What The Romantics Don't Like About 'Guitar Hero' Version of Hit Song

Posted by Matthew Heller

Can a band that licenses a song be sued for making a cover version sound too much like the original? That's the core issued raised in an unusual publicity rights suit filed in Detroit by '80s rockers the Romantics over the alleged misuse of their hit "What I Like About You."

The song is included on "Guitar Hero Encore, Rocks the 80s," one of a series of interactive (and hugely popular) video games that tests the ability of the user to press buttons on a simulated guitar in time with the buttons that appear on the video monitor. "Guitar Hero" publisher Activision licenses rights to songs and then has WaveGroup Sound, a collective of musicians, record cover versions of them.

But according to the Romantics' complaint, the cover of "What I Like About You" is so slavishly faithful to the original that it amounts to "intentional misappropriation of Plaintiffs' identity and persona and imitation of their distinctive sound." In a motion for a preliminary injunction, the band says the well-known 9th Circuit cases involving singers Tom Waits and Bette Midler have clearly established that sound-alike recordings "cannot be used for commercial gain."

The case could be one of first impression in the 6th Circuit. Intellectual property experts suggest the issue may be preemption -- if the sound-alike recording is OK under Federal copyright law, it could preempt any state-law publicity claims.

Says copyright expert, Google senior copyright counsel and former professor William Patry on his copyright blog:

I think there is an excellent preemption argument based on section 114 [of the Copyright Act]: it is true that section doesn't create an express right to make sound alikes -- it instead says the copyright owners can't stop sound alikes. But the federal policy of permitting sound alikes is the same regardless of how the section is phrased.

In the Waits and Midler cases, moreover, the defendants were accused of making sound-alike recordings for use in TV commercials rather than in cover versions.

Producer's Involvement with Hockey Club Gets Whistled

Posted by Eriq Gardner

We've always been surprised how popular hockey is with Hollywood types. Tom Cruise supposedly has a game. Jerry Bruckheimer hosts an annual charity match. "24" and "Captivity" star Elisha Cuthbert even blogs about it.

Now Oren Koules, a producer best known for the "Saw" horror film series, is being sued by a Florida-based coalition of venture investors, for interfering with a deal to purchase the Tampa Bay Lightning hockey club. According to the complaint filed in Florida District Court by Thomas Scarritt, Jr. of the Scarritt Law Group, Koules became interested in joining the effort to purchase the Lightning and signed a Non-Circumvention and Non-Disclosure Agreement with VCGroup.

The agreement gave him access to supposedly confidential infromation associated with the transaction. Absolute Hockey Enterprises, a successor to VCGroup, entered into a preliminary agreement to buy the team in early August, but before the deal was fully executed, Koules allegedly contacted the sellers and urged them not to consumate the deal. In hockey, that kind of interference gets two minutes in the penalty box, but this time, the plantiffs want the Florida Court to impose damages in excess of $50 million.

Model Sues NY Post for Unflattering Profile

Posted by Eriq Gardner

A new $100 million lawsuit against the New York Post has gossip hounds in a tizzy. (1, 2, 3...) Model Maximila Cordero is suing the paper for libel and invasion of privacy, alleging a "second rape" after the Post's gossip section ran an unflattering item on Cordero when she sued financier Jeffrey Epstein for sexual abuse.

Among other details, the paper said that Cordero was in fact a male. But that's not why Cordero is suing. According to the complaint, the paper cited publicist Howard Rubenstein "to paint an outrageous, false, and defamatory portrait of the victim plaintiff and her attorney as 'money-seeking lawyers and their women'. The Post allegedly did not tell readers that Rubenstein worked for the paper and gave the impression that he was only employed by Epstein.

The defendants "intentionally quoted phony websites from their own subsidiary company MySpace (the Post is also owned by Rupert Murdoch's News Corp.), wrongfully attributed sexually perverted quotes to plaintiff, distorted plaintiff's background, went to plaintiff's father, brother, and other relatives and wrongfully told them the plaintiff suffered from a sexually transmitted disease ..."

These words from the complaint and much much more (which can be  seen here) are all underlined for emphasis. No one can accuse Cordero's lawyer and ex-boyfriend, William Unroch, of having great aesthetic sense. Here's his blog.

