Claims and Considerations List: Entertainment Law 2016

  1. Fiduciary Duty:
  2. Usually confidential relationship or arises from K
  3. No duty for purely commercial relationship (author/publisher)
  4. Employment K does not create fiduciary for employer
  5. right to collect money or pay royalties does not create fiduciary
  1. Implied Cov. Good faith
  2. Must arise from language used or be indispensable to effectuate the intention of the parties
  3. So clearly within the contemplation of the parties; no need to express
  4. Only justified by legal necessity (avoid illusory)
  5. Only where it can be rightfully assumed that the promise would have been made
  1. K formation:
  2. Legal Capacity
  3. Mutual consent on the material terms
  4. A lawful objective
  5. Sufficient consideration
  6. *must be definite on material terms AND have intent to be bound
  1. Oral Agreements:
  2. Same elements as written K, unless parties intend otherwise or some other legal limitation (saying not bound until written)
  3. Need written:
  4. Copyright transfer (not for non-exclusive)
  5. Statute of Frauds (1year)
  6. Required to get an injunction for breach of person services K
  1. Implied non-exclusive CR license:
  2. Work is created at request of someone else
  3. The work is delivered
  4. they intend that it’s going to be used
  5. That it was paid for
  6. Without inferring license, it would mean the contribution to the greater work was valueless
  1. Open terms and parties agree to neg. in good faith:
  2. Language of alleged agreement (did parties consider it binding?)
  3. Context of negotiations (how preliminary are they?)
  4. Existence of open terms
  5. Partial Performance
  6. Necessity of putting agreement in final form (custom to put in final form)
  1. Capacity of minors to disaffirm:
  2. TA: §6710 – yes
  3. §6750 – defines creative services allowed for ct approval
  4. §1700.37—cannot disaffirm if confirmed by superior ct and labor commission
  5. Manager: §6710 – yes, on minority but not applicable to ct approval under 6750
  6. NY: manager can get ct approval; parental consent not valid until ct approval
  1. K interpretation:
  2. Intent of parties
  3. Consider K as a whole
  4. Express language
  5. Consider context, including custom
  1. Ambiguous terms:
  2. Strict con. (plain meaning)
  3. Non-strict (allow extrinsic if ambiguity)
  4. NY = judge decides ambig.
  5. CA: Wolfsteps:
  6. Determine if ambig. (reasonably susceptible to another meaning)
  7. If yes, admit extrinsic and interpret (if evidence in conflict = jury; doesn’t conflict = judge)
  1. New Media Interp.
  2. Same and normal K, but if no intent found, apply:
  3. Strict/narrow con. (only rights in K)
  4. Reasonable meaning (uses reasonably within medium)
  5. Influential facts con. (if parties not sophisticated, narrow approach; ambig. Construed against drafter; was medium foreseeable at time of grant?)
  1. Negative Injunction for PSK
  2. K is in writing
  3. Services “special, unique, or of intellectual character” that gives peculiar value
  4. Irreparable harm; losses not compensable by damages
  5. K meets minimum compensation requirements
  6. *NY has a different rule!!
