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Lee S. Brenner

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The California Court of Appeal (the Court) has affirmed a trial court’s grant of preliminary injunction, enjoining HomeAdvisor’s use of allegedly misleading language in advertisements.  See People ex rel. Gascon v. HomeAdvisor, Inc., No. A154960 (Cal. Ct. App. June 5, 2020).

The lawsuit was brought by the People of the State of California (the People), acting by and through the San Francisco District Attorney.  Specifically, the People claimed that HomeAdvisor’s advertisements were “false and misleading because they are likely to deceive consumers into believing that all service professionals hired through HomeAdvisor who come into their homes have passed criminal background checks.  That is not the case.  The only person who undergoes a background check is the owner/principal of an independently-owned business.”  Id. at *1.…
Continue Reading Court of Appeal Affirms: No First Amendment Protection for Misleading Commercial Speech

A Texas Court of Appeals recently affirmed the dismissal of a case against Kirkstall Road Enterprises (Kirkstall), the production company behind the true-crime show The First 48, holding that Kirkstall could not be held liable for the shooting of a man who appeared as a witness on one of the show’s episodes.

The First 48 is a nationally-broadcasted show that features investigations of real homicide cases.  Each episode follows homicide detectives in the first 48 hours of their investigation and includes both reenactments of events surrounding the investigation as well as actual recordings of police interviews of different witnesses. …
Continue Reading First Amendment Protects True-Crime Show From Negligence Liability

On April 13, 2020, a federal district court in the Southern District of New York[1] held in Sinclair v. Ziff Davis, LLC, and Mashable, Inc., 180CV0790 (KMW) (Order), that an Instagram user who posted a photograph to a public account effectively gave Instagram the right to sublicense her photographs to a third party.  The Court held that the user therefore had no viable claim against the third party for copyright infringement.

The plaintiff user in this case was professional photographer Stephanie Sinclair (Plaintiff).  The co-defendant who licensed the photograph from Instagram was Mashable, Inc., a media and entertainment site (Mashable).  Plaintiff sued both Mashable and its parent company, Ziff Davis, LLC, for copyright infringement.

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Continue Reading Instagram Users: Post at Your Own Risk. Your Public Content May Be Legally Sublicensed

On June 5, the California Department of Public Health (CDPH) released statewide guidance for music, film, and television production to restart.  This guidance is the latest development in the reopening of the entertainment industry in California as the state continues to advance through its roadmap for reopening, following the submission to Governor Newsom on June 3 of a white paper with recommendations on this topic from representatives of producers and the unions of the motion picture and television industries (White Paper).

In this new guidance, the CDPH recommends that music, TV, and film production resume no sooner than June 12 and abide by safety protocols agreed upon by labor and management, which may be further enhanced by county public health officers.  The CDPH also recommends that back-office staff and management adhere to the office workspace guidelines published by the CDPH and the California Department of Industrial Relations.

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Continue Reading California Allows Production to Resume June 12, Subject to County Rules

In its second copyright opinion this term, the U.S. Supreme Court held 5–4 that the “government edicts doctrine” prevents states from owning copyrights in annotated codes.  See Georgia et al. v. Public.Resource.Org, Inc., No. 18-1150, 590 U.S. ___ (Apr. 27, 2020).  Chief Justice Roberts authored the majority opinion, and Justice Thomas and Justice Ginsburg penned dissents.

The Official Code of Georgia Annotated (OCGA) contains every current Georgia statute (i.e., all of Georgia’s laws), along with non-binding annotations explaining each statute (e.g., summaries of judicial opinions applying the statutes or references to relevant secondary sources).  The OCGA is created by Georgia’s Code Revision Commission, which is a part of the state’s legislative branch.  By virtue of the Commission’s work, the state of Georgia claimed a copyright in the annotations within the OCGA—i.e., the parts of the OCGA other than the statutes themselves.  Thus, when Public.Resource.Org (PRO) posted the OCGA online and distributed copies to others, Georgia sued PRO for copyright infringement.…
Continue Reading SCOTUS Says States Cannot Copyright Annotated Codes

California employers beware. In Tilkey v. Allstate Insurance Co., No. D074459 (Cal. Ct. App. Apr. 21, 2020) (Order), California’s Fourth District Court of Appeal recently affirmed a judgment on a theory of self-published defamation. In doing so, it held that the plaintiff, a former life insurance salesman for Allstate, was justly awarded damages based on his compulsion to recite the allegedly false allegations Allstate made for terminating his employment to prospective employers. …
Continue Reading California Court Affirms Self-published Defamation Judgment

The Circuit Court for the City of Richmond, Virginia, recently quashed plaintiff Marathon Resource Group, LLC’s subpoena to a journalist regarding a voicemail she received during the course of an investigation into Marathon’s business practices.  See Marathon Resource Group Management, LLC v. Fresh Cuts Lawncare, Inc. et al., Richmond City Circuit Court, Case No. CL 19-5973 (the Order)

