As the U.S. braces for the coronavirus COVID-19 pandemic, companies across a broad range of industries are increasingly affected by the growing restrictions on travel and trade. Practically speaking, concerns abound over issues like whether airlines will issue refunds for cancelled flights, or what happens to manufacturers who source materials from Asia. Indeed, the entertainment industry is not immune either. For instance, what if a production contract calls for filming in Hong Kong next week? What if talent is unable to leave their home country for a concert tomorrow? What if, heaven forbid, talent is under mandatory quarantine while recovering from the virus? At times like these, the answers usually lie in the contracts, specifically in a powerful provision that is often underestimated because it is only invoked in the unlikeliest of scenarios: the force majeure clause.
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SDNY Helps Draw the Boundaries of Copyright Protection in Music Cases
Critics of increasingly restrictive effects of copyright law in musical production can seek solace in the recent Southern District of New York copyright decision of Guity v. Santos, et al., No. 18-cv-10387 (SDNY Dec. 05, 2019) (“Order”).
The district court ultimately granted defendants’ motion to dismiss copyright infringement claims brought by musician Nazim Guity against Anthony (Romeo) Santos, Sony, Alcover, and We Loud. Guity claimed that defendants “recorded, released, and profited” from his copyrighted work. Order at 1. The accused song shares the name “Eres Mia” with the protected work, a 2011 song by Guity. Guity collaborated with Alcover and We Loud in creating “Eres Mia” and procured copyright protection in 2014. Santos worked with Alcover and We Loud as well in creating Santos’s “Eres Mia” and later with Sony for the song’s marketing and distribution.
Guity specifically alleged that defendants were guilty of 1) copyright infringement by failing to obtain a mechanical license and/or failure to pay a compulsory license fee; 2) copyright infringement by claiming to compose, author, record, and distribute a copyrightable song; and 3) civil conspiracy to commit copyright infringement; and further alleged 4) plaintiffs were entitled to the equitable remedies of accounting and constructive trust. Id. at 2.
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Shia LaBeouf Walks Into a Bar . . . And Ends Up Losing an Anti-Slapp Motion
On November 19, 2019, the California Court of Appeal held that comments made by celebrity actor Shia LaBeouf in a private and isolated dispute were not a matter of public concern and, therefore, did not constitute protected speech under the First Amendment.
The case, David Bernstein v. Shia LaBeouf, stems from an April 5, 2017 incident in which LaBeouf and his female companion walked into a Los Angeles bar appearing “significantly under the influence.” When they were refused service by Bernstein, the establishment’s bartender, LaBeouf allegedly became angry, and called Bernstein a “fucking racist” and a “fuckin’ racist bitch” as he was being escorted out of the bar by security. Video of the incident circulated quickly and widely, much of the internet praised and supported LaBeouf, and Bernstein’s life and reputation allegedly suffered. Bernstein subsequently sued LaBeouf for assault, slander per se, and intentional infliction of emotional distress. LaBeouf responded with an anti-SLAPP motion, arguing that the speech giving rise to Bernstein’s claims (the insults hurled at Bernstein) was protected activity concerning a matter of public interest.
LaBeouf argued that his statements were protected speech because: (1) they occurred in a public place; (2) they were of interest to the public because they were published publicly on the internet; (3) LaBeouf is a celebrity; and (4) they contributed to the public debate on racism.
The trial court denied LaBeouf’s motion, and the Court of Appeal affirmed the trial court’s decision. In declining to grant First Amendment protections to LaBeouf’s alleged name-calling, the Court of Appeal concluded that his statements were not made in connection with an issue of public interest. The Court took care to narrow the scope of its ruling to the specific circumstances of LaBeouf’s case, however, namely the specific nature of LaBeouf’s speech.
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Court Dismisses Defamation Claim Against Crain Communications
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:
BuzzFeed Wins Libel Suit Regarding “King of Bullsh*t News” Article
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[.]”
Does Elon Musk’s Defamation Defense Verdict Spell “Open Season” for Social Media Insults? Answer: Nope.
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.
