Friday, December 31, 2010
California's "malicious impersonation" law takes effect tomorrow. Penal Code section 528.5 reads as follows:
§ 528.5. Impersonation through Internet Web site or by other electronic means proscribed; Punishment
(a) Notwithstanding any other provision of law, any person who knowingly and without consent credibly impersonates another actual person through or on an Internet Web site or by other electronic means for purposes of harming, intimidating, threatening, or defrauding another person is guilty of a public offense punishable pursuant to subdivision (d).
(b) For purposes of this section, an impersonation is credible if another person would reasonably believe, or did reasonably believe, that the defendant was or is the person who was impersonated.
(c) For purposes of this section, "electronic means" shall include opening an e-mail account or an account or profile on a social networking Internet Web site in another person's name.
(d) A violation of subdivision (a) is punishable by a fine not exceeding one thousand dollars ($1,000), or by imprisonment in a county jail not exceeding one year, or by both that fine and imprisonment.
(e) In addition to any other civil remedy available, a person who suffers damage or loss by reason of a violation of subdivision (a) may bring a civil action against the violator for compensatory damages and injunctive relief or other equitable relief pursuant to paragraphs (1), (2), (4), and (5) of subdivision (e) and subdivision (g) of Section 502.
(f) This section shall not preclude prosecution under any other law.
Cleveland judge Shirley Saffold and her daughter have dropped a lawsuit against the Cleveland Plain Dealer over anonymous comments posted to an account used by the Saffolds. The Saffolds also reached a financial settlement with another defendant. Judge Saffold was assigned the case of Anthony Sowell, the defendant in the Cleveland serial killer case. More here from the Cleveland Plain Dealer.
Check out www.signspotting.com, a destination website for photographs of signs that tell us what to do, what not to do, what's interesting to do, where things are, what things are where, and generally, other pertinent information, but sometimes not quite as clearly as they might.
"Signs, Signs/Everywhere there's signs/Blocking up the scenery,breaking my mind/Do this, don't do that/Can't you read the sign?"
--Five Man Electrical Band (song by band member Les Emmerson)
Thursday, December 30, 2010
The AP and the Hollywood Reporter report that Aron Abrams, who has been associated with such shows as King of the Hill, Everybody Hates Chris, Grounded for Life, and 3d Rock from the Sun, has been found dead in his room at the Fairmon Orchid Hawaii Hotel. Police are investigating the cause of death. More here from the Hawaii Tribune-Herald.
From the Wall Street Journal via The Hollywood Reporter, the Sinclair Broadcast Group and Time Warner Cable may end the year without resolving their dispute over fees, which would leave viewers in various markets across the U.S. without favorite shows at midnight on December 31st. More here.
Tuesday, December 28, 2010
By a vote of 5-2, the Ohio Supreme Court has upheld a state law that taxes satellite providers but exempts cable providers, assessing a 5.5 percent sales tax on direct tv companies. In the opinion handed down yesterday in DirecTv v. Levin, the Court held that the Commerce Clause "protects the interstate market, not particular interstate firms or particular structures or methods of operation in a retail market." The decision is likely to be appealed to the U.S. Supreme Court. More here from the Ohio Supreme Court website.
Monday, December 27, 2010
Singer Teena Marie (born Mary Christine Brockert) has died, apparently of natural causes, in Los Angeles at the age of 54. To rhythm and blues devotees, Ms. Marie was known for her numerous hits, but to entertainment lawyers and law students she is one of the parties in the precedent-setting Motown v. Brockert (160 Cal.App.3d 124).
Asked the court,
[D]oes an option guarantee $6,000 a year at some time in the future satisfy the statutory requirement of "a contract in writing ... where the minimum compensation ... is at a rate of not less than six thousand dollars per annum ...."
One of Teena Marie's songs is entitled "Don't Turn Your Back On Me." Here, it could be said, we answer her plea.
IV. A Clause in a Personal Services Contract Giving the Employer the Option to Pay the Employee at Least $6,000 a Year Does Not Satisfy the Minimum Compensation Requirement for Injunctive Relief.
(A) From the statutory language it appears the Legislature was referring to contracts which guarantee the performer a minimum of $6,000 per year from the outset.
