Ari Emanuel trying to erase name from 'SuperAgent' iPhone app

By Eriq Gardner

HBO cleared it with WME topper Ari Emanuel before co-opting his persona for the Ari Gold character on "Entourage." The makers of a new iPhone app called "SuperAgent" are learning the hard way what happens when you don't ask Ari nicely.

In "SuperAgent," players assume the identity of a high-powered tenpercenter named "Ari" and manage the career of a mischievous actor named "Vince," just like on "Entourage."

But Emanuel and WME weren't pleased with the game's references to "Ari" and "William Morris." So the agency's pitbull lawyer Patti Glaser sent a cease-and-desist letter to Dublin-based mobile software development firm Factory Six, demanding the company remove the references from the game and its promotional materials.

Factory Six says "SuperAgent" isn't based on the real-life super-agent.

"Ari Emanuel is not that famous outside of Hollywood," Factory Six co-founder Rick Larkin told Forbes.com. "[The lawyers] are the first people to have made the link."

Really? Factory Six names the characters Ari and Vince and pitches the game as taking place at "William Morris" but nobody thought the real-life agent that inspired the HBO show would be pissed?

Forget Ari. We'd guess HBO has an even stronger case against the game. Larkin wouldn't reveal whether the show is based on "Entourage," but that seems pretty obvious. We'll see to see whether HBO says "game over" on this one.

Rolling Stone loses Round One in T-shirt case

By Eriq Gardner

A California judge won't dismiss a lawsuit alleging that Rolling Stone magazine violated trademarks and rights of publicity by taking cover images of famous musicians and slapping them on t-shirts.

Live Nation, F.E.A. Merchandising, and Bravado International Group filed the complaint in California district court in October claiming Wenner Media was hawking products featuring Nirvana, Beyonce and other musicians. The plaintiffs, repped by Howard King and his firm, have exclusive licensing deals with the artists and allege unfair competition. 

Not surprisingly, Wenner asserted a First Amendment and fair use defense, saying the merchandise was expressive non-commercial speech part of a "subscription promotion campaign."

Judge Valerie Fairbank ruled yesterday that she needed to see more evidence in the case, including examples of merchandise not submitted by the defendants. The judge also rejected the argument that the lawsuit was inadequately pled.

Here's the ruling.

Rolling Stone also is in the midst of a battle with 185 indie rockers alleging misappropriation of likenesses for featuring a spread entitled "Indie Rock Universe" next to a four-page advertisement for Camel cigarettes.

Hollywood Docket: MGM NDA; Google's French disconnection; Wayans bros' golddigging

Entertainment law news while looking forward to our second viewing of "Avatar" this weekend:

• Negotiations over confidentiality agreements are slowing down the sale of MGM. The studio, which is struggling with nearly $4 billion in debt, sent out NDAs to about 20 interested parties in November, according to Reuters, but has not received signed documents from everyone. Time Warner and Lionsgate have sent their NDAs back signed, but News Corp hasn't signed its document. The stumbling block could be over the restriction of potential buyers to talk directly to MGM's creditors.
• In France, Google has been convicted of copyright infringement for publishing extracts of French books and ordered to pay $430,000 in damages and interest to French publisher La Martiniere-Le Seuil. Google's attorney says the company plans to appeal. 
• The European Court of Human Rights has ruled in favor of several large news organizations in an appeal over whether they had to turn over documents to a Belgian firm that would have revealed the identity of an anonymous source. The U.S. senate will soon take up a media shield law, but it looks like the Europeans have beat the Americans to the punch. The ECHR ruled that document disclosure would violate Article 10 pertaining to freedom of expression of the European Convention of Human Rights.
• The BBC has apologized to radio listeners who heard Zack de la Rocha, lead singer of Rage Against the Machine, swear during a live performance on Radio 5's breakfast show. A BBC spokesman explained the net had been assured the band wouldn't use curse words. 
• No joke — the Wayans brothers are being sued by a former employee named Jared Edwards who claims that Keenen, Shawn and Marlon stole his book manuscript, published by St. Martin's Press as "101 Ways to Know You're a Golddigger."

Privacy Wars: Netflix, Facebook and the 'Brokeback Mountain Effect'

By Eriq Gardner

Will "Brokeback Mountain" shape rules concerning the responsibility of websites to guard user privacy?

The debate over privacy on the Internet got much louder yesterday when a group of privacy advocate organizations filed a complaint with the FTC over recent changes made by Facebook to user information seen by the public. Meanwhile, a class action lawsuit was filed yesterday against Netflix for breaking various privacy codes when the video rental service held a contest and released information about its users' preferences.

Let's take the Netflix case first — a possible path-breaking piece of litigation that has the potential to influence the Facebook debate.

The lawsuit was filed by a group of individuals lead by a Jane Doe who identifies herself only as a lesbian. In the complaint, the plaintiffs take issue with a contest that Netflix ran in October 2006 where the company offered $1 million to anybody who could come up with an algorithm to improve upon its movie recommendation engine by 10 percent. Netflix opened the contest to the public and gave participants a lot of data, including 100 million subscriber movie ratings.

A few weeks after the contest began, researchers at the University of Texas published a paper entitled, "How to Break Anonymity of the Netflix Prize Dataset," describing a method of unmasking that compared Netflix ratings with those made on Internet Movie Database. The researchers wrote they were able to uncover political preferences and other sensitive information of its users. 

The plaintiffs call this the "Brokeback Mountain Factor," referring to an idea that anybody who has the movie in their queue is more likely to be homosexual. (Last year, we wrote a cover article for Psychology Today describing how scientists were using taste preferences to glean revealing information about individuals.) 

The lawsuit argues that Netflix broke its own privacy policy, seeks $2,500 in damages for each of its more than 2 million users, and asks for an enjoinment from launching a second contest that will give out user data including ZIP codes, age, and gender with movie ratings.

The same day this lawsuit was filed, the FTC got a complaint over recent changes made by Facebook that has opened up to the public user information including names, friends and fan pages. The filing includes quotes by aggrieved users but is somewhat short on real examples of the damage potentially caused to Facebook's users.

We're guessing that some will soon connect the dots here and push the FTC to recognize threats of data mining in the alleged privacy breach.

Glenn Beck tormentor challenges Liberty Counsel in Adam Lambert FCC flap

By Eriq Gardner

Marc Randazza, the First Amendment lawyer who beat Glenn Beck and earned a fan club for his efforts, is back with an entertaining new legal brief.

This one targets the Liberty Counsel, the conservative organization that lead the cause against ABC last month for airing Adam Lambert's controversial performance at the American Music Awards. On November 24, Liberty filed a grievance with the FCC over Lambert's allegedly "obscene" dance routine.