Smells Like Infringement: Court’s Refusal to Dismiss Copyright and Trademark Claims Makes Nirvana Smile
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 clothing items in question – primarily a t-shirt included in the Bootleg Redux Grunge collection – feature what allegedly appears to be a version of Nirvana’s asymmetrical smiley face logo. Whereas Nirvana’s design features X’s for eyes, however, Marc Jacobs’ t-shirt has the letters M and J. Above the smiley face, Marc Jacobs’ t-shirt uses the word “Heaven,” whereas Nirvana’s original design uses the word “Nirvana.” The typeface used in the competing designs is similar, and both designs consist of a yellow smiley face against a black background. Nirvana brought suit against the Defendants in December 2018, accusing them of copyright and trademark infringement, false designation of origin, and unfair competition.
Peloton Is Here To Stay: Laches Bars Cycling Magazine’s Delayed Trademark Suit Against Peloton Cycling Equipment
The makers of popular Peloton stationary indoor cycling equipment successfully defeated trademark infringement claims brought against them because the plaintiff waited too long to file suit, bringing them one step closer to complete domination of the in-home fitness world. A recent ruling in the Central District of California ensures that they can continue to use the Peloton mark to sell their exercise equipment and the dream of the perfect workout solution.
The dispute arose when Move Press, the publisher of cycling publication Peloton Magazine, sued Peloton Interactive, the producer of Peloton cycling equipment and on-demand spin classes, for trademark infringement, federal Lanham Act and California state unfair competition, false advertising, and cancellation of trademark registrations over the use of the term “Peloton.” (“Peloton” refers to the main group or pack of cyclists in a race.) Peloton Interactive countersued for cancellation of Move Press’s trademark registrations and declaratory judgment regarding validity of Move Press’s trademarks, non-dilution, and non-infringing use.
Three Media Corporations Avoid Defamation Liability in Suit Brought by Joseph Arpaio
The U.S. District Court for the District of Columbia recently dismissed a case against three media corporations – CNN, Rolling Stone, and HuffPost – and several employees of those corporations for publishing or broadcasting allegedly defamatory statements regarding Joseph Arpaio’s 2017 criminal contempt of court conviction.
Arpaio is no stranger to public controversy. While serving as sheriff of Maricopa County, Arizona from 1993 to 2017, Arpaio was often criticized for, among other things, his office’s policing tactics in Latino neighborhoods. In one lawsuit against him, Arpaio and his office were enjoined from detaining people “based only on knowledge or reasonable belief . . . that [they were] unlawfully present within the United States[.]” Arpaio ignored the court’s order and continued to engage in conduct that violated the injunction. In July 2017, Arpaio was convicted of criminal contempt of court (a misdemeanor) for willfully disobeying the injunction. In August 2017, President Donald Trump pardoned Arpaio before he was sentenced. In January 2018, Arpaio then decided it was a good time to run for the U.S. Senate.
CNN, Rolling Stone, and HuffPost each published a story about Arpaio’s Senate run and colorful background. CNN anchor Chris Cuomo introduced a report about Arpaio’s Senate run and erroneously referred to him as a convicted felon. (The report itself correctly stated that Arpaio was convicted of a misdemeanor and provided context for the crime.) Rolling Stone published an article about Arpaio and erroneously referred to him as an “ex-felon.” HuffPost published an article about Arpaio and erroneously stated that Arpaio had spent time in prison for his contempt of court conviction. The three corporations corrected their statements when they learned of their errors.
Court Finds Communications Decency Act Protects Tumblr Against Revenge Porn Claim
A federal district court recently dismissed an invasion of privacy and infliction of emotional distress action against Tumblr brought by a Connecticut woman whose ex-boyfriend had uploaded a series of nude photographs on social media and the revenge porn site myex.com. The court found that Section 230(c)(1) of the Communications Decency Act (CDA) expressly preempted the woman’s claims, which treated Tumblr like the “publisher” or “speaker” of the offensive postings.
Although the nude photographs of the plaintiff were taken down, they soon migrated to Tumblr, where users could view the photos, along with her name, links to her social media accounts, and other identifying personal information. The plaintiff repeatedly engaged Tumblr to remove the unauthorized intimate photographs, only to have the images reposted by third parties following removal. The plaintiff ultimately initiated a lawsuit against Tumblr, claiming it did not preemptively remove the photographs even after receiving repeated notice of unauthorized uploads.