Judge Tosses Perez Hilton's Suit Against X17 Photo Agency

Posted by Matthew Heller

California judges rarely sustain initial attempts to dismiss lawsuits without giving plaintiffs a chance to amend and try again. But celebrity gossip blogger Perez Hilton suffered that fate last week in an unfair competition case he filed against paparazzi photo agency X17.

Los Angeles Superior Court Judge Teresa Sanchez-Gordon ruled that Hilton does not have standing to allege X17 uses unlawful labor practices -- such as classifying its photographers as independent contractors -- to gain an advantage over other agencies. "We’re pleased that the court recognized the complete lack of merit in his claims and completely disposed of the case," XI7's attorneys at Turner Green Afrasiabi & Arledge in Costa Mesa, Calif., said in a press release. "Now we look forward to a day in the near future when Hilton will have to answer to a jury for his unauthorized use of X17’s copyrighted images."

X17 is suing Hilton, aka Mario Lavendeira, in Federal court for illegally posting dozens of its copyrighted images on his popular PerezHilton.com website.

Hilton's attorney Bryan Freedman of Freedman & Taitleman in Century City, disagrees with the decision. He says the judge relied on an "out of date" court declaration in which Hilton said his website does not compete with X17. The agency now publishes blog-style postings complete with celebrity photos on its website and, Freedman contends, the judge should have allowed Hilton to amend his complaint to reflect that new evidence.

"There's no question this will be overturned [on appeal]," he said in a phone interview. "To sustain an initial demurrer without leave to amend is almost unheard of."

As for the copyright infringement suit, Freedman is planning to file a motion for summary dismissal in the next few weeks based on the theory that X17 does not own valid copyrights on the images Hilton allegedly ripped off.

Producers Staging a Lawsuit to Reopen the Curtain

Posted by Eriq Gardner

The strike that has shut down many popular theatrical productions in New York is getting ugly. Late Tuesday, producers of nine popular shows filed a $35 million lawsuit in Manhattan Federal Court against members of Local One of the International Alliance of Theatrical Stage Employees and its president James Claffey Jr.

Meanwhile, State Court Justice Helen Freedman took pity on the producer of "Dr. Seuss' How the Grinch Stole Christmas! The Musical," ordering an injunction to reopen the show. ""The interests of the public are overwhelming," said Freedman.

2nd Circuit Cases May Boost "Potter" Copyright Suit

Posted by Matthew Heller

Can "Harry Potter" author J.K. Rowling stop publication of an unofficial encyclopedia devoted to the world's most popular young wizard? Salon.com staffer Farhad Manjoo suggests Rowling could rely on two 2nd Circuit precedents involving the TV shows "Twin Peaks" and "Seinfeld" in her copyright battle against the RDR Books, which wants to publish "Harry Potter Lexicon," a treasure trove of all things Potter.

As we previously posted (here and here), Rowling and Warner Bros., which distributes the movie versions of the Potter books, are trying to block publication of the book. RDR has said in response to the suit that it will invoke the "well established doctrine of 'fair use'" in its defense.

According to Manjoo's blog post, the precedents of Twin Peaks Productions v. Publications International, 996 F.2d 1366 (1993), and Castle Rock Entertainment v. Carol Publishing Group, 150 F.3d 192 (1998), "argue in [Rowling's] favor." In those cases, the 2nd Circuit found the fair use defense did not apply to an unofficial "Twin Peaks" episode guide and a "Seinfeld" trivia book. But as Manjoo also notes, "Those precedents have been criticized by other judges, however, and experts have questioned whether they'll stand up to further review."

Indeed, no less an authority than 7th Circuit Judge Richard Posner took issue with Castle Rock in a copyright case brought by the manufacturer of Beanie Babies. The 2nd Circuit's holding, he said in Ty, Inc. v Publications International, 292 F.3d 512 (2002),

seems to rest in part, and very dubiously we must say, on the court's judgment that the book was frivolous ... [T]he fair-use doctrine is not intended to set up the courts as judges of the quality of expressive works. See Campbell v. Acuff-Rose Music, Inc., supra, 510 U.S. at 582-83. That would be an unreasonable burden to place on judges, as well as raising a First Amendment question.

Gamers Sue Microsoft, Claim 'Halo 3' Crashed Their Xboxes

Posted by Eriq Gardner

"Halo 3" made Microsoft $170 million in the first 24 hours of release, or as CNet put it, "the biggest day in entertainment history." But some gamers aren't happy. A class action has been filed against Microsoft and subsidiary Bungee Studios because, as the complaint says, "The Halo 3 video game has caused their Xbox video game consoles to crash and remain totally inoperable after playing the Halo 3 video game."

