Entertainment Law

-Kathy Recchiuti

This isn’t Entertainment related but it is worth the read.  Plus, supporting my colleague is always a good thing.

State v. Tyrell on the Defense Zzone with Lia Fazzone

I have to thank my student Jeniffer for bringing this to my attention. I have to admit, that I’ve actually seen stranger things happen in New York. And in this instance, I don’t know which is stranger, the Naked Cowboy or the lawsuit he has filed against Mars, Inc. for “trademark infringement under the Lanham Act and violation of his right of publicity under New York Civil Rights Law §51, arising from a video billboard for M&Ms.”

According to CNN, to lay a little ground work,

For the past 10 years, [the Naked Cowboy has been] the guy you’ve seen on the sidewalk, with the great body, strumming his guitar and singing, dressed in a cowboy hat, cowboy boots and underwear — and nothing else, even in the dead of winter. (Source)

A recent video ad produced by M&M, Mars, Inc. “depicts an M&M frolicking around New York, in what kind of looks like Times Square, in what kind of looks like The Naked Cowboy’s outfit — briefs and nothing more than a smile.”

Now, I don’t pretend to know (or even understand) trademark law in any great detail. I leave that to lawyers like my good friend Randazza to comment on. But, the limited amount of information I know, I have to agree with CNN that the guy might have a case.

According to the Naked Cowboy Complaint,

Burck has licensed The Naked Cowboy name and/or likeness to companies for the purposes of advertising and endorsement. Mars, Inc., had no immediate comment.

His character is part of the USA Network’s “Characters Welcome” campaign; he appeared in a music video for the song “Rockstar” by the multiplatinum artist Nickelback; and he’s featured singing in the video game “True Crime: New York City at Times Square.”

He also has appeared in several movies and television programs, including “Starship Dave,” “Survive This,” “Mulva: Zombie A** Kicker,” “Steve Harvey’s Big Time,” “New York Minute,” “Creature Feature,” “Lonely Planet,” “Troma’s Edge,” “American Icon” and “The Howard Stern Show.”

Well, as always, I will strive to keep you informed as to the developments of this case.

Yee haw!

Uh oh! Here we go again. Another group of people suing the movies for falsely depicting them in a movie. This has happened before, many times and to no avail. (See Another Borat Lawsuit). According to the Associated Press, a group of retired federal drug enforcement agents sued NBC Universal on Wednesday, saying the movie “American Gangster” falsely portrayed them as villains in the story of a Harlem heroin trafficker.But, is this case different than the others?

The suit, filed in federal court in Manhattan, claims that the movie defamed hundreds of DEA agents and New York City police officers by claiming at the end that Frank Lucas’ collaboration with prosecutors “led to the convictions of three-quarters of New York City’s Drug Enforcement Agency.” (Source)

Is this just another case of Hollywood distorting reality? New York City Police Department spokesman Paul Browne thinks it is. However, according to NBC Universal Senior Vice President David Burg, the film is a “fictionalized work.”

According to the Complaint

The defamation involved the defendant NBC Universal, through its Universal Studios, falsely communicating, in writing, to millions of people in a motion picture called American Gangster that three quarters of New York City’s DEA, from approximately 1973 through approximately 1985, were convicted criminals. With this utterly false and defamatory statement the defendant has ruined and impugned the reputations of these honest and courageous public servants in the eyes of millions of people who have already been exposed to this defamation and damaged them in their current trades and professions, and, if not stopped by an injunction, will further ruin and impugn their reputations in the eyes of millions more who are about to be exposed to the defamation, and will further damage them in their current trades and professions.

