THR, Esq. Entertainment & Media Law Blog

Dog The Bounty Hunter Bites Agent

By Eriq Gardner

Bounty hunter and reality TV star Duane "Dog" Chapman has now set his sights on his own talent agent.

In a lawsuit brought in Los Angeles Superior Court, Chapman and his wife are claiming that unlicensed agent Boris Krutonog negotiated a secret deal with A&E for "producer fees" and took steps to hide the deal by adding confidentiality clauses.

Chapman says that Krutonog is entitled to "certain fees from plaintiffs' earnings in the entertainment industry," but nothing from A&E.

 

Sex, Drugs and the New Jon Peters Complaint

By Eriq Gardner

A fight has broken out between producers involved in a planned "Superman" film.

In a lawsuit filed in Los Angeles Superior Court, "Superman: Man of Steel" co-producer Brian Quintana is accusing co-producer Jon Peters of a litany of misbehavior, from failing to make good on promised payments to an extraordinary request to help cover up the statutory rape of Peters' daughter.

The complaint can almost be broken into two sections.

The first concerns the money that Quintana says Peters and his companies owe him. Quintana claims he's due $50,000 in unpaid wages, $100,000 in bonus money for helping Peters get a star on Hollywood's "Walk of Fame," $20,500 as a marketing bonus for helping Peters sell his home, $60,000 as an automobile allowance, $150,000 for co-producing the Superman film, $150,000 for co-producing another Peters film called "Africa," and more money due from another project, a book deal, and outstanding vacation pay.

Obviously, Quintana didn't get his money, and the latter half of the complaint spills the sordid details of their relationship. Quintana accuses Peters of sexual harassment and making outrageous demands of his services. These demands include perjury, the forgery of signatures, the procurement of illegal drugs, tax and other accounting fraud, and the assistance and cover-up of some extreme sexual behavior. Click to read the complaint itself for all the specifics.

Peters produced hits including "Flashdance," "The Color Purple," and "Batman." He's said to have inspired the character portrayed by Warren Beatty in "Shampoo." And he's been sued before for sexual harassment.

'Newsman' Claims Bill O’Reilly Protest Upset Comcast

By Eriq Gardner

Does Comcast really care about the journalism credibility of Fox News commentator Bill O’Reilly?

Yes, says a former host of an entertainment news television show in Boston.

Barry Nolan of "Backstage with Barry Nolan" and formerly of such hard-hitting journalism shows "Extra" and “Hard Copy," is suing Comcast after the cable company's CN8 channel fired him for organizing a public campaign against O’Reilly.

According to the complaint, filed in Massachusetts Superior Court, Nolan was suspended without pay as a result of his decision as a member of the Boston chapter of National Academy of Television Arts & Sciences to protest the group's bestowment of an award on O'Reilly. The lawsuit offers no motivation for the suspension — just that it was "retaliation for Nolan's exercising his constitutionally protected civil rights."

On suspension, "Extra" requested his services to help out with the story of Ted Kennedy's hospitalization. Nolan says he was given mixed signals from CN8 about whether he should assist. After being told he should, he committed, and after being told he shouldn't, he chose to honor his commitment. A few days later, he was fired from CN8. Nolan says his termination violated his civil rights.

Drum Roll, Please. Please?? Please???

By Eriq Gardner

In real life, musicians have all sorts of equipment malfunctions. Fortunately, that's why bands travel with roadies. In video games, when the Stratocaster controller's strum bar is unresponsive, there's nobody to call except the lawyer.

Harmonix, MTV Games, Electronic Arts and Viacom, the makers of video game Rock Band, are being sued over a faulty bass drum petal. Kansas resident Monte Morgan leads a proposed class action lawsuit that argues the game publishers have breached an implied warranty by failing to give consumers a decent opportunity to replace the defective peripheral device.

The defendants say they offered an extended warranty, something that Morgan argued was insufficient.

"When used as directed, our drum pedals are designed to provide years of enjoyment," said Harmonix and MTV Games in a statement.

Michael Jackson Can Relax After Settling With Prince

By Eriq Gardner

So much for Michael Jackson showing up in a UK court this week to contest the prince of Bahrain's claims that he gave the singer more than $7 million to produce an undelivered album, stage play and autobiography.

Just as Jackson was boarding a flight, he got a call from his representatives that the lawsuit had been settled. No terms have been publicly released.

Money Can't Buy Love...Or Tom Hanks A Beatles Poster

By Eriq Gardner

Figuring out great gifts to get for loved ones is one of the tougher things to do in life. Imagine if your spouse is world famous, rich, and seemingly has everything.

Thus was the predicament facing Rita Wilson, wife of Tom Hanks. Wilson, however, came up with a great gift idea: a vintage 1962 poster of the Beatles. And she was willing to pay $75,000 for it, even though she says she was advised by advisers, including Sotheby's, that the poster was overpriced. All Wilson wanted in return for the money was the poster, a certificate of authenticity, and a notarized statement from the seller that the item was free and clear of any liens or encumbrances.

Unfortunately, getting a poster of John, Paul, George, and whomever played drums for the band when the photograph was taken, turns out to be not so easy.

Wilson has filed a lawsuit against the seller and sales agent claiming she couldn't get that certificate. After she became suspicious, she confronted the sales agent, Melissa Pearl, who allegedly became belligerent and demanded a completion of the sale and $300,000 for her time and trouble. Wilson now wants a judicial declaration that no enforceable agreement exists on the sale.

