVALUATING ACCESS, SUBSTANTIAL SIMILARITY, LEVELS OF ABSTRACTION, LANE V KNOWLES-CARTER

OF DERIVATIVE WORKS
OF REPRODUCTION RIGHT

SCENES A FAIRE AND HARBINGERS

DEFENSES TO INFRINGEMENT

INDEPENDENT CREATION
CONSENT, WAIVER, LICENSE
FIRST SALE DOCTRINE
VICARIOUS AND SECONDARY LIABILITY

RESPONDEAT SUPERIOR

FAIR USE ANALYSIS

BIG FOUR FACTORS,
CASES TO ANALOGIZE

IDEA/EXPRESSION DICHOTOMY
INEQUITABLE CONDUCT IN COURT OF LAW

LACHES, BAD FAITH, WAIVER, CONSENT

FIRST AMENDMENT
DE MINIMUS
STATUTE OF LIMITATIONS

ONGOING HARM OR OWNERSHIP DISPUTE

AFFIRMATIVE DEFENSES

DIGITAL LINEAGE OF SECONDARY COPYRIGHT INFRINGEMENT LIABILITY

SONY I

THE DMCA:

ANTICIRCUMVENTION PROHIBITIONS,
ONLINE SERVICE PROVIDER SAFE HARBOR QUALIFICATIONS/IMMUNITY

SUBJECTIVE STATUTE TEST
OBJECTIVE COMMON LAW TEST

VIACOM/YOUTUBE AND AUTHORS GUILD/GOOGLE

REMEDIES AND DAMAGES AND LIMITATIONS THERETO

SUING FOR INJUNCTIONS WHEN YOU WANT DAMAGES
STATUTORY DAMAGES
ACTUAL DAMAGES
ATTORNEYS FEES AND CASE LAW EXAMPLES
BURDENS ON PROVING DAMAGES FOR DIFFERENT HARMS UP AGAINST DIFFERENT DEFENSES

TRADEMARKS AND MERCHANDISING

ELEMENTS (SENIOR/JUNIOR USERS)
DILUTION (TARNISHMENT, BLURRING)
CONFUSIONS (DOES IT PLAY?)
MORAL RIGHTS AND THE BERNE CONVENTION

ARTIFACTS AND ANTIQUES
COPYRIGHT RESTORATION AND TRIPS STATUTE
DASTAR AND THE RISE OF THE TRADEMARK TROLL: TURNING EXPIRED COPYRIGHTS INTO TRADEMARKS AND FRANCHISES

TRUE DETECTIVE

FIRST AMENDMENT

VISUAL VERSUS TEXTUAL FOR OBSCENITY, CASES

IMPLIED IN FACT AND CONTRACTING FOR IDEAS
NOMINATIVE FAIR USE
DEALMAKING CONTRACTS
DIGITAL MUSIC RIGHTS AND ROYALTIES
FILM ACCOUNTING PRACTICES
BREACH OF CONTRACTS

RIGHT OF REJECTION
FUTURE TECHNOLOGIES CLAUSES
FRAUD; AGREEMENTS TO AGREE
TERMINATION RIGHTS
WORKS FOR HIRE AND OTHER CONTRACTED FOR COLLABORATIONS

OVERLAPPING CONTRCATS BECAUSE UNIONS

STATE TORT PRIVACY RIGHTS

PUBLIC FIGURES VERSUS NON CELEBRITIES

EMBARRASSING PRIVATE FACTS (EPFPE)
UNREASONABLE INTRUSION OF PERSONAL SOLITUDE
SOCIAL MEDIA IMPLICATIONS

STATE PROPERTY CLAIM OF PUBLICITY RIGHT

DOWNING V ABERCROMBIE

CALIFORNIA STATUTE VERSUS CALIFORNIA COMMON LAW

FLEET V CBS (TEXTAUL VS VISUAL)
FEDERAL COPYRIGHT LAW PREEMPTION CASES
NEW YORK STATUTE
RAY; VANNA; AND SHADOW OF ZACCHINI
PARKS V LAFACE – ROGERS TEST

COMMERCIAL MISAPPROPRIATION AND FALSE ENDORESEMENT

COMEDY III – THE STOOGES
WOZENCRAFT AND PUBLIC RECORD OF PRIVATE LIVES
BALANCING PUBLICITY RIGHTS WITH FIRST AMENDMENT

BALANCING FIRST AMENDMENT AND COMMERCIALIZATION OF SEX AND VIOLENCE

MEOW MEDIA
TEXTUAL VERSUS VISUAL AND VIOLENY SPEECH

REPRESNTATIONS AND REGULATIONS

MARATHON V BLASI
STATE STATUTES
LAWYERS VERSUS AGENTS VERSUS MANAGERS
NY/CA STATUTE DIFFERENCES

UNIONS AND ANTITRUST SPECTRES

UNION MINIMUM CONTRACTS

IATSE, SAG, AMERICAN FEDERATION

DO COMPOSERS LOSE MOST OF ALL?

