Posts in Entertainment Law

Sinners looks to be little more than a gothic horror movie set in the John Brown South with incredible box office appeal. Its storyline, however, reflects a subtler narrative about ownership and the bold agreement involving intellectual property rights that the film’s celebrated writer-director, Ryan Coogler, was able to secure from Warner Bros, which has some studio executives running for their wooden stakes.  

The union that represents U.S. actors, journalists and other artists has filed an Unfair Labor Practices complaint against the production company for the popular interactive video game, Fortnite. The Screen Actors Guild – American Federation of Television and Radio Artists (SAG-AFTRA), filed the complaint against Llama Productions, which is wholly owned by Epic Games, Inc., charging that the game’s use of artificial intelligence (AI) to recreate the voice of deceased actor James Earl Jones as Darth Vader violated Section 8(a), subsections (1) and (5) of the National Labor Relations Act.

During the latest episode of IPWatchdog Unleashed, I speak with Josh Harlan about monetizing various investable streams of revenue in media, sports and IP, and we also make a hard pivot to then later discuss artificial intelligence and what those looking to invest in AI should be considering. We also discuss the viability of the fair use defenses that are presently being made in the ongoing lawsuits brought by copyright owners against AI developers and the likely future marketplace for monetization of training data and AI outputs. As you will hear during our conversation, Harlan sees the possibility of some pretty big damages awards on a one-time basis for content creators and their copyright lawsuits against large AI developers, but he does not see that as an existential threat to the AI industry itself.

In the latest of a slew of lawsuits by musicians against the Presidential campaign of Donald J. Trump, the White Stripes band members on Monday filed a complaint with the U.S. District Court for the Southern District of New York alleging “flagrant misappropriation” of their popular song, Seven Nation Army. Last month, White Stripes lead singer and guitarist Jack White threatened to sue the campaign over a video posted to at least Instagram and X by a staff member showing Trump boarding a plane for Michigan and Wisconsin campaign events. “Oh….Don’t even think about using my music you fascists,” said White’s post. “Law suit coming from my lawyers about this (to add to your 5 thousand others.)”

On Monday, the U.S. District Court for the Southern District of New York granted a motion to dismiss a copyright infringement suit involving a popular late-night talk show. The lawsuit, filed by former U.S. House of Representatives member George Santos, alleged that Jimmy Kimmel, the executive producer and host of Jimmy Kimmel Live!, infringed upon copyrighted material when using multiple Cameo videos made by Santos. Santos named Kimmel as a Defendant, as well as ABC, the network which runs the show, and Disney, ABC’s parent company.

The family of singer-songwriter Isaac Hayes, who died in 2008, has become the latest in a growing list of artists who have threatened to sue Donald J. Trump when it published a letter yesterday claiming unauthorized use of the song “Hold On (I’m Coming)” at Trump’s campaign rallies. Hayes co-wrote the song with David Porter and it was originally recorded in 1966 by R&B duo Sam & Dave. According to the letter, which was sent by the family’s attorney, James Walker, and which the Hayes family posted to X on August 11, the song has been used more than 100 times without authorization, adding up to a “very discounted fee” of $3 million that the family is requesting be paid for the multiple counts of copyright infringement.

Bette Midler. Vanna White. Marylin Monroe. Each of these women has undoubtedly shaped pop culture in some meaningful way. Perhaps what is lesser known is that litigation surrounding each of these women has shaped the legal world’s understanding of an individual’s right to publicity. Many states still do not formally recognize a right to publicity, while other states that do recognize such a right are not uniform. Some of these states recognize the right by statute, others by common law. Some states allow for posthumous rights to publicity, while others terminate the right at death. And some states only accord rights of protection to certain characteristics (e.g., name and image), while other states extend rights of protection to other identifiers, such as one’s voice.

