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The drama is building in the comic clash between TBS late-night talk show host Conan O’Brien and comedy writer Alex Kaseberg over jokes Kaseberg claims O’Brien and his writing team stole from him.  As previously reported, O’Brien was able to knock out two of the five jokes in question on summary judgment on the grounds that they were independently created and/or too different for a reasonable juror to conclude they were copied, but three of Kaseberg’s jokes remain standing.  A jury trial is scheduled to begin this May.

In the trial brief O’Brien filed last month, O’Brien raises a funny bone of contention: are Kaseberg’s jokes even original enough to warrant copyright protection at all?  The brief asserts that “Kaseberg’s jokes are negligible and trivial variations on unprotectable ideas, preexisting works, or public domain works, such that they do not contain the requisite amount of creative input to qualify for copyright protection.”

Kaseberg’s jokes, like many jokes, pertain to news stories and current events.  The three jokes in question consist of a gag about New England Patriots’ quarterback Tom Brady giving Seattle Seahawks coach Pete Carroll the new truck Brady promised to award the MVP of Super Bowl XLIX, a jeer about a hypothetical street named after Bruce Jenner (i.e., “cul-de-sacless”), and a discovery that the Washington Monument is ten inches shorter than previously thought because of “shrinkage” resulting from cold weather.  Only the expressions of these humorous ideas, not the ideas themselves, are copyrightable.  And, as O’Brien’s brief notes, expressions that are “standard, stock, or common to a particular subject matter are not protectable under copyright law.”  However, Kaseberg’s brief stresses the low standard of originality the Copyright Act requires and contends all that is needed is “some creative spark, no matter how crude, humble or otherwise.”

In the event the jury finds Kaseberg’s jokes “original” enough to be copyrightable, Kaseberg will still have to demonstrate O’Brien’s jokes were “virtually identical” to Kaseberg’s – a much higher standard than the typical “substantial similarity” test.  Since Kaseberg’s jokes contain inherent newsworthiness, the Court found they could only receive thin copyright protection which requires the copying to be nearly verbatim to be actionable.

O’Brien argues Kaseberg falls well short of this standard, claiming the jokes are “worded differently, convey different actions, contain different levels of information, and involve different perspectives.”  O’Brien also claims differences in structure and delivery (O’Brien entertaining a live audience and Kaseberg writing his jokes in print) defeat Kaseberg’s claim.

Specifically, the differences in the Superbowl joke O’Brien identifies include the fact that O’Brien’s punchline (“So, Brady is giving his truck to Seahawks coach Pete Carroll”) was delivered in a neutral and sarcastic tone whereas Kaseberg’s punchline (“So enjoy that truck, Pete Carroll”) was more caustic and directed to Carroll.

With respect to the Washington Monument joke, O’Brien cites the fact that Jimmy Fallon tweeted the joke the day before Kaseberg published it, suggesting the joke is not original to Kaseberg.  O’Brien also pointed out that his punchline stating the monument, itself, was blaming the “shrinkage” on cold weather vs. Kaseberg’s jest “You know the winter has been cold when a monument suffers from shrinkage” distinguishes the jokes in that O’Brien sarcastically implies other factors shrunk the monument while Kaseberg solely attributes the weather to the shrinkage.  Finally, with respect to the Jenner joke, O’Brien claims the difference in punchlines “Cul-de-Sackless” vs. “Cul-De-No-Sac” is significant, as well as the fact that O’Brien’s joke was directed to the residents of the street whereas Kaseberg’s jeer was not.

Kaseberg’s brief acknowledges the Court’s finding that the jokes must be “virtually identical” to be actionable, but claims that this standard is met – especially in light of Kaseberg’s allegations that O’Brien told these jokes on his show the same night after Kaseberg posted them.  A funny coincidence?  Kaseberg thinks not.

It remains to be seen who will have the last laugh in this dispute, but with trial briefs submitted and less than four months before showtime, it appears this case will reach a grand finale.

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The California appellate court ruling which dismissed actress Olivia de Havilland’s suit against FX’s Feud will remain in place after the U.S. Supreme Court rejected de Havilland’s petition for review last week.

