Simon and Schuster, Tommy Hilfiger, and Fendi were all hit withlawsuits last week in New York state court over unpaid internships.

Publishing house Simon and Schuster and designer Fendi are accused of violating labor laws from at least January 2009 and clothing company Tommy Hilfiger is accused of the same from at least February 2009 for misclassifying their interns as exempt from earning a minimum wage.

The complaints allege that the companies would have had to hire paid employees or required existing staff to work longer hours in lieu of hiring unpaid interns. The attorneys for the unpaid interns—also representing unpaid interns from CBS Corp., Rolling Stone, Lacoste, and The House of Z in a lawsuit filed in January—are asking for backpay and attorney’s fees.

The company of note here for the book publishing industry is, of course, Simon and Schuster, being the first publishing house to be subject to an unpaid internship lawsuit.

Law 360 reports that Simon and Schuster intern “Diana Bruk claims she provided unpaid work to the company from September 2009 through May 2010, making photocopies, printing press releases, stapling and performing other administrative duties for about 20 hours per week.”

As a former legal intern at three book publishers and a literary agency, it pains me to say anything negative about the industry that has helped me acknowledge my career goal, but this is a long time coming.

Undoubtedly, many interns are given substantive tasks, such as editing manuscripts, assisting in creating publicity and marketing strategies, and designing cover art. However, there are also some interns, as Bruk alleges was the case with her experience, who are busy the majority of the time making copies and completing administrative duties.

Factor in not receiving a paycheck, and what happens?  Interns may become confused, dismayed, or worst of all start to rethink career paths. I would hate to see many talented future publishing industry employees change career paths before they even begin. Some interns, like Bruk, have no incentive to go to work because not only do they feel that they’re reduced to secretaries and aren’t learning anything, but they’re not getting paid.  Who would blame them?

The reason for paying interns is simple:  interns will feel more valued and can produce a better work product. Even if an intern is assigned to scan documents all week long, he or she will feel like he or she has contributed to the company when a paycheck is deposited into his or her account.  Without pay, some interns feel like they have no value.

Unpaid interns fighting for a chance, via the legal system, to feel valued seems to be becoming a trend. Given that last October and November, Conde Nast and NBCUniversal settled unpaid internship lawsuits for $5.85 million and $6.4 million respectively, I suspect that we will continue to hear about more settlements for unpaid interns in years to come. Perhaps until a standard is created regarding intern compensation, media companies will continue to face the challenge of providing interns with tasks to enhance their professional development or offering them monetary compensation for completing tasks that are more administrative in nature and don’t directly bolster their understanding of the field.

Joseph Perry

Joseph Perry is a graduate of St. John’s University School of Law whose goal is to become a publishing and media law attorney. He has interned at William Morris Endeavor, Rodale, Inc., Columbia University Press, and is currently interning at Hachette Book Group and volunteering at the Media Law Resource Center, which has given him insight into the legal aspects of the publishing and media industries. Contact Joe at staff@LawStreetMedia.com.

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United Talent agency is dealing with several big lawsuits this week. Here’s what you need to know going forward.

Packaged Deals

Boutique talent agency Lenhoff & Lenhoff has sued Integrated Creative Management and the United Talent Agency for allegedly poaching clients.

According to the complaint, Lenhoff and Lenhoff lost two unnamed clients—one a “director, producer, and DGA [Directors Guild Association] unit production manager” who tripled her income before leaving for UTA; the other a “director, producer, and production manager” who left for ICM and signed a multimillion dollar contract for a television series.

The Hollywood Reporter states that plaintiff Christopher Lenhoff’s agency “accuses UTA of a ‘robo-dialing’ program and says its efforts to avoid having clients poached included giving its competitor a list of exclusively represented clients every month.”

In particular, UTA and ICM are accused of luring Lenhoff’s clients with “packaged deals,” where talent agencies stockpile talent for projects before sending them to studios. The complaint states that “because these ‘Uber Agencies’ stockpile talent, as well as exercise control over the development, production, financing, distribution, advertising, and even the technology for delivery to the consumer, they have morphed into…producers and de-facto employers.”

In effect, Lenhoff’s agency claims that UTA’s and ICM’s packaged deals have created monopolies that harm consumers due to lack of diversity and creativity. Lenhoff seeks monetary damages and a permanent injunction to stop UTA and ICM from poaching television clients.

Unpaid Screenwriter

A lawsuit was dismissed against United Talent Agency claiming that UTA breached an implied contract for failing to pay Douglas Jordan-Benel for writing the screenplay Settler’s Day, which allegedly provided the idea for Universal’s The Purge. The Purge was written and directed by James DeMonaco. The Hollywood Reporter writes that “Benel’s manager submitted Settler’s Day to UTA agents David Kramer and Emerson Davis in July 2011. The agents passed, indicating in an email that they had a tough time ‘buying into the premise.’ DeMonaco is represented by another UTA Agent, Charlie Ferraro, and so, Benel alleged that someone at UTA must have shared the Settler’s Day script.”

Federal judge Michael Fitzgerald did not find that there was a contract between Jordan-Benel and UTA, however. Typically, in order to have a binding contract there has to be a “meeting of the minds” between the parties. In this case, Judge Fitzgerald stated that there was only evidence of Jordan-Benel’s intent. Unilateral contract offers do not make enforceable contracts.

Conclusion

The main lawsuit to keep an eye on is the antitrust lawsuit, since “poaching clients” has been a legally accepted practice in Hollywood. If Lenhoff wins, he could potentially change Hollywood and how talent agents obtain their clients.

Joseph Perry

Joseph Perry is a graduate of St. John’s University School of Law whose goal is to become a publishing and media law attorney. He has interned at William Morris Endeavor, Rodale, Inc., Columbia University Press, and is currently interning at Hachette Book Group and volunteering at the Media Law Resource Center, which has given him insight into the legal aspects of the publishing and media industries. Contact Joe at staff@LawStreetMedia.com.

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Thomas DeVito, an original member of the Four Season, contracted with a book publisher to write his autobiography three decades ago. They decided that Rex Woodward would help DeVito with the ghostwriting and the pair would split the proceeds from the book. Though they completed it,  the book was never published it. In 1991, unbeknownst to Woodward, DeVito registered the book with the United States Copyright Office just four months before Woodward died. DeVito and fellow Four Seasons member Nicholas Macioci executed an agreement nearly ten years later with two other Four Seasons members, Frankie Valli and Bob Gaudio, that granted Valli and Gaudio the exclusive rights to “use and incorporate the Materials [from the unpublished book] in one or more theatrical productions, and any and all ancillary and subsidiary exploitations thereof,” which later became the smash Broadway hit, Jersey Boys.

Shortly before Jersey Boys debuted, Woodward’s widow, Donna Corbello, found out about DeVito’s contractual arrangement with Valli and Gaudio when she tried to publish her late husband’s autobiography to no avail. Corbello then added Woodward’s name on an amended certificate with the Copyright Office as a co-author of the unpublished book. As a widow, she received her husband’s copyright interest in the unpublished book and then sued the producers of Jersey Boys, claiming that the show was a derivative work of the unpublished book, and that Corbello, as heir to her husband’s copyright interest, was entitled to its profits.

The dispute was litigated and appealed in federal court. On Tuesday, the Ninth Circuit issued its opinion: the play was a derivative work, and by entering into the exclusive agreement with Valli and Gaudio, DeVito had effectively transferred his and Woodward’s copyright interests in derivative works. Moreover, since DeVito and Woodward are co-owners to the copyright of the unpublished autobiography, DeVito had to account for any profits made because of the agreement he entered into with Valli and Gaudio.  Thus, Corbello would be entitled to profits from Jersey Boys.

Nevertheless, there is still an issue that caused the Ninth Circuit to remand its decision back to the district court. There is a question of whether the reversionary clause in the agreement with Valli and Gaudio would terminate Valli and Gaudio’s exclusive rights to the play, which may render the producers of Jersey Boys copyright infringers of Corbello.

The Ninth Circuit points to the grant of rights clause in the 1999 agreement, which stated that the rights granted would continue if production for Jersey Boys could start in a timely fashion, according to the Hollywood Reporter. If production was not timely, then the rights to the play would revert to Woodward, and the producers of Jersey Boys could potentially be infringers of Woodward copyright.

Joseph Perry

Joseph Perry is a graduate of St. John’s University School of Law whose goal is to become a publishing and media law attorney. He has interned at William Morris Endeavor, Rodale, Inc., Columbia University Press, and is currently interning at Hachette Book Group and volunteering at the Media Law Resource Center, which has given him insight into the legal aspects of the publishing and media industries. Contact Joe at staff@LawStreetMedia.com.

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Actress Lindsay Lohan and her mother Dina filed a defamation lawsuit against Fox News, Sean Hannity, and Hannity’s guest commentator Michelle Fields on February 2 over allegations that the mother and daughter did cocaine together.

The alleged statements occurred on a February 4, 2014 Hannity episode where Fields and Hannity discussed celebrity drug overdoses. Fields can be heard saying, “Lindsay Lohan is doing cocaine with her mother.”

Mediaite.com has a clip of the segment, which you can view here.

The Lohans are seeking compensatory and punitive damages and “will continue to suffer severe mental and emotional distress; embarrassment and humiliation; pain and suffering; and economic loss, including loss of income, entertainment and acting contracts, present and future diminished income and economic opportunities,” according to E!.

Moreover, E! further reports that a Fox News spokesperson issued a statement saying, “We will defend this case to the fullest. The remark about which Lindsay and Dina Lohan complain was made on live television by a guest nearly a year ago. We removed the segment from our archives altogether last February and also apologized on-air. At that time, the Lohans did not make any demands for money, and we are surprised they are doing so now.”

A big issue in the case will likely surround when Fox News took down the segment. Nevertheless, I want to talk about a more elementary, and arguably more interesting, area of defamation law that will have an immediate effect on the case’s outcome.

In slander cases, the first question that needs to be asked is if the statement is true or false. If the statement is true here, then Lohan’s case will not succeed.

If the statement is false, victory or defeat in slander cases comes down to various burdens of proof that a potential plaintiff needs to prove. Burdens of proof in a slander case vary depending on whether the plaintiff is a private citizen or public figure. Since the younger Lohan is a global celebrity, she will likely qualify as a public figure, and in particular a general purpose public figure. Being a general purpose public figure, she will have to prove that Fields’ statement was made with knowledge that the statement was false or that Fields said the statement with a reckless disregard to the statement’s falsity. In other words, Lohan will have to prove that Fields made the statement with actual malice.

Lohan’s mother may classify as a different type of public figure, that is, a limited purpose public figure. A limited purpose public figure is someone who is a private citizen who thrusts herself into a public controversy. Limited purpose public figure must also prove that a defamatory statement was made with actual malice. Nevertheless, an argument can be made that Lohan’s mother is a general purpose public figure because of her Living Lohan fame.

Regardless, given the recent multimillion dollar libel verdict in favor of Jesse Ventura, I doubt that Fox News will want to prolong this issue all the way to trial, despite its statement that it will defend the case to the fullest. I will be surprised if the case is not settled out of court.