 The availability of injunctive relief from breach of contract is limited by section 3423, subdivision Fifth, to "a contract in writing for the rendition ... of personal services ... where the minimum compensation for such service is at the rate of not less than six thousand dollars per annum." (Italics added.) The most reasonable, common sense reading of this language is that "minimum compensation for such service" refers back to the "contract in writing for ... personal services." To be subject to specific enforcement, the contract must have as one of its terms a compensation provision providing for payment at the minimum rate of $6,000 per year. In other words, agreeing to payment of the minimum compensation is not a condition precedent to the granting of injunctive relief; it is a threshold requirement for admission of the contract into the class of contracts subject to injunctive relief under the statute. fn. 7
This reading of the statute is implicit in the Foxx and MCA decisions. In Foxx the court found the contract did not meet the minimum compensation requirement of section 3423 even though the potential for earning $6,000 a year or more existed under the contract. (244 Cal.App.2d at pp. 231, 236.) Similarly, under the option clause, the artist has merely the potential of earning $6,000 a year; there is no guarantee this compensation will ever be paid. Distinguishing Foxx, the court in MCA observed, "Unlike [Olivia [160 Cal.App.3d 136] Newton-John], who is guaranteed minimum annual compensation of $200,000 in the form of nonreturnable advances in addition to any royalties she may receive, Foxx' sole compensation was in the form of royalties contingent upon prospective sales which could amount to nothing." (90 Cal.App.3d at pp. 22-23.) We believe the option clause is analogous to the contingent payment rejected in Foxx. It is nothing more than a new arrangement of an old song.
(B) The option clause would defeat the legislative intent to limit injunctive relief to contracts where not only the services are special or unique but the performer herself is a person of distinction in her field at the time of entering the contract.
The language of section 3423 and the Fifth subdivision in particular is clearly language of limitation. (Poultry Producers etc. v. Barlow, supra, 189 Cal. at p. 288; Lemat Corp v. Barry, supra, 275 Cal.App.2d 671, 678.) It will be remembered subdivision 5 as originally drafted would have excepted from the prohibition against injunctive relief any personal services contract. (See Discussion, ante, at p. 130.) The bill was amended to add the stipulation the contract must provide for minimum compensation at the rate of $6,000 per year.
While the legislative history does not explicitly state the intent of the minimum compensation amendment it is reasonable to believe Senator Lyon, who introduced the bill, and Senator Chamberlin who proposed the minimum compensation amendment, both members of the Judiciary Committee, fn. 8 were familiar with Lumley v. Wagner, Anderson v. Neal Institutes Co. as well as other leading cases on the subject and that the amendment was intended to incorporate the policies reflected in those decisions.
We begin our review with Lumley itself, Johanna Wagner was not an unknown member of a chorus line at the time her case arose. She was one of Europe's best known opera singers, niece of Richard Wagner and "cantatrice of the Court of His Majesty the King of Prussia." (Light, supra, at p. 144; 23 Encyclopedia Britannica (1942) at p. 278; Lumley v. Wagner, supra, 42 Eng. Rep. at p. 687.) Her contract with Lumley called for her to perform at Her Majesty's Theatre in London twice a week for three months at the rate of 100 pounds per week; (id, at p. 688) a significant sum considering the wage of a unionized bricklayer in London at the same time was less than two pounds per week. (23 Encyclopedia Britannica, supra, at p. 270.) [160 Cal.App.3d 137]
It was not uncommon for courts of that time to distinguish Lumley v. Wagner on the ground that there the services of an exceptional artist and a considerable sum were involved. Among the best known of these cases are Whitwood Chem. Co. v. Hardman, supra, 2 Ch. 416, fn. 9 Arthur v. Oakes (7th Cir. 1894) 63 F. 310 fn. 10 and Dockstader v. Reed (1907) 121 App.Div. 846 [106 N.Y.S. 795]. fn. 11 Thus, at the time section 3423 was amended there was a discernible trend toward enforcing negative covenants against the "prima donnas" but not the "spear carriers." (See Carter v. Ferguson (1890) 58 Hun. 569 [12 N.Y.S. 580, 581]; and see generally, 11 Williston on Contracts, supra, ? 1450, pp. 1042-1043; 5A Corbin on Contracts, supra, ? 1209, p. 417; 4 Pomeroy, Equity Jurisprudence (5th ed. 1941) ? 1343, p. 943.)
Aside from the Lumley line of cases there is an even older judicial tradition which helps to explain why the California Legislature sought to limit injunctive relief to performers of star quality.  A fundamental reason why courts will not order specific performance of personal services contracts is because such an order would impose on the courts a difficult job of enforcement and of passing judgment upon the quality of performance. (See 11 Williston on Contracts, supra, ? 1423, pp. 782-783; 5A Corbin on Contracts, supra, ? 1204, p. 400; Poultry Producers etc. v. Barlow, supra, 189 Cal. 278, 288-289; Light, supra, at p. 143.) As Corbin observes in his treatise, "An artist does not work well under compulsion, and the court might find it difficult to pass judgment upon the performance rendered." (5A Corbin, supra, ? 1204, p. 400.)
