A circuit court in Cook County, Illinois granted summary judgment in favor of Crain Communications (a publishing company) and others for publishing an article in June 2016 that allegedly was defamatory against Joseph J. Fox, then co-founder and CEO of Ditto Holdings, Inc.

(See Fox v. Crain Communications, Inc., et al., Case No. 17L5955.)

The article, titled “Frustrated investors led Fox hunt in LA” in digital form and “The Elusive Fox Who Fled to L.A.” in print, addressed Ditto’s financial position, investigations launched by the SEC and the Financial Industry Regulatory Authority, an employment lawsuit filed by a former Ditto executive, and testimonials from Ditto’s investors.

In his complaint, Fox alleged that the following statement and headlines in the article were false: a “federal judge in Chicago agreed with Simons, ordering Ditto in April to pay him $2.7 million” (the Judge Statement), “Frustrated investors led Fox hunt in LA,” and “The Elusive Fox Who Fled to L.A.” Fox claimed that Crain Communications, the company’s editor, and the reporter of the article (collectively, Crain Communications) knowingly published false and defamatory information about him.

Crain Communications moved for summary judgment on several bases, namely that:

Continue Reading Court Dismisses Defamation Claim Against Crain Communications

In a groundbreaking ruling about harassment and social media, a California Appellate Court has upheld the dismissal of a lawsuit against actor and comedian Marlon Wayans over comments made on a film set and a tweet comparing a movie extra to a cartoon character.

The case, Daniel v. Wayans (2017), 8 Cal. App. 5th 367, was based on comments made and a tweet posted by Wayans during the writing and production of A Haunted House 2. Wayans was accused by actor Pierre Daniel of using a racial epithet. The court unanimously ruled that in the context of the word being spoken by a black man to another black man, the word was not an epithet but instead was a term of endearment and was being used as part of the creative process.

“We are very gratified that the court unanimously upheld the ruling dismissing the case against Mr. Wayans. The entertainment industry as a whole can breathe a sigh of relief with this ruling. Creators of content for film, television, and social media will approach their tasks with a sense of greater freedom rather than fear of repercussions for what happens in the writers’ room and on set,” said William Briggs.

This ruling has been covered by The Hollywood Reporter and Law360.

On January 28, 2020, Paul Bernstein and Carly Trainor published “Inspiration to Infringement: Copyright Issues in Scripted Entertainment Inspired by Song Lyrics” in Music Connection Magazine. The following is an excerpt:

MGM Television is developing Scenes from an Italian Restaurant, a television series based on the lyrics of Billy Joel’s hits. This is the latest endeavor by a studio in lyric-inspired scripted entertainment, following Heartstrings, a series inspired by Dolly Parton’s hits, Heart of Life, a pilot inspired by John Mayer’s song of the same name, and talk of a forthcoming series inspired by Plain White T’s “Hey There Delilah.”

But this begs the question: at what point does one need permission to create scripted entertainment inspired by song lyrics?

Click here to access the article.

Individuals in the entertainment industry have started coming forward to reveal harassment they have faced throughout their careers. In response to these revelations, filmmakers and showrunners have started depicting such harassment on screen. For example, the web television series The Morning Show explores the backlash that a network faces after a popular anchor on its news and morning talk show program is involved in a sexual misconduct scandal. While fictional, The Morning Show mirrors real-life occurrences. To tell such stories as accurately as possible, filmmakers and showrunners continue to seek firsthand accounts from the individuals involved in these real-life scandals. The problem: many of these individuals signed non-disclosure agreements (NDAs) as part of a settlement.

Non-Disclosure Agreements

NDAs are descriptively named—an NDA is an agreement not to disclose certain information. In the settlement context, one party usually pays the other to stay silent, and many NDAs include a “liquidated damages” provision, which sets monetary consequences of improper disclosure of the applicable information. Despite having signed NDAs, many of the individuals who choose to share their stories do so knowing their disclosures could subject them to significant financial costs.