Editor’s Note: A previous version of this article referred to Lohan’s suit as libel; the suit is one of defamation.

Joseph Perry

Joseph Perry is a graduate of St. John’s University School of Law whose goal is to become a publishing and media law attorney. He has interned at William Morris Endeavor, Rodale, Inc., Columbia University Press, and is currently interning at Hachette Book Group and volunteering at the Media Law Resource Center, which has given him insight into the legal aspects of the publishing and media industries. Contact Joe at staff@LawStreetMedia.com.

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On January 23, 2015, a quiet title suit was filed against the estates and heirs of Jack Kerouac and Neal Cassady over the famous letter that allegedly spawned the creation of Kerouac’s landmark novel, On the Road. On the Road, published in 1957, tells the tale of Sal Paradise, the novel’s narrator, as he crisscrosses the nation on the road in search of “it,” alongside his pal Dean Moriarty.  Sal and Dean are based on Kerouac and Cassady.

The letter, which is written from Cassady to Kerouac, holds a high place among Beat Generation lore. The letter is known among Kerouac fans as the Joan Anderson letter, which is an 18-page, 16,000-word, drug-fueled, stream-of-consciousness letter that made Kerouac discard a draft of On the Road for Cassady’s writing style. Kerouac called the letter the “greatest piece of writing I ever saw,” according to Time. The letter also contained a nineteenth page that featured stories of Cassady’s various sexual conquests. The letter was supposed to be auctioned off last December, but the Cassady and Kerouac estates claimed that Spinosa had no right to do so. The auction was later shelved.

Hence the quiet title lawsuit. Quiet title is a lawsuit that establishes a party’s title to real property or personal property and “quiets” any challenges from anyone else regarding title to a piece of property.

According to Courthouse News Service, Jean Spinosa claims that Kerouac gave the letter to famed poet Allen Ginsberg to shop around to various publishers and effectively act as Cassady’s agent. Ginsberg apparently gave the letter to someone at Ace Books and to Richard Emerson at Golden Goose Press, neither of whom ever read it.

Emerson later closed Golden Goose Press and stored its records in boxes at an address where Spinosa’s father, Jack, ran a record company. Emerson gave the boxes to Spinosa’s father, who took them home to his house in Oakland, California, which is where they stayed until Spinosa’s father died in 2011.

Spinosa says that she found the letter in 2012 when she went through her father’s boxes. Michael McQuate was with Spinosa when she found the letter, and he argues that Spinosa agreed to pay him half the proceeds from selling it. Spinosa, however, denies an oral or written agreement between herself and McQuate and has named him in her suit, as well.

In addition to Kerouac and Cassady’s estates and heirs and McQuate, Spinosa is suing the company Profiles in History because she contracted with it to auction off the letter, but that never happened because of the estates’ protests.

The letter is a monumental artifact for mid-twentieth century American literature, signifying the start of the Beat Generation, which helped create a counterculture in the 1950s, and in turn inspire the 1960s Hippie movement. On the Road continues to resonate with young men and women who wish to take to the open road to find themselves, discover a revelation, or find something to hold onto.

If you wish to see the text of the Joan Anderson letter, click here.

Joseph Perry

Joseph Perry is a graduate of St. John’s University School of Law whose goal is to become a publishing and media law attorney. He has interned at William Morris Endeavor, Rodale, Inc., Columbia University Press, and is currently interning at Hachette Book Group and volunteering at the Media Law Resource Center, which has given him insight into the legal aspects of the publishing and media industries. Contact Joe at staff@LawStreetMedia.com.

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In the aftermath of the terrorist attacks in Paris, various governments have come together in support of the freedom of expression. Most notably, world leaders attended a rally in Paris on January 11, and various members of Congress raised number two pencils into the air during President Obama’s State of the Union address last week.

Global media has also supported freedom of speech. In particular, in the United States, Publishers Weekly published a tribute to freedom of expression in its most recent issue that ran on January 19, seen here. Moreover, Publishers Weekly started a Je Suis Charlie campaign in which media companies could purchase full-length and half-age tributes that display the company’s name and logo. One hundred percent of the contributions for this campaign are donated to international nonprofits dedicated to freedom of expression, such as the American Booksellers for Free Expression, International Federation of Library Associations, International PEN, International Publishers Association, and the National Coalition Against Censorship.

With that said, some media companies have taken a step back. Last week, Oxford University Press announced that its authors should not mention the words “pork,” “sausage,” or “anything else which could be perceived as pork,” according to the International Business Times, to avoid offending Jews and Muslims. OUP claims that it made its decision to hopefully sell more books by taking global cultures into consideration.

While being sensitive to other cultures is noble, Oxford University Press’ ban is by far the wrong thing to do. The publisher is tied to Oxford University, which is arguably the most prestigious university in the world. Universities–western universities in particular–are traditionally places that foster debate and open discussions, where professors and students are free to speak about controversial topics and words. So for the publishing arm of a university to prohibit the words “pork,” “sausage,” or any mention of pork in its books is ludicrous. Professors and authors constantly write about offensive words in scholarship. In particular, authors in the humanities may attempt to write books and articles that deconstruct distasteful words culturally and historically. These books and articles are keys to how we understand the world around us. Although words such as racial epithets, for example, may be unpleasant to read or write about, they do unfortunately exist, and authors who attempt to confront these words through scholarship make society better by helping readers become more empathetic and sensitive to others. The same goes for innocuous words like “pork” and “sausage.”

Moreover, the OUP ban is the decision that terrorists desire. Although the publisher’s decision is allegedly to sell more books around the world, its decision came just days after the Paris attacks. Thus, readers may not think of Oxford University Press’ gallant pursuit to curb offending cultures in its book, but may think that Oxford University Press surrendered to the terrorists who so vehemently oppose freedom of expression.

Oxford University Press should end its ban. There is too much at stake for freedom of expression globally. The terrorists cannot win.

Joseph Perry

Joseph Perry is a graduate of St. John’s University School of Law whose goal is to become a publishing and media law attorney. He has interned at William Morris Endeavor, Rodale, Inc., Columbia University Press, and is currently interning at Hachette Book Group and volunteering at the Media Law Resource Center, which has given him insight into the legal aspects of the publishing and media industries. Contact Joe at staff@LawStreetMedia.com.

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With the recent attack on Charlie Hebdo staff in Paris, freedom of speech at large was assaulted. To show that freedom of thought has not–and will not–be eliminated, I thought I would illustrate several recent court decisions across the globe that have advocated for freedom of expression.

Joseph Stalin’s Grandson

According to the Russian News Agency, Joseph Stalin’s grandson had his defamation lawsuit complaint dismissed, which claimed that the newspaper Novaya Gazeta defamed his grandfather in a 2009 article. Yevgeny Dzhugashvili filed a lawsuit against the Novaya Gazeta in 2010 for publishing articles about shooting prisoners in 1940 in Katyn, Poland.

In explaining its decision, the European Court of Human Rights claimed that the article “concerned an event of significant historical importance and that both the event and historical figures involved, such as the applicant’s grandfather, inevitably remain open to public scrutiny and criticism.”

South Korean Journalists

Two South Korean journalists were acquitted Friday of charges that they defamed the South Korean president’s brother, Park Ji-man. The journalists, Choo Chin-woo, a reporter for SisaIN, and Kim Ou-joon, a host of a political podcast, stated that Ji-man might have been involved in the murder of Ji-man’s relative, according to The New York Times.

Choo and Kim were originally acquitted in October 2013, but prosecutors appealed the verdict. The prosecutors sought long prison terms, and several free speech organizations protested the second trial, claiming that the prosecutors were causing the journalists to censor themselves.

This win is big for freedom of expression advocates because of South Korea’s perceived lack of tolerance for dissent among critics. In particular, critics point to the burden of proof in defamation cases within South Korea, which is placed on the defendant, rather than on the prosecution.

Super Bowl Prostitution

Earlier this week, Janice Lee, who was the subject of a TMZ article last year entitled, “Super Bowl Prostitution Bust,” sued several media outlets, most notably TMZ and the New York Daily News, for defamation.

Lee’s complaint claims that TMZ’s article contained false statements of fact, such as Lee’s business was a front to funnel profits from pimps, according to Entertainment Law Digest. Lee’s complaint alleges that she sells wigs and has “never touched illegal drugs and has never engaged in prostitution or the operation of a prostitution ring.”

TMZ’s article also stated that Lee was in a “a small army of Asian hookers … who take credit cards.” Moreover, the article included her picture and referred to her as an “arrested prostitute.”

Lee says in her complaint that she has been “humiliated among millions of readers and all of her community as a criminal; as a prostitute; as a gang member and as part of an organized criminal enterprise.” Lee is seeking an injunction that would cause the media outlets in her complaint to clarify and retract any false statements about her.

Joseph Perry

Joseph Perry is a graduate of St. John’s University School of Law whose goal is to become a publishing and media law attorney. He has interned at William Morris Endeavor, Rodale, Inc., Columbia University Press, and is currently interning at Hachette Book Group and volunteering at the Media Law Resource Center, which has given him insight into the legal aspects of the publishing and media industries. Contact Joe at staff@LawStreetMedia.com.

The post Recent Defamation Decisions Show Freedom of Speech is Alive and Well appeared first on Law Street.

The legal side of book and magazine publishing has been off to a fast start in 2015. Check out updates below on three of the most recent cases.

Cosmopolitan Magazine

Andrew Cerett, a former Temple University football player, filed a lawsuit against his ex-girlfriend, Emily Frazer, and Cosmopolitan magazine for defamation, claiming that the magazine ruined his reputation and his potential NFL career after publishing an article entitled, “My Ex Threatened to Kill Me. Why Wasn’t He Expelled,” which appeared in the October 2014 issue.

Cerett and Frazer met each other at Temple University where Cerett was a punter on the school’s football team and Frazer played on the volleyball team. Cerett’s complaint, however, centers on the end of their relationship. Cerett states that Frazer wrote the article with freelance writer Roxanne Patel Shepleavy, which included a photo of Cerett as well as a fictionalized story of how they ended their relationship “at an alcohol-fueled weekend dorm party on or about January 21, 2011,” according to the complaint.

In his own story, however, Cerett claims that both parties became angry with each other, and although Cerett slammed his fist on a kitchen table, he never harmed Frazer. Campus officials arrested Cerrett, but they did not press charges against him. The campus board found Cerett guilty of intimidation and disorderly conduct but did not charge him with stalking or harassment.

Frazer’s article contends that after the breakup, Cerett had a mission to destroy Frazer, and the complaint states that the article portrayed Cerett as a violent thug. In light of the recent domestic violence cases against several NFL players, most notably Ray Rice and Adrian Peterson, Cerett believes that the Cosmo article may prevent him from pursuing his lifelong dream of becoming an NFL player because NFL teams would not want to draft him or sign him as a free agent.

HathiTrust

Last week, the Authors Guild dropped its lawsuit against HathiTrust. In 2011, the Authors Guild sued HathiTrust because it believe it created a database that included millions of unauthorized scans created by Google. The federal district court, however, sided with HathiTrust, and the United States Second Circuit Court of Appeals soon reaffirmed the district court’s decision.  Publishers Weekly noted that HathiTrust would notify the Authors Guild if it decides to change its practices in the next five years.