  1. $9k rule:
  2. §3423(e)(2): if you want negative injunction, must guarantee $9k
  3. §3423(e)(2)(B): if no guarantee compensation, must have actually paid 10X the required amount
  1. 7 Year rule for PSK (Personal Service Contracts):
  2. Cannot enforce a PSK for more than 7 years
  3. Cannot waive this right
  4. Recording artist exception (must give written notice that you’re using the rule)
  1. Conflict of Law rules:
  2. CA: Follow parties’ choices in K, unless:
  3. no substantial relationship to parties/transaction
  4. Parties’ choice would run contrary to CA policy or statute
  5. NY: Follow parties’ choice in K, unless:
  6. no reasonable basis for it
  7. Applying law would violate fundamental policy of jurisdiction with greater interest in dispute
  1. Anti- SLAPP motion:
  2. *Permits early dismissal against P trying to suppress speech on matter of public interest
  3. D proves COA arises in furtherance of free speech in connection with an issue of public interest, AND
  4. P has burden to prove a probability of prevailing on COA
  1. Intrusion (CA only)
  2. Unauthorized, intentional intrusion into selection (reasonable expectation of privacy) –Actual sub. And objective reasonableness
  3. Highly offensive to a RP
  4. Causing anguish/suffering
  1. Public Discl. Priv. Facts
  2. Disclosure to the public
  3. of private facts (not publicly known)
  4. highly offensive to a RP
  5. not of legitimate public concern
  6. Resulting in damage (mental distress,reputation)
  1. Commercial Appropriation (CA only)
  2. Use of name or image
  3. In an identifiable manner
  4. To benefit the wrongdoer
  5. Without consent
  6. which causes injury to self esteem/dignity
  7. *Not for public people!
  1. False Light:
  2. Giving publicity
  3. To a false statement, representation, or imputation
  4. Of and concerning P
  5. Placing in a false light, highly offensive to reasonable person
  6. Requisite fault (same as defamation)
  7. Damages
  1. Defamation:
  2. False, unprivileged statement of fact
  3. To a third person
  4. Of and concerning P (must actually be identified)
  5. Likely to harm reputation
  6. With Requisite fault (public = malice; private = negligence)
  7. Either economic loss or proven special harms
  1. NY Privacy statute:
  2. *No common law privacy
  3. Look at statute for preciselang.
  4. Any person whose name, portrait, picture, or voice
  5. Used
  6. for advertising or purpose of trade
  7. Without consent
  8. Can get injunctions or damages for injuries
  1. Right of Publicity:
  2. *CA = common law & statutory
  3. common law =
  4. Use of P’s identity
  5. Approp. of name or likeness to D’s advantage
  6. Lack of consent
  7. Resulting injury
  8. *Does not survive death!
  9. **Likeness is used broader (invoking persona)
  10. §3344: (LOOK AT STAT.)
  11. Subject matter: name, voice, signature, photograph, likeness of a LIVING PERSON
  12. Prohibited uses: “KNOWING” use (1): on or in products, merchandise or goods, and (2): for purposes of advertising, selling or soliciting purchases of products, merchandise, goods or services
  13. Remedies: damages, statutory minimum damages, profits attributable to the use, punitive damages, atty fees and costs
  14. Exclusions (defenses): uses in news, public affairs, or sports broadcasts or account, or any political campaign (§3344(d))
  1. Right of Publicity (NY)
  2. NY: uses §51 privacy stat.
  3. NO DEAD PEOPLE
  4. 1.Any person whose name, portrait, picture, or voice
  5. Used
  6. for advertising or purpose of trade
  7. Without consent
  8. Can get injunctions or damages for injuries
  9. *Exceptions: incidental use, newsworthy use, falsity/fiction (unless held out to be true)
  1. Right of Publicity:*Categorical Approach*
  2. Advertisement, commercial products (limited, need to be incidental)
  3. News/ Information
  4. Stories/Fiction/ Entertainment
  5. Imitative performances (yes if nothing added)
  6. Visual Art
  7. L
  8. Descendibility:
  9. *Only for CA statutory right (§3344.1)
  10. Need “commercial value” at time of death
  11. Lasts 70 years
  12. Exceptions: §3344.1(a)(2):
  13. Essentially entertainment or expressive works (first amendment) – look to statutory for language
  1. 1st Amendment Exceptions to ROP:
  2. Ad hoc “balancing”
  3. Categorical balancing
  4. Transformative
  5. Primary purpose test
  6. Roger’s “reasonable relationship” test (not all cts accept for ROP)
  1. Roger’s test: *Relatedness/Relevant*
  2. Is there a reasonable relationship between the name used and the content of the art?
  3. Yes? – protected by 1st Amendment, UNLESS explicitly misleading
  4. **Some cts reject this
  1. Predominant Use
  2. Is the predominant purpose to exploit the commercial value of the persona or to make expressive comments about the celebrity
  1. IIED:
  2. Intentional
  3. False statement of fact
  4. Made with requisite fault
  5. So outrageous as to go beyond the bounds of decency
  6. Damages
  7. (USE as a tort catch-all)
  1. Copyright:
  2. Original works of authorshipfixed in a tangible medium of expression
  3. Characters:
  4. 9th: Sam Spade (story being told test)
  5. 2nd: Sufficiently delineated
  6. Infringement:
  7. Valid CR
  8. Copying
  9. Direct evidence
  10. Indirect (Access + substantial similarity)
  11. Unlawful approp./ substantial similarity
  12. 9th: Access + “extrinsic/ intrinsic” similarity test
  13. *Inverse ratio rule: strong showing of access requires less similarity
  1. Transformative use:
  2. celebrity likeness is one of of the raw materials from which the original work is synthesized
  3. Protected if it is primarily D’s own expression
  4. Consider more quantitative than qualitative (creative)
  5. whether the marketability and economic value of the challenged work derives primarily from the celebrity
  6. When an artist’s skill and talent is manifestly subordinate to the overall goal of creating a conventional portrait of a celebrity so as to commercially exploit his/her fame, NOT transformative
  1. Trademark:
  2. Valid, protectable mark
  3. Valid = use as TM
  4. Protectable = (1) inherent distinctiveness (strong); (2) non-inherent (need secondary meaning); (3) Generic (not protected)
  5. Ownership by P
  6. Likelihood of confusion
  1. TM Ownership:
  2. Deliberate and continuous bona fide use
  3. Present plan of commercial exploitation
  4. Which party controls or determines nature of the goods which have been marketed under the mark
  1. Lanham Act:
  2. §43(a)
  3. Use for unfair competition or misleading/ false representation of fact
  4. Can use for celebrity identity if the mark identifies a source (not just celebrity) AND there’s some false designation
  1. Trademark Dilution:
  2. Famousness of the mark
  3. Non-commercial exempt
  4. Use of the mark after it becomes famous
  5. Dilution of the quality of the mark by diminsihing the capacity of the mark to identify the goods tarnishes, degrades, or dilutes the mark’s distinctive quality
  1. Likelihood of confusion
  2. Stength of mark
  3. Proximity/relatedness of goods
  4. Similarity between marks
  5. Actual confusion
  6. Similarity in marketing channels
  7. Type of goods/consumer care
  8. Intent of D
  9. Likelihood of expansion (bridge gap)
  1. Secondary Meaning
  2. Advertinsg expenditures
  3. Consumer studies
  4. Unsolicitated media coverage of P’s product
  5. Sales success
  6. Attempts to plagiarize
  7. Length and exclusivity of mark’s use
  1. TM Defenses:
  2. Fair use
  3. Nominative Fair use (using mark to identify P’s product)
  4. Incidental use (de minimis)
  5. 1st Amendment (Roger’s test)
  6. Parody
  1. Idea Protection:
  2. Express K
  3. Implied in fact K
  4. Quasi K (implied in law)
  5. Misapp. of “property”
  6. Confidential relationship
  1. Implied in fact K:
  2. Submissions
  3. Conditions (“I want to be paid”)
  4. Knowledge of conditions (recipient knows or should know)
  5. Acceptance of submission (need opportunity to reject)
  6. Actual use
  7. Value (idea must)
  1. NY Approach:
  2. Applies normal K requirements, BUT shown by conduct
  3. *Need “concreteness” (definite terms) - $$$
  4. *Need novelty (unique) to the buyer
  1. Credits:
  2. Protected by: (1) K, (2) collective bargaining agreements, (3) statutory and common law
  3. Palming off (pass off good under someone else’s label)
  4. Reverse palming off (taking credit for someone else’s work)