Hey, it's the thought that counts.

Wilson is represented by Marty Singer at Lavely & Singer in Century City.

Mark Cuban's E-Mail War With the SEC Revealed

By Eriq Gardner

Do Mark Cuban's legal troubles with the SEC stem from interest by the billionaire's film company in picking up a documentary for distribution?

Sounds crazy, but prior to Cuban being sued by the SEC for insider sales of 600,000 shares of Internet search engine Mamma.com in 2004, Cuban got into a heated e-mail exchange with Jeffrey Norris, trial counsel for the SEC in Fort Worth, Texas.

In 2007, buzz circulated that Cuban's Magnolia Pictures was interested in distributing a film called "Loose Change,"  about the Bush administration's role in planning the 9/11 attacks. Norris contacted Cuban and called him unpatriotic, writing, "Either you are really an anti-American ideologue or your allegiance to making money is significantly greater than your dedication to your country."

Norris continued:

John McCain Cites Yoko Ono (and Fair Use) In Defending 'Running on Empty' Case

By Eriq Gardner

John McCain may have lost the presidential election to Barack Obama, but his campaign seems absolutely determined not to lose to singer Jackson Browne.

Browne sued McCain in August after the Republican candidate for the highest office in the land used his song, "Running on Empty," in a campaign commercial that targeted Obama's energy plan. At the time, many didn't take the legal threat very seriously, but based on two motions filed this week in U.S. District Court in California, the McCain campaign sure does.

Represented by attorney Lincoln Bandlow at Spillane Shaeffer, McCain has filed two 20-page motions.

What's he arguing?

Stitching Together A 'Project Runway' Settlement Appears Unlikely

By Eriq Gardner

The prospect of "Project Runway" soon returning to television soon looks about as good as pink stripes on a red blouse.

According to the NY Times , both sides in the dispute over the show's move from Bravo to Lifetime have dug in and are not meeting to negotiate any out-of-court settlement. Of course, if they were negotiating, it probably wouldn't be smart to do it through the NY Times, but the animosity between "Runway" producer Harvey Weinstein and Bravo head Lauren Zalaznick is now well known. As New York State Judge Richard B. Lowe III wrote in his preliminary injunction preventing the network move, "Weinstein had a particular dislike for Lauren Zalaznick, the head of Bravo, whom he claimed made day-to-day production of ‘Project Runway’ difficult."

Much of the sixth season of the show is already in the can. "Runway" fans can hold out hope that a federal judge claims jurisdictional domain thanks to the copyright claims involved and overturns the injunction. (A NBC Universal spokeswoman says that Lifetime’s effort to move the case to federal court is “part of a ploy to shop for a different [jurisdictional] forum.”) Fans can also pray on their Christian Louboutin Privatita pumps that Harvey Weinstein gets together with old friend Jeff Zucker at NBC Universal to work out a deal.

For now, though, the fact that each side has brought in the big legal guns — David Boies for Weinstein and Orin Snyder for NBC Universal — indicates that this is most likely headed for trial.

UPDATE: The tapestry of lawsuits continues to be woven. Now Lifetime is suing NBC Universal, Bravo Media, and even the Weinstein Co. claiming they hold the rights to "Project Runway." Obviously, they want the show on the air as soon as possible.

Forgettable Paris Hilton Film Subject Of Copyright Fight

By Eriq Gardner

The distributors of the 2006 stinker "Bottoms Up," starring Paris Hilton, are being sued in U.S. District Court in California for allegedly infringing the copyright on the film by distributing DVDs and showing it on cable television.

Keith and Lee Pettle claim they were granted rights to the film by producer Freddy Braidy. After the transfer, Braidy is alleged to have signed unauthorized agreements further licensing the film. The Pettles claim that defendants Sony Pictures, All Channel Films, and Showtime Networks, now hold no legitimate rights to "Bottoms Up."

The plaintiffs want $150,000 in statutory damages, an injunction from further distribution and exhibition, and additional restitution.

Paris Hilton can't be blamed for this case, though she has a knack of getting herself involved in projects that wind up in litigation.

Prince (Not That One) Targets Michael Jackson

By Eriq Gardner

The King of Bahrain's son was so eager to hear the King of Pop's next album that he fronted Michael Jackson millions of dollars as an advance for a record, an autobiography and a stage play.

The singer didn't produce, so now Sheikh Abdulla bin Hamad Al Khalifa is suing Jackson for $7 million in U.K. court to recover money that allegedly went to expenses including legal fees and a hairdresser.

Jackson claims there was no valid agreement, that the money was a gift. His lawyers also claim the singer is too sick to travel and will the seek permission to testify by video link from the United States.

Coming Soon: 'The Day the Earth Stood in Front of a Judge'

By Matthew Belloni

Our latest THR, Esq. column looks at the dark art of making blockbuster movie knockoffs.

We got wind this week that Fox has hired litigation counsel to go after the Asylum, purveyors of A-grade C-list versions of big-budget studio fare, including the upcoming Keanu Reeves sci-fi remake "The Day the Earth Stood Still."

Can the Asylum get away with "The Day the Earth Stopped"?  How are title disputes resolved between studios? Is there anything funnier than "Snakes on a Train"? Check out the column.

Jokers in City Of Batman Take Lead in Craziest Lawsuit Awards Race

By Eriq Gardner

"The Dark Knight" is just getting ready for a serious run at a best picture Oscar, but already the film is the subject of the front-runner in the stupidest lawsuit of the year contest. 