As the court in Lumley candidly admitted, it had no power to compel Madame Wagner to sing at Lumley's theatre but the injunction prohibiting her from performing elsewhere might well accomplish the same result. (42 Eng. Rep. at p. 693.) Thus there is a danger an artist prohibited from performing elsewhere may feel compelled to perform under the contract and, under the stress of the situation, turn in an unsatisfactory performance. This [160 Cal.App.3d 138] would lead to further litigation between the parties on the adequacy of the artist's performance; the very thing the courts traditionally sought to avoid. (See, e.g., Bethlehem Engineering Export Co. v. Christie (2d Cir. 1939) 105 F.2d 933, 935 [125 A.L.R. 1441] (Hand, J.).) There is less likelihood of this conundrum arising if the performer is of great renown. Such a performer may well choose not to perform rather than risk her reputation by delivering a sub-par performance. fn. 12 (See Clark, supra, at pp. 690, fn. 11.)
In 1919 the sum of $6,000 a year was more than five times the average national wage of $1,142. (Historical Statistics of the United States (1976) at p. 164, Table: Average Annual Earnings of Employees: 1900 to 1970.) This is equivalent to setting the minimum compensation figure at $100,000 today. (Based on the 1982 median income level of $20,171. See Statistical Abstract of the United States (1984) at p. 459, Table 754.) By selecting such a large sum, the Legislature indicated an intent injunctive relief not be available against a performer, however capable, who had not yet achieved distinction. The fact the bill was further amended to provide the services must be special is a further indication the Legislature intended the statute to apply only to persons who had attained "star quality" no matter how special their services might be.
Without doubt the passage of time has diluted the effect of this legislative intent but the option clauses before us would totally wash it away. It would allow a record company to bind the entire student body of "Rydell High" to personal services contracts (and pay them nothing) on the off-chance one of them turns out to be Olivia Newton-John.
It is no answer to say that by the time Motown and Jobete sought injunctive relief to enforce the exclusivity clauses Teena Marie had become a star. Motown and Jobete did not contract with a star. By their own admission they contracted with a "virtual unknown." Nothing in section 3423 prevents the companies from seeking damages from Teena Marie for breach of the exclusivity clause. fn. 13 That section merely says for reasons of public policy the exclusivity clause of a contract can only be enforced by injunction when the contract is with a performer of requisite distinction as measured by the compensation the employer is willing to pay. fn. 14 Moreover, as we explain [160 Cal.App.3d 139] below, allowing the companies, once they judge the artist to have achieved star quality, to enforce the exclusivity clause by injunction would violate the concept of fundamental fairness which is also embodied in section 3423.
[1c] (C) The option clause violates the concept of fundamental fairness embodied in Civil Code section 3423.
We agree with the court in Foxx, supra that the $6,000 minimum compensation requirement was intended to balance the equities between employer and performer. (244 Cal.App.2d at p. 236.)  This is quite clear when section 3423 is read in connection with Civil Code section 3391, subdivision 2, which provides specific performance cannot be enforced against a party as to whom the contract is not "just and reasonable." Taken together those sections demand a minimum standard of fairness as a condition on equitable enforcement of an exclusivity clause in a personal services contract. (See Light, supra, at p. 153.)
"As one grows more experienced and skillful there should be a reasonable opportunity to move upward and to employ his abilities to the best advantage and for the highest obtainable compensation." (De Haviland v. Warner Bros. Pictures (1944) 67 Cal.App.2d 225 [153 P.2d 983], 235.) "[A]ny agreement that limits a person's ability to follow his vocation must be strictly construed ...." (Lemat Corp. v. Barry, supra, 275 Cal.App.2d at pp. 678-679.) Therefore, "[a]n injunction which forbids an artist to accept new employment may be a harsh and powerful remedy. The monetary limitation in the statute is intended to serve as a counterweight in balancing the equities. The Legislature has concluded that an artist who is not entitled to receive a minimum of $6,000 per year by performing his contract should not be subjected to this kind of economic coercion." (Foxx, supra, 244 Cal.App.2d at p. 236.)