Randazza has responded with his own FCC filing that will certainly cement his hero status among free speech advocates. He writes:

While we must tolerate the existence of the Ku Klux Klan, the American Nazi Party, and the Liberty Counsel, we need not allow such organizations to shape our public policy. If Anita Staver wishes to tie her stained granny panties in a wad over some perceived homosexual threat, she has that right. But, the time has come for the FCC to cease its policy of allowing every Comstock-wanna-be with a crucifix to start the censorship ball rolling.

Anita Staver is a constitutional lawyer and president of the Liberty Counsel.

Later in his brief, Randazza points to the factors for deeming a broadcast to be legally obscene, taking issue with Liberty's stance that the broadcast was marked by an "unwholesome sexual interest or desire." The lawyer uses this to suggest that male members of the Staver household should submit to a penile plethysmography or other medical probes to see if they are physically aroused by Lambert's performance and warrant a federal government investigation.

Music producer sues claiming bold identity theft

By Matthew Belloni

A top music producer has been the victim of brazen identity theft by a convicted felon who impersonated his way into a Hollywood Records studio, according to a new lawsuit

Eric Valentine, who has worked with Maroon 5 and Queens of the Stone Age, filed suit Dec. 8 in Los Angeles Superior Court claiming that a man named Louis Adkinson has assumed his identity and shopped producing services throughout the music industry.

The lawsuit claims Adkinson (right), whose adoptive brother is the manager of Valentine’s Los Angeles recording facility, broke into his office and stole a plaque commemorating Valentine’s work on the “Shrek” soundtrack. According to the suit, Adkinson and Damon Elliot, another producer and the son of singer Dionne Warwick, then “conspired to misappropriate and trade off the good will of Valentine’s name and use that name to steal from musicians and others who wanted to work with Valentine.”

Calls to Adkinson were not returned. But in an e-mail he sent to associates after he was served with the suit at the Salt Lake City airport, Adkinson admitted he had no ties to Valentine and said he was “very sorry that these matters have arisen and I beg you not to question Damon as a Grammy Award-winning producer.” 

In an interview Thursday, Valentine (below), whose given name is Eric Dodd, said he first learned that someone was impersonating him in June 2008 when his lawyer got a call from Hollywood Records asking about his erratic behavior.

“He endears himself to people and gets entrenched in their family lives,” Valentine said of Adkinson. “He portrays himself as a high roller and tells people he can make them a music star.”

Mark Ballas, a “Dancing With the Stars” dancer who records albums with fellow “DWTS” star Derek Hough, said Adkinson initially fooled him into believing he was recording with the real Valentine. 

“For the first week, he had us,” Ballas said. “He said he’d worked on Maroon 5, he had pictures on his phone holding up the real Eric Valentine’s plaque from his office.”

But Ballas, who has a music degree, began to notice that his producer might not be who he claimed he was.

“He didn’t have any musical knowledge,” Ballas said. “He didn’t know a C chord. He didn’t know anything.”

Adkinson also asked for $500,000 for producing services. Hollywood Records execs called Valentine's lawyer Jeffrey Light, who tracked down Adkinson and threatened legal action.

In addition to the current case, Adkinson has been arrested several times and convicted of forgery. In July, reality TV star Nick Hogan sued Adkinson and Elliot for $130,000, claiming they bilked him after he agreed to invest in a record production company.

Adkinson also has been linked to music services for singer Taylor Dayne and Shawn King, the wife of broadcaster Larry King and a budding recording artist.

The Valentine lawsuit claims causes of action for unfair competition and violation of the state’s business and professions code. His lawyers are Light at LA's Myman Abel Fineman Fox Greenspan & Light, and litigator Allen Grodsky of Grodsky & Olecki in Santa Monica.

Meet the man arrested for pirating 'Wolverine'

By Eriq Gardner

We're starting to get to know the man arrested yesterday for allegedly uploading an unfinished copy of Fox's "X-Men Origins: Wolverine" to the web more than a month before its May 1 release.

Accused pirate Gilberto Sanchez was released from custody yesterday on a $50,000 bond. Waiting for the paperwork, Sanchez, 47, told a reporter he was a glazier by trade and called the arrest "ridiculous."

Sanchez, who lives in the Bronx, admitted uploading the film to popular file-sharing site megaupload.com (which, for our money, means the arrest wasn't ridiculous at all). How did the copy of "Wolverine" end up in his hands? "I bought it from a Korean guy on the street for five bucks."

OK then. Case closed.

Actually, the FBI probably has a lot of work left to do on this case. We may know who is responsible for putting the copy of the film online, but who is culpable for releasing it in the first place? The grand jury indictment targeting Sanchez doesn't address how he acquired the film or whether any Korean guys on the street were involved.  

If convicted, Sanchez faces three years in prison and a $250,000 fine or twice the gross gain or gross loss attributable to the offense, whichever is greater, according to the U.S. attorney’s office.

Attention client poachers: follow this case

By Eriq Gardner

We've always been a little surprised by the lack of litigation when top talent clients switch representatives.

It's no secret that Hollywood agents, lawyers and managers have become aggressive in poaching clients recently. Talking to the New Yorker a few years back, WME's Dave Wirtschafter described the way that agencies make come-ons to prospective clients:

"Most stars receive a number of calls each month from agencies who are eager to poach them away from their current representative. The poaching come-ons range from the bald ("That's all he got you?"; "We would never have let you appear in 'Troy'") to the subtle, long-term play. That goes something like this: 'I know you're happy with So-and-So, and I respect you too much to try to make you feel bad about how your career is going. But, in the future, just keep in mind that I'm a huge fan of your work, and that if you ever want access to more material than you're getting now, or just want to be able to exchange ideas with people like Tom and Steven, well, that's something we'd love to facilitate."

Poachers may wish to pay attention to an interesting lawsuit filed in Massachusetts state court this week. The case involves a heralded 21-year-old baseball prospect named Aroldis Chapman who defected from Cuba and has garnered interest from at least 15 major league teams. Last month, Chapman switched his representation, moving from Hendricks Sports Management to Athletes Premier International.

Hendricks is now suing on grounds of tortious interference and unjust enrichment, claiming an investment made of "substantial time and hundreds of thousands of dollars" on behalf of Chapman before API allegedly "made material false and disparaging statements" to Chapman causing him to switch agencies.

In Hollywood, most agents have a story like this to tell. We've seen lawsuits filed by agencies against agents who defect and bring clients with them, as well as a few rare lawsuits that make poaching an issue — the recent Black Eyed Peas case for example — but mostly, poaching instigates nothing more than rivalries and private grumbling.