Picture this: You own a women’s swimwear business. You engage your customers by curating eye-popping images on social media that exude athleticism and style. While browsing online, you find a photo posted by someone else of a woman in one of your pink swimsuits diving into a pool. You instantly know that this woman is exactly who your customers want to be! You share it on your profile with the caption, “Making waves wherever I go” and link to your swimsuit for purchase. Within hours the post racks up 50,000 likes and 2,000 swimsuit orders. But the excitement quickly wears off when you receive an email from a law firm representing the photographer, claiming you infringed her copyright.

There are many loud voices making a lot of noise about TikTok right now, and as someone who makes “noise” for a living, I thought I’d provide an independent musician’s perspective on the TikTok legislation before Congress: I hope it passes, both as an American and as a music maker. First of all, this bill restricts TikTok, it does not “ban” the app. It forces the company to cut its ties to the Chinese Communist Party and prevents them from accessing the data of Americans. That’s a good thing. The bill doesn’t mandate or regulate speech, it’s focused on national security. The threat is no secret, it’s real: the Federal Communications Commission (FCC) called TikTok “a clear and present danger” to our country.

The U.S. Supreme Court on Tuesday denied a petition asking the justices to weigh in on whether the Lanham Act prohibits “the unauthorized use of a celebrity’s persona advertising third party brands with logos in a commercial motion picture as a trademark infringement?” The case stems from a suit brought by the partner of Christopher Jones, an actor in the 1960s, who was referenced in the film Once Upon a Time . . . in Hollywood (the film), written and directed by Quentin Tarantino. Jones starred in the television series, The Legend of Jesse James, and movies including 3 in the Attic and Wild in the Streets.

Last week, the Writers Guild of America (WGA) reached a tentative three-year deal to resolve a writer’s strike following a labor dispute with the Alliance of Motion Picture and Television Producers (AMPTP). The deal was reached on September 27, 2023, after a 148-day strike, which was the second-longest in the union’s history. According to USA Today, the WGA’s leadership board has lifted the restraining order barring writers from returning to work, and its members will vote to officially ratify the agreement between October 2 and October 9. In a storyline that at one time would have been considered science fiction, a major point of contention between writers and producers was the use of artificial intelligence in the screenwriting process.

Reports of the death of the movies at the hands of IP have been greatly exaggerated. Movie ticket sales are down and may never recover from pre-pandemic highs. The actors and writers strike will not help but the scarcity of new product might. The studios are racing to screen franchise movies that put people back into theater seats. IP rights associated with franchises – Spider-Man, Iron Man, the Avengers, Indiana Jones, Star Wars, Mission Impossible – are being blamed for turning the movies into a veritable video game more focused on effects than people.

On June 6, Paramount Pictures got its tower buzzed for copyright infringement in the U.S. District Court for the Central District of California over the blockbuster film of the summer, Top Gun Maverick. According to the allegations in the complaint, in 1983, author Ahud Yonay wrote a magazine story about the real-life exploits of two naval fighter pilots entitled, “Top Guns.” Paramount allegedly secured the “exclusive motion picture rights to Ehud Yonay’s copyrighted story” and in 1986 released the motion picture Top Gun. Fast forward a few decades. In 2018, Yonay’s heirs (Plaintiffs in this action who are both Israeli citizens) allegedly served Paramount with a notice “terminating” the original assignment of the motion picture rights to Paramount. Paramount apparently took the position that the purported termination was ineffective and, over the Memorial Day weekend, launched Top Gun Maverick to critical acclaim at the box office (and to the delight of millions of fans of the original 1980s classic).

On April 6, the UK High Court issued a judgment of non-infringement in favor of artist Ed Sheeran over his 2017 song, “Shape of You.” The court held that Sheeran did not copy a part of Defendant Sami Chokri’s 2015 song called “Oh Why.” The ruling came nearly four years after co-writers Chokri and Ross O’Donoghue (collectively, Defendants) first accused Sheeran and his co-writers, Snow Patrol’s John McDaid and producer Steven McCutcheon (collectively, Plaintiffs) of deliberately and consciously copying from a part of “Oh Why.” Alternatively, the Defendants contended that he did so subconsciously.