Microsoft released the game after testing it in one of the most advanced game-testing facilities ever built.

The complaint, filed yesterday in the Southern District of California by Todd Carpenter at Bonnett Fairbourn Friedman & Balint, cites complaints on websites, weblogs, and message boards and says Microsoft has yet to acknowledge the severity of the problem.

Copyright Alliance's Candidate Quiz Not Quite As Tough As Bar Exam

Posted by Eriq Gardner

Today's THR reports that the Copyright Alliance (which includes the major studios and record labels) is sending the presidential candidates a five-question quiz in an effort to introduce copyright issues as a hot-botton political issue. Something tells us that neither the candidate who practiced intellectual property at her law firm (Clinton), the one who was president of the Harvard Law Review (Obama), nor the guy who took down mobsters as a big city prosecutor (Giuliani) will need to sweat this simple test. The open-ended queries are in this questionnaire and ask the candidates to address: 

• the principle of copyright,
• the application of copyright law to the digital world,
• enforcement of copyright law,
• use of trade agreements to ensure a level playing field for U.S. industry worldwide, and
• free expression.

Doesn't the Copyright Alliance know that multiple choice is the way to go? We came up with our own quiz question for the candidates:

The Office of the U.S. President can best protect intellectual property by:

(a) suing any developing democracy in the Middle East for patent infringement.
(b) declaring “the war on terror” and “islamofascism” are trademarked phrases that Fox News can no longer use.
(c) using the Mickey Mouse Protection Act to remind the world about the true value of the U.S. dollar.
(d) licensing the remake rights to "Weird Science" to promote stem-cell research.

The Bonds Indictment: Another View

Posted by Eriq Gardner

Not everyone buys the government's case against Barry Bonds. Playboy contributing editor Jonathan Littman says he met with three lawmen who worked on the BALCO case who are "outraged by what they saw as gross breaches of standard investigative procedures" by Jeff Novitzky, the lead investigator.

Littman says he expects Bonds' defense attorney Michael Rains, a former cop, to slug the heck out of Novitzky's credibility in court and that the case may fail due to Novitzky's "classic rookie blunder—stepping on his fellow cops and the law."

New Line Attempts to Curtail 'Compass' Cannibal

Posted by Eriq Gardner

Studios don't usually like to talk about all the money they've thrown at a big project. Unless someone comes along and tries to piggy-back on their marketing efforts. Then, they will happily dish about the millions they've sunk into perfecting everything down to the unique "m" in the film's logo.

On the verge of releasing one of its most expensive movies since "Lord of the Rings," New Line Cinema has filed a $10 million lawsuit in New York District Court claiming that Koch Entertainment's upcoming video release, "Beyond the Golden Compass," is unlawfully trying to capitalize on the December 5 theatrical release of "Golden Compass," a potential franchise starter featuring Nicole Kidman and Daniel Craig, which the company says it paid $180 million to produce.

According to this complaint, which alleges copyright infringement, false advertising, and unfair competition, Koch is producing, marketing, and distributing "Beyond the Golden Compass" in a "cynical and transparent effort to unfairly compete with and capitalize on the massive publicity and promotional effort attendant to the upcoming release of the Plaintiffs' Film, and in complete disregard of Plaintiffs' exclusive rights in the underlying material."

Conveniently-timed direct-to-video releases that sound eerily similar to big studio films and feed on the same marketing hype are a grand tradition in the entertainment industry. Take film studio The Asylum's oeuvre, which includes such gems as "Transmorphers," "Snakes on a Train," and "The Da Vinci Treasure." Mostly, this market has been given a free pass from copyright and trademark troubles.

Not this week. New Line licensed Philip Pullman's hugely successful trilogy of novels, "His Dark Materials," hoping to have another "Lord of the Rings" this holiday season.

And Koch, the defendant, is no back-alley knockoff artist. It's one of the largest independent distributors of film, music, and television with yearly revenues close to $200 million and ties to Universal Music Group's European division. According to the complaint, filed by Tom Ferber and Mark Tamoshunas at Pryor Cashman in New York, Koch not only took the New Line film's name, but also marketed its movie to include "re-enactments" of characters, scenes, and other elements from the Pullman book.

Oh yeah, it allegedly took that stylized "m" too.