The now 102-year-old actress best known for roles in Gone With the Wind and The Adventures of Robin Hood, de Havilland alleged that FX’s depiction of her in the Emmy-award-winning docudrama Feud infringed her right of publicity and portrayed her in a false light.  Feud aired on FX in March of 2017 and was an eight-part miniseries that illustrated the intense rivalry between world famous actresses Bette Davis and Joan Crawford.  Olivia de Havilland, a close friend of Davis, was played by Catherine Zeta-Jones and her character appears for a total of 17 minutes across the entire season.

Specifically, de Havilland’s right of publicity claims hinged on her contention that she did not give FX permission to use her name, identity, or image.  Further, de Havilland complained that the depiction of her giving a fake interview on the red carpet, accusing Frank Sinatra of drinking all the alcohol in a green room for a production, and calling her sister, Joan Fontaine a “bitch” in an interview (de Havilland had actually called her a “dragon lady”) portrayed her in a false light.

FX claimed de Havilland’s suit amounted to nothing more than an ill-fated attempt to silence protected speech and filed an anti-SLAPP motion which was denied.[1]  The trial court reasoned that de Havilland’s right of publicity claims held merit based on declarations by purported entertainment industry experts claiming it is customary in the industry to obtain an appearance release from all individuals depicted in a work.  Moreover, the trial court held that FX’s portrayal of de Havilland was not “transformative” because its producers were attempting to portray her “as real as possible.”  The trial court also found that a jury could find that de Havilland was portrayed in a false light as a “gossip who uses vulgar terms about other individuals.”

FX’s appeal ultimately set the stage for a decision that vindicates the First Amendment and benefits all filmmakers and writers.  In her opinion for the Court, Associate Justice of the Second District Court of Appeal Anne H. Egerton recognized that books, films, plays, and television shows often portray real people and that these people, regardless of their fame, do not “own history.”  Accordingly, de Havilland “does… [not] have the legal right to control, dictate, approve, disapprove, or veto the creator’s portrayal of [her].”

The Court held that the First Amendment “safeguards the storytellers and artists who take the raw materials of life – including the stories of real individuals, ordinary or extraordinary – and transforms them into art, be it articles, books, movies, or plays.”  Further, the fact that some producers may obtain appearance releases or “life story rights” as a means of obtaining greater access to information about subjects and avoiding litigation does not mean that the First Amendment requires such agreements and, indeed, the Court held that such agreements are not required.  The Court noted that it might be a different story if de Havilland’s image was being used in a way that implied she sponsored or endorsed the work, but the Court reasoned that merely depicting de Havilland does not automatically indicate an endorsement.  Moreover, the Court found that her depiction was “transformative” because Feud told a complex story, the use of de Havilland’s identity was merely one of the raw materials from which the work was synthesized, and the work’s marketability and economic value derived from the creativity and skill of the creators and actors in Feud – not the depiction of de Havilland, which was only for 17 minutes of the 392-minute series.

With respect to de Havilland’s false light claim, the Court found it unpersuasive.  Specifically, the Court held that merely portraying de Havilland giving a fictitious interview would hardly subject her to “hatred, contempt, ridicule, or obloquy.”  To the contrary, the Court found that de Havilland was portrayed as a “wise, witty, sometimes playful woman” and Zeta-Jones’ portrayal of her was “overwhelmingly positive.”  Further, the series’ portrayal of de Havilland stating that Sinatra drank all the alcohol in a dressing room was not actionable because “Sinatra’s fondness for alcohol was well known” and a depiction of de Havilland saying this would not subject her to ridicule.  Finally, the Court found the fictitious “bitch” comment about de Havilland’s sister was not materially different from de Havilland’s actual reference to her sister as a “dragon lady.”

Of course, since de Havilland is a public figure, she had to demonstrate that Feud’s creators acted with actual malice when they made false statements about her.  De Havilland argued that actual malice was established by the producers’ concession that the red carpet interview, quip about Sinatra, and “bitch” comment never happened but, rather, were added for dramatic effect.  The Court was not convinced, holding that “fiction is by definition untrue.”  Thus, “[p]ublishing a fictitious work about a real person cannot mean the author, by virtue of writing fiction, has acted with actual malice.”  Rather, to prevail, a plaintiff must show that the defendant intended to convey a “defamatory impression.”  Here, the Court found that the producers intended to portray de Havilland as “a wise, respectful friend and counselor to Bette Davis, and a Hollywood icon with a unique perspective on the past,” and such a depiction was not grounds for a false light claim.