We're not ready to say anything is about to change. On the strange scale of Hollywood ethics, poaching seems more acceptable than suing over poaching. Then again, if Hendricks wins this case, there certainly could be temptation by some in town to do what they do in baseball—settle scores.

Which came first, actress Ashley Madison or cheating-spouse website AshleyMadison.com?

By Eriq Gardner

Normally we wouldn't care too much about a cybersquatting claim by a minor actress named Ashley Madison, best known for a brief affair with James Woods and a role on "Entourage." But the countersuit in the case caught our eye.

Last week, Madison sued AshleyMadison.com, a dating website that proudly encourages married individuals to have an affair and has unsuccessfully attempted to advertise during the Super Bowl. (The site recently offered Tiger Woods $5 million to be a sponsor.)

Now the website has reportedly filed a $1 million countersuit against the actress for, ahem, cheating the website's trademark. The site alleges that the actress' real name is Ashley Madison Myrick and she only began using her "stage name" in 2005, three years after the website registered "Ashley Madison" with the U.S. Patent & Trademark Office. Here's the trademark registration. 

Since taking stage names is common in Hollywood, here's some free legal advice: Before changing a name, do a quick search at the USPTO's website.

Hollywood Docket: Warners sued for TV profits; Steinbeck SJ; Philip K. Dick v. Google

Entertainment law news this morning:

• Warner Bros. has been sued for $6 million in unpaid profits in connection with a joint venture set up in 1984 to make and distribute 10 TV shows, including "Dukes of Hazzard" and "Night Court." The plaintiff in the case is investment firm Syca Inc., which claims the 25-year agreement with Warners expired in March and that the studio has refused to sell Syca's interest in the shows to the highest bidder. Syca claims Warners has breached its agreement by keeping it in the dark for the last two years, devaluing its investment, distributing TV shows outside agreed areas, and pocketing profits.
• The recent hiring by the FCC of Scholar in Residence Stuart Benjamin has sparked controversy over a provocative essay that suggested heavy regulation on broadcasters to run them out of business. Benjamin is also being attacked for being too light-handed on regulation concerning broadcast indecency. 
• Penguin Group has won summary judgment against the John Steinbeck estate over copyright termination to the book, "The Pearl." Previously, Penguin was able to fight terminations over early Steinbeck works by getting an appeals court to recognize an agreement that superseded the estate's termination rights.
• The estate of late science fiction author and Hollywood favorite Philip K. Dick isn't happy about reports that Google is developing a phone device reportedly named after cyborg characters in the novel "Do Androids Dream of Electric Sheep?" The book was the basis for the classic film, "Blade Runner." On Friday, Google filed a trademark application to the name "Nexus One" and Dick's estate is discussing legal recourse.
• Stories don't come much uglier than this one: A former South Dakota lawmaker convicted of raping his two foster daughters has sent news organizations a copyright notice over his name to allegedly prevent them from reporting news about the conviction. In the notice, sent to AP and other news organizations, Ted Alvin Klaudt wants $500,000 from anybody who uses his name without consent. 

'Star Wars' Stormtrooper costumes not artistic, says court

By Eriq Gardner

George Lucas should have used the Force rather than lawyers to pursue a British designer who sculpted the original Stormtrooper helmets in the first "Star Wars" film.

A British appeals court has ruled that these helmets are not copyrightable works of art and therefore, Lucasfilm can't prevent Andrew Ainsworth from selling replicas of the helmets. The $20 million lawsuit against Ainsworth has dragged on for five years and may continue still as Lucasfilm says it is prepared to appeal the case up to Britain's Supreme Court.

In the decision yesterday, a judicial panel ruled that the helmet and armor of the Stormtrooper costumes had a "utilitarian," rather than an artistic, purpose, so "neither the armour nor the helmet are sculpture."

Previously, Lucas won a $20 million judgment against Ainsworth in a California court in 2006. He's been unable to get British courts to enforce the decision.

Maybe the helmet isn't art. But how about this image of a Star Wars "last supper" from freakingnews.com?

Former Warner Bros. GC John Schulman joining Mitchell Silberberg

By Eriq Gardner

LA's Mitchell Silberberg & Knupp has made a very big catch.

Beginning in January, former Warner Bros. general counsel John Schulman will join the firm as a partner and the chairman of its entertainment department.

In 2008, Schulman retired after 25 years at Warners. Earlier this year, he was named executive director of the USC Gould School of Law's entertainment law program. He will continue in his role at USC while joining MS&K.

"I've been fortunate to have had some professional opportunities presented to me over the past year, but I was particularly attracted to join Mitchell Silberberg & Knupp because I've known a number of the attorneys there for many years and have had great respect for them on both personal and professional levels," Schulman said. 

The firm recently celebrated its 100-year anniversary.  

Hollywood Docket: Biden hates piracy; 'Dangerous' David Letterman?; Top dealmakers of '09

Entertainment law news this morning:

• Top industry execs huddled with VP Joe Biden and other government officials at the White House yesterday for a piracy summit. Not much is known about what was discussed at the private meeting, but Biden and attorney general Eric Holder emerged expressing the need to do more to combat copyright theft. Consumer advocates are unhappy they weren't invited to participate in the discussions.
• The prosecutors in the David Letterman extortion case released tapes of accused blackmailer and former CBS producer Robert "Joe" Halderman expressing worry about a "crazy" and "dangerous" Letterman. Halderman, who allegedly offered to sell e-mails that romantically linked Letterman to a staffer as a "movie treatment," expressed concern that the host might have him fired, burn down his house, or have him killed.
• In Italy, YouTube has lost a copyright lawsuit brought by Italian media giant Mediaset over video of "Big Brother" appearing on the video-sharing website. A court ordered YouTube to remove the video but doesn't appear to have yet granted the 500 million Euros in damages being sought. Google says it will appeal. 
• A man plead guilty yesterday to stalking ESPN reporter Erin Andrews and releasing nude video of her on the Internet. At the guilty plea hearing, Andrews asked the judge to impose the maximum possible sentence, saying she's been subject to crude comments from fans and still has nightmares.
• The FCC is proposing closing loopholes to program access rules that prohibit cable operators that own programming from refusing to sell their networks to competing distributors. Normally, the change would encounter tremendous resistance on the part of cable companies like Comcast, but the company make try to make nice as the agency reviews its acquisition of NBC Universal.
• A Los Angeles city councilman has proposed the creation of a film commission that would promote the city to the entertainment industry. Entertainment lawyer Gordon Firemark says he's stunned that the city, historically home to the TV and film industries, doesn't already have one.
• A popular Chinese author is suing Google for copyright infringement for scanning her book and displaying a small amount of text. Recently, in a revision of the class action settlement over Google Books, many foreign, non-English books were taken out. 
• The Colorado Supreme Court recently upheld a state ban prohibiting theatrical smoking. One Supreme Court justice wrote an entertaining dissent that claimed that prop cigarettes just won't allow actors to be as dramatic. 
• Garth Brooks is suing his hometown hospital for $500,000 for breach of contract. The singer claims he donated money for a hospital building to be named after his late mother, but it never happened. 
• WhoRepresents.com names the "Top 25 Representatives in Hollywood for 2009" after measuring who in the industry made the best deals on behalf of their clients. Ari Emanuel at WME tops the list. At #7 overall, Ziffren's Sam Fischer is the top lawyer. In all, the list includes 13 agents, 8 attorneys, and 4 managers.