The Complaint seeks relief for the following:

a. Ordering a preliminary and permanent injunction enjoining and estraining defendant, and all its officers and agents, servants, and employees, and all those persons in active concert or articipation with them form directly or indirectly using, distributing or showing American Gangster to anyone else with the false legend;

b. Ordering the defendant to recall each copy of American Gangster that contains the false legend;

c. Ordering that defendant immediately deliver up all signs, prints, packages, and advertisements in its possession or under its control bearing the false legend;

d. Ordering restitution of all moneys obtained directly or indirectly by defendant by means of this improper conduct;

e. Ordering defendant to disgorge all its profits from American Gangster;

f. Ordering defendant to publish in the same media outlets in which it defamed Plaintiffs and the Plaintiff Class the truth about the New York City DEA’s role in the investigation, arrest
and prosecution of Frank Lucas;

g. With respect to each cause of action awarding compensatory damages in an amount to be determined at trial, but at least in an amount of $5,000,000 exclusive of interests and costs;

h. With respect to the first and second cause of action awarding punitive damages of $50,000.000;

i. Awarding prejudgment interest pursuant to Title 28, USC Section 1961(a);

j. Awarding costs and attorneys’ fees in an amount to be determined at trial;

If you’re interested, here’s the American Gangster Complaint.

I have to thank the Rocky Mountain News for this political cartoon about the writer’s strike.

WGA Comic

If you’ve ever watched the Hannah Montana television show on Disney, you know that theme song. Unfortunately, the Hannah Montana actress, Miley Cyrus, is getting a dose of stardom the hard way — via the legal system. The Associated Press is reporting that

Thousands of “Hannah Montana” fans who couldn’t get concert tickets are suing the teen performer’s fan club over memberships they claim were supposed to give them priority for seats.

You can read the full AP Article here.

The lawsuit was filed on behalf of a New Jersey woman[, obviously a parent,] and anyone else who joined the Miley Cyrus Fan Club based on its promise that joining would make it easier to get concert tickets from the teen star’s Web site.

Wait! Let me guess, uh … they weren’t able to get tickets? Imagine that? The law suit claims that the fan site, operated by Interactive Media Marketing Inc. and Smiley Miley Inc., ” … deceptively lured thousands of individual into purchasing memberships into the Miley Cyrus Fan Club …”

Well, that could create some problems … if it’s true. Apparently, thousands of people joined the club based on the understanding that by joining they would be able to purchase Hannah Montana concert tickets before they were offered for sale to the general public.

Well, as a lawyer, I can see both sides of this argument. The disgruntled fans are going to claim they were either misled or detrimentally relied on the representations of the fan site and paid their $29.95 for a membership and the “possibility” of tickets. And, I can see the other side, that there was no promise of tickets, merely an opportunity to buy them before they went on sale to the public. Assuming that happened at all. But, there was never a “promise of tickets” to anyone. Well, the complaint is asking for three times the damages. For each individual plaintiff in the lawsuit, that’s $90.00. Multiply that by some factor of disgruntled fans who actually wanted tickets and you might get a hefty recovery … for the lawyers. The fan still only gets her $90.00.

By Michelle Hahn

I found this article this weekend. Since the topic was brought up in class on Thursday, I thought that it would be appropriate to send it to you.

According to a recent 9 News story (read it here) the studios would rather shut down than payout to the guild. Being how this happened in 1988 and cost the studio 500 million, you would think that the studios would rather pay up then risk losing more in the long run than in the short with negotiations. But if the State of Colorado could benefit from the revenue that the strike brings, I say bring in the revenue, Go on Strike! This could potentially be a big move for the company’s here in Colorado. If this could bring more movies to colorado and allow for bigger budgets outside of Hollywood, then I’m all for the Guild going on strike. The thing that worries me though is, where does the money come from if the Guild does strike? Does this mean that the revenue that flows into Colorado, is also detrimental?

The Randazza vs. Contiguglia / Red Sox vs. Rockies bet is on!

Randazza threw down the gauntlet first.

Contiguglia picked it right back up and threw it back, upping the ante!

Here is the bet, as agreed to by both parties.

If the Red Sox win the Series:

1. Randazza will mail Contiguglia a Red Sox T-Shirt
2. Contiguglia will wear said T-Shirt for an entire day
3. This day must be a day when he is teaching one of his classes
4. Contiguglia must take a photo of himself wearing said T-Shirt in front of his entire class
5. Contiguglia must post the photo on his blog accompanied by the headline “Red Sox Rule!”
6. Contiguglia will provide Randazza with a Steak Dinner

If the Rockies win the Series:

1. Contiguglia will mail Randazza a Colorado Rockies T-Shirt
2. Randazza will wear said T-Shirt for an entire day
3. This day must be a day when he is teaching one of his classes
4. Randazza must take a photo of himself wearing said T-Shirt in front of his entire class
5. Randazza must post the photo on his blog accompanied by the headline “Rockies Rule!”
6. Randazza will provide Contiguglia with a Lobster Dinner

Upon this bet, the parties hereby affix their electronic signatures.