Although firmly defeated, de Havilland’s attorneys told the Los Angeles Daily Journal that “Miss de Havilland hopes she will live to see the day when justice is done.”  For filmmakers, producers, and writers, that day has already come.

[1] A “SLAPP” is a Strategic Lawsuit Against Public Participation.  Typically such an action is not filed because it holds merit, but rather to silence speech.  In response, California and numerous other states have passed “anti-SLAPP” statutes, which allows a defendant to file a special early motion to strike a SLAPP action and typically features the following procedural/substantive advantages: (1) a stay on discovery; (2) an expedited hearing of the anti-SLAPP motion; (3) an immediate appeal if the motion is denied; and (4) an award of attorneys’ fees to the party prevailing on the motion.

Readers over 40 will remember the TV series MacGyver, which ran on ABC from 1985 through 1992. The show starred Richard Dean Anderson as a mild-mannered secret agent with an uncanny ability to escape the gravest perils by repurposing ordinary objects around him.  The show was such a hit that “macgyver” entered the lexicon to refer to an ingenious solution to a problem.

The original series was packaged by Major Talent Agency (“MTA”), which represented Henry Winkler and John Rich. Winkler and Rich, through their loanout companies, sold the show to Paramount under a 1984 agreement (“1984 Agreement”), which contained a specific provision according MTA a package commission on any series produced under the agreement and on “any spin-off series therefrom.” Paramount TV was acquired by Viacom in 1994, and when Viacom spun off CBS in 2006, the rights to MacGyver went with it.  In this franchise-crazed era, a revival of the program was inevitable; the new MacGyver premiered on CBS in the fall of 2016 and is now in its third season.  Citing the 1984 Agreement, MTA’s successors demanded their package commission from CBS, claiming that the new MacGyver constitutes a “spin-off series.” When CBS declined to pay, litigation ensued.

The case is deceptively simple. It turns on the meaning of the word “spin-off” as used in the 1984 Agreement. CBS’ publicity for the current series refers to it as a “reboot” or “remake.” Although neither of these terms appears in the 1984 Agreement, MTA’s successors assert that “[a]t the time of the 1984 Agreement, the term ‘spinoff,’ unless further defined, was broadly understood in the industry to mean a television series that is based on, comes out of or otherwise derives from an earlier television series, including what are referred to today as, among other things, ‘reboots,’ ‘revivals,’ ‘remakes,’ ‘sequels,’ and ‘spin-offs.'”

Conversely, CBS will argue that “remake” and “spinoff” refer to different things. A spinoff takes characters or settings from one work as the starting point for a different work. In contrast, a remake uses principal characters from the original work to animate a work similar to the original. These distinctions were well-known in 1984. At that time, A Star Is Born had already been remade twice. As for spinoffs, look no further than Happy Days, the show that made Henry Winkler’s career.  That series was itself a spinoff from a segment of Love, American Style and in turn was spun off to Laverne & Shirley and Mork & Mindy. By these definitions, the new MacGyver show is more fairly characterized as a remake than as a spinoff.  Of course, if the parties to the 1984 Agreement had intended to pay commissions to MTA for remakes as well as spinoffs, they could have said so.

There are, however, plausible theories that MTA’s successors could use to explain this omission. In 1984, remakes may not have been novel but were largely confined to theatrical motion pictures. The craze to recycle old TV series is a much more recent phenomenon. Further, the distinguishing characteristic of a remake is inherently fuzzy when applied to TV. A remake, by definition, substantially replicates the plot of its original, but every episode of a TV series is a new story, which begs the question of what exactly it is that is being remade. Under this logic, any reversioning of a series can be theoretically characterized as a spinoff, even one that involves substantially the same characters and setting. Viewed in this light, it is understandable why the parties to the 1984 Agreement might have used “spinoff” to refer to any new version of a series.

Sometimes, seemingly simple questions of contract interpretation can illuminate transformations in the entertainment industry over time. Similar conflicts arose over whether streaming revenues should be deemed “home video” receipts for purposes of calculating backend participations. Unlike those cases, the MacGyver case does not implicate deep technological changes, but it does reflect a programming trend that was perhaps not foreseen in 1984.