If we were to hold the option clause satisfies section 3423, we would nullify the $6,000 compensation requirement as a counterweight on the employer. Whereas the $6,000 compensation requirement was intended to balance the equities, the $6,000 option clause is intended to allow record companies to avoid payment of minimum compensation while retaining the power of economic coercion over the artist. (Statutory Minimum Compensation, supra, at p. 508; Light, supra, at p. 165; Schlesinger, supra, at p. 29.) This is accomplished in two ways. First, the option clause gives the company the coercive power of a credible threat of injunctive relief without it having to guarantee or pay the artist anything. The threat of a prohibitory injunction may be just as effective as the injunction itself in discouraging the artist from seeking more lucrative employment. (Statutory Minimum Compensation, supra, at p. 519.) Second, in practice, the company will [160 Cal.App.3d 140] exercise its option to pay minimum compensation only when it is certain the artist intends to breach the exclusivity clause by performing for another and, even then, only when exercising the option is necessary to enable the company to assert in court the contract does indeed provide for the statutory minimum compensation. (Light, supra, at p. 165.) Of course, by then, the company's agreement to pay the artist a minimum of $6,000 a year is meaningless. If the artist was not already earning far in excess of that amount from royalties, the artist's worth to the company would not justify the expense of litigating the case. The record company is in fact merely "electing" to pay that which it would have to pay anyway as a result of royalties from sales. fn. 15 (Schlesinger, supra, at p. 29.)
[1d] Based on the foregoing we conclude the option clauses in the Motown and Jobete contracts do not support equitable relief in the form of an injunction restraining Teena Marie from performing for other employers.
More about the lawsuit from Teena Marie herself, in a 2006 NPR interview with NPR's Ed Gordon here.
Tuesday, December 21, 2010
After outrage from some Christian groups, the Fort Worth Transportation Authority has revised its policy on accepting advertisements on its buses. What caused the uproar? A series of atheist ads bought for the holiday season; the ads are part of a campaign that started in the UK in 2008. Gone from Fort Worth buses are all political ads, faith based ads, tobacco and alcohol ads (other than beer and wine) and sex ads, as well as hate speech and defamatory ads. See here for a press release describing the new policy.
Polk County, Florida, law enforcement officials have arrested the author of a self-help book for pedophiles. Phillip Greaves, the author of a book briefly sold via Amazon.com, was taken into custody after he sold a copy of the book to undercover detectives. More here in a CNN.com story.
Media regulator Ofcom has received thousands of complaints concerning performances by Christina Aguilera and Rihanna on the show The X Factor. ITV, the show's network also received numerous complaints. The Daily Mail published stills of the performances, and one critic called the celebs "sex-crazed nymphs before the watershed."
Monday, December 20, 2010
Carl Lundström, one of the Pirate Bay defendants, is appealing his sentence to Sweden's highest court, according to his attorney, Per E. Samuelsson. Mr. Lundström and his co-defendants Gottfrid Svartholm Warg, Peter Sunde and Fredrik Neij were convicted last year of assisting copyright infringement for running the Pirate Bay website, which allowed users to share files. An appellate court upheld their convictions.
Sunday, December 19, 2010
Jean Marsh, the co-creator and star of the seventies BBC hit, Upstairs, Downstairs, is suggesting that the new ITV series Downton Abbey, which is drawing eyeballs, certainly closely resembles her earlier series. "I think we were all surprised. The new Upstairs, Downstairs had been in the works for about three years. We were trying to sort out … 40 years of rights and then it also started – Downton Abbey – in the Edwardian era, which Upstairs, Downstairs did. So it might be a coincidence and I might be the queen of Belgium," Ms. Marsh said on an interview show. An updated version of Upstairs will begin airing on Boxing Day (December 26) on the BBC. More here from the Guardian. Both the original version of Upstairs, Downstairs and volume 1 of Downton Abbey are available on DVD.
Saturday, December 18, 2010
The New York Times comments on FCC Chair Genachowski's proposed new "rules of the road" for the Internet. Says the editorial in part,
The rules proposed so far have several weaknesses. For one thing, they forbid blocking Internet traffic or “unreasonable” discrimination against carrying some online content. But they do not ban the practice of paying to prioritize some Internet traffic over the rest.
Even more problematic is the treatment of the fast-growing new markets for mobile broadband access. While carriers will not be allowed to block Web sites or applications that compete with carriers’ voice and video telephony, the proposal exempts wireless from the rule barring unreasonable discrimination on the grounds that wireless broadband is new and unsettled.
Absent a bar against anticompetitive discrimination, carriers could stop competing GPS or mapping applications from running on their networks. The rules might even allow carriers to block the application used by a company like Netflix to stream movies onto a mobile device to aid their own movie businesses.
Friday, December 17, 2010
That sequel to "Catcher in the Rye" is permanently enjoined from sale in the U.S. The defendants and their agents and representatives may not manufacture, publish, distribute, advertise, promote, sell, or "otherwise disseminat[e] any copy of the book 60 Years Later by Fredrick Colting writing under the name J.D. California, or any portion thereof,in or to the United States." More here from THR, Esq.