The city of Batman, located in southeastern Turkey, is suing "Dark Knight" director Christopher Nolan and Warner Bros. to protect what it claims is its trademark in the word "Batman."

Considering the Batman character first appeared in comics in 1939 and the TV series debuted in 1959, we're wondering, what took so long?

According to the Batman Mayor Hüseyin Kalkan, the city started looking into legal avenues after economic problems led to an increasing suicide rate among women, leading to a local reporter suggesting an innovative way to fill city coffers — sue the caped crusader!

“We found this criticism right and started to look for legal possibilities of a case like that,” he said.

MORE: More On That Batty Lawsuit: Do the Turks Have a Case?

The Point Of Video Games Is What? And Who Really Invented 'Totally Nude'?

By Eriq Gardner

In Albert Brooks' 1991 film "Defending Your Life," the protagonist dies in a car accident and goes to Judgment City, where he argues his fate inside a courtroom. During one scene, he runs into another deceased individual who claims to have invented the familiar strip-club catch-phrase, "Totally Nude."

This may seem totally far-fetched, but in 2005, E.S.S., the owner of a Los Angeles gentleman’s club known as the Play Pen, sued Rockstar Games, the publisher of Grand Theft Auto. In the San Andreas version of the game, one of the locales is a strip club named “Pig Pen” where players can, among other things in the game, take a break from crashing cars and hang out. Outside "Pig Pen" are the words "Totally Nude" — both in the game and in real life — and E.S.S. claimed that RockStar had ripped off its trademark and trade dress.

Last week, the Ninth Circuit reviewed the case after a lower court had granted summary judgment to Rockstar based on its defense of fair use.

Its verdict?

Retired Football Players Score Touchdown Over Royalties From Video Game

By Eriq Gardner

A San Francisco federal jury has ordered the National Football League Players Association to pay $28.1 million to 2,062 former NFL players as a result of breaching its fiduciary duty to the retired players and violating the terms of the players' group licensing agreements (GLE).

In contention were royalties derived from the EA football game "Madden NFL." The game included 143 vintage teams, according to Ronald Katz, a partner at Manatt, who is representing the retired players. "We are extremely gratified and pleased for the thousands of former NFL players--heroes, really, who built the game of pro football - who were betrayed by their union," Katz said.

Union lawyer Jeffrey Kessler says the verdict, including $21 million in punitive damages, was "unjust" and that it will be overturned on appeal.

This case dovetailed two contentious issues in the world of sports entertainment. First, the relationship between a union, whose bread-and-butter is the financial health of its current members, and former players. Second, value derived from licensing rights of publicity.

In the lawsuit, an e-mail from the union was exposed that instructed EA to “scramble” the images of retired players. The plaintiffs deemed this to be evidence that the union had intentionally broken obligations made in the GLE.

'Spore' Spawns Two More Complaints Over DRM

By Eriq Gardner

The trouble keeps on ticking for Electronic Arts over the DRM that came loaded with its much anticipated game, "Spore."

EA was hit with its first class action lawsuit in late September. Now, the company is facing two more lawsuits.

The plaintiffs allege that Spore's user license didn't properly notify consumers of DRM software called SecuROM that loaded itself onto a user's computer when the game is first played. One lawsuit calls EU's inclusion of the controversial anti-theft measure "deceptive and unlawful." Another calls it "immoral, unethical, oppressive, unscrupulous."

Despite the bellyaching, EA CEO John Riccitiello recently said the company has no plans to drop the DRM even though he "personally hate(s) it."

Sony BMG settled much of the litigation associated with its attempts a few years ago to include root kit DRM with CDs. So far, it doesn't look like EA is any negotiating mood, which makes these cases something to keep an eye on.

CBS Considered Hiring Drudge, Coulter, Limbaugh To Investigate Dan Rather

By Eriq Gardner

Dan Rather's lawsuit against CBS for wrongfully terminating his employment continues in the pre-trial phase. Today there's an interesting revelation. 

The focus in the case this week has centered on the panel of lawyers and others that CBS hired in 2004 to investigate a disputed "60 Minutes II" story about Bush's military service.

Revealed in new documents are some of the people that CBS considered to be on the panel: Matt Drudge, Lou Dobbs, Pat Buchanan, Ann Coulter, Christopher Hitchens, Rush Limbaugh, Charles Krauthammer, William Buckley, Robert Novak, Fred Barnes, David Brooks, Tucker Carlson, William Bennett...

In other words, the conservative media's "Who's Who." Someone even scribbled Fox News Channel president Roger Ailes at the end of the list.

Eventually, CBS chose former US attorney general Dick Thornburgh and former AP head Louis Boccardi.

In arguing that its investigation wasn't prejudiced, the network responded to the judge earlier in the week by submitting that "CBS purposefully chose a Republican lawyer, not for any nefarious purpose, but to open itself up to its harshest conservative critics and to ensure that the Panel’s findings would be found credible."

Sirius' Merger Difficulties Lead To Shareholder Suit

By Eriq Gardner

A group comprised of more than 500 Sirius-XM shareholders calling itself Save Sirius has filed a class action lawsuit against the company's management on charges of federal racketeering, breach of fiduciary duty and the violations of the Sherman Act.

The plaintiffs, filing the suit in U.S. District Court in California, are demanding the removal of the company's top executives, including chief Mel Karmazin. They aren't happy with the company's stock performance, particularly due to stock dilution, a planned reverse stock split, and "the longest merger delay in history."