Georgia State University

In a related case that publishers have been keenly watching in Cambridge University Press et al. v. Patton et al., the Eleventh Circuit Court of Appeals rejected the plaintiff publishers’ request to hear the case en banc by every judge in the Eleventh Circuit. The Eleventh Circuit originally only had a panel of three judges hear the case. The request was unusual because the three-judge panel held in favor of the publishers after reversing the federal district court’s decision. The suit originally commenced when three academic publishers, Cambridge University Press, Oxford University Press, and SAGE Publications, sued Georgia State University for allegedly engaging in authorized copying and distribution of copyrighted works by the publishers through GSU’s e-reserve system.

Joseph Perry

Joseph Perry is a graduate of St. John’s University School of Law whose goal is to become a publishing and media law attorney. He has interned at William Morris Endeavor, Rodale, Inc., Columbia University Press, and is currently interning at Hachette Book Group and volunteering at the Media Law Resource Center, which has given him insight into the legal aspects of the publishing and media industries. Contact Joe at staff@LawStreetMedia.com.

The post 2015 Is Off To A Fast Start for the Legal Side of Publishing appeared first on Law Street.

The book publishing industry has had its fair share of legal disputes this year, from the consumer class-action lawsuits against the big-6 publishers to the HathiTrust case, which dealt with new fair use parameters in the digital book world.

To round out a busy year, it’s fitting that the past week was one of the busiest weeks of the year for the legal side of book publishing.

On Monday, the book publishing industry had its most important court date of the year. The Second Circuit listened to oral arguments regarding Apple’s appeal of a district court’s decision that found Apple guilty of fixing e-book prices with the big-5 publishers.

According to Publishers Weekly, Apple’s attorney, Theodore Boutros, argued that the district court erred in deciding that Apple was liable in its role in a “per se” case of price fixing in the e-book market. In antitrust law, “per se” means a violation that prevents further scrutiny of the conspiracy’s intent on the market (i.e., the effect on the market). Boutros argued that the district court should have applied a “rule by reason” framework in deciding its case, which would have taken into consideration Apple’s pro-competitive involvement in the e-book market.

The appeal also involved the big-5 publishers–Penguin and Random House merged earlier this year. Simon and Schuster’s and Macmillan’s attorneys argued that the district court’s final order should be reversed because the order extended Simon and Schuster’s and Macmillan’s original two-year “cooling off” period to four years, and the extension would hinder the publishers’ negotiations with other retailers.

The Second Circuit’s decision should be announced anywhere from a few weeks to a few months from now.

In other big year-end news, on Tuesday, Jesse Ventura continues his fight in his defamation lawsuit. Last summer, Ventura sued the estate of the late Chris Kyle for writing defamatory words about Ventura in Kyle’s book, “American Sniper: The Autobiography of the Most Lethal Sniper in U.S. Military History.” Ventura claimed that Kyle wrote that Ventura, who is a former Navy SEAL, said that the Navy SEALs “deserved to lose a few.” Kyle also alleged that he had a fistfight with Ventura. Ventura denied both allegations, and Ventura later won $1.8 million in damages, consisting of $1.3 million for unjust enrichment and $500,000 in damages.

In the latest turn of events, Ventura has set his sights on Kyle’s publisher, HarperCollins. According to the Washington Post, Ventura has claimed that Kyle’s tale of the bar fight incident increased sales of his book, which generated millions of dollars for HarperCollins. The Los Angeles Times reports that Ventura seeks $150,000 in damages, though he will likely ask for more in settlement negotiations with HarperCollins.

Ventura received criticism for continuing with his lawsuit after Kyle passed away, but Ventura claims according to CBS News, “All I wanted to do was clear my name…It has nothing to do with a widow or anything like that.” Ventura added “I would have been a big-time loser had I not pursued the lawsuit, because…the whole story was fabricated…I was accused of treason, which in the military is the death penalty.”

With all the current activity currently before the courts, 2015 seems to be an eventful year for book publishing.

Joseph Perry

Joseph Perry is a graduate of St. John’s University School of Law whose goal is to become a publishing and media law attorney. He has interned at William Morris Endeavor, Rodale, Inc., Columbia University Press, and is currently interning at Hachette Book Group and volunteering at the Media Law Resource Center, which has given him insight into the legal aspects of the publishing and media industries. Contact Joe at staff@LawStreetMedia.com.

The post The Year in Review: The Legal Side of Book Publishing appeared first on Law Street.

The United States Court of Appeals for the Second Circuit recently heard oral arguments about the long-fought Google Books case between Google and the Authors Guild.

This case has been trudging through the courts for nearly a decade. In 2005, the Authors Guild and the Association of American Publishers (AAP) separately sued Google on claims that it violated their respective copyrights on the Google Books database. Google claimed, however, that its database was a fair use.

The lawsuits were then consolidated, but AAP eventually settled out of court with Google. The Authors Guild continued its lawsuit against Google but later agreed to settle for $125 million. The Authors Guild and Google tried to amend their settlement, but the settlement was rejected.

Around this time, the Authors Guild filed a similar lawsuit against HathiTrust but lost on summary judgment.

Nevertheless, the Authors Guild/Google lawsuit carried on into federal court, but the Authors Guild met a similar fate as it did against HathiTrust and lost to Google via summary judgment last year.

According to Publishers Weekly, Google won its summary judgment motion partly because of its fair use argument. The court favored Google in three out of the four fair use factors. The four fair use factors are 1) the purpose and character of the use; 2) the nature of the copyrighted work; 3) the amount and substantiality of the portion taken; and 4) the effect of the use on the potential market. Google won on the first, second, and fourth factors because its scanning was a transformative use, 93 percent of the scanned works were nonfiction, and Google didn’t sell the books it scanned although it benefited financially from the web traffic caused by Google Books.

The Authors Guild then appealed to the Second Circuit.

Oral Argument

Andrew Albanese writes that the Authors Guild tried to differentiate the Google Books lawsuit from the HathiTrust lawsuit by arguing that Google Books was a commercial use, but the Second Circuit shot that argument down. Judge Pierre Leval said that transformative use was what mattered the most–the first factor. The Authors Guild also argued that Google should not be allowed to profit from its database of unlicensed works, and that Google Books differed from HathiTrust because Google Books offered snippets of the works, whereas HathiTrust did not display the works made available via searching.

Google argued for fair use and asserted that Google Books progressed the arts and sciences. Moreover, Google argued that Google Books created no market harm. Although users flock to Google because of Google Books, Google Books serves an educational purpose.

The Second Circuit did not mention when it would render a decision.

Analysis

Considering the court dismissed the Authors’ Guild argument that Google and HathiTrust could be distinguished via the first fair use factor, the Authors Guild has a tough challenge in attempting to reverse the district court’s decision in favor of Google. I have not listened to the oral argument, but by reading Albanese’s aforementioned article, it does not look good for the Authors Guild.

Joseph Perry

Joseph Perry is a graduate of St. John’s University School of Law whose goal is to become a publishing and media law attorney. He has interned at William Morris Endeavor, Rodale, Inc., Columbia University Press, and is currently interning at Hachette Book Group and volunteering at the Media Law Resource Center, which has given him insight into the legal aspects of the publishing and media industries. Contact Joe at staff@LawStreetMedia.com.

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Last week, Federal Judge Denise Cote approved a class action settlement agreement in which Apple may begin paying $400 million dollars to as many as 23 million consumers. The suit regarded antitrust law violations that it committed when it conspired to raise e-book prices with book publishers.

According to Publishers Weekly, the settlement terms are as follows:

Apple will pay $400 million to consumers only if the liability finding survives the appeal process; it will pay $50 million if the liability question is vacated or remanded for further proceedings. If the liability finding is reversed on appeal, Apple will pay nothing.

The actions that precipitated the lawsuit started a few years ago. Before 2010, the big-6 publishers (now the big-5 publishers since the Penguin-Random House merger) used the wholesale model to sell e-books. Under the wholesale model, publishers recommended a retail price to a wholesaler and sold the book to the wholesaler for a certain percentage off the publisher’s recommended retail price. The wholesaler then sold the book to the retailer, who set its own e-book prices. For example, a publisher could set a recommended retail price for a book of $15.99, sell the book to the wholesaler for a fifty percent discount of $7.99, and the retailer could then sell the book at $10.99.

Amazon then began selling e-books at $9.99, and publishers initially had trouble competing. In 2010, Apple convinced the big-6 publishers to change business models, and the publishers entered into the agency model. Under the agency model, publishers set the retail price  of an e-book and use retailers as agents to sell the e-book. The retailer then receives thirty percent of the sales price of the e-book, and the publisher receives the remaining seventy percent. For example, a publisher can set a retail e-book price at $15.99, and the retailer must sell the e-book at $15.99; however, the retailer receives thirty percent of the sales price, and the publisher receives the remaining seventy percent.

The Department of Justice soon accused five of the big-6 publishers and Apple of fixing e-book prices to thwart Amazon’s $9.99 e-book price, and the publishers and Apple were later found guilty of violating the Sherman Act. Penguin, Hachette Book Group, Macmillan, HarperCollins, and Simon and Schuster paid $75 million, $31 million, $25 million, $19 million, and $17 million in damages respectively to e-book consumers, for a grand total of roughly $167 million in damages.

The potential $400 million class action settlement with Apple is in addition to the $167 million paid in damages by the publishers, so all eyes in the publishing industry will be focused on the Second Circuit on when it hears Apple’s appeal on December 15..

This class action settlement comes at an interesting time in the book publishing industry.  As part of the original DOJ antitrust settlement, Hachette, HarperCollins, and Simon Schuster ended their contracts with e-book retailers like Amazon and allowed retailers to renegotiate the contracts. Moreover, the settlement allowed retailers to return to the wholesale model, and the three publishers also agreed to not interfere with price discounts for two years. Now, Hachette and Simon and Schuster have entered into separate agreements with Amazon concerning e-book prices.

Apple and the publishers are undoubtedly hoping for a reversal, but I don’t think that is likely.  We will just have to see what happens.

Joseph Perry

Joseph Perry is a graduate of St. John’s University School of Law whose goal is to become a publishing and media law attorney. He has interned at William Morris Endeavor, Rodale, Inc., Columbia University Press, and is currently interning at Hachette Book Group and volunteering at the Media Law Resource Center, which has given him insight into the legal aspects of the publishing and media industries. Contact Joe at staff@LawStreetMedia.com.

The post Federal Judge Approves Apple E-Book Settlement appeared first on Law Street.

Earlier this month, book publishers appealed their Eleventh Circuit Court of Appeals win against Georgia State University in a closely watched copyright case. In a surprise to many, the publishers have requested that their case be heard en banc, which means that a case is heard before all the judges of a particular court–in this case the Eleventh Circuit.

The publishers have asked for an en banc hearing based on what they argue was the Eleventh Circuit’s faulty analysis and alleged errors. According to Publishers Weekly, “two of the three judges in the unanimous opinion ‘contradicted Supreme Court and Eleventh Circuit precedent.'” Tom Allen, President and CEO of the Association of American Publishers, added that the request is pivotal because of “the vibrant educational publishing market that develops and provides quality content for students and teachers is at stake.”