RESTRAINTS OF TRADE
AUTHORS GUILD VERSUS GOOGLE BOOKS (WHO IS IN VIOLATION?)
MPAA AND SELF REGULATION

Exam: All issue spotting. Points for issues and analyzing the facts that apply to those facts. Bring in cases. Best answers will bring in policy arguments. Open notes/outlines.

Key Words: I: The issue is ?, R: In x v. y, or relevant case law shows ?, A: Here, ? … However/Additionally, the court must remember the policy argument that ?, C: Therefore, this is probably how the court would hold?

3 or 5 or 6 essay questions
DO DA IRAC
Issue spot and answer the prompt first, then fill in rest of outline, then fill in rest of issues for that little outline, then rules, then the application of the facts,

then a caveat with a killer policy thought with what could be a more equitable outcome or describe what the current problem with the law is, don’t forget to think about dealmaking contracts in every type of issue
Cases are won and lost on equity where the industry practice is the defining theme, where the industry is self-regulated to a large extent
No interest in conclusions!!! YAY

WRITE FRENECTICALLY AND FRANTICALLY

Copyright Law – Copyright Act (Doesn’t reward sweat of the brow)

Literary musical, choreographic, dramatic, and artistic works, computer software, aesthetic elements of useful articles
You cannot copyright an idea / system / method / procedure, only the expression
Your expression must be original
You must be the author of that expression
It must be fixed in a tangible medium
Others can use works in certain circumstances known as “fair use”
Independent creation is permitted
It’s really easy to get a copyright (originality is low!) whereas patents aren’t easy to get.
Life of Author +70 years; or 95 years after publication/120 years after creation if “no living author”

Trademark Law – Commerce Clause, Embedded in Lanham Act – Think apple’s symbol (Might reward sweat of the brow)

Trademarks cannot be functional features, descriptive terms, geographic names, misleading aspects, or generic names
Trademarks have to be distinctive
You can have a trademark in a descriptive or geographic term if its developed secondary meaning (you understand it comes from a source)
To have trademark protection, you must be using your trademark in commerce
We will let other people use your trademark if it’s a truthful reflection of the source of the product
We will let other people use your trademark for “fair and collateral use”
Likelihood of confusion – can’t use trademark if confusing people
Perpetual unless abandoned

Copyrights: “The Congress shall have Power . . . To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries. . . .”

Types of Entertainment

Visual Arts

COPYRIGHT BASICS

CR requires an original work of authorship fixed in a tangible medium. Originality requires independent creation with a modicum of creativity.
You get CR as soon as your original work is fixed in a tangible medium of expression, published or unpublished. You do not have to give notice of your copyright but lack of notice allows alleged infringers to mitigate damages by pleading “innocent” infringement. You cannot

phase of the trial of this case, the court concluded thathighly successful film “Coming to America” was “based upon,” i.e., inspired by, a concept created by humorist Art. In the second phase of the trial the court decided,inter alia,that certain provisions ofnet profit formula were unconscionable.

ALTERNATIVE LANGUAGE TO “BASED UPON”

Making “based upon” credit and compensation contingent on principle photography beginning within x amount of time (typically one or two years), under the assumption that the longer it takes for a movie to get made, the more likely the creative spark for the movie came from the involvement of new people with different inspirations
Defining “based upon” as being the same as “substantial similarity” in a copyright infringement analysis, which would be a more stringent standard to meet but would be more familiar to courts • Using “paternity” instead, but which “based upon” credit is available so long as no third-party script was involved and requiring arbitration to decide the credit situation if a third-party script is involved

Arnstein v. Porter

P alleged D plagiarized songs.
Rule: In a copyright infringement dispute, if there is evidence of access to the material and similarities exist between the two disputed materials, then the trier of the facts (jury) must determine whether the similarities are sufficient to prove copying.
“[I]f there are no similarities, no amount of evidence of access will suffice to prove copying. If there is evidence of access and similarities exist, then the trier of the facts must determine whether the similarities are sufficient to prove copying. . . . If evidence of access is absent, the similarities must be so striking as to preclude the possibility that plaintiff and defendant independently arrived at the same result.”
Some courts do not require any evidence of access if the similarities are striking enough – other courts always require sufficient evidence to support a reasonable possibility of access, regardless of how striking the similarities are
Copying does not need to be deliberate

Nichols v. Universal Pictures Corp.

P wrote a play and D made a movie taken from it but it was really basic.
Two plays may correspond closely enough in plot for a finding of infringement.

The stories were very different and P’s copyright didn’t cover all that might be drawn from the play. There are only so many ways to write a play or a movie.

Proving Improper Appropriation
Whether in the eyes or ears of the trier of fact, the D’s work reproduces so much of the P’s protected expression as to infringe the copyright

1) Determine the elements that are protectable
2) Determine if the D’s work improperly appropriates the protectable expression

The standard is whether the ordinary observer would be disposed to overlook the differences between the two works and regard their aesthetic appeal as the same – can be the ordinary observer who is a member of the target audience.
There is “permissible copying” – the infringer must appropriate that which belongs to the copyright owner.
Appropriate is not always verbatim copying.
Disagreement over whether the works as a whole should be compared or just the protectable elements.