DEA Agents Try 'American Gangster' Defamation Claim Again

By Eriq Gardner

Drug Enforcement Administration agents are still peeved at their portrayal in Universal's "American Gangster." Now they are going after former drug kingpin Frank Lucas and New York magazine in a new defamation lawsuit filed in New York Supreme Court.

Last year, DEA agents filed a a $55 million class action case against NBC Universal for defaming the DEA's entire New York bureau in the film. That lawsuit was rejected when US District Judge Colleen McMahon said the movie failed to "show a single person who is identifiable as a DEA agent," and therefore failed to meet defamation law standards.

The plaintiffs now believe that they'll have better luck against the source of allegations that DEA agents were corrupt and seized more assets than they accounted for. According to the complaint, Lucas' interview with New York Magazine writer Mark Jacobson, published as "The Return of Superfly" in the Aug. 7, 2000 issue, became the source of the film. Lucas, Jacobson, New York magazine, and Grove/Atlantic (which published a book on the episode) are all named defendants in this new $55 million lawsuit.

The new complaint doesn't resolve the identifiability issue that got the first case rejected. Instead, the plaintiffs represented by lawyers at Carey Associates hope to have better luck with a different judge.

Sole Target Of HBO Report on Child Labor Sues for Defamation

By Eriq Gardner

What's worse — allegedly outsourcing the work of the manufacturing of soccer balls to an Indian company that pays children 5 cents per hour or less; or claiming in a lawsuit that a media portrayal is defamatory because it should be targeting other soccer ball manufacturers as well.

Mitre Sports International says in a defamation claim filed in Britain against HBO's "Real Sports with Bryant Gumbel" that "Despite explicitly stating that 'Real Sports' had found 'at least 10 international brands' of soccer balls being stitched by children, the report falsely, maliciously, and intentionally mentions and targets one and only one brand, Mitre."

The company says it plays a leading role in the international effort to eliminate child labor in the manufacture of soccer balls, does not permit child labor, and presented HBO with proof that its allegations were wrong. According to the complaint, the show was rebroadcast at least 55 times.

Google Closes the Book On Major Copyright Case

By Eriq Gardner

Google has put one of its largest copyright lawsuits in the history books by agreeing upon a $125 million settlement with book authors.

The Authors Guild and the Association of American Publishers have announced they have agreed to settle a 2005 case against Google that alleged the company violated copyright by scanning books from several libraries into a digital database called Google Book Search. Google will make a large payment to the groups, and if accepted by a federal judge, authors will be able to claim a share of at least $45 million in proceeds. (Presumably, the lawyers in the case will be collecting a nice contingency fee.)

But there's more:

'Runway' Getting More Crowded: Harvey Asserts Counterclaim For Sabotage

By Matthew Belloni

You didn't think Harvey was going to just let this one go, did you? The catfight over "Project Runway's" move from Bravo to Lifetime has taken a (somewhat predictable) turn, with the Weinstein Co. filing a counterclaim on Friday alleging that NBC Universal's Bravo intentionally refused to promote Season 5 of the show because of the move.

TWC claims Bravo sabotaged the ratings and value of the show by changing its airtime, running few and "unappealing" ads and revealing spoilers about future episodes.

Here's TWC's full Answer and Counterclaim, as well as Lifetime's Answer. NBC Uni's (also predictable) response is here. Hint: they're not impressed, pointing out (somewhat persuasively, in our armchair opinion) that ratings for season 5 of "Runway" were the highest ever.

Some pretty major legal firepower on display in this one. The Weinsteins ponied up to hire Al Gore and Microsoft pitbull David Boies and his firm. Lifetime has New York A-list corporate firm Cravath Swaine & Moore. NBC Universal has been repped in the case by Orin Snyder in Gibson Dunn's New York office. 

As you'll recall, last month Judge Richard Lowe III issued a rare preliminary injunction barring the Weinstein-produced "Runway" from airing on Lifetime until this mess has been sorted out. NBC Universal claims that an unsigned 2003 license agreement between TWC and NBCU and a later amendment gave NBCU the "right of first refusal" for additional seasons of the show as well as spinoffs. When Harvey up and moved the show from Bravo to Lifetime earlier this year, he allegedly breached those deals.   

Hollywood Docket: CBS and ESPN Accused of Bad Intentions

By Eriq Gardner

TV Land is as strange as the lawsuits it engenders. Here's a couple of new ones:

• An actress stand-in on CBS' hit "CSI" is suing the network, claiming it retaliated against her for complaining of sexual harassment on the set. In the complaint filed in Los Angeles Superior Court, Shanelle Renee Howard says that after three years of stand-in work on the show, producers cut her workload back more than 90 percent after she gave testimony to others pursuing a separate sexual harassment claim.

• A former boxer now serving prison time has filed a pro se lawsuit against ESPN Classic after the station rebroadcast his fight against Joe Frazier. The boxing match represented Frazier's last fight, but Floyd "Jumbo" Cummings says it violated his rights of publicity. He's seeking $50 million in damages and in what might be called either rambling or poetic, his self-penned complaint says:

"ESPN Classic, well knowing the said premises, but contriving and wrongfully and maliciously intending to injure and aggrieve me and to bring me into public notoriety and to destroy the comfort of my life and peace and tranquility of mind, and to thrust upon me, unsought, unwarranted and undesired publicity and notoriety, utterly obnoxious to me, and annihilate and destroy.."