The events that facilitated the lawsuit against Georgia State University date back to 2008. Three publishers–Cambridge University Press, SAGE Publications, and Oxford University Press–claimed that Georgia State University made thousands of their works available online through Georgia State University’s e-reserves, where students could print and download the works for free without seeking the copyright holder’s permission. The three publishers then sued four university officials of Georgia State University for direct, vicarious, and indirect copyright infringement.

In 2009, Georgia State University changed its copyright policy, where each professor who wanted to post a copyrighted material or excerpt of copyrighted material on its e-reserves would have to complete a fair use checklist to see if the professor’s proposed use qualified.

In 2010, a federal Georgia court held in favor of Georgia State University because there was not enough evidence to prove that the defendants engaged in copyright infringement. In particular, the four fair use factors–the purpose and character of the work; the nature of the copyrighted work; the amount and substantiality taken of the work; and the effect of the use on the potential market–favored Georgia State University because the purpose of the excerpted works was educational and non-commercial, the nature of the works was scholarly, a small amount of each excerpted work was taken, and there was little effect on the potential market of the excepted works.

Last month, however, the Eleventh Circuit reversed and ruled in favor of the publishers.  Although the publishers won, insiders noted that the Eleventh Circuit rejected the publishers’ main arguments and remanded the case to the district court.

You may have wondered in the past how professors and teachers were able to print and distribute excerpts of copyrighted works in their classrooms without a license. The answer is fair use. To claim fair use, a particular use has to pass the aforementioned four-factor test. No factor carries considerably more weight than the other.

However, not every use is a fair use, and thus, not every excerpt that a teacher or professor uses counts as fair use (for instance, it would likely not be fair use if a professor or teacher printed and distributed packets to students that contained 3/4 of “To Kill a Mockingbird” because the amount taken of the work would likely be too much, despite the non-commercial purpose and scholarly nature of the excerpted work).

This case is extremely important because it will immediately impact the classroom and determine what teaching tools and materials can be freely used. Moreover, according to The Chronicle of Higher Education, there is also a similar case pending against the University of California, Los Angeles.

These two cases have the ability to determine the future of higher education.

Joseph Perry

Joseph Perry is a graduate of St. John’s University School of Law whose goal is to become a publishing and media law attorney. He has interned at William Morris Endeavor, Rodale, Inc., Columbia University Press, and is currently interning at Hachette Book Group and volunteering at the Media Law Resource Center, which has given him insight into the legal aspects of the publishing and media industries. Contact Joe at staff@LawStreetMedia.com.

The post Publishers Appeal Win in Georgia State University Copyright Law Case appeared first on Law Street.

My publishing career is unique because it has solely been through an intern’s eyes. I attended the 2010 NYU Summer Publishing Institute–where, I might add, I met my fiancée, who is currently a book editor. Like most English majors, I wanted to be an editor; however, by the end of the six-week program, my tune changed 180 degrees, and I knew I wanted to be a literary agent and a book publishing attorney. Two years later, I enrolled in law school.

Excluding one summer internship at talent agency William Morris Endeavor, the bulk of my legal internships have been with book publishers like Rodale, Inc., Columbia University Press, and Hachette Book Group. You can say that I’ve found my way across the publishing landscape.

Regardless of where I’ve interned, however, I’m continually amazed at the people I’ve come across and the amount of effort it takes to publish books, which outsiders—consumers, critics, and dare I say, even authors—may not realize.

It’s no secret that the majority of employees in book publishing are grossly underpaid (interns included, if they are paid at all). For the majority of departments, employees start earning larger salaries once they reach senior positions, which can take more than a decade at times. However, the lack of pay produces camaraderie among book publishing industry members, especially younger employees who trade in their lack of a paycheck for the opportunity to assist in creating great art and surrounding themselves with books all day.

From top to bottom, book publishers are made up of mostly English majors who are editors, or who had dreams of becoming editors, but gravitated toward marketing, publicity, production, finance, art, contracts, subsidiary rights, or if you’re like me, the legal department. For this reason, publishing companies are unique in that each department contains members who are just as passionate, or even more passionate, than the next department about books.

This passion creates a work ethic within employees that the public may associate with big law firm attorneys, doctors, or investment bankers. Bringing work home and working on weekends can be the norm for some, especially when first beginning a book publishing career. Editorial assistants, in particular, are known to work extremely long hours, and their lives, which used to contain a full social calendar, are suddenly taken over by their authors’ books. They live and breathe through their authors’ successes or lack thereof. Life isn’t much better for mid-level and senior employees who bear the brunt of the responsibility for producing great books, turning a profit, and essentially keeping the book publishing industry afloat.

No matter how little they’re paid or how hard they work, what amazes me the most about the publishing industry is how genuine and kind everyone is.  Somehow they manage to wake up, wait in rush hour traffic—sometimes traversing across states lines—and walk into the office, smiling brightly or laughing, knowing deep down that they get to develop their own piece of culture.

This is why I’m glad Amazon and Hachette agreed to e-book and print price terms yesterday.  Forget the economic reasons. Forget who was right or who was wrong. The book publishing industry produces wonderful, kind people who help create art that can change you. Let’s not forget about that, and more importantly, let’s not forget about them.

Sometimes, I feel they were lost in the shuffle during the dispute. The media didn’t pay attention to them. Why would they? They didn’t create newsworthy events. Nevertheless, for six months they all sat in their cubicles and wondered aloud or to themselves what would happen if Amazon won. Would the book publishing industry meet the music industry’s fate? Would they be out of a job? Would they have to find a new career?

Fortunately, they’re not going anywhere.

Joseph Perry

Joseph Perry is a graduate of St. John’s University School of Law whose goal is to become a publishing and media law attorney. He has interned at William Morris Endeavor, Rodale, Inc., Columbia University Press, and is currently interning at Hachette Book Group and volunteering at the Media Law Resource Center, which has given him insight into the legal aspects of the publishing and media industries. Contact Joe at staff@LawStreetMedia.com.

The post Hachette v. Amazon Deal Matters (But Not For the Reasons You Think) appeared first on Law Street.

Matthew Bissonnette, a former Navy SEAL who wrote the book “No Easy Day,” is suing his former lawyers for malpractice.

According to CBS New York, Bissonnette, whose pen name is Mark Owen, alleges that his former attorneys told him that the federal government did not need to perform a pre-publication review of his book, which describes the 2011 raid that killed Osama Bin Laden. He later relied on their advice that they told him they had performed pre-publication review themselves and removed all classified and sensitive government information. Bissonette alleges that his former attorneys’ guidance “prompted a Pentagon inquiry that evolved into a criminal probe by the Justice Department,” which “tarnished his reputation, cost him his security clearance and caused him to surrender much of the book’s income to the government,” as well as ruined his “‘exemplary military record’ by the false accusation that he sought to profit from disclosing military secrets.”

Bissonette claims he had to forfeit $4.5 million to the government for following his attorneys’ advice and publishing his book without the government’s permission.

The former Navy SEAL seeks unspecified compensatory damages, but claims his losses are at least $8 million, partly because he believes his tarnished reputation will cause him to lose consulting positions, speaking engagements, and other future employment opportunities.

Since book publishers are in the book business, they are not strangers to pre-publication reviews, which are reviews undertaken by attorneys to prevent defamation lawsuits. I have had the privilege of assisting in pre-publication during some of my internships, and it’s quite an interesting process, during which an editor will ask an attorney to read a manuscript for any libelous statements. The attorney looks for any false statements of facts or opinions that may be construed as false statements of fact.

Pre-publication review can be implemented for both fiction and non-fiction books; however, from my experience, I have noticed that editors request more non-fiction books for pre-publication review. This may be because non-fiction books are about real events and real people, and reported facts can sometimes also be false. A potentially defamed person can easily point to the words in the story and claim, “I’ve been defamed. It says so right there in this book.” This may be harder in fiction where the author can presumably make anything up, notwithstanding that fiction authors can still be sued for defamation (e.g., a person believes he or she is a particular character that portrays him or her in a false light). Nevertheless, pre-publication review is quite common in book publishing.

Moreover, when publishers attempt to publish books about the government, there is a second stage to pre-publication review in which the federal government routinely vets manuscripts in order to redact any classified or sensitive information that may harm national security.

Thus, I would like to know why Bissonnette’s attorneys supposedly advised him that the government did not need to perform a pre-publication review, especially considering that he participated in the raid that killed Osama Bin Laden and “decided to write the book after realizing that others who did not know the accurate facts were writing about and discussing the daring May 2011 raid by SEAL Team 6 in Pakistan that resulted in the killing of the head of al Qaeda and inspiration behind the Sept. 11, 2001, terrorist attacks.” They knew the government would want to make sure that Bissonnette’s version of the 2011 raid did not hamper national security, and they had nothing to gain from advising Bissonnette to forgo pre-publication review. Their alleged misstep could easily have been avoided.

I will be eagerly waiting to see what happens in this case.

Joseph Perry

Joseph Perry is a graduate of St. John’s University School of Law whose goal is to become a publishing and media law attorney. He has interned at William Morris Endeavor, Rodale, Inc., Columbia University Press, and is currently interning at Hachette Book Group and volunteering at the Media Law Resource Center, which has given him insight into the legal aspects of the publishing and media industries. Contact Joe at staff@LawStreetMedia.com.

The post Navy SEAL Author of Bin Laden Raid Book Sues Attorneys for Malpractice appeared first on Law Street.

Author Eric Dahl claims that Toyota stole a story from his book and used it in a recent Toyota Camry commercial.

According to Dahl’s complaint, his book, “B.B. King’s Lucille and the Loves Before Her,” contains a story that is similar to the story that occurs in a Toyota Camry Commercial.  In particular, Dahl alleges that he visited a pawn shop in Las Vegas and purchased a Gibson Lucille guitar.  He researched the guitar’s origin and discovered that the Gibson Lucille—the Prototype 1—was the same guitar that Gibson gave B.B. King on his eightieth birthday that was later stolen from his home. Dahl stated that he agreed to give King the Gibson guitar without compensation, and King arranged a meeting where King autographed another Gibson Lucille and gave it to Dahl in appreciation for his generosity.

If you have watched television in the last few weeks then you may have seen a Toyota Camry commercial where a girl finds a guitar, tracks down the previous owner — who happens to be B.B. King — gives him the guitar, and is given an autographed guitar in return. Take a look at the commercial below.

Dahl claims that Toyota’s commercial is a derivative work and is suing for copyright infringement.

Section 101 of the Copyright Act defines a derivative work as “a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a ‘derivative work.’”

Under United States Copyright Law, derivative works give authors exclusive rights to license new works based on the author’s work. For example, motion pictures based on novels are considered derivative works because they are works based on the author’s work (i.e., the novel). In this case, the Toyota Camry commercial may be a derivative work because it is based on Dahl’s work, and Dahl never licensed use of his book to Toyota.