FBI finally makes an arrest over 'Wolverine' leak

By Eriq Gardner

The FBI has announced the capture of an individual connected with the leak of 20th Century Fox's "X-Men Origins: Wolverine."

Gilberto Sanchez was arrested at his Bronx, New York home this morning and is expected to go before a magistrate judge later today on charges of violating federal copyright law. According to the FBI, the 47-year-old man was indicted by a Los Angeles federal grand jury last week. A copy of the unsealed grand jury indictment indicates that Sanchez uploaded the film to file sharing network Megaupload.com under an alias. Information on how Sanchez allegedly obtained the feature film is still yet unknown. He faces up to three years in prison and a $250,000 fine.

The leak of "Wolverine" more than a month before its official theatrical release early this summer kicked off a firestorm of fury in Hollywood. In May, a News Corp executive estimated that the film had been downloaded four million times and the film topped piracy charts most of the summer.

"Wolverine" has raked in nearly $375 million in worldwide gross since its release. How much money the leak cost Fox will never be settled for certain.

Keith Olbermann tells Bill O'Reilly to sue 'Law & Order' for defamation

By Eriq Gardner

On last night's Countdown with Keith Olbermann, the MSNBC host challenged Fox News' Bill O'Reilly and Glenn Beck to sue "Law & Order" creator Dick Wolf for defamation.

Olbermann was referring to a recent episode of L&O: SVU where a character played by John Larroquette made this comment about a fictional inflammatory talk show host named Gordon Garrison:

Garrison, Limbaugh, Beck, O'Reilly, all of them. They're like a cancer spreading ignorance and hate. I mean, they have convinced folks that immigrants are the problem, not corporations that fail to pay a living wage or a broken health care system.

O'Reilly then attacked the episode as "simply defamatory and outrageous" and called Wolf a "coward." 

In response, Olbermann said, "Well, sue. C'mon, tough guy. That's defamatory and outrageous? Sue!...If you don't sue, you are saying in effect, 'I Bill'O agree that I am a cancer, spreading ignorance and hate.' Or are you afraid you can't prove you don't spread ignorance and hate?"

Of course, an opinion isn't grounds for a defamation lawsuit — and Olbermann slyly riffs on an imaginary trial where O'Reilly tries to prove falsehood. But theoretically, O'Reilly could sue Wolf for the character of Gordon Garrison. After all, "Law & Order" has been sued before over false statements made about a fictional character with an identifiable real-life counterpart.

A bigger problem in any potential defamation lawsuit would be that as a public figure, O'Reilly would need to show actual malice.

Here's the whole clip:

  

Tiger Woods hires Marty Singer's firm

By Eriq Gardner

American media pundits snickered when Tiger Woods got a London court to ban UK outlets from publishing allegedly nude photos and video of the troubled golfer, but we might begin to soon witness some legal action here in the U.S. 

Woods has hired LA entertainment litigation boutique Lavely & Singer to represent him. 

The move sends a strong message that Woods will be aggressive in protecting himself from breaches of privacy and defamation. Among the stories we've covered involving Lavely & Singer this year alone:

• Representation of "Grey's Anatomy" star Eric Dane and his actress wife Rebecca Gayheart in a lawsuit against Gawker for posting a tape of them nude with another girl.
• Representation of actor Jeremy Piven in a cease-and-desist letter to stop a theatrical play that made fun of "Sushigate."
• Representation of Jennifer Lopez in a lawsuit with her ex-husband over a purported sex tape. 
• Representation of reality star Kate Gosselin in her battle with husband Jon.
• Representation of Bruce Willis in a $8.7 million countersuit against producers of "Three Stories About Joan" 
• Representation of Oscar-winning "Milk" screenwriter Dustin Lance Black in a lawsuit over nude photos 

That's just a start. We're not sure that litigation and cease-and-desist letters are the smartest way to rehab the golfer's image, but we'll let others debate that point.

Hollywood Docket: Sumner sued; Congress fights piracy; Kid Rock

Entertainment law news while digesting the Golden Globes nominations this morning:

• A class action lawsuit targets Sumner Redstone for damaging the CBS empire by deflating the value of the company by waiting too long to take a write-down. The lawsuit, filed by a Tennessee iron works union pension fund, takes issue with the way the company handled loans and allegedly inflated its book value. Redstone has been targeted previously in another class action lawsuit. 
• Congress has earmarked $30 million to fight piracy as authorities report success with a recent year-end crackdown code-named Operation Holiday Hoax. The law enforcement effort involved U.S. Immigration and Customs Enforcement and other agencies targeting illegal vendors and seizing 79,796 counterfeit CDs and 79,610 DVDs. Top government officials including vice president Joe Biden are scheduled to meet with Hollywood leaders this afternoon to discuss ongoing piracy efforts.
• Kid Rock and Foo Fighters frontman Dave Grohl are suing a Canton, Ohio bar for copyright infringement for playing tunes without having the necessary licensing agreements. According to one article, Taylor Swift, Gwen Stefani and Bon Jovi also have filed various suits against bars across the nation in recent months. It sounds like a number of musicians are lending their names to a new legal campaign lead by performance rights organizations. 
• The Newspaper Guild of Greater Philadelphia is suing Philadelphia newspapers for not publishing the columns of notable sports and political columnist Stephen A. Smith. According to the complaint, an arbitrator ordered the Philadelphia Inquirer to rehire Smith and pay him a $250,000 salary, but the paper has thus far refused to run his column. The plaintiffs say the arbitrator required the newspaper "promote" his column.

Bergstein's Capitol sues to recover $20 million loss on 'Black Water Transit'

By Matthew Belloni

We've become so used to seeing indie film mogul David Bergstein's ThinkFilm and Capitol Films pop up as defendants in lawsuits that we flinched a bit at a filing Monday listing Capitol as a plaintiff in a breach of contract and negligence action. 