 

It’ll be hard to dance out of this one.

An actor, an influencer, and a rapper have filed lawsuits against Epic Games Inc., the creator and publisher of “Fortnite”, over the use of certain dances in the game, alleging copyright infringement.  Fortnite is a survival shooter, battle royale, “king of the hill”, or, last person standing video game.  The game has become extremely popular, with Epic reporting to media outlets that it now has up to 200 million players.  Players can create their own worlds and battle arenas — and at the center of controversy, players can choose what dance their characters perform when they win.

Alfonso Ribeiro, best known for his role as the beloved character of Carlton on the 1990s hit television show “The Fresh Prince of Bel Air”, is suing Epic over the use of a dance he made popular on the show. The dance, usually referred to as “The Carlton Dance”, can be seen in the game as a function when a player wins. Fortnite calls the dance “Fresh” and game players can purchase various dances known as “emotes” for their characters, including another called “Rambunctious” which mirrors a dance performed by Will Smith’s character on “The Fresh Prince of Bel Air”. These are just a few examples of multiple in-game purchases and downloadable content (DLC) that have generated wild amounts of money in revenue for Epic — despite the fact that the game itself is free to download and play.  According to Variety, analysts estimate Fortnite is generating $100 million per month.

In Ribeiro’s lawsuit, he asked the U.S. District Court for the Central District of California to stop Epic from using, showing, or selling the Carlton dance. Ribeiro is in the process of registering the dance under federal copyright law, a requirement to bring a copyright infringement claim.  Ribeiro argues he created the dance and made it famous over the years during appearances, including most recently during his participation on ABC’s “Dancing With The Stars” TV show. Ribeiro further claims the dance is “inextricably linked” to his identity, celebrity, and likeness.  On the other hand, the creators of The Fresh Prince of Bel Air might argue that they maintain ownership of rights to the dance, as many talent agreements contain results and proceeds provisions that give all rights in content produced on a show to the producers, not the talent.  Thus, the battle ensues over when exactly the dance was created and by whom.

But can a dance be protected by copyright?  The U.S. Copyright Act protects “original works of authorship fixed in any tangible medium of expression”.  17 U.S.C. § 102.  Visual works under the umbrella of protection include choreographic works and choreographed stage performances.  Ribeiro argues his dance constitutes a choreographed work subject to copyright protection.  And he isn’t the only celebrity to file suit against Epic.

Influencer Russell Horning, known among millennials as “Backpack Kid”, also filed suit against Epic seeking to stop the use of his popular dance, “The Floss”, in Fortnite.  Horning is also suing Take-Two Interactive, the maker of the popular video game franchise “NBA 2K” for the use of the dance without his permission. Horning quickly became a social media influencer after his performance with Katy Perry on “Saturday Night Live” in 2017.  He boasts 2.3 million Instagram followers and often posts comical videos of himself dancing.  He also recently released an EP, making “The Floss” an even more important asset of his entertainment career.

Similarly, rapper 2 Milly filed a copyright infringement lawsuit over the use of his dance, the “Milly Rock”, in Fortnite.  Fortnite presents the dance for purchase as the “Swipe It” emote.  The Milly Rock dance gained popularity due to 2 Milly’s 2015 song of the same name.  His argument parallels those of Ribeiro and Horning, claiming ownership and authorship of the dance, seeking damages for its use without permissions.  2 Milly is seeking punitive and exemplary damages.

All three lawsuits were filed in the U.S. District Court for the Central District of California.  Along with copyright claims, the lawsuits include claims for violation of the right of publicity and unfair competition.  Horning also brought claims of trademark infringement and false designation of origin.  It seems like the combination of these claims could create a Fort-nightmare for Epic Games.

These lawsuits come during a rise of celebrity disputes with video game content creators for the use of their name and likeness without their permission.  We’ve covered similar topics here.

The U.S. Court of Appeals for the Fourth Circuit ruled last week that deceptive editing in Katie Couric’s gun violence documentary did not rise to the level of a defamatory statement to support a defamation action.