In order for Dahl to have a claim for copyright infringement, he must prove two elements: that Dahl has a valid copyright in his work, and that Toyota copied constituent elements of his book.  In other words, the second element means that Dahl has to prove that Toyota actually copied Dahl’s work, and Toyota improperly appropriated Dahl’s work.

Proving copying is a factual question, which can be proven by direct evidence like testimony; however, copying is usually proven through circumstantial evidence like proving that Toyota had access to Dahl’s work, and there is a substantial similarity between Dahl’s book and the Toyota Camry commercial.

Dahl claims that Toyota had access to his book. The Entertainment Law Digest states that “members of Gibson Guitar who were aware of his book and the story of the returned Gibson Lucille prototype were consulted by Toyota and the advertising production crew and confirmed the ad is based on the account in Dahl’s book.”

Thus because Dahl owns a valid copyright of his work, and Toyota may have had access to Dahl’s book, there might be circumstantial evidence that Toyota committed copyright infringement. However, we will have to wait and see Toyota’s answer.  My guess is that Toyota will claim fair use in defense of its commercial.

Joseph Perry

Joseph Perry is a graduate of St. John’s University School of Law whose goal is to become a publishing and media law attorney. He has interned at William Morris Endeavor, Rodale, Inc., Columbia University Press, and is currently interning at Hachette Book Group and volunteering at the Media Law Resource Center, which has given him insight into the legal aspects of the publishing and media industries. Contact Joe at staff@LawStreetMedia.com.

The post Author Sues Toyota Over B.B. King Commercial appeared first on Law Street.

On Thursday, October 23, 2014, NBCUniversal agreed to pay $6.4 million to settle claims that it violated labor laws over its unpaid internship program.  NBCUniversal’s decision to settle is pivotal because it marks a huge step toward eliminating unpaid internship programs completely.

The lawsuit against NBCUniversal began when Monet Eliastam, the lead plaintiff of the lawsuit, interned at Saturday Night Live for 25 hours per week or more and did not receive compensation. She and other unpaid interns filed a class-action lawsuit and sued NBCUniversal. Elisastam claimed, according to the Hollywood Reporter, that NBCUniversal “misclassified its workers as unpaid interns and thus denied them benefits like a minimum wage salary, overtime pay, social security contributions, and unemployment insurance.”

The Hollywood Reporter further reports that a United States District Court will have to approve the settlement, but if it stands, $1.18 million of the total $6.4 million will go to plaintiffs’ attorneys, Elliastam will receive a $10,000 service payment, and five other plaintiffs will receive service payments of $5,000 and $2,000 rewards. The rest will go to NBCUniversal interns, and the average settlement payment to interns will be $505 for those who interned in New York since July 3, 2007, in California since February 4, 2010, and in other states since February 4, 2011.

Unpaid interns have filed cases against Fox, Sony, Warner Brothers, and Viacom, and companies like Conde Nast have also settled unpaid internship cases. Unpaid internship cases are thus becoming the norm, which it should be.

As a law student, I have had my fair share of unpaid internships. One summer, I worked 35-40 hours per week at an entertainment company and did not receive a dime. Instead, I received credit and had to take an externship class. On the surface, that may not seem terrible because I got to apply three more credits to my total needed to graduate. However, I had to pay a few thousand dollars to take the externship class because the minimum amount of credits that my loan would pay for was six, and my externship class was only three.

It doesn’t take much to realize how unfair that is. Not only did I give the company free labor, but I was out a few thousand dollars in order to get that free labor. Where is the logic in that? There is none.  The unpaid internship system is designed to take total advantage of students just so the student can put that company’s name on his or her resume. The school makes money, and the company gets free labor.

Even for students who take internships or externships during the school year and do not have the student loans issue that I did, no one wants to take a class in addition to interning.  Especially in law school, students are so busy that externship classes take a back seat to a student’s more substantive school work, internships, law journals, and/or moot court.

Moreover, the entertainment companies exist in, not surprisingly, the most expensive cities in the country. Students can’t live on unpaid internships — not when your average lunch in New York City, for example, is around $10 or more. It’s simply not feasible. Yes, you can argue that students can live on student loans, but that misses the point.  Students want to be compensated for their work and be valued as integral employees. It’s as simple as that.

Fortunately, companies are starting to pay interns because companies do not want to be victims, which has been echoed to me in several legal internship interviews.

Hopefully interns will finally begin to get paid for their work across the board, and students will not have to experience what I and millions of other students have.

—

Joseph Perry (@jperry325) is a 3L at St. John’s University whose goal is to become a publishing and media law attorney. He has interned at William Morris Endeavor, Rodale, Inc., Columbia University Press, and is currently interning at Hachette Book Group and volunteering at the Media Law Resource Center, which has given him insight into the legal aspects of the publishing and media industries.

Featured image courtesy of [Knot via Flickr]

Joseph Perry

Joseph Perry is a graduate of St. John’s University School of Law whose goal is to become a publishing and media law attorney. He has interned at William Morris Endeavor, Rodale, Inc., Columbia University Press, and is currently interning at Hachette Book Group and volunteering at the Media Law Resource Center, which has given him insight into the legal aspects of the publishing and media industries. Contact Joe at staff@LawStreetMedia.com.

The post NBCUniversal Settles With Unpaid Interns for $6.4 Million appeared first on Law Street.

The Paladin Group has filed a complaint with the California Labor Commission against the RSWG Literary Agency and its agent Geoffrey Sanford. Paladin claims that neither RSWG nor Sanford are licensed agents or attorneys under California law, and thus illegally took 20 percent commissions for licensing the late John Steinbeck’s literary works.

Before getting into the complaint, let me first walk you through what literary agents do to get a better idea why Paladin is suing RSWG.

What is a Literary Agent?

Literary agents are an author’s first step toward publication, and they are essential to the publishing process unless an author decides to self-publish. It’s extremely difficult to land one since hundreds of thousands of books are published each year. If an author obtains a literary agent, that person helps with the manuscript and/or proposal before pitching the book to acquiring editors. Auctions, or bidding wars, can occur if multiple editors want the book and believe it can be a best seller; however, most books get acquired by one editor who expresses interest.

The author then signs an author agreement with the editor’s publishing company, which states the author’s advance (i.e., how much the publisher is paying the author for his book before royalties), grants (usually) the author the copyright to his or her literary work, and gives the literary agent a 10-15 percent commission. The literary agent’s commission can be peanuts if a book’s advance is say, $10,000, which is an average debut novelist’s advance.  However, take Bill Clinton’s advance, which was reportedly more than $10 million. Who wouldn’t want 10-15 percent of that?  Thus, it is easy to see why agents are extremely picky about who they represent because best-selling authors can generate the agent millions of dollars.

What is a Co-Agent?

However, that isn’t the end of the road for an agent’s and author’s potential revenue. When a book publisher grants an author the copyright to his literary work, the author receives a bundle of exclusive rights (e.g., motion picture, television, audio book, e-book, large print, Braille, book club, abridgements, first serial, second serial, etc.) to do with what she pleases. Usually, the author’s agent hires a co-agent or sub-agent to license these rights, which are known as subsidiary rights in the book publishing industry, to third parties.

Sub-agents may specialize in licensing certain rights.  For example, a sub-agent may license rights of an author’s book, such as motion picture rights to help get a novel adapted as a feature film. More frequently, however, sub-agents try to sell an author’s book in countries around the world. You may have seen book covers with the words, “Published in 37 Countries.” You can thank sub-agents for that. Sub-agents generate commissions of 10 – 20 percent depending on the right that is licensed.

Enter Steinbeck

In Steinbeck’s case, Steinbeck’s literary agency is McIntosh and Otis, which is located in New York City.  McIntosh and Otis hired RSWG as a sub-agent, and RSWG negotiated motion picture rights for remakes of Steinbeck’s “Grapes of Wrath” and “East of Eden” and received 20 percent commissions for its services.

According to the Hollywood Reporter, the Paladin Group, created by Thomas Steinbeck who is Steinbeck’s only living son, argues that RSWG had no right to negotiate the motion picture rights for “Grapes of Wrath” and “East of Eden” without the Paladin Group’s consent.

Attorney William Briggs who spoke on RSWG’s behalf, however, argued that the heirs of the Scott family are the rightful owners of Steinbeck’s literary works, so the Paladin Group could not object to RSWG’s negotiations. In 1968, Steinbeck left the majority of his estate to his third wife, Edith Scott, who died in 2003, and left all of Steinbeck’s rights to her heirs.

Briggs also alleges that the Paladin Group misunderstands California law because there is no rule that RSWG must be licensed to sell rights of Steinbeck’s literary works.

Although I do not have access to the Paladin Group’s complaint, the company is rightly concerned about RSWG’s actions. The Paladin Group receives a portion of revenue for every license that is negotiated for Steinbeck’s works, so it is invested in who licenses that work. If RSWG is not properly licensed, the license agreements are null and void and the Paladin Group receives no money. However, even if RSWG is licensed, the Paladin Group may have been able to receive more money than what RSWG negotiated. The 20 percent commissions that RSWG received are likely a huge number, but given that Steinbeck is a Nobel Prize-winning novelist, the price for remaking motion picture rights for any of his works, let alone “Grapes of Wrath” and “East of Eden” — two of his most popular books — can be potentially millions more.

Hence the value of choosing a literary agent and sub-agent.

Joseph Perry

Joseph Perry is a graduate of St. John’s University School of Law whose goal is to become a publishing and media law attorney. He has interned at William Morris Endeavor, Rodale, Inc., Columbia University Press, and is currently interning at Hachette Book Group and volunteering at the Media Law Resource Center, which has given him insight into the legal aspects of the publishing and media industries. Contact Joe at staff@LawStreetMedia.com.

The post John Steinbeck’s Son Suing Literary Agency Over Motion Picture Rights appeared first on Law Street.

Dov Seidman is the best-selling author of the book, How: Why How We Do Anything Means Anything, and if you haven’t heard of him, then you should go look him up. Former President Bill Clinton wrote the foreword to How, and Seidman is the CEO of LGN, a business that does the almost unthinkable: it reaches out to other businesses and helps them create more ethical cultures.

For the last ten years, Seidman has built his brand using the tagline, “How Matters.” Seidman’s do-gooding, however, may be lost on the Greek yogurt company Chobani, which wants to stop Seidman from using his trademark.

Chobani introduced its own “How Matters” campaign during a 2014 Super Bowl commercial, which featured a bear that buys a Chobani yogurt container. A voiceover states: “A cup of yogurt won’t change the world, but how we make it might,” which leads into the tagline: ‘How Matters.’  Jonathan Mahler of The New York Times reports that Chobani has built its brand around the phrase, which “highlight[s] the quality of its yogurt and the way it is made, including a straining process that makes it extra dense.”

Moreover, the inside of Chobani’s 100-calorie yogurt cup lids read, “‘Nature got us to 100 calories, not scientists. #howmatters.”

Earlier this year, Seidman sued Chobani and its advertising agency Droga5, which is partly owned by William Morris Endeavor, for trademark infringement. Ashley Lutz of the Business Insider reports that Seidman argues:  “They’re using ‘how’ to convey and connote that they are an ethical company. They are using ‘How’ exactly the way I use it. They’ve appropriated the foundation of my entire philosophy.”