Judge Rules 'We Are Marshall' Didn't Violate Anything But Sports Movie Cliches

By Eriq Gardner

A federal judge has ruled that Warner Bros. Pictures and Thunder Road Prods didn't violate any copyright when producing the film "We are Marshall."

The plaintiffs in the case were two documentary filmmakers, Deborah Novak and John Witek, who collaborated on the 2000 documentary "Ashes to Glory," which told the story of the Marshall football team after a 1970 plane crash killed most of its members. In the lawsuit, they argued that the defendants became interested in developing a film based on the Marshall story and contacted the two about optioning the rights to "Ashes of Glory." The parties failed to reach an agreement on the financial terms and conditions and the defendants went ahead with the project.

In his ruling, California district judge Gary Feess calls the events surrounding the Marshall football team "matters of public record which cannot be copyrighted" and dismisses a breach-of-contract claim on grounds the plaintiffs "clearly understood that they had no agreement" to breach.

The full decision after the jump:

 

Robin Williams Wants $6 Million for 'Dicks' Pay-or-Play

By Eriq Gardner

Robin Williams has become the latest actor to sue after signing a "pay-or-play" contract to make a film and getting nothing when the production company shelves the project.

Williams has filed a lawsuit against Frank and Beans Prods. and Gold Circle Films, claiming $6 million in damages after the companies put the detective comedy "A Couple of Dicks" in turnaround. Williams claims he made both an oral agreement and has a written contract, though the latter was never signed by the actor.

Williams' lawsuit seems to indicate a growing problem over "pay-or-play" contracts that obligate a production studio to pay regardless of whether the film is actually made. Previously, John Cusack, Diane Lane, and Jerry Lewis have filed similar lawsuits. Some lawyers have been warning about this potential "minefield" for more than ten years.

Echostar's Billion Dollar Demand From Murdoch Becomes A Lot Less Demanding

By Eriq Gardner

Satellite TV giant Echostar will have to settle for $45.69 from rival Rupert Murdoch's pocketbook after once claiming to be owed more than a billion dollars in damages.

Here's the backstory: In 2002, Echostar sued News Corp. subsidiary NDS, claiming the digital satellite TV smart card maker hired a hacker in 1999 that reverse-engineered a smart card to encrypt Echostar's satellite television. NDS hired the man, Christopher Tarnovsky, to help prevent piracy to News Corp.'s DirecTV, but allegedly Tarnovsky's hack circulated on the Internet and caused great damage everywhere. Several satellite TV companies sued NDS under the theory that NDS's hired gun contributed greatly to the $5 billion piracy problem that haunts the satellite TV industry. At the time, Murdoch called the allegations "a joke."

I'm an iPod. I'm an X-Box. I'm Getting Sued

By Eriq Gardner

Apple and Microsoft have lovely commercials that compare what it's like to be a PC and what it's like to be a Mac. Perhaps the two companies can retire the feud and trade litigation tips.

Apple is being sued by Luxpro Corp., a Taiwanese electronics company, for contract interference, attempted monopolization of the MP3 player market, unfair competition, and commercial disparagement. Luxrpo filed the case in Arkansas District Court and accuses Apple of illegal tactics to pressure retail partners to stop selling Luxpro's EZ Share MP3 player in favor of the iPod.

Meanwhile, Microsoft finds itself on the receiving end of a class action lawsuit in Sacramento County Superior Court alleging that an excessive number of Xbox 360 consoles have experienced general hardware failures that have become known around town as the "Red Ring of Death." The lawsuit accuses Microsoft of deliberately hiding the failure rate.

Warner Chappell Finds Pot of Gold At End of Radiohead's Rainbow

By Eriq Gardner

Warner Chappell’s head of business affairs Jane Dyball announced at a conference in Iceland the final numbers in from Radiohead's "In Rainbows" experiment. Seems like a million years ago, but you'll recall that the band let consumers name their own price to buy the album and then later licensed Warner to distribute it through traditional online and retail channels. At the time, some hailed the move as a potential new business model in the post-piracy age.

Turns out that Radiohead and Warner found some success.

Dyball reported that "In Rainbows" sold 1.75 million copies of the physical CD (better than the band's last album), 100,000 boxsets, and 30,000 units on iTunes in the US in the first week of availability. Dyball also said the digital income from the experiment made a material difference in Warner Chappell's revenue this year.

Judge Refuses To Put Antitrust Claim Against Sports League On Ice

By Eriq Gardner

Let's get excited: The New York Rangers are off to a 5-0 start this year. Yes, that's the National Hockey League, though maybe the word "league" is all wrong. Confused?

In a victory for large-market professional sports franchises, a federal judge has denied the dismissal of an antitrust lawsuit that alleges that the NHL is illegally restraining trade by requiring one of its teams — the Rangers, owned by Madison Square Garden LP — to turn over control of their website to the NHL. The lawsuit was filed last September by MSG as a significant challenge to the idea that sports leagues control intellectual property rights as a single entity. Specifically, MSG challenged the league's authority over new media since these digital properties were not explicitly covered in the team's original consent agreement with the league.

These days, sports leagues make billions of dollars licensing the broadcast and merchandise rights of their product (yes, even hockey), and revenue-sharing has been a sore subject between teams in lucrative markets and teams with a smaller fan base.