The suit centers on a twelve-second clip in the documentary, Under the Gun.  The film concerns gun policy in America and takes a perspective favoring regulation.  In a three-minute segment of the film, Couric interviews members of the Virginia Citizens Defense League (“VCDL”), a non-profit gun-rights organization.  Couric poses a series of questions on gun policy, which prompt detailed responses from the VCDL members. At the close of the segment, Couric asks: “If there are no background checks for gun purchasers, how do you prevent felons or terrorists from purchasing a gun?”  In the documentary, her question is followed by nine seconds of silence, during which the VCDL members are shown shifting uncomfortably in their seats and averting their eyes and appears to imply that they had no answer for that question.

In the unedited version, however, Couric’s background check question prompted approximately six minutes worth of responses from the VCDL members, and another three minutes of related discussion between Couric and the panel.  Rather than use these responses in the documentary, however, the filmmakers spliced in b-roll footage (taken before the interview even began) which depicted the interviewees sitting in silence while technicians calibrated the recording equipment.

Following the release of the film, VCDL produced the unedited audio of the interview.  In the public backlash that followed, Couric issued a statement admitting that the documentary did “not accurately represent [the VCDL members’] response” and that the segment was “misleading.”

Members of the VCDL filed a defamation suit in the Virginia district court against Couric and others associated with the production and distribution of the documentary.

To state a claim for defamation under Virginia law, the VCDL interviewees needed to plead three elements: “(1) publication of (2) an actionable statement with (3) the requisite intent.”  The case turned on the second element: whether the statement – in this case, footage edited to convey silence and thus imply that the interviewees had no answer for a particular question – is actionable. To be “actionable,” a statement must be “both false and defamatory.”

In the alternative, Plaintiffs argued that the interview portion of the film was defamatory per se to Daniel Hawes (an attorney and member of the VCDL), Patricia Webb (the owner of a gun store), and the VCDL itself as a pro-Second Amendment advocacy organization because the film could “reasonably be understood to suggest that [Plaintiffs were] unfit in [their] trade.”

The district court held (and the Appellate Court affirmed) that Plaintiffs’ arguments failed on both accounts.

First, although the Court acknowledged that statements can often be found to have a defamatory meaning even through implication alone, it found that, in context, the edited footage was “not reasonably capable of defamatory meaning.”  The Court pointed out that the disputed segment comes on the heels of several other questions concerning background checks, and the panelists’ answers to all of those questions are included in the film.  Thus, although the Court allowed that the film gives the impression that Couric’s final question stumped the panelists, the “plain, ordinary meaning” of the edited segment conveys only “that these particular members of the VCDL, after answering a series of related questions, did not have a ready-made answer to a nuanced policy question.”

The Court made clear that it did not decide whether silence under Virginia law can ever satisfy the statement requirement of a defamation cause of action – merely that it failed to do so here.

Second, the Court rejected the VCDL’s argument that the misleading film clip constituted defamation per se.  As to Hawes, the Court concluded that the questions posed to him about background checks had nothing to do with his legal practice or expertise. Similarly, the Court found that the film is “not reasonably capable of suggesting that Webb is unfit to own a gun store” because the job does not require a nuanced view on gun policy. “Had the film suggested that Webb did not know, for instance, whether a gun store owner must perform a background check, this might be a different case,” the Court observed, but, as the district court explained, “[n]ot having an answer to a specific question about effective alternatives to background checks does not imply anything about fitness to own a gun store and to sell guns.”

Finally, as to the VCDL itself, its argument that the footage implies that it is unfit as a pro-Second Amendment advocacy organization would “require the Court to extend the film’s meaning well beyond what the clip shows.”

Though the Court agreed that the filmmakers’ editing choices were “questionable,” it found that the edited footage itself “simply does not rise to the level of defamation under Virginia law.”

The case may be good news for producers of narrative media, but worrisome in an era where truthful reporting – including the honest characterization of one’s subject – is more important than ever.  The case is also a good starting point for any journalism professor tasked with teaching the law and ethics of journalism:  the court certainly supplied the “could you legally do it?” answer, but the “should you do it?” discussion is a worthy one indeed for all future journalists.

The case is Va. Citizens Def. League v. Couric, 4th Cir., No. 17-1783, 12/13/18.