In the underlying litigation, Marathon had sued Fresh Cuts Lawncare, Inc. and its owners (collectively “Fresh Cuts”) regarding, among other things, statements made by Fresh Cuts in news reports and via a Facebook page that Marathon had engaged in unfair business practices and failed to pay invoices.  Marathon claimed that the purported defamatory statements were harming its business and subpoenaed journalist Kerri O’Brien, of the Richmond affiliate of ABC News, who had obtained statements from Fresh Cuts and others in the course of her investigative report about Marathon’s business practices.  Marathon’s subpoena specifically sought to obtain a voicemail recording from O’Brien, which Marathon claimed would substantiate the publication element of its defamation claim against Fresh Cuts.  See Order at 2. …
Continue Reading Court Quashes Subpoena to Investigative Journalist

A California federal court recently dismissed the majority of the counterclaims asserted by the Writers Guild of America (the Guild) against William Morris Endeavor Entertainment, Creative Artists Agency, and United Talent Agency (the Agencies) in a highly publicized suit over the Agencies’ right to receive “packaging” fees.

The case arose from the Guild’s decision last year to prohibit talent agents from earning packaging fees on film and television projects.  For decades, it was common practice for studios to pay talent agents “packaging” fees for acquiring and pooling talent (e.g., assembling writers, actors, and directors, as talent agencies have a substantial roster of such talent) for a given project.  These fees frequently consist of a combination of license fees paid by studios for a project and a percentage of the project’s gross receipts.  The Guild banned this practice last year, claiming that packaging fees create conflicts of interest between talent agents and the writers they represent.  In the Guild’s view, enabling talent agents to participate in the profits of a film or television project through packaging (1) lowers production budgets (thereby reducing writer compensation) and (2) lowers the agents’ incentive to increase their writer-clients’ compensation.  The Guild favors a commission-based system, where a talent agent takes a percentage of their clients’ earnings, which it believes better incentivizes talent agents to maximize their writer-clients’ compensation.  Following the Guild’s ban, the Agencies filed suit, alleging the packaging prohibition amounts to an illegal group boycott in violation of the Sherman Act.…
Continue Reading Counterclaims on the Cutting-Room Floor: How a Central District Court Cut Down the Writers Guild’s Countersuit Against Hollywood’s Talent Agencies

The Los Angeles County Superior Court recently granted an anti-SLAPP motion brought by the defendant, MBC Broadcasting, Inc. (MBC), in a defamation suit based on news broadcasts by MBC. MBC broadcast four news stories regarding allegations of improper corporal punishment and child abuse at Young Youth Core Academia (YYCA), an after-school academic program for children owned and operated by Helen Byon in the Koreatown area of Los Angeles. Following the broadcasts, Ms. Byon and her son (Plaintiffs) sued MBC for alleged defamatory statements. MBC subsequently filed a special motion to strike Plaintiffs’ claims pursuant to California Civil Procedure Code section 425.16, California’s anti-SLAPP statute.

Courts engage in a two-step process when considering an anti-SLAPP motion. On prong one, the defendant is required to make a “prima facie showing” that the plaintiff’s causes of action arise from a protected activity, which includes the defendant’s right of petition or free speech in connection with a public issue. Once the defendant makes a prima facie showing, the court proceeds to prong two. There, the burden shifts to the plaintiff to demonstrate a reasonable probability of prevailing on the merits of the complaint.

The Court first held that MBC satisfied prong one because “news reporting on the serious topic of child abuse is an exercise of speech concerning an issue of public interest.” Therefore, MBC’s broadcasts constituted protected activity under section 425.16.

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Continue Reading Court Slaps Down Corporal Punishment Defamation Case Against Broadcasting Corporation

Eric Wedgewood (creator of a once-popular meme account on social media) sued The Daily Beast Company LLC (Daily Beast) for defamation, false light, and intentional infliction of emotional distress (IIED). On March 11, 2020, the U.S. District Court for the Northern District of Illinois granted the Daily Beast’s motion to dismiss the complaint. See Wedgewood v. The Daily Beast Company LLC, No. 19 C 3470 (N.D. Ill. Mar. 11, 2020).

According to the Daily Beast article (see infra), Wedgewood has used many pseudonyms over the years, including the pen name Heiko Julien. On April 14, 2018, an anonymous user (not Wedgewood, but using the handle @HeikoJulien) began posting screenshots of direct messages that Wedgewood had allegedly sent to underage girls through a social media account. After eight days, the anonymous account was shut down.

Two weeks later, on April 25, 2018, the Daily Beast published an article titled “‘He Started Messaging Me When I Was 16’: Female Memers Slam ‘Content Zone’s’ Creator,” referring to Wedgewood. The article quoted two anonymous women who claimed that Wedgewood sent them inappropriate messages while they were underage, and it reported that Wedgewood had shut down his accounts after being accused of sending inappropriate messages to underage girls.

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Continue Reading Court Dismisses Defamation Claim Against The Daily Beast