Chobani and Droga5, however, have requested that the court cancel Seidman’s “How Matters” trademark because they believe it is too broad, and they have even filed their own trademark application for “How Matters.” Venessa Wong of BusinessWeek reports that Peter McGuiness, Chobani’s Chief Marketing and Brand Officer, stated that Seidman’s allegations are “baseless, desperate, and have no merit.” McGuiness further claims that “HowMatters” “speaks to our food philosophy,” which is a “beautiful and perfect articulation of what our brand is all about.”

Moreover, according to Mahler, Chobani and Droga5 claim they have never heard of Seidman, but ironically Seidman alleges that he had lunch with Droga5’s Vice Chairman, Andrew Essex, in 2013, who tweeted just days before the Super Bowl, “@DovSeidman: Thanks for inspiring the world to care about ‘how.’ Can you help inspire the food industry, too?” Nevertheless, Mahler reports that court papers claim that “no one on the creative team for Chobani had ever heard of Mr. Seidman. The agency said the inspiration for its campaign came during a brainstorming session at a Thai restaurant with an open kitchen that underscored the importance of how food is prepared.”

Seidman may have a tough time proving that Chobani infringed his trademark, as they are designed to prevent consumer confusion; therefore, the biggest hurdle that Seidman will have to climb is proving how consumers will confuse a Greek yogurt company with a consulting firm.

—

Joseph Perry (@jperry325) is a 3L at St. John’s University whose goal is to become a publishing and media law attorney. He has interned at William Morris Endeavor, Rodale, Inc., Columbia University Press, and is currently interning at Hachette Book Group and volunteering at the Media Law Resource Center, which has given him insight into the legal aspects of the publishing and media industries.

Featured Image Courtesy of [tbiley via Flickr]

Joseph Perry

Joseph Perry is a graduate of St. John’s University School of Law whose goal is to become a publishing and media law attorney. He has interned at William Morris Endeavor, Rodale, Inc., Columbia University Press, and is currently interning at Hachette Book Group and volunteering at the Media Law Resource Center, which has given him insight into the legal aspects of the publishing and media industries. Contact Joe at staff@LawStreetMedia.com.

The post Chobani and Consulting Firm Battle Over Phrase “How Matters” appeared first on Law Street.

A California federal court dismissed a trademark lawsuit last week that John Wayne Enterprises brought against Duke University. The case was dismissed based on lack of jurisdiction and improper venue.

Actor John Wayne, born Marion Robert Morrison, had several nicknames that contained the word “Duke,” such as Duke Morrison, Duke Wayne, and The Duke. John Wayne Enterprises was created to “preserve and protect the name, image, and likeness of John Wayne by associating the John Wayne brand with quality and timeless products and experiences that embody the spirit of John Wayne and give back to the community.” In July 2013, the organization filed a trademark application with the Patent and Trademark Office to use the trademarks “Duke” and “Duke John Wayne” on all alcoholic beverages except beer. Last July, the organization sued Duke University for infringing its Duke trademark on alcoholic bottles.

John Wayne Enterprises argued that Duke University does not own the word “Duke” for use for all purposes’ however, the university argued that John Wayne Enterprises’ use of “Duke” on alcohol beverages caused consumer confusion, which trademark law is designed to prevent. According to the Los Angeles Times, John Wayne Enterprises’ “Duke” trademark is “a label on a bottle of bourbon stamped with a silhouette of the movie star in a cowboy hat, clutching a gun. The name ‘DUKE’ is stamped over his thighs, and John Wayne’s signature is reproduced near his feet.”  The John Wayne Enterprises logo can be seen here.

John Wayne Enterprises tried to gain personal jurisdiction over Duke University in a California federal court because “the school actively recruits students there, raises money there, maintains alumni associations there and sells university-related products there.” However, U.S. District Judge David Carter dismissed the Wayne estate’s lawsuit for lack of jurisdiction and said the case belonged in front of the Patent and Trademark Office Trademark Appeal Board in Alexandria, Virginia.

The court believed that “Duke was aware of John Wayne Enterprises’s presence in the state, but that there was no showing how Duke [University] purposefully directed its conduct at California by filing an opposition to trademarks in Virginia [the location of the Patent and Trademark Office.]”

John Wayne Enterprises and Duke University have battled over the use of the “Duke” trademark before. A July article in the Hollywood Reporter cites conflicts over using the name “Duke” in restaurant services, gaming machines, and celebrity licensing services. Thus, Judge Carter’s dismissal is likely not the end of this case. John Wayne Enterprises can always bring a suit against Duke University on the East Coast.

It’s rare to see John Wayne on the losing-end of a battle, but I am sure that John Wayne Enterprises is already preparing its next move to prevail in the end.

Joseph Perry

Joseph Perry is a graduate of St. John’s University School of Law whose goal is to become a publishing and media law attorney. He has interned at William Morris Endeavor, Rodale, Inc., Columbia University Press, and is currently interning at Hachette Book Group and volunteering at the Media Law Resource Center, which has given him insight into the legal aspects of the publishing and media industries. Contact Joe at staff@LawStreetMedia.com.

The post The Duke’s Trademark Suit Against Duke University is Dismissed appeared first on Law Street.

If you’ve believed that motion pictures like “Aladdin,” “The Lion King,” and “The Little Mermaid” were fictitious, which seems plausible since they’re, well, animated and also contain imaginary characters, then you may be sadly mistaken. According to a federal court complaint, Isabella Tanikumi, whose pseudonym is L. Amy Gonzales, has sued the Walt Disney Company for a whopping $250 million because Tanikumi believes that Disney plagiarized her life story in order to make its most successful animated film of all time, “Frozen.”

Tanikumi alleges that Disney took her life story from her autobiography, “Living My Truth.” Tanikumi claims that “Frozen” plagiarizes “Living My Truth” in 18 ways, including its plot, characters, and story. According to Fox News, the most interesting claims are that “Frozen” and “Living My Truth” both take place in the snow-covered mountains; the sisters’ Elsa and Anna in the movie have different colored hair, own horses, and love each other just like Isabella, the main character in the autobiography, and her sister; Isabella’s two love interests in the book are Hans and Christof, just like Anna’s romantic interests are Hans and Kristoff in “Frozen;” and Elsa’s sister, Anna, dies in an accident just like Isabella’s sister.

Moreover, Fox News reports that Tanikumi alleges that the movie’s now-famous soundtrack is plagiarized too because songwriters and the movie writers took portions of her life story to develop it.

When I think of Tanikumi’s lawsuit, the case that comes to mind is Nichols v. Universal Pictures. In that case, an author who wrote a play entitled “Abie’s Irish Rose” — which was about a young Jewish man who marries an Irish Catholic girl against the wishes of both of their fathers — alleged that the producers of “The Cohens and Kellys” — which was about a young Catholic man who marries a Jewish girl against their fathers’ wishes — infringed the play’s copyright. The doctrine that came out of Nichols is called “scenes a faire,” which is a French term meaning “a scene that must be made,” and refers to scenes and elements in a book or film that are obligatory for a genre. For example, westerns have protagonists who have guns, holsters, and ride horses, as well as an obligatory scene where the protagonist has a showdown with the antagonist, which are uncopyrightable because authors need those elements and scenes to create other western films and stories. The Nichols court said that as long as “The Cohens and Kellys” took “scenes a faire,” then they didn’t infringe the copyright of “Abie’s Irish Rose.”

In Tanikumi’s case, Disney may point to the “scenes a faire” doctrine of its coming-of-age tale to refute the writer’s claims. However, it is more likely that Disney will argue that Tanikumi has a “failure to state a claim,” which means that Tanikumi has no case because her life story is not “substantially similar” to “Frozen,” which is an element needed to prove copyright infringement.

I will be surprised to see if this case moves very far, but nevertheless, I will be eagerly watching to see the next development.

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Joseph Perry (@jperry325) is a 3L at St. John’s University whose goal is to become a publishing and media law attorney. He has interned at William Morris Endeavor, Rodale, Inc., Columbia University Press, and is currently interning at Hachette Book Group and volunteering at the Media Law Resource Center, which has given him insight into the legal aspects of the publishing and media industries.

Featured Image Courtesy of [Dawn Ashley via Flickr]

Joseph Perry

Joseph Perry is a graduate of St. John’s University School of Law whose goal is to become a publishing and media law attorney. He has interned at William Morris Endeavor, Rodale, Inc., Columbia University Press, and is currently interning at Hachette Book Group and volunteering at the Media Law Resource Center, which has given him insight into the legal aspects of the publishing and media industries. Contact Joe at staff@LawStreetMedia.com.

The post Author Sues Disney for $250 Million Claiming “Frozen” is Based on Her Life appeared first on Law Street.

PEA Films, Inc., (PEA) which owns the rights to Hollywood classics “The Good, the Bad and The Ugly,” “For a Few Dollars More,” and “Last Tango in Paris,” filed a lawsuit in late August against Metro-Goldwyn-Meyerm Inc. (MGM) to terminate MGM’s contracts with the three iconic western films. According to PEA’s complaint listed in The Hollywood Reporter, PEA claims that MGM did not give PEA “honest and accurate accounting statements, showing revenue and expenses, together with timely payment of the amounts due to PEA.” In addition to the accounting statements PEA seeks damages in excess of $5 million.

PEA and MGM have had their disagreements before. In the 1990s, PEA sued MGM twice for underpaying PEA, and the parties eventually settled in both lawsuits. The settlements, however, did not end the issue. The parties continued to fight over audit reports in the 2000s, in which MGM delayed its payments to PEA. The Hollywood Reporter states that “PEA suspects MGM’s method of accounting is no accident, asserting the defendant is engaged in a ‘Hollywood accounting catch me if you can’ process designed intentionally to keep for itself money rightfully due to PEA.” It seems that PEA has finally drawn the line and seeks to cancel MGM’s contracts.

Ronald S. Taft and Howard J. Schwartz of Wolff & Samson PC represents PEA.

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Joseph Perry (@jperry325) is a 3L at St. John’s University whose goal is to become a publishing and media law attorney. He has interned at William Morris Endeavor, Rodale, Inc., Columbia University Press, and is currently interning at Hachette Book Group and volunteering at the Media Law Resource Center, which has given him insight into the legal aspects of the publishing and media industries.

Featured Image Courtesy of [Sean Davis via Flickr]

Joseph Perry

Joseph Perry is a graduate of St. John’s University School of Law whose goal is to become a publishing and media law attorney. He has interned at William Morris Endeavor, Rodale, Inc., Columbia University Press, and is currently interning at Hachette Book Group and volunteering at the Media Law Resource Center, which has given him insight into the legal aspects of the publishing and media industries. Contact Joe at staff@LawStreetMedia.com.

The post Hollywood Case to Watch: MGM May Lose Rights to Eastwood & Brando Classics appeared first on Law Street.

On Tuesday, a New York federal district court ruled that TVEyes’ use of Fox News’ video clips is a fair use according to the federal Copyright Act.

Who is TVEyes?