Capitol is suing insurance broker Aon for losses incurred on the unreleased "Black Water Transit" when star Samuel L. Jackson had to drop out a month before shooting due to a back injury. Jackson was an "essential element" of the film but Aon allegedly had sold Capitol a policy that did not cover injuries of an "essential element" during pre-production. 

The insurance carrier, US Specialty Insurance Company, later sued Capitol for a court declaration that it wasn't require to cover any losses, and during the litigation Aon employees allegedly testified that they had never before seen a policy that failed to provide coverage during a film's pre-production phase.

Because it had no insurance coverage, Capitol says it was forced to recast the Jackson role (Laurence Fishburne ended up starring) and soldier on rather than abandon the film altogether and recoup its investment via insurance.  

"Transit" has been mired in problems. According to a November story by THR's Alex Ben Block, the film, directed by Tony Kaye, is no longer being shopped by Capitol despite being unveiled with fanfare two years ago at Cannes. The story says Kaye finished editing the film but Bergstein refused to take delivery, reportedly because he considered it unreleasable. "He sought compensation from completion bond company CineFinance, claiming the budget had ballooned to about $48 million, which could not be recovered," the story says.

Now Capitol is suing Aon to recover losses that allegedly exceed $20 million. The company alleges causes of action for professional negligence, breach of contract, negligent misrepresentation and breach of fiduciary duty.

Capitol is represented by Lucia Coyoca at Mitchell Silberberg & Knupp.

Gawker limits liability in 'McSteamy' threesome case

By Eriq Gardner

Gawker caused a mini-sensation three months ago by posting video of a three-way naked romp involving "Grey's Anatomy" star Eric Dane, wife/actress Rebecca Gayheart and former beauty queen Kari Ann Peniche.

A threesome is hot enough. A threesome with lawyers is downright dirty.The stars of the video sued for copyright infringement. 

On Monday, Gawker took a big step toward limiting its liability in the "McSteamy" scandal when California District Court Judge George Wu ruled in favor of the website on some issues raised in its motion to strike. Most importantly, the judge ruled that Dane and Gayheart can't recover statutory damages or attorney's fees because they registered the tape with the U.S. Copyright Office after the alleged infringement.

The ruling doesn't foreclose the possibility that the gossip website will be enjoined from distributing the sex tape (which is still available on the site) or ordered to pay actual damages. (How Dane and Gayheart prove actual damages is something we'll have to investigate at a later date.) For now, the ruling represents a legal victory for Gawker and its lawyer, Alonzo Wickers at LA's Davis Wright Tremaine.

Just last week, in response to the motion to strike, Dane and Gayheart's lawyers at Marty Singer's firm had criticized their counterparts for a "premature motion" that "serves little purpose but to waste the parties' time and money..."

Image via gawker.com.

Record labels sue Vimeo, claim social network encourages infringement

By Eriq Gardner

Get ready for the next major lawsuit in the ongoing copyright wars.

Capitol Records, Caroline Records and Virgin Records America have filed a massive copyright infringement complaint against Vimeo, a social networking website for filmmakers owned by Barry Diller's IAC/InterActiveCorp. The well-financed website claims two million members, many of whom pay a yearly $59.95 membership fee. There's lots of professional-quality footage on Vimeo's website, but how legit is this content?

The plaintiffs contend that Vimeo actively induces its users to infringe copyrights on sound recordings. According to the complaint, Vimeo holds itself out as a site "about original videos, not original music," but "but actively encourages its users to post audiovisual works that feature, contain, or even consist entirely of preexisting musical works, including Plaintiffs' Recordings."

The labels quote one Vimeo staff member who allegedly advised users: "You can use the music, there are ton's [sic] of videos on here with music."

These days, it's become popular for copyright defendants to claim "safe harbor" from liability by implementing strong take-down policies. It's possible that Vimeo will also try to assert DMCA 512(c) safe harbor, as Veoh and Google's YouTube have recently done when faced with lawsuits. 

But reading the complaint, it's easy to see how this case could take another turn.

Many of the works featured on Vimeo are animation, photographs, drawings and mash-ups done by young, innovative filmmakers. Perhaps most controversial is the hot genre of viral video called "lip dubs" where performers lip sync to music. We found this video on Vimeo of Boston University students lip dubbing to the old Jackson 5 hit "I Want You Back," as an example.

Over the past year or so, some (like the EFF) have argued that genres like mash-ups constitute a non-commercial transformative fair use of copyright. In the complaint, the labels argue that the music is not incidental, but rather provides a focal point for the content. The plaintiffs compare these videos to "television programs or independent films, with recordings synchronized with the dialog or the visual material."

It'll be interesting to see if a court sees these kinds of videos as transformative or just another form of content requiring proper license. 

Vimeo could have the financial backing to vigorously defend the case. On the plaintiffs' side are lawyers from Mitchell Silberberg & Knupp, including Christine Lepera and Russell Frackman, who we interviewed last week concerning his representation of the record industry against Napster. 

The labels seek maximum statutory damages in the amount of $150,000 for each copyrighted work infringed. That could be tons of dough—and music to the ailing industry's ears.

Appeals court finds no 'Borat' fraud

By Eriq Gardner

The Second Circuit Court of Appeals has affirmed the dismissal of a lawsuit against 20th Century Fox and Sacha Baron Cohen over the making of "Borat."

Several plaintiffs had claimed they were duped into appearing in the hit comedy after the filmmakers fraudulently misrepresented themselves. The plaintiffs each signed waivers but argued that they were ambiguous and limited to a "documentary-style film."

First the district court, and now the appeals court, both say that "Borat" is indeed a documentary-style film. In other words, there wasn't any misrepresentation by legal standards.

A question arose over how much information the filmmakers had to provide the plaintiffs before they signed their waivers. The appeals court found that the info provided was sufficient and that the plaintiffs couldn't claim they were fraudulently induced into signing by relying on representations. According to the ruling, "plaintiffs apparently appeared in the film without taking any steps to confirm the oral representations on which they claim to have relied, even such cost-free steps as asking to meet the 'reporter' or to learn his name." 

The release of "Borat" introduced a flood of litigation, but so far, no claims have been successful. Baron Cohen is facing litigation on other ends — most recently a $110 million lawsuit by a Palestinian individual over "Bruno" — but we have doubts about whether that will stick. A lawsuit brought by a woman who claimed she was put in a wheelchair by the infamous comedian's antics has gone nowhere. For now, mockumentary makers seem to be on solid legal footing.