This Note is about the First Amendment issues that are raised when political candidates use music in conjunction with political campaigns without the consent of songwriters and recording artists. Sometimes, based on the circumstances, copyright law provides a clear remedy for a contested use. Other times, however, an artist will have to look to other legal doctrines for a remedy. Although there are other doctrines that the musical artist may invoke, this Note will demonstrate that these alternative avenues of relief are inadequate to protect the artist and also flawed in that they fail to fully address the unique First Amendment concerns that arise in such a scenario. There is, thus, a lacuna in this area of the law - a "gap" that Congress must fill.
This Note argues that Congress should address this lacuna by providing a remedy that would protect the rights of musical artists not to associate, through their music, with the campaign of a candidate whose views they do not share. I will discuss this First Amendment-based nonassociation interest, which is entangled with the related interest against compelled speech. These two interests, taken together, constitute a strong reason for Congress to fill the lacuna, thus protecting musical artists. Such a remedy, however, must also take into account the competing First Amendment interests of the political candidates who seek to express their political views through music.
Part I of this Note will set the stage with a discussion of the relevant portions of the Copyright Act, followed by a historical survey of the use of music in political campaigns. Section I.A will explain how the statutory structure of copyright law, in tandem with practices inherent to the music industry, leads to a scenario in which a musical artist is without legal recourse under the Copyright Act. Section I.B will discuss the history of the use of music in political campaigns and survey the legal battles arising out of several contested uses, noting the specific claims the plaintiffs stated in each. Part II of this Note will then discuss the two competing First Amendment issues that are at stake when a politician seeks to use a song or sound recording for political speech while the writer or performer of that song or sound recording wishes not to be associated with that speech.
Part III will address the existing avenues of relief (outside of copyright) that are available to a hypothetical plaintiff, namely, a right of publicity action and a claim under § 1125(a) of the Lanham Act. Section III.A will address the right of publicity, concluding that it is an unreliable cause of action that does not lend itself to the necessary balancing of competing First Amendment interests and that it is also unlikely to provide a remedy for our plaintiff. Section III.B will address the Lanham Act, and conclude that such a plaintiff is not likely to find relief under the Act
Additionally, trademark doctrine is not equipped to fully and consistently address the unique First Amendment interests underlying such a scenario. The various tests that have been developed by the courts to address First Amendment issues in Lanham Act cases are inadequate to address this scenario, which implicates competing First Amendment interests - as opposed to a more typical case, in which the First Amendment is simply used as an affirmative defense by a plaintiff. Section IV.A will propose that Congress enact legislation to create a remedy that fills the lacuna by protecting musical artists while also ensuring that the First Amendment rights of political candidates are not unduly burdened. Finally, section IV.B will address two implications of the proposed legislation.
This Note will conclude that political candidates should generally be required to obtain the consent of musical artists in order to use a song, but when such a use rises to the level of true political speech - in that it communicates a discrete political message pertaining to a matter of public concern - political speech interests outweigh the competing nonassociation interests of the musical artist and the use should be permitted with or without consent.
Download the Note from SSRN at the link.
This small paper attempts to answer inquiries received during the span of at least a decade. It contains little information that is unavailable at the Copyright Office website, but it focuses on the needs of a much smaller, if sizable, audience.
In the context of what is called the new media environment, the term “sports image” is used meaning the athlete’s right to their own image as well as the right to exploit commercially a sports event.
Under Greek law sports events are not recognised as original intellectual products, so they are not protected under the Law on Intellectual Property. Individuals (sportsmen) producing the sports event, are not aware of the result, i.e. its final form. The elements of competition and improvisation combined with physical contact are enough to guarantee a different result every time, no matter how many times the event is repeated. This is why a special legal provision had to be introduced.
To what the athlete’s right to their own image is concerned the Greek legislator seems to have defined the personality right in a general way allowing thus the content of this right to be constantly expanded in order to cover for the ever growing needs of our times. As a result enumerating all the rights contained in the general personality right is neither possible nor useful. It is up to the bearer of the right to decide each time whether their personality is offended in any way. The protection of one’s image right does not come without restrictions or exceptions. Also the athlete as a bearer of the right may “legitimise” an infringement. The most common legal tools in order to justify an otherwise illegal infringement in most European countries are the athlete’s consent or the doctrine of the acceptance of risk or the public’s right to information.
The purpose of the present paper is to present the Greek law concerning the protection of the sports image as well as the exceptions to this protection and to compare the provisions to those of other European countries in order to show that more often than not similar problems inevitably result to similar solutions.