Continue Reading The Cost of Breaching a Non-Disclosure Agreement

The Second Circuit Court of Appeals recently affirmed the dismissal of a case against BuzzFeed, an internet media company, for publishing an allegedly libelous article about a British news agency, Central European News Ltd. (“CEN”), and its founder, Michael Leidig. See Leidig v. BuzzFeed, Inc., No. 19-851-cv (2d Cir. Dec. 19, 2019) (“Order”).

In April 2015, BuzzFeed published the article in question, entitled “The King of Bullsh*t News” (the “Article”). The Article addressed news stories on various bizarre topics sold by CEN to third-party English-language media services around the world. CEN’s stories reported, for example, that a two-headed goat was born on a farm in China, that a Russian woman killed her kitten by dying it pink, and that teenagers in China were walking cabbages on leashes to alleviate feelings of loneliness. The Article – based on many months of investigation conducted by BuzzFeed journalists – stated that “the evidence assembled by BuzzFeed News suggests that an alarming proportion of CEN’s ‘weird news’ stories are based on exaggeration, embellishment, and outright fabrication[.]”

Continue Reading BuzzFeed Wins Libel Suit Regarding “King of Bullsh*t News” Article

A recent decision from a United States District Court in New York dismissing a defamation claim against cable television host and national correspondent Joy Reid provides a mixed bag of findings in the world of defamation lawsuits. The central issue in Roslyn La Liberte v. Joy Reid was whether the defendant, Reid, had defamed the plaintiff when she re-posted content about La Liberte on social media. Although the decision is generally a garden variety dismissal of defamation claims, the court also rejected the defendant’s Section 230 of the Communications Decency Act (CDA) defense and applied California’s anti-SLAPP statute to award Reid her attorneys’ fees and costs.

The posts at issue concerned a photograph of La Liberte, in which she appears to be shouting at a teenage boy. The photograph was taken at a city council meeting for a highly politicized senate bill, intended to limit local law enforcement’s cooperation with federal immigration authorities. A few days after the photo was taken, an activist named Alan Vargas tweeted the image and suggested that La Liberte was yelling: “You are going to be the first deported . . . dirty Mexican.” Reid re-tweeted the photograph on two separate occasions, first on social media along with the caption:

He showed up to rally to defend immigrants . . . She showed up too, in her MAGA hat, and screamed, “You are going to be the first deported” . . . “dirty Mexican!” He is 14 years old. She is an adult. Make the picture black and white and it could be the 1950s and the desegregation of a school. Hate is real, y’all. It hasn’t even really gone away.

Continue Reading Take More Than a New York Minute Before You Re-Tweet

The complicated relationship between paparazzi, social media, and celebrities continues in the copyright space. We previously wrote about the cases that had emerged related to Gigi Hadid and Victoria Beckham as well as many other celebrities. Both Hadid and Beckham posted photos taken by paparazzi on their social media accounts and were subsequently sued for copyright infringement. These cases have raised interesting legal arguments at the intersection of copyright enforcement and a celebrity’s right of publicity in their own image, including whether a license could be implied when a celebrity poses for a photograph, or whether that pose creates a co-authorship interest.

Liam Hemsworth is the latest celebrity to make headlines for a related scenario. The photograph at issue in Hemsworth’s case was taken as part of a series of photos depicting him on location for production of a film released earlier this year, Isn’t It Romantic. See ECF No. 1, Splash News and Picture Agency, LLC v. Liam Hemsworth, No. 2:19-cv-10584 (C.D. Cal. Dec. 15, 2019). The photo was licensed exclusively to The Daily Mail. On July 15, 2018, the same day that it was posted to The Daily Mail, the photo of Hemsworth also appeared, without its copyright information as produced on The Daily Mail‘s website, on one of Hemsworth’s social media accounts. It also included a “tag” promoting the movie. On June 20, 2019, the photo again appeared on the same social media account, including a feature to encourage viewers to vote for Isn’t It Romantic at the Teen Choice Movie Awards.