The story behind the 'Mad Men' title sequence

By Eriq Gardner

TV producers know that clearing music rights can be a daunting task. By the time a show has hit it big, musicians with songs incorporated within the fabric of a series have a lot of leverage and often have been successful in either extracting big money or holding up the release of a series onto DVD or in other formats.

Leave it to AMC's "Mad Men," which has been a television trailblazer in various ways, to figure out a solution. 

Before the series appeared on TV, producer Lionsgate decided it needed more than mere license to use RJD2's "A Beautiful Mine" in the opening credits. The studio approached RJD2 and wanted to buy the publishing rights to the song. 

RJD2 turned down Lionsgate several times before finally relenting. The musician now calls the studio's purchase an "extraordinarily shrewd" move now that the series has become so successful. 

It's hard to imagine the "Mad Men" title sequence without the music...

Hollywood Docket: EMI lawsuit; Def Leppard v. manager; most pirated movies

Entertainment law news this morning:

• Terra Firma, the private equity firm that purchased music publisher EMI for £4 billion in 2007, has filed a lawsuit against Citigroup for artificially inflating EMI's price. In the £1.5 billion suit, Terra Firma accuses Citigroup of lying about the involvement of rival bidders and trying to drive EMI into bankruptcy to bring about a merger with rival Warner Music.
• Trudy Green Management is suing the band Def Leppard for $700,000 for unpaid bills in connection with a tour of the U.S. and Europe in 2008. Halfway through the tour, Green was fired, but she claims she ran extensive marketing and promotion campaigns for the band on the 40-date tour. 
• At a hearing on Friday, the EFF pushed for a ruling that would entitle the nonprofit to $400,000 in attorney fees and other damages stemming from fighting a takedown notice sent by Universal Music to YouTube over a video that incorporated a Prince song. Previously in the case, a court ruled that copyright holders must account for "fair use" before sending takedown notices.
• A former contestant on the third season of "The Biggest Loser" is suing several weight-loss companies for defamation by using her photos to promote their products.
• The Black List-topping script "The Muppet Man" might have some legal obstacles to overcome.
• "2012," "Bad Lieutenant," "The Blind Side," and "The Twilight Saga: New Moon" are among the top 10 most pirated movies on BitTorrent last week.

Sheppard Mullin sues Vince Neil for fees

By Matthew Belloni

LA-based Sheppard Mullin Richter & Hampton has filed a lawsuit against Motley Crue frontman Vince Neil to collect legal fees charged during a three month period last year. 

According to the complaint, the firm repped Neil from May-August 2008 "in connection with the negotiation of various entertainment and corporate agreements." The bill for the unspecified deals came to $51,404.50, or $62,807.74 including interest.

The firm allegedly has a written fee agreement Neil, which puts it in a better position than the Glaser Weil firm in its fee battle with former client Rod Stewart.

The suit, filed December 4 in superior court in Santa Monica, alleges causes of action for breach of contract, accoutns stated, work labor and services, and quantum meruit.

Alec Baldwin lectures at Harvard Law School

By Eriq Gardner

Harvard Law School is starting to look like Hollywood East. The latest celebrity to appear at the prestigious legal academy is Alec Baldwin, who was brought on campus by HLS assistant professor Jeannie Suk to give an opinion about whether the law goes too far in defining minor incidents of bad behavior as evidence that a parent is unfit.

Baldwin, whose legal credits range from a highly publicized child custody case with ex-wife Kim Basinger to his role as a rich, assertive lawyer in the forthcoming film, "It's Complicated," talked about his perception that the realm of family law tends to be gender-biased. Baldwin previously explored his personal experiences with divorce and child custody law in the book, "A Promise to Ourselves."

It wouldn't be shocking to see Baldwin try out life as a lawyer. 

Recently, he's indicated he has lost interest in acting and might retire after his contract for "30 Rock" expires. Baldwin has also told the press he intends to go back to school and get a graduate degree. 

We''re thinking that Baldwin would make a fine litigator, especially if he's able to ham it up some in court.

Previously: Tom Cruise enrolls at Harvard Law (for an hour).

 

Russell Frackman Q&A: 'Without the Napster suit, iTunes would never have existed'

By Eriq Gardner

This week we're commemorating the 10-year anniversary of the record industry's lawsuit against Napster. Earlier we took a poll on whether the recording industry made a mistake by setting off a legal war with the pioneering file-sharing service. And today we're chatting with Russell Frackman, the industry's lead lawyer in the case, looking at the impact of the litigation.

THR, Esq: A majority of our readers seem to think that Napster litigation was a mistake. With all that's happened since, do you believe that filing the lawsuit was the best course?

Frackman: I start from the proposition that, frankly, this is not a fair question. Our clients didn't set out to sue Napster out of existence. Our consistent position was that copyright holders aren't against technology, only the way it's illegitimately used. We said we believed in a legitimate Napster and it never happened. The game plan wasn't to sue it out of existence; just to sue to make it legal.

THR, Esq: There's been an escalation in copyright battles against technology providers since the Napster case. Some lawyers we've spoken to wonder whether the industry could have gone further to work with Napster and avoided many of the later problems.

Frackman: There's always been a thought by some that the record industry has been dragged kicking and screaming into the 21st century. The reason why Napster took months instead of years to build its service is simply because they took the content and gave it away. The industry had lots of considerations like contractual issues with artists, issues with music publishers, issues with brick-and-mortar customers—who were significant at that time—issues with compensation, protection, and more. The other thing is that without the Napster suit, iTunes would never have existed. There would have been no incentive for people to pay money for music.

THR, Esq: So there weren't any discussions to figure out a way beyond litigation to clear the mess?

Frackman: This is just hearsay on my part, because I wasn't involved in this, but I do believe there were discussions before the lawsuit was filed in an attempt to resolve difficulties with Napster. I have speculation on why that didn't succeed, but I can't go into it.

THR, Esq: Considering the cases that followed, from Grokster to Cablevision to YouTube, has your perspective on the way that the Napster case was handled changed at all?

Frackman: I do believe that it was litigated in the best and most efficient way possible and attained the best result short of final determination. I think it's possible that the defendant may have explored a different approach. But I also think the case set an important precedent and got courts thinking about good and bad conduct.

THR, Esq: What copyright case or issue do you have your eye on now?

Frackman: I'm very curious to see if Universal appeals the Veoh decision. I think the district court got that wrong, and I think that sooner or later, the questions explored in that case (over DMCA "safe harbors" for copyright liability) will be addressed by the appeals circuit. There's a lot of ground left to cover in the relationship of copyright holders and technology companies.

Frackman is a partner at LA's Mitchell Silberberg & Knupp.