The MSG-NHL antitrust issue may deal with the operation of a small website, but the stakes are potentially much larger. Go ask Hank Steinbrenner or Jerry Jones.

Arbitron's People Meter Tracks Controversy

By Eriq Gardner

The noise over Arbitron's newest technology to track consumer exposure to media and entertainment is getting loud. Very loud.

The ratings company has introduced a device called the Portable People Meter. Randomly selected survey participants carry around this device, the size of a small cellphone, and it measures their television, radio, and other media habits.

Sounds simple, but the tiny device "is at the heart of a multibillion-dollar dispute in the radio business," according to the Washington Post.

Some minority groups say the technology has flaws that allow underestimates of minority and ethnic stations. As a result, opponents of PPM have successfully lobbied the attorney general offices of both New York and New Jersey to file lawsuits against the company on grounds that the device violates state anti-discrimination laws. Arbitron also sued New York Attorney General Andrew Cuomo last week over its investigation. The subject has even entered the Presidential election foray, as Barack Obama wrote a letter to Arbitron President Steve Morris urging the company to delay the device.

The FCC is also investigating the issue, much to the consternation of other stations who don't like the idea of FCC interference.

Michael Savage, Robert Greenwald In Latest YouTube Takedown Tug-of-War

By Eriq Gardner

Brave New Films, the production company run by Robert Greenwald ("Outfoxed"), has filed a lawsuit against conservative radio talk-show host Michael Savage and Talk Radio Network for sending a takedown notice to YouTube.

Besides being a battle pitting one of the more liberal filmmakers vs. one of the more conservative commentators, Brave New Films' lawsuit is the latest salvo testing the boundaries of "fair use" and whether alleged victims of takedown notices can recover damages.

The complaint states that Oregon-based Talk Radio Network sent a takedown notice to YouTube on October 2, the night of the vice presidential debate, over a video called "Michael Savage Hates Muslims," which contains an audio excerpt from the "Savage Nation" program. YouTube took down the video and also disabled Brave New Fillms' channel on YouTube. The channel has been very popular, collecting some 36 million views. The channel was later back up, but Greenwald says the temporary suspension harmed his company at a time of intense political debate.

Footnotes: Real Networks TRO Extended; Dan Rather Trying Again

Some updates on various stories we've been following:

• A California district judge has extended the temporary restraining order that bars Real Networks from selling its new technology that lets consumers copy DVDs to their computer. "There are serious questions about copyright violations," said Judge Marilyn Patel, who won't be available for another hearing until after Nov. 17.

• Viacom's lawsuit against YouTube is dragging in the venture capitalists who originally invested in the user-generated video website. A federal court is asking Sequoia Capital, Artis Capital Management and TriplePoint Capital to explain their investments by providing documents by the end of the month.

• Dan Rather has submitted a new amended complaint in his case against CBS and after a hearing yesterday, Rather's lawyer says he was pleased with the case's progress and the possibility that the judge would allow important documents from discovery.

• James Hibberd at THR's Live Feed blog has put a minor right-wing conspiracy theory to rest over NBC's online removal of a "Saturday Night Live" sketch that skewered Democratic lawmakers and some billionaire liberals. Why did network lawyers yank the clip? Click here for the answer.

 

Who Owns the Rights to 'Hannah Montana'?

By Eriq Gardner

"Hannah Montana" has troubles beyond star Miley Cyrus' commitment to the Disney Channel smash hit show.

Now producers, including Disney and ABC, are being sued by Michael Poryes, one of the show's creators.

Poryes, who has also executive produced and written some of the series, claims in a California District Court complaint that as the creator, he has the right to make and market Hannah Montana merchandise, films, books, video games, concerts, and the like. He says that he licensed rights to the franchise in exchange for a percentage of earnings. Here's the   complaint. In it Poryes says that the contract has been breached and that the defendants have failed to pay him his proper share of royalties.

But there's more:

Northern California Court Temporally Blocks RealDVD Sales

By Eriq Gardner

Last week, movie studios and Real Networks sued each other over a new technology that lets consumers copy DVDs to their hardrives. Early court action in the battle to control the future of DVDs is giving both sides something to cheer about.

The court case will be heard in a Northern California district—as Real wants—not in a MPAA-preferred Los Angeles court. The jurisdictional forum may seem minor, but last year, the Northern District ruled that a similar technology sold by a company called Kaleidescape made a good faith effort to make sure its product was compliant with the industry's DVD Copy Control Association, an alliance that licenses the encryption for DVDs.

Real Networks will have to stop selling its RealDVD product now, however. The court has imposed a restraining order on the company until at least tomorrow as it reviews all of the papers filed in the case. Tomorrow, the court will presumably rule on whether or not to lift the temporary ban.

Magazine Publishers Resisting Napsterization

By Eriq Gardner

A copyright infringement lawsuit against Mygazines.com, a novel web service that let users upload digital copies of magazines for others to read, has been quietly settled.

Many of the media industry's largest consumer and trade publications sued the "Napster of publishing" on August 20th. Mygazines was based in the Caribbean island of Anguilla and some speculated that it might be shielded from U.S. Copyright laws. However, the plaintiffs figured out some of the company's weak spots: Its founder was a Canadian citizen and the plaintiffs, represented by Davis Wright Tremaine, filed lawsuits in New York and Canada, asking courts to file restraining orders on various ISPs from "reproducing, hosting, distributing, and displaying the infringing content."