Continue Reading #CopyrightInfringement: The Sequel

On November 8, 2019, a federal judge denied a motion by Defendant Marc Jacobs International LLC and other Defendants to dismiss Plaintiff Nirvana LLC’s copyright and trademark infringement lawsuit regarding a “smiley face” design and logo Nirvana claims to own. Nirvana’s Complaint alleges that items in Marc Jacobs’ “Bootleg Redux Grunge” clothing collection infringed Nirvana’s rights to the smiley face design and logo, which its co-founder, Kurt Cobain, created in 1991 and which Nirvana has used continuously since 1992 to identify its music and licensed merchandise. The court’s order denying Defendants’ motion to dismiss was discussed in depth here.

On November 26, 2019, the Defendants filed a Counterclaim against Nirvana, arguing that they could not be held liable for copyright infringement on numerous grounds, most notably that the smiley face logo allegedly drawn by Cobain is composed of familiar symbols, designs, words, and short phrases, and is therefore not copyrightable in the first instance. Defendants also filed concurrently an Answer to Nirvana’s Complaint, asserting numerous defenses, including a defense to Nirvana’s trademark infringement claim that the designation underlying Nirvana’s trademark claims is invalid because the U.S. Patent and Trademark Office refused to register the logo as recently as August 2019. Defendants also asserted a defense that Nirvana’s claims are barred by the doctrine of acquiescence/estoppel on the ground that musician Courtney Love, who married Cobain, was in negotiations with Marc Jacobs to participate in the release of the Bootleg Redux Grunge collection and the products at issue. Defendants argue that they invested large sums in reliance on these negotiations, and that Nirvana should therefore be estopped from alleging any infringement.

As quickly as cameras flash at the Oscars, Congress passed the Tax Cuts and Jobs Act (“TCJA”) and left taxpayers holding the bag in some areas.  Unlike in the movies, taxpayers cannot do a reshoot if the first take is not perfect.  After almost two years, Congress may again pass additional legislation within a 48-hour period, which may resolve certain issues that have arisen in Hollywood since the TCJA.

On December 18, 2019, the House passed tax legislation as part of an omnibus package that included, among other things, extending Internal Revenue Code Section 181 (“Section 181”) retroactively from 2018 through 2020, which ultimately means that taxpayers may be able to elect Section 181 treatment for the 2019 and 2020 tax years.  The Senate is expected to pass this legislation on December 19, 2019.  Many taxpayers may wonder, “why do we need Section 181 if qualified U.S. film/TV productions (and live theatrical productions) already are eligible for bonus depreciation under the TCJA?”

For those who have already forgotten about Section 181, prior to the TCJA production companies were eligible to elect to deduct production expenses of certain qualified U.S. film/TV productions (and live theatrical productions) as and when incurred (subject to a $15m cap) in lieu of recovering such costs over a 10-year period.  While Congress did not renew Section 181 beyond December 31, 2017, the TCJA included such qualified productions as property eligible for bonus depreciation.

Continue Reading IRC Section 181 is Back!

On December 6, a federal jury in the Central District of California found that Tesla CEO Elon Musk did not defame cave diver Vernon Unsworth by referring to him in a tweet as “pedo guy.” Unsworth v. Musk, No. 2:18-cv-08048 (C.D. Cal. Dec. 6, 2019). Unsworth, who helped rescue a boys’ soccer team from a flooded cave in Thailand in July 2018, alleged that a series of tweets Musk published to his nearly 30 million Twitter followers were defamatory, falsely accused Mr. Unsworth of being a pedophile and child rapist, and caused Unsworth worldwide damage to his reputation and emotional distress. The jury deliberated for less than one hour before finding in favor of Musk.

During a CNN interview following the 2018 rescue, Unsworth had criticized Musk’s showing up to the cave site with a mini-submarine as a “PR stunt,” and said that the mini-submarine “had absolutely no chance of working” to save the boys. Unsworth’s complaint alleged that Musk retaliated against this criticism with a series of defamatory tweets and a series of defamatory emails sent to a Buzzfeed News reporter.

Continue Reading Does Elon Musk’s Defamation Defense Verdict Spell “Open Season” for Social Media Insults? Answer: Nope.