You may not have heard of TVEyes, Inc. before, but you’ve probably heard of some of its subscribers: the White House, 100 members of Congress, the United States Army, MSNBC, ABC, CBS, and the Associated Press.

So your two next questions may logically be: 1) who is TVEyes? and 2) why do portions of the federal government and the country’s major media outlets care about it? The answer is that TVEyes is a for-profit 24/7 media-monitoring service that monitors and records more than 1,400 television and radio broadcasts and transforms the broadcasts into searchable databases. The searchable databases allow TVEyes’ subscribers,like the White House, to see how different television and radio stations from across the country are reporting a particular event.

How Does TVEyes Work?

You may also be wondering how TVEyes is able to record thousands of broadcasts at once, and how subscribers are able to use its database.  According to a New York federal court opinion published on Tuesday, September 9, TVEyes uses closed captioning and speech-to-text technology to record television and radio broadcasts, and then the company creates a database of the recorded content.  Subscribers log onto a Watch List Page, which monitors keywords, tabulates the total number of times a keyword was mentioned by all 1,400 television and radio broadcasts, and organizes keyword search results by day for a 32-day period. From the Watch List Page, subscribers can click on the Results List Page, which shows the number of times a keyword was used on a particular day.  Each result on the Results List Page contains transcripts of the television and radio broadcasts that mention the keyword as well as thumbnail images of that television or radio broadcast that said the keyword. The subscriber can then click the thumbnail image, and a video clip of the broadcast will play alongside a transcript on the Transcript Page, which contains a wealth of information such as the name and location of the broadcast channel, Nielsen Ratings data about the clip, and the publicity value of the clip.

TVEyes also provides the following notable features and pages:

• A Media Stats page that graphically illustrates the number of times a keyword has been used over a period of time;
• A Marketshare page that contains a “heatmap” indicating the geographical locations that use the keyword the most;
• A Broadcast Network page which depicts in a pie chart the breakdown of which broadcast stations use the keyword;
• A Date and Time Search that lets subscribers play a video clip that aired on a specific date and time on a specific television station; and,
• A Media Snapshot featurethat allows subscribers to watch live streams of everything that TVEyes records.

Moreover, subscribers can save, archive, edit, and download an unlimited number of clips, and email clips to anyone, regardless if he or she is a TVEyes subscriber. Once a recipient clicks on the e-mailed clip, he or she is directed to TVEyes’ website and not the content owner’s website (i.e., Fox News’ website).

Copyright Infringement Lawsuit

Fox News sued TVEyes because it believed that TVEyes would divert its viewers to TVEyes’ website. Fox News claimed that TVEyes committed copyright infringement because TVEyes used Fox’ News copyrighted video clips to create content on TVEyes’ website, which its subscribers can play, save, edit, archive, download, and share. Specifically, Fox News alleged that TVEyes copied and infringed 19 one-hour programs on the Fox News Channel and the Fox Business Network, such as two episodes of On the Record with Greta Van Susteren, three episodes of Special Report with Bret Baier, three episodes of The Five, four episodes of The O’Reilly Factor, two episodes of The Fox Report with Shepard Smith, four episodes of Hannity, and one episode of Special Report Investigates: Death & Deceit in Benghazi.

Fair Use Defense

Whenever a plaintiff sues a defendant for copyright infringement, the defendant has certain defenses in the arsenal.  One of those defenses is fair use, which is a doctrine that allows the public to use a copyrighted work without an author’s permission in certain situations.  In this case, TVEyes argued that the features on its database constituted fair use.

The fair use statute, which is listed under 17 U.S.C. 107 in the federal Copyright Act, says that if a defendant uses a copyrighted work for the purposes of criticism, comment, news reporting, teaching, scholarship, or research, there is a strong presumption that the defendant’s use of the work is fair use.  Nevertheless, a court must consider the four factors listed therein:

1. The purpose and character of the work.
2. The nature of the work;.
3. The amount and substantiality of the copyrighted work that the defendant used.
4. The effect the defendant’s use has on the potential market or value of the copyrighted work.

Each factor, however, must be viewed in isolation, and the court uses a balancing test.  No one factor brings about a resolution. Let’s see how the court analyzed the four factors.

Factor 1:  The Purpose and Character of the Work

The court noted that the main reason for looking at the purpose and character of a defendant’s work is to see if it adds something new to the original copyrighted work and is not merely a substitute for the original work. The court’s investigation of whether a work adds something new is referred to as “transformative” use. TVEyes argued that its features providing subscribers with Fox News’ video clips is transformative, but Fox News argued that TVEyes’ copying and disseminating of its copyrighted excerpts, circulations, and summaries is not fair use.

The court held that TVEyes’ features that provide its subscribers with Fox News’ video clips was transformative because the database converted Fox’s copyrighted works into a research tool. Moreover, TVEyes’ subscribers use TVEyes for research, criticism, and comment. Finally, although TVEyes is a for-profit company, and commercialism can sometimes weigh against a finding of fair use, the more transformative a work is, the less significance is placed on commercialism.  Since TVEyes’ work was transformative, factor one favored TV Eyes.

Factor 2:  The Nature of the Work

This factor considers the nature of the copyrighted work because some types of work are closer to the kinds of works that copyright law intends to protect. For example, the type of work at issue in this case (i.e., the news) is not copyrightable because the news contains facts. Facts are not copyrightable because society wants everyone to be able to freely disseminate facts in order to find the truth; however, the creativity in deciding how to portray, film, direct, sequence, communicate the news is copyrightable

Nevertheless, courts may favor fair use for a work that is factual or informational.  Wwhere the work is transformative, however, the second factor has limited value.  Thus, the court said that the second factor does not weigh for or against a finding of fair use in this case.

Factor 3:  The Amount and Substantiality of the Copyrighted Work the Defendant Used

TVEyes concedes that it copied all of Fox News’ content. This factor, however, does not just employ a quantative comparison between the original copyrighted work and the defendant’s work, it also asks whether the defendant copied no more than was necessary for any valid purpose stated in the first factor (i.e., transformative use). Since TVEyes’ business model depends on copying all of Fox News’ content, the court said that TVEyes did not take more than what was necessary to obtain its transformative use; however, like the second factor, the court held that the third factor weighed neither for or against a finding of fair use.

Factor 4:  The Effect of the Defendant’s Use on the Potential Market or Value of the Copyrighted Work

This factor considers the economic injury that the defendant’s work causes and the benefit the public generates from use of the defendant’s work, if any.

• Economic Injury: This part of factor four determines whether the defendant’s use would have an adverse impact on the potential market of the original copyrighted work. Fox News argued that TVEyes’ services decreased its ratings of the 19 individual, hour-long programs it aired between October 2012 and July 2013, and thus diminished the amount of per-subscriber carriage fees that advertisers and cable and satellite providers paid Fox News because TVEyes’ subscribers watched TVEyes’ copies rather than the Fox News Channel or the Fox Business Network.

The court stated, however, that the 19 shows were no longer available for TVEyes’ subscribers, and TVEyes erases its content every 32 days.  Moreover, during the 32-day period in which these programs were available, only 560 video clips played, and 85 percent of those played were less than a minute long. In addition, between 2003-2014, only 5.6 percent of all TVEyes users saw any Fox News content on TVEyes.  In only three instances between March 2003 and December 2014 did TVEyes subscribers access 30 minutes or more of Fox News Channel’s content, and no subscriber accessed any Fox Business Network content. Furthermore, 95 percent of all video clips played on TVEyes are three minutes or shorter. Thus, the court said there was no basis that TVEyes’ subscribers would likely watch ten minute clips sequentially in order to use TVEyes as a substitute for Fox news.

Fox also argued that TVEyes impairs the derivative work market for syndiciation partners like YouTube and Fox News’ exclusive licensing agent, ITN Source and Executive Interviews.  However, Fox could not point out the alleged customers that Executive Interviews lost.  Moreover, Fox’s revenue from syndication partners and licensing clips is a small fraction of Fox News’ overall revenue (i.e., north of $212,000 and $246,000 respectively) and would likely be outweighed by the public’s benefit of using TVEyes’ services.

• Public Benefit: TVEyes argued that it provides a tremendous public benefit because it creates a library of television broadcast content and makes it easy and efficiently text-searchable. It also argued that without TVEyes there would be no way to search 27,000 hours of daily television broadcast programming, most of which isn’t available online or anywhere else.

Moreover, TVEyes argued that subscribers use its service to comment and criticize broadcast news; government bodies use it to assess factually-reported accuracies; political campaigns use it to monitor political advertisement and campaign appearances during elections; financial firms use it to monitor and archive employees’ public statements for regulatory compliance; the White House uses it to evaluate news and to provide the press with feedback; the United States Army uses it to track media coverage about worldwide military operations to ensure national security and troop safety; journalists use it to research, report, compare, and criticize broadcast news coverage; and elected officials use it to conform informational accuracies reported on the news and to correct misinformation.

Thus, after analyzing the economic injury and public benefit factors, the court held that factor four favored a finding of fair use because the public benefit of TVEyes outweighed its minimal possibility of competition to Fox News.

Balance of Four Factors

Since TVEyes captures and indexes broadcasts that would otherwise not be there — and journalists, the White House, the United States Army, financial firms, elected officials, and political campaigns use TVEyes for purposes like criticizing news, correcting misinformation, assessing commercial advertising, evaluating national security risks, and tracking financial regulatory compliance — the court held that copying Fox News’ content for indexing and clipping services for TVEyes’ subscribers was fair use.

Limited Fair Use

The court held that it did not have to decide fair use for the full extent of TVEyes’ services because no sufficient evidence was presented about whether features that allow TVEyes’ users to save, archive, download, email, and share clips of Fox news’ broadcast content were integral to the transformative purpose of indexing and providing Fox News clips or whether they threatened Fox News’ derivative businesses.  Moreover, neither party was entitled to summary judgment on whether the date and time search function because the record failed to show whether the date and time search function was integral to the transformative purpose of TV Eyes’ service. The court said the factual record regarding the date and time search function should be developed further.

What’s Next?

The court scheduled the next court date for October 3, 2014, which will determine the remaining issues stated about in the “Limited Fair Use” case. We will have to wait and see how the court handles those issues.

Joseph Perry

Joseph Perry is a graduate of St. John’s University School of Law whose goal is to become a publishing and media law attorney. He has interned at William Morris Endeavor, Rodale, Inc., Columbia University Press, and is currently interning at Hachette Book Group and volunteering at the Media Law Resource Center, which has given him insight into the legal aspects of the publishing and media industries. Contact Joe at staff@LawStreetMedia.com.

The post Fox News Suffers Major Fair Use Defeat to TVEyes appeared first on Law Street.