Rather than pursue a defense, the owner of Mygazines apparently quickly capitulated by agreeing to remove all copyrighted content from its website. The case was settled on September 8, according to court documents that both sides have kept very quiet about until now. The company hopes to work with the publishing industry on revenue-sharing opportunities.

 

Attention Sports Fans, Fight Song Lyrics Available Upon Request

By Eriq Gardner

Some good news for the sheet music industry.

Citing the Americans with Disabilities Act, U.S. District Judge Alexander Williams has ordered the Washington Redskins to provide its fans who can't hear very well with "equal access to aural content" in the team's stadium. That includes music lyrics, ads and other broadcasts on the public-address system.

"Now that the court has addressed it, we are exploring alternatives to provide the words to the songs played during cheerleader dance routines," said the team.

Joseph Espo, a lawyer for three Redskins fans who filed the lawsuit in 2006, says the ruling is likely to affect other sports venues.

Media Companies Have Nasty Litigation Tactics?

By Eriq Gardner

A New York District Court isn't allowing a lawsuit filed by several music publishers against MP3tunes to target the company's CEO.

The plaintiffs, led by EMI, sued MP3tunes, which allows users to upload their purchased music into a digital locker where they can access the songs via most Web-enabled devices. EMI alleges this is copyright infringement.

But the lawsuit also targeted MP3tunes founder Michael Robertson, a well-known Silicon Valley visionary who previously launched MP3.com.

New York District Judge William Pauley dismissed the complaint against Robertson, if not his company, by ruling the court doesn't have jurisdiction over Robertson, who doesn't live in New York.

In a statement, Robertson says he's relieved with the court's decision and knocks EMI's litigation strategy. He says, "Suing CEOs personally is a nasty tactic media companies are engaging in to intimidate individuals, forcing them to either enter into a settlement or face the possibility of losing their homes, cars, and all their personal belongings."

What Do Federal Judges Know About Movie Marketing?

By Eriq Gardner

The super-studio struggle over the superhero film, "Watchmen," continues as federal judge Gary A. Fees considers a motion to split the case into liability and damages phases. A court date for the trial has already been set for January 6.

In the meantime, Judge Fees is giving the studios some good, free promotional value, declaring the scenes he's been shown are "hot" and saying that he liked the film's trailer "a lot."

Amazingly, Judge Fees has piped in some marketing advice to Warner Bros: "“There’s always a risk that if you get one of these very evocative trailers, you put pressure on the movie," he said at a hearing.

We assume he's warning the studio to not give "Watchmen" fans the expectation that they will be seeing an Oscar-winning film, but of course, he could mean that they shouldn't give consumers the expectation of ever seeing it. After all, in an earlier hearing, the judge declared that if Fox wins the case on its merits, “they’re going to get an injunction, in all likelihood.”

Shy Or Bold, MPAA Lawyers Attack Real Networks

By Eriq Gardner

The MPAA is suing Real Networks because it claims the company's new RealDVD software violates the Digital Millennium Copyright Act by circumventing DRM designed to prevent the ripping of DVDs onto a PC hard drive. The lawsuit comes in reaction to Real Networks' own preemptive suit against the MPAA, asking a court to rule that its software "fully complies with the DVD Copy Control Association's license agreement."

The other day, Wired reported that lawyers for the MPAA conducted a teleconference with journalists to elaborate their position. Apparently, the lawyers asked that their names not be published. What's the reason they want to remain anonymous? Some are demanding to know the answer. Here's another question: Any reason for publications to grant the anonymity request?

The MPAA has also issued a press release in which Greg Goeckner, the MPAA general counsel, says that Real's product should be called "StealDVD."

At least one MPAA lawyer isn't so shy.

Will 'Project Runway' Sashay Back to Bravo? Read the Full Injunction Decision in All Its Fabulous Detail

By Matthew Belloni

Pity the poor souls who stood within earshot of Harvey Weinstein today when he heard the news: NBC Universal convinced a New York judge to issue a preliminary injunction preventing the Weinstein Co. from taking its hit reality show "Project Runway" from NBCU-owned Bravo to Lifetime.

Here's the full 42-page decision and THR's coverage, including the usual "pleased" and "disappointed" statements from both sides.

Judge Richard Lowe III based his ruling on an unsigned 2003 license agreement between TWC and NBCU and a later amendment giving NBCU the "right of first refusal" for additional seasons of the show as well as spinoffs. Lowe takes particular notice of Weinstein's, um, unique negotiation tactics, particularly his letting NBCU's Jeff Zucker think the show was still Bravo's to lose when Lifetime had already poached the show.   

"He signed a deal with Lifetime on Feb. 2, 2008, yet led Zucker to believe that, although there were offers and negotiations, TWC had not signed a deal with another entity and that he (Weinstein) would make Zucker aware of any offers," Lowe continued. "NBCU was not notified of the Feb. 2, 2008, deal until it received a letter on April 7, 2008, from Lifetime advising it of their acquisitions of the rights to 'Project Runway.'"

Ouch. TWC claimed the deal with NBCU wasn't enforceable, an argument Lowe found "not credible:"

Tolkien Lawsuit Against New Line Lives On Without Punitive Damages

By Eriq Gardner

Mixed news for the estate of author J.R.R. Tolkien in its lawsuit against New Line over royalties from the “Lord of the Rings” films.