/s/ Marc J. Randazza

/s/ Andrew J. Contiguglia

I will admit that I am a Yankees fan first and foremost. But the Yanks aren’t in the series this year, and I will also willingly admit that I am definitely a fair weather fan when it comes to most sports. Especially baseball. I really don’t even pay attention to the Yanks until post season, and I definitely didn’t pay attention to the Rockies until this current post season. But, you can put me in the group of all the other Coloradans who jumped on the Rocktober bandwagon. And in any event, whether it’d be the Yanks or the Rox no Red Sox fan will like you if you are playing them in the post season, especially the World Series.

Enter Marc Randazza…

As you all know, Randazza and I are fellow lawyers and both members of FALA. We kid around and bust each other like little kids. And, now that his team (the Red Sux)* are playing my team (the ROCKIES) he has challenged me to a bet. The details of his bet are on his blog here.

Well, since he has called me out, I have no choice but to accept his challenge. But, I will add one more element to it. In addition to his conditions:

If the Sux* win, I will send Randazza 10 lbs of Colorado beef which he can enjoy… yummy!!!

If the Rox win, he will send me 10 lbs of that wonderful lobster his Uncle catches in Gloucester Bay in Marc’s home town of Gloucester, MA … also very yummy!!

Ok, so the gauntlet has been picked up and tossed back.

* not a typo.

Project Safe Childhood, is a nationwide initiative designed to protect children from online exploitation and abuse. The project uses federal, state and local resources to locate and prosecute individuals who exploit children through the Internet. (Source).

According to Grant Gross’ IDG News Service article, a U.S. motivational speaker who took his laptop computer to a Best Buy store for service has been sentenced to 11 years and three months in prison for transporting child pornography, the U.S. Department of Justice announced Wednesday. (Source)

According to the Department of Justice,

Fortino frequently traveled across the country as a self-employed author, speaker and media personality, often bringing his laptop with him. He took his laptop to a Fayetteville, Arkansas, Best Buy Co. store in November 2005 after he found that it was not working properly.

According to the article,

Best Buy computer technicians discovered several images of what they believed to be child pornography and alerted local police. A forensic review of Fortino’s computer by the Fayetteville Police Department found that he had visited Web sites containing child pornography on multiple occasions and often saved images from those sites to his computer, the DOJ said. Police found hundreds of child pornography images on the laptop, as well as several video files from a hidden video camera Fortino had placed in a bedroom on his personal boat, the DOJ said.

Now I don’t have an issue with this defendant pleading guilty to the charges and being sentenced to 11 years in prison for his crime. That doesn’t disturb me a bit. I am all for protecting children and the prosecution of those who knowingly and/or intentionally seek, view, display, disseminate or create such materials.

The issue I have is with the Best Buy Geek Squad searching this man’s computer. Who else’s computers have been searched without the owners knowing? If we deputize local computer repair guys as government agents to search through people’s files, what does that mean? Doesn’t that make them government actors, especially if they are working in coordination with local and national law enforcement as informants in “Project Safe Childhood”? If that’s the case, and these people are agents of law enforcement, where’s the probable cause for the search?

Now, it seems from the evidence and information presented in the article that Fortino knew and intended to do what he did. But, in this day and age where so much information flies though the internet any bit of unsolicited, and illegal information, could end up on one’s computer. Any one of us could wind up in this same position if a computer repair geek guesses wrong about the age of a model on one of our hard drives. Even more so, deputizing the repair guy to be extra eyes and ears of the government could spill over into obscenity prosecutions, or even anti government info? This form of enforcement is not limited to investigations of child pornography and it flies in the face of the 4th Amendment. Where does it end?