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Cody Lundin’s lawsuit against Discovery for allegedly defaming Lundin in its reality series “Dual Survival” was voted off the island earlier this month when a district court in Arizona granted Discovery’s motion for summary judgment.  Lundin’s claims arose from an episode titled “Journey’s End to a New Beginning” which depicted Lundin walking off the program after clashing with the show’s co-host Joe Teti.  Lundin alleged the episode advanced the “false narrative” of him “walking off the show in disgrace as a burned-out, irrational, incompetent and mentally ill has-been.”

In granting Discovery’s motion, District Judge Roslyn O. Silver noted that although “Dual Survival” is hardly a “reality program,” it did not misrepresent Lundin’s behavior.  Silver found “Lundin was happy to participate in the charade as long as he was portrayed in the manner he preferred.”  What charade you ask?  Silver cited several examples in the case record that reflect “Dual Survival” is far more scripted than “real.”  For instance, Silver wrote “Dual Survival” often portrayed the hosts as having little access to food and water.  In reality, Silver found the hosts enjoyed breakfast and dinner at resorts, hotels, and lodges, and also receive catered lunches on location.  In addition, Silver noted multiple scenes in which “wild” animals were placed on set to be “hunted” by Lundin and Teti.

But when it came to the episode’s portrayal of Lundin, Silver found the depictions were accurate or, at least, substantially true.  For example, Lundin objected to a scene in which he is shown angrily throwing objects at Teti.  Lundin claimed this scene was the “cornerstone piece of the false narrative” that made Lundin appear incompetent and mentally ill.  Yet, he admitted he was angry; just not with Teti.  Lundin was upset with a producer who allegedly instructed Lundin to throw the items in this fashion.  Silver found the scene accurately portrayed Lundin’s emotional outburst, and whether it was directed to a producer or Teti was immaterial.

Lundin also objected to scenes in which he cursed at Teti and that these statements were rearranged to fit into different points in the dialogue.  Silver, again, found this depiction of Lundin to be substantially true since Lundin actually uttered those words and was upset with Teti when the statements were played in the episode.

Moreover, some of the scenes to which Lundin objected were judged to be completely true.  For instance, Lundin is portrayed laughing at Teti as Teti struggles to kill a rattlesnake.  Teti’s on-screen statements that the snake is dangerous and that this is no laughing matter, Lundin argued, cast a false light on Lundin suggesting he is a “seriously mentally ill basket case” to find humor in such peril.  In reality, Lundin claims he was laughing at Teti’s incompetence and not at a situation in which someone could become seriously hurt, and that Discovery should have provided this context to the viewers.  Silver disagreed and found this depiction of Lundin to be factually accurate because he was truthfully shown laughing at Teti as he tried to kill the snake.

On a broader level, Silver found Lundin failed to demonstrate how any portion of the episode posed a serious threat to his reputation or, at a minimum, casted Lundin in a highly offensive light.  To the contrary, Silver determined the episode at several points displayed Lundin in a positive light, commending his mastery of the art of survival and calling Lundin’s departure a “big blow” to the program.

Lundin has until December 2, 2018 to file a notice of appeal.

Shortly after the 2015 debut of the hit Fox Television show Empire, Clayton Tanksley sued the studio, distributor, producer and creators of Empire for copyright infringement and related claims in the United States District Court for the Eastern District of Pennsylvania.  Tanksley’s claims stem from an alleged 2008 meeting with Empire’s creator and producer, Lee Daniels during a film competition sponsored by the Greater Philadelphia Film Office called Philly Pitch.  (The Film Office also was sued by Tanksley.)  Following the event, Tanksley claims to have discussed with Daniels a three episode television series he created and copyrighted called Cream, which was about an African American record executive who runs his own hip-hop label.  He also claimed to have provided Daniels with a DVD and script for the Cream series.  Tanksley’s complaint alleged that Cream and Empire are “strikingly substantially similar” in many respects, including the main and supporting characters, scenes and the overall themes of both works.

Copyright law protects the expression of ideas but not the ideas themselves.  Thus, in order for a plaintiff to prevail in a copyright infringement action he must demonstrate substantial similarity in the protected expression between the two works and not merely the fact that they share similar ideas or themes.  In dramatic works such as Empire and Cream, scènes à faire or plot elements that flow predictably from a general idea are unprotected.  For example, in “a film about a college fraternity … parties, alcohol, co-eds, and wild behavior would all considered scènes à faire and not valid determinants of substantial similarity.”  Tanksley v. Daniels, et al., No. 17-2023, p. 16, — F.3d – (3d. Cir. 2018).