A Los Angeles Superior Court judge has barred the estate from seeking punitive damages on its claim that the studio failed to fork over any royalties from the estimated $6 billion it says the movie has grossed worldwide. Judge Ann Jones agreed with New Line that punitive damages can only be recovered if there's a demonstration of a "public wrong" and that in this case, the estate "is clearly seeking to vindicate private wrongs."

The estate got one victory in the judge's ruling, however, as the case was allowed to proceed on the grounds that Tolkien's heirs have established a legal basis for the fraud claim. The lawsuit takes issue with many of New Line's claimed expenses, including "advertisement" payments made to AOL (also owned by Time Warner) and money for production offices and facilities now being used for other New Line films.

With punitive damages out, the two sides will now be fighting over $150 million in claimed compensatory damages. A trial has been scheduled for October 2009.

Want To Impersonate Steven Tyler? Dream On.

By Eriq Gardner

Aerosmith frontman Steven Tyler has a message for his fans: Don't believe everything you read.

Tyler is suing the unknown people behind a couple of blogs that purport to be written by the famous singer and his girlfriend. According to the complaint filed in California Superior Court, Tyler says the blogs contain "fabricated thoughts and commentary." He alleges false statements and misappropriation of likeness.

The blogs appear to have already been taken down. This may be the second time that Tyler has dealt with these pranksters. Last year, according to the lawsuit, Tyler convinced Google to pull the plug on a blog when he discovered a similar impersonation.

TV Anchor Victim Of Colleague's Hack Seeks Civil Damages

By Eriq Gardner

Alycia Lane, Philadelphia's pinup newscast anchor, is suing her former co-anchor, Larry Mendte, and her former station, KYW-TV for invading her privacy and leaking personal information to the media.

Lane was fired from the station after she became a news item herself. Pictures of the newswoman in a bikini circulated and appeared in gossip pages. She also was accused of assaulting a NYPD officer. It was later revealed that much of the trouble was started by Larry Mendte, a former anchor of "Access Hollywood," who broke into her e-mail and leaked it to the media. The FBI investigated and last month, Mendte pleaded guilty in a criminal case.

Dan Rather & CBS -- A Tale of Dismissal, Scorn & Survival

By Eriq Gardner

What doesn't kill Dan Rather's lawsuit against CBS will only make it stronger, right?

Rather's lawsuit against CBS started out with several causes of action. From the start, CBS lectured Rather's lawyers on torts, saying they were making the wrong claims. In April, a New York judge threw out at some of the claims, including tortious interference, breach of good faith and fair dealing. Yesterday, a judge threw out the fraud claim because he didn't suffer any damages.

Nevertheless, Rather lives to fight another day because his claims of breach of contract and breach of fiduciary duty survive. The trial is set for October.

Electronic Arts Hit With First Class Action Over 'Spore'

By Eriq Gardner

Last week, we analyzed the release of the much hyped software game "Spore" and looked at the backlash over its DRM.  Well, it hasn't taken very long for the first class action lawsuit to be filed against the game's publisher, Electronic Arts.

Yesterday, Melissa Thomas filed a class action in California District Court on behalf of consumers who purchased the game. The plaintiffs claim that EA violated a California consumer protection law and a California unfair competition law by loading the game with a program called SecuROM, claimed to surupticiously install itself and become uninstallable. The program allegedly interferes with the computer operating under certain circumstances.

In other words, the legality of digital rights management is being tested.

Warners and Fox Not Close To Settlement In 'Watchmen' Standoff

By Eriq Gardner

The Warners-Fox slugfest over "Watchmen" is very hot. The two sides are on track to meet for trial in January to determine who owns the rights to distribute a film based on the cult graphic novel. The scheduled release for Warners' $100 million-plus picture comes two months later, in March, making this case resemble a high-stakes, no-limit Texas hold'em poker game.

Over the weekend, the NY Times had a good update on the case, drawing attention to film producer Lawrence Gordon’s role in the dispute, as well as previewing Warner's likely contention in court that Gordon offered “Watchmen” to every studio in town, including Fox.

It's almost unfathomable that a case like this won't be settled, but the NYT's Michael Cieply reports that both sides are entrenching, with a great deal of personal animosity towards the perceived slights from the other studio. All hell seemingly has broken loose in the discovery phase of this case:

"Warner executives, according to people briefed on the matter, have privately speculated that Fox, faced with weakening performance at the box office, was angling for a small cut of the movie — perhaps 5 percent of its gross receipts. But Fox executives, also according to people briefed on the matter, were put off by what they saw as Warners' failure to take their claims seriously, and delivered a shock by filing suit in February. As of this week the studios were jostling each other over what Fox now claims is Warners' slow and inadequate compliance with orders to supply documents and witness lists under a schedule that may well put the movie — and at least four studios — in front of jurors rather than fans."

India's Hari Puttar Triumphs Over Warners' Harry Potter

By Eriq Gardner

So much for Warner Bros.' attempt to waive its magic legal wand and make Hari Puttar go away.

The Delhi High Court has ruled that an Indian film called "Hari Puttar -- A Comedy of Terrors" doesn't infringe upon the "Harry Potter" trademark. The court says there's unlikely to be trademark confusion as Harry Potter readers are sufficiently educated to know the difference between the two franchises.

According to the lawyer representing the defendant, the court also slapped Warner Bros. on the wrist by saying it has known about the Indian film since 2005 and yet delayed its lawsuit until shortly before Hari Puttar was scheduled to be released in theaters.

Digital Entertainment Vendors Fighting ASCAP