Hollywood Docket: 'New Moon' pirate freed; UK libel changes?; Tiger naked

Entertainment law news this morning:

• The woman who was arrested for recording footage of "New Moon" in a Chicago theater has had the charges dropped. Did the authorities listen to director Chris Weitz?
• A lawyer for Roman Polanski argued before an appeals court yesterday that the sex case against the director should be dismissed because of judicial misconduct. Chad Hummel is trying to get the California Second District Court of Appeal to order a lower court judge to consider dismissing the case even without Polanski's attendance in court. Good luck with that.  
• British lawmakers are discussing changes to the country's libel laws. For years, foreigners have been taking advantage of plaintiff-friendly laws to bring defamation claims in the country. A new bill being prepared at the House of Lords would require foreigners to demonstrate actual harm in England before filing a lawsuit. 
• A report out earlier this week drew attention to the economic impact of low-cost DVD kiosks like the ones being used by Redbox. The industry has been waging legal war against Redbox, so we don't expect they'll welcome news that Blockbuster is now getting into the kiosk game, buying DVDPlay, a competitor of Redbox.
• The Senate Judiciary Committee approved a new media shield bill that would help protect reporters' confidential sources. Earlier in the year, the House passed a different version of the law. 
• Director and winemaker Francis Ford Coppola is suing a company he paid nearly $700,000 to supply wine bottles and screw caps. In his lawsuit, Coppola claims the products were shoddy and led to spoilation of 55,000 cases of his "Encyclopedia" wines.
• Tiger Woods has gotten a British court to ban publication of any nude photos and videos of the golfer. His lawyers sent letters to UK media outlets trumpeting the court injunction but saying, "This Order is not to be taken as any admission that any such photographs exist." Reportedly, Playgirl has been approached with an offer to buy naked photos of Woods.

TLC wins injunction against Jon Gosselin

TLC has prevailed in its effort to stop Jon Gosselin from showcasing his talents on non-TLC shows. The network, which has traded lawsuits with its one-time star, claims he breached exclusivity and confidentiality agreements relating to "Jon & Kate Plus 8."

According to Radar Online, at a hearing today the judge sided with the network, ruling that Gosselin must stop granting paid interviews with various outlets and pursuing a competing TV deals. The ruling is only a preliminary injunction but TLC will continue to litigate its breach of contract lawsuit in Montgomery County Circuit Court in Maryland. A trial date has been set for April, 2010.

TLC Chief Operating Officer Edward Sabin has called Gosselin’s behavior embarrassing for the network and the show, pointing to an August appearance he made in Las Vegas at a pool party. "It made the show look bad," Sabin is quoted as saying. "Photos of Jon Gosselin with scores of bikini-clad women was inconsistent with our image brand of our show."

TLC issued a statement after the ruling:

We are pleased with the Court’s ruling today. The Court has validated our view that Mr. Gosselin has a valid, binding contract and that he has breached it repeatedly. Step one -- getting the court to order Mr. Gosselin to comply with his contractual obligations -- has been accomplished.  Any further breaches going forward will be violations of a court order.  We look forward to the next phase of the litigation, which is to pursue our claim for damages resulting from Mr. Gosselin's numerous breaches."

Hollywood Docket: MPAA is 'Complicated'; no Pirate Bay retrial; Montel Williams poked

Entertainment law news this morning:

• The MPAA has denied Universal's appeal of an R rating for its new romantic comedy "It's Complicated. A scene featuring "pot-smoking with no bad consequences" was apparently key to the decision, although we've seen the film and Meryl Streep and Steve Martin are hardly Cheech and Chong. The timing of the decision also coincides with a new article in the Vanderbilt Journal of Entertainment and Technology Law arguing that the MPAA rating process constitutes false advertising and that the FTC should order the org to make available a more detailed evaluation of objectionable content in movies.
• In a filing to the FCC on Tuesday, Time Warner Cable claims Fox "has brazenly sought to hijack the retransmission consent process." The FCC has good faith bargaining requirements for distributors and TV affiliates, and TWC says Fox is interfering by "threatening to exercise veto power" over any deal made by Fox affiliates "that does not extract a satisfactory kickback for the network."
• Blockbuster and Netflix have emerged victorious on summary judgment in defending a lawsuit that claimed the companies were violating a patented method for notifying customers electronically about the status of their DVD-by-mail rental accounts. 
• Sweden's Supreme Court has ruled that there will be no retrial in the conviction of the four individuals involved in the operation of Pirate Bay but has agreed to hold a hearing on defendants' claims of judicial bias on the part of the Court of Appeal. 
• The Fifth Circuit has affirmed the dismissal of nearly all copyright infringement and breach of contract claims brought by a producer against Sony BMG and the rapper Lil' Flip. The plaintiff alleged he was owed royalty payments and fought the statute of limitations for bringing his copyright claims. Here's the decision.
• Harvard Law School professor Charles Nesson, who defended a file-sharer who was ordered to pay $675,000, responds to the judge's criticisms of a "truly chaotic defense." Nesson says he plans to infuse his experiences in the trial into his next HLS class.
• A Maltese gaming company is suing talk show host Montel Williams for backing out of a deal to let it run a poker website. Guardian Gaming claims that Williams pocketed its $300,000 investment. 

Chris Weitz defends 'New Moon' pirate; Summit stays mum

By Eriq Gardner

Is three years in prison too much for a Chicago woman who was caught using a digital recording device during a screening of "The Twilight Saga: New Moon"?

Samantha Tumpach, 22, claims she was merely filming scenes at a Chicago-area Muvico Theater for her sister's 29th birthday party. Now, after being arrested and charged with a rarely invoked felony designed to prevent movie bootlegging, Tumpach has attracted an ally in her defense. "New Moon" director Chris Weitz tells the Chicago Sun-Times that "the case seems to me terribly unfair and I would like to do what I can to address this."

Weitz' quotes put the film's distributor, Summit Entertainment, in an uncomfortable PR spot. Even though it's the theater chain — not the studio — pushing the charges against Tumpach, Weitz says he has reached out to Summit to get involved. So far, Summit has remained publicly silent.

Our sympathy towards Tumpach is tempered by an annoyance at those who talk during movies. Who was it that suggested locking up theater gabbers and throwing away the key? 

It's also worth noting that "New Moon" may not have been the most valuable entertainment copyright infringed by Tumpach and her gathering that day. During the screening, the gang sang "Happy Birthday" and we doubt they bought a license from ASCAP to publicly perform this lucrative copyrighted song. What does Time Warner, who reportedly holds the publishing rights to "Happy Birthday" think about the injustice here?

OK, maybe Tumpach should get some leniency for not having sound mind to contact the theater owner and clear the act of taping within the establishment. Muvico obviously wanted to make a point and now that the Florida-based chain has gotten reporters everywhere to convey that the penalty for bootlegging carries "up to three years" in prison, it should probably back off — before Weitz shows up in court, a judge lets Tumpach off the hook, and the ordeal sends an entirely different public relations message. 

Why did Microsoft settle a Perfect case?

By Eriq Gardner

Adult entertainment publisher Perfect 10 has for years been fighting to stop search engines from displaying thumbnails of its copyrighted photos of nude women.

This week, Perfect 10 filed a motion against Google for allegedly abusing the discovery process in their long-running litigation. What we found interesting is that Perfect 10 has apparently settled a similar beef with Microsoft. Why would Microsoft settle a case that most believed it would win?

Conspiracy theorists might think that Rupert Murdoch had something to do with this. 

Last month, the media world was buzzing about a possible deal between Murdoch and Microsoft wherein Microsoft's Bing would have exclusive access to News Corp. content and would pay to block Google from indexing the media company's news websites.

One possible hiccup in these plans is that Google has the capability of modifying its technology to direct its spiders to crawl News Corp. properties like the Wall Street Journal and Fox.com anyway. As attorney Jonathan Steinsapir pointed out on the Huffington Post, if Google ignored a request by News Corp. to stop indexing its content, the result might be an epic copyright battle. Steinsapir says there would be a "race to the courthouse" as Google would try to file first in the Ninth Circuit.

Why there? Let's jump back to the Perfect 10 case.

In 2007, the Ninth Circuit Court of Appeal reversed a lower court opinion and found that Perfect 10 was "unlikely to succeed in overcoming Google's fair use defense" for directly infringing the plaintiff's copyrights. This decision would probably give Google a leg-up in claiming it has "fair use" to index content from News Corp. too.

When Perfect 10 first sued Microsoft in 2007, the defendant resisted entreaties to settle. Now Microsoft has changed its mind. We don't know details of the settlement, but a District Court was asked to review the Microsoft settlement to see if the deal had any bearing on Perfect 10's outstanding copyright claims. Hmm.

Hollywood Docket: Howard Stern and FCC; 'Twilight' plagiarism; law blogger gets TV show

Entertainment law news this morning:

• Will the Obama presidency lead to the return of Howard Stern to traditional radio? According to the Wall Street Journal, satellite radio provider Sirius is gearing up for new contract negotiations with the shock jock, and there's a possibility he could leave. One of the reasons cited is that the FCC is no longer regulating radio airwaves for indecency as vigilantly as in 2004 when Stern signed a $500 million-plus-bonus deal with Sirius. 
• Google hasn't been targeted too often for direct copyright infringement — the Perfect 10 case being a notable exception — but that could be changing. A small blues music label has filed a complaint against the search giant for linking to allegedly infringing copies of songs on RapidShare. The plaintiff, Blues Destiny Records, also includes as evidence 17 takedown notices sent to Google, allegedly without any response.
• A California District Court has dismissed a plagiarism case against "Twilight" author Stephenie Meyer. The plaintiff had alleged that Meyer's book "Breaking Dawn" copied an earlier vampire book. We predicted this lawsuit wouldn't suck much blood, and the judge ruled the novels weren't substantially similar because one book was "an analgamation of largely archaic and some modern language" and the other "maintains a very modern and fresh tone throughout the story that is appealing to a younger audience." We'll let you guess which is which.
• Travis Barker's lawyer is saying the former Blink 182 drummer has settled his civil lawsuit over the plane crash that killed two pilots and two of his friends. 
  
• A CBS affiliate in Oregon threatened legal action against a journalist who tweeted a link to a YouTube video. The journalist is taking this opportunity to make a point about free speech. 
• First, the guy behind the Twitter account "Shitmydadsays" scores a TV development deal; Now, a law blogger has landed one too. NBC is developing a TV series based on the life of SCOTUSblog founder Tom Goldstein about a likable guy in an unlikable profession. Note to Hollywood: We're more than willing to write "THR, Esq: The Series." 

Appeals court rules for Ladd in Warner Bros. spat

By Matthew Belloni

Alan Ladd, Jr. has won another round in his long-running battle with Warner Bros. over profits from films he produced for the studio. The California Court of Appeal on Tuesday denied Warners' attempt go to arbitration over a breach of a settlement agreement relating to "Blade Runner."  

As you might recall, in 2007 Ladd and Jay Kanter's The Ladd Co. won a $3.2 million jury verdict against Warners for underallocating license fees for films including "Blade Runner," "Chariots of Fire" and the "Police Academy" movies. The case garnered some attention, and not just because Ladd is a well-known producer and former studio exec (he famously greenlit "Star Wars" while at Fox in the 70s). The litigation also highlighted the studio practice of bundling films together and licensing them in bulk, then allocating a massive license fee across all the films in the package. Ladd convinced a jury that Warners had grouped his hit movies with a bunch of stinkers and assigned license fees that shortchanged their true value to reduce the profit participation owed to him. (Full disclosure: I worked on this case as a litigator for Ladd before joining THR.) 

Warners' appeal in the case is still pending. In the meantime, before the jury verdict but after Warners rested its case at trial, the studio asked that certain claims relating to "Blade Runner" instead be arbitrated. Back in the early 90s, Ladd had raised audit concerns with respect to the film and others, and he and Warners had entered into a settlement agreement in 1996 releasing any future claims. Because of that and a later audit settlement, at trial the judge wouldn't let Ladd seek damages for accounting claims on Blade Runner that were already waived. In seeking arbitration, the studio was arguing that bringing the suit against WB over claims that included those already released was effectively a breach of that deal--one which required arbitration to determine whether WB could recover attorneys fees.

But the lower court ruled that the claims were all handled in the underlying trial. And now the court of appeal agrees. "WB's attempt to proceed in a separate action for breah of the settlement agreement is akin to splitting a cause of action," the appeals court ruled. "The fact that the conduct gave rise to two theories of relief, one a defense to the Blade Runner claims, the other a right to recover attorney fees for the wrongful assertion of released claims, does not alter the fact that all relief arises from breach of the same contract by the same conduct."    

The appeals court ordered Warners to pay Ladd's unspecified costs associated with the appeal.

A Warners spokesman declined to comment on the ruling.

Ladd was repped in the appeal by John Gatti and John Lucas at LA's Stroock & Stroock & Lavan. Warners' side was handled by Michael Bergman, Steven Glaser and Julie Ephraim at Weissmann Wolff in Beverly Hills.