On August 21, 2014, Pulitzer Prize-winning architect Zaha Hadid, who designed the stadium for the 2022 World Cup, sued the New York Review of Books and its critic, Martin Filler, for defamation. Hadid claimed that Filler defamed her in his June 5, 2014 article, “The Insolence of Architecture,” in which he reviewed non-party Rowan Moore’s book Why We Build: Desire and Power in Architecture. Hadid asserted that Filler’s following passage defamed her:

“However, despite the numerous horror stories about this coercive exploitation, some big-name practitioners don’t seem moved by the plight of the Emirates’ imported serfs. Andrew Ross, a professor of social and cultural analysis at New York University and a member of Gulf Labor, an advocacy group that is seeking to redress this region-wide injustice, earlier this year wrote a chilling New York Times Op-Ed piece. In it he quotes the Iraqi-born, London-based architect Zaha Hadid, who designed the Al Wakrah stadium in Qatar, now being built for the 2022 World Cup. She has unashamedly disavowed any responsibility, let alone concern, for the estimated one thousand laborers who have perished while constructing her project thus far. ‘I have nothing to do with the workers,’ Hadid has claimed. ‘It is not my duty as an architect to look at it.‘”

Hadid contends that Filler defamed her because workers have not begun constructing the stadium, and no workers have died. Moreover, the passage implies that she is indifferent to the workers’ deaths. Architectmagazine.com reports that Hadid’s complaint seeks “a withdrawal of the article from publication, a retraction, unspecified damages from the defendants, full payment of legal fees, and ‘any further relief as justice may require.’”

On August 25, 2014, Filler retracted his statement in a letter to the editor entitled, An Apology to Zaha Hadid, which is also added to the end of the review online. The Los Angeles Times reports that Hadid’s legal team received Filler’s retraction but has yet to respond.

Although Hadid obtained Filler’s retraction, it may be difficult for the architect to receive any other relief that she seeks in her complaint if her lawsuit reaches the trial stage. Since Hadid is a Pulitzer Prize-winning architect, she will likely be deemed a public figure, and consequently, she has to prove that Filler acted with “actual malice” when he wrote his article, which is a difficult standard to prove, as explained in this post about celebrity defamation suits.

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Joseph Perry (@jperry325) is a 3L at St. John’s University whose goal is to become a publishing media law attorney. He has interned at William Morris Endeavor, Rodale, Inc., Columbia University Press, and is currently interning at Hachette Book Group and the Media Law Resource Center, which has given him insight into the legal aspects of the publishing and media industries.

Featured Image Courtesy of [Phil Gyford via Flickr]

Joseph Perry

Joseph Perry is a graduate of St. John’s University School of Law whose goal is to become a publishing and media law attorney. He has interned at William Morris Endeavor, Rodale, Inc., Columbia University Press, and is currently interning at Hachette Book Group and volunteering at the Media Law Resource Center, which has given him insight into the legal aspects of the publishing and media industries. Contact Joe at staff@LawStreetMedia.com.

The post New York Review of Books Retracts Defamation Error appeared first on Law Street.

Early last month, the Seventh Circuit of Appeals held that the Sir Arthur Conan Doyle Estate must pay attorney’s fees to plaintiff, Leslie Klinger. The payment of attorney’s fees is the latest setback for the Conan Doyle Estate in its attempt to block the publication of Klinger’s two Sherlock Holmes anthologies without first obtaining a licensing fee. In mid-July, Justice Elana Kagan denied the Conan Doyle Estate’s stay (i.e., blocking the Seventh Circuit Court of Appeals ruling).

For the readers who don’t know the background preceding the lawsuit, let me summarize it for you: Klinger, who is a Sherlock Holmes scholar, co-edited two Sherlock Holmes anthologies, A Study in Sherlock and In the Company of Sherlock Holmes, which contained new and original short stories about Sherlock Holmes by contemporary authors. The Conan Doyle Estate claimed that Klinger needed to obtain a license from the Conan Doyle Estate to publish A Study in Sherlock with Random House and a second license to publish In the Company of Sherlock Holmes with Pegasus Books. Klinger believed he did not need a license to publish the anthologies because he believed the Holmes and Watson characters were in the public domain. Although Random House acquiesced and purchased a license, Pegasus Books refused to finalize its author agreement with Klinger if he did not seek a license. Thus, stuck without a book contract with Pegasus, Klinger sued the Conan Doyle Estate in 2013 and sought a declaratory judgment (i.e., a legal determination by a court about a particular uncertainty between the parties) on pre-1923 and post-1923 story elements in the Sherlock Holmes canon, including but not limited to, characters, character traits, dialogue, etc., in order to determine whether or not Klinger needed a license from the Conan Doyle Estate.

In December 2013, a federal district court in Illinois ruled in favor of Klinger by stating that he needed to obtain a license from the Conan Doyle Estate for post-1923 story elements but did not need a license for pre-1923 story elements. In June, the Seventh Circuit of Appeals affirmed the Illinois district court’s decision and stated that Klinger did not need to obtain a license for his anthologies because the Holmes and Watson characters were in the public domain.

Justice Kagan’s denial of the Conan Doyle Estate’s stay likely signifies that the lawsuit has finally come to a close. Klinger’s win is advantageous to book publishers because publishers likely do not need to obtain a license from the Conan Doyle Estate to publish anthologies or other literary works. Moreover, Klinger’s victory affects the movie and television industries, which seem to almost always have a Sherlock Holmes television show or motion picture airing or in post-production.

Joseph Perry

Joseph Perry is a graduate of St. John’s University School of Law whose goal is to become a publishing and media law attorney. He has interned at William Morris Endeavor, Rodale, Inc., Columbia University Press, and is currently interning at Hachette Book Group and volunteering at the Media Law Resource Center, which has given him insight into the legal aspects of the publishing and media industries. Contact Joe at staff@LawStreetMedia.com.

The post Sherlock Holmes: A Winner for Book Publishers appeared first on Law Street.

This summer has been filled with celebrity defamation lawsuits, particularly against video game makers.  Early last month, Lindsay Lohan filed suit against the makers of Grand Theft Auto 5, Take-Two Interactive Software, Inc. and its subsidiary Rockstar Games, claiming that they used Lohan’s likeness without her permission.  Two weeks later, Panama dictator Manuel Noriega filed a legal action against Activision, the maker of Call of Duty: Black Opps II, also claiming that it used Noriega’s image without his permission.

Courtesy of [Chris Alcoran via Flickr]

The book publishing world also felt the sting of defamation lawsuits this summer brought by Hollywood starlet Scarlett Johansson and former Minnesota Governor Jesse Ventura.

In May 2013, Scarlett Johansson filed a libel lawsuit against French novelist Gregoire Delacourt for using Johansson’s name and image without her permission and for making false statements about her personal life in his best-selling French novel, The First Thing We Look At. The novel contains a scene in which the female protagonist, a French model who looks identical to Johansson, seeks the help of the lead male protagonist, a mechanic who mistakes the French model for Johansson. The character then has two affairs as Johansson, but her name is later revealed to be Jeanine Foucaprez. Johansson’s lawyer claimed that the two affairs that Jeanine had were untrue, and that the novel depicts Johansson as a sex object. Delacourte argued, however, that Jeanine was meant as a “tribute” to Johansson.

Courtesy of [pop torrent via Flickr]

Last month, a French court ruled in favor of Johansson and ordered Delacourt to pay damages in the amount of 2,500 euros (approximately $3,400) for his demeaning portrayal of Johansson.  Although Delacourte had to pay damages to Johansson, it seems that Delacourte’s publisher, J-C Lattes, won at the end of the day because the court denied Johansson’s attempt at an injunction to stop translations and film adaptations of the novel.  According to the Guardian, Emmanuelle Allibert of J-C Lattes said, “The book has already been translated into German and Italian and there has been interest in translating it into English, but publishers were waiting for the outcome of the case. Now we are open to offers.”

Across the pond in the United States, another defamation case unfolded this summer in federal district court in Minnesota, which book publishers took note of nationwide. Former Navy SEAL, pro wrestler, and Minnesota governor, Jesse Ventura, sued the estate of Chris Kyle for libel in Kyle’s book American Sniper: The Autobiography of the Most Lethal Sniper in U.S. Military History¸ published by HarperCollins. Kyle’s book contains a chapter entitled, “Punching Out Scuff Face,” which detailed a California bar fight that Kyle had with a celebrity in 2006. Ventura was not mentioned in the book, but Kyle said in interviews after HarperCollins published his book that Ventura was “Scruff Face.”  Ventura acknowledged that he was in the bar with Kyle but did not say that the Navy SEALS “deserved to lose a few,” nor did Kyle punch him in the face as Kyle alleged in his book. The district court in Minnesota favored Ventura and awarded him $1.8 million consisting of $500,000 for damages and $1.3 million for unjust enrichment.

Courtesy of Pesky Librarians via Flickr

Ventura’s award may be surprising due to the higher “actual malice” standard that public figures face in prevailing in libel actions throughout the United States. In libel lawsuits, public figures are placed in two categories: public figures and limited-purpose public figures. Public figures are people who are of great public interest (e.g., President Obama, Michael Jordan, Julia Roberts, etc.). Limited-purpose public figures are people who thrust themselves into a public issue or controversy to try to influence the resolution of that issue (e.g., guests brought on national news networks like MSNBC and Fox News to argue about ways to resolve various issues). In this case, being an ex-governor of Minnesota categorized Ventura as the former. Since Ventura was deemed a public figure, he had to prove that Kyle wrote false statements of fact about him that were made with “actual malice” (i.e.,  Kyle knew the statements he wrote were false, and Kyle deliberately or recklessly disregarded the false statements and published them anyway). Ultimately, the court believed that Ventura overcame the difficult “actual malice” burden of proof and awarded him damages.

The case isn’t quite over, however, as  on August 19, 2014, Kyle’s widow, Taya Kyle, filed a lawsuit in Dallas County Court against her attorney, Christopher Kirkpatrick, for malpractice. She claims that Kirkpatrick was negligent in his legal services and did not explain or disclose to the Kyles the various conflicts of interest that he had.

Ventura’s verdict is disconcerting to U.S. book publishers not only because of Ventura’s million dollar verdict, but because the lawsuit against Kyle’s estate could possibly have been avoided.   Publishers routinely tell authors to edit their respective manuscripts in order to avoid potential libel lawsuits (e.g., referring to Ventura by a different name, “Scruff,” and not mentioning Ventura’s name in the book). Kyle’s publisher, HarperCollins, likely did not bet on Kyle’s admission in an interview that “Scruff” was Ventura. Kyle’s confession serves as a warning to publishers that they cannot be too careful in fact checking and advising authors during the pre- and post-publication processes.

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Joseph Perry (@jperry325) is a 3L at St. John’s University whose goal is to become a publishing media law attorney. He has interned at William Morris Endeavor, Rodale, Inc., Columbia University Press, and is currently interning at Hachette Book Group and the Media Law Resource Center, which has given him insight into the legal aspects of the publishing and media industries.

Featured image courtesy of [Clyde Robinson via Flickr]

Joseph Perry

Joseph Perry is a graduate of St. John’s University School of Law whose goal is to become a publishing and media law attorney. He has interned at William Morris Endeavor, Rodale, Inc., Columbia University Press, and is currently interning at Hachette Book Group and volunteering at the Media Law Resource Center, which has given him insight into the legal aspects of the publishing and media industries. Contact Joe at staff@LawStreetMedia.com.

The post 2014 is the Summer of Celebrity Defamation Suits appeared first on Law Street.