Under that standard, the defendants moved to dismiss the complaint, arguing primarily that the two works were not substantial similar in protected expression.  In deciding defendants’ motion, the court performed a side-by-side analysis of Empire and Cream to determine whether a lay-observer would believe that the copying was of protectable aspects of Tanksley’s series.  The trial court granted the motion to dismiss, finding that the two works contain “dramatically different expressions of plot, characters, theme, mood, setting, dialogue, total concept and overall feel.”  And while the general idea of the two series revolved around African American music moguls, that was not protectable under copyright law.

Tanksley appealed to the Third Circuit raising primarily two arguments:  (1) the question of substantial similarity is too fact-intensive to be resolved on a motion to dismiss; and (2) the trial court erred in finding no substantial similarity between Empire and Cream.  As to the first argument, the court determined that certain works, including dramatic works, may be evaluated in a side-by-side comparison at the motion to dismiss stage and dismissed if “no trier of fact could rationally determine the two works to be substantially similar.”  The appellate court rejected plaintiff’s argument that the trial court erred in rendering its decision without the benefit of witness testimony, documentary evidence or expert analysis holding this was irrelevant to the dispositive question of how the two works would appear to a layman viewing them side by side.

As to the second argument, the Third Circuit determined that the trial court properly concluded that there was no substantial similarity of protected expression between Empire and Cream.  As the court concluded, aside from superficial, general similarities between the two shows, they were not substantially similar as a matter of law.  “The shared premise of the shows – an African-American, male record executive – is unprotectable.  These characters fit squarely within the class of ‘prototypes’ to which copyright protection has never extended.”  Thus, the Third Circuit agreed with the trial court that as to the protectable expression of plot, characters, theme, mood, setting, dialogue, total concept, and overall feel, no reasonable jury could conclude that Empire and Cream were substantially similar.

We last blogged here about the Second Circuit’s denial of TV Eyes’ fair use defense in a lawsuit brought by Fox News. Now the Wikimedia Foundation (owner of Wikipedia), joined by other free press advocacy groups, have filed an amicus brief in support of TVEyes’ petition for the Supreme Court review.U.S. Supreme Court building in Washington, DC

TVEyes is a subscription service that records massive amounts of television content and compiles it into a searchable database of 10-minute clips. Its subscribers range from the New York Times to the Department of Defense. Fox News brought a copyright infringement action against TVEyes in 2013. The Second Circuit handed down a decision in February upholding the network’s claims. TV Eyes has appealed this decision to the Supreme Court.

The Wikimedia brief warns of dire consequences if the circuit court ruling is allowed to stand, stating that it permits copyright owners to “stifle criticism and undermines established fair use principles that are vital for media commentary.” It notes further: “In today’s fast-paced and increasingly polarized media landscape, researchers, commentators, and critics must be able to record, search, watch, and compare the original visual recordings of relevant broadcasts. Such comprehensive tools can only be maintained by commercial services like TVEyes.”

The amici questioned the Second Circuit’s balancing of the four fair use factors. The court found the fourth factor dispositive, in that the TVEyes service harmed the ability of Fox News to benefit from its copyrights by licensing clips directly. The Wikimedia brief challenges that conclusion, asserting that the existence of a direct market for Fox News clips is “theoretical,” and one that Fox would be “unlikely to authorize.”

Fair use analysis always requires a balancing of the copyright holder’s statutory monopoly against the benefits of free dissemination of content. Frequently, this involves purely commercial interests on both sides, but some fair use cases, particularly those involving matters of public concern, implicate larger values. It has been 20 years since the Supreme Court issued a major fair use decision. Advocates on both sides will be watching to see whether it will use this case to clarify a contentious doctrine.

In March of this year, the Second Circuit reversed a decision by the District Court and held that the video clipping service operated by TVEyes infringed Fox News’ copyrights. We covered this decision in a previous blog. TVEyes is now attempting to bring the matter to the Supreme Court in what could be a landmark case regarding fair use of newsworthy content.U.S. Supreme Court building in Washington, DC

TVEyes is a subscription service that records essentially all television broadcasts on 1,400 channels on a 24/7 basis. By using the closed-captioned content that accompanies the recorded broadcasts, it is able to create a text-searchable database of the contents of each clip. TVEyes subscribers can run searches that return a list of video clips containing the searched terms. Each clip runs for 10 minutes and begins shortly before the search term appears in the clip. In addition to news organizations such as the New York Times, its subscribers include the U.S. Department of Defense, the United Nations, professional sports leagues and even the White House.

Five years ago, Fox News brought suit against TVEyes for copyright infringement based on its “verbatim reproduction” of Fox’s broadcasts. TVEyes countered by asserting a fair use defense. The District Court agreed and dismissed Fox’s claims, but the Second Circuit reversed and remanded the case with instructions to enjoin TVEyes from making available to clients the ability to watch the 10-minute clips retrieved from TVEyes’ client search requests. (Fox did not object to TVEyes’ creation of a text-searchable database, only to its delivery of clips.) The court held that two elements of TVEyes’ use favored Fox. First, by making 10 minutes of content available, TVEyes delivered “virtually the entirety of the Fox programming that TVEyes viewers want to see and hear.” Second, and most important, TVEyes’ service was sufficiently competitive to potentially deprive Fox of revenues that it could have been receiving from its own program of searchable access to its broadcasts. The very success of TVEyes’ service was strong evidence of the existence of a market for searchable clips.

The Second Circuit contrasted this to Google’s actions – which were found to constitute fair use – in Authors Guild v. Google, Inc., 804 F.3d 202 (2d Cir. 2015) (“Google Books”). In that case, Google made unlicensed text-searchable copies of millions of books for which searches retrieved “snippets” of the books containing the search terms. Unlike TVEyes’ 10-minute video clips, these “snippets,” according to the Second Circuit, “abbreviated to ensure that it would be nearly impossible for a user to see a meaningful exposition of what the author originally intended to convey to readers.”

TVEyes is now seeking to argue its case to the Supreme Court. It argues that its case presents an opportunity to resolve a split between circuits over “a question of exceptional importance, including the proper balance under copyright law between the interests of a copyright holder and the First Amendment right to criticize and comment upon the copyright holder.” TVEyes also notes that the Court has not addressed fair use for over 20 years, since it articulated the doctrine of transformative use in the case of Campbell v. Acuff-Rose Music.

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The FCC’s reexamination of the Children’s Television Act (CTA), which sets forth a myriad of rules and regulations with respect to the broadcasting of children’s programming, has entered the next phase as the deadline to submit public comments passed on Monday.  FCC Commissioner Michael O’Reilly announced in January as part of the FCC’s media modernization campaign that the commission will consider rolling back regulations under the CTA.  O’Reilly’s announcement has sparked heated debate amongst dozens of broadcasters, media companies, and public interest groups as to what, if any, changes should be made.

The CTA was first passed by Congress in 1991 to require broadcasters to air some amount of standard-length educational and informational programming specifically designed for children under 17 years old.  Although no minimum requirement of programming hours was imposed at that time, the law’s regulations strengthened over the years and now require broadcast companies to air an average of three hours of children’s programming per week between the times of 7 a.m. and 10 p.m.  Additionally, core children’s programming must run at least 30 minutes in length, be regularly scheduled weekly, and be labeled throughout the episode with an “E” or “I” symbol.  Broadcast networks are also required on a quarterly basis to specify in writing the objective of their current and prospective programming, target child audience, and various other data requiring voluminous paperwork to be filed with the FCC.  Non-compliance with any of these requirements jeopardizes a broadcast company’s ability to renew its license.

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Of course, a lot has happened in media over the 27 years since the CTA’s passing.   The explosion of the Internet and proliferation of alternative means of media consumption including over-the-top providers, subscription services, video-on-demand content, and paid television means traditional broadcast is no longer the primary means through which anyone, let alone kids, consumes content.  O’Reilly argues broadcasters are at a further disadvantage in this increasingly competitive field by having to contend with the CTA’s outdated regulations which he claims are costly and unduly limit creativity.

Specifically, the FCC is considering elimination of the requirement that core programming be at least 30 minutes in length.  O’Reilly cites “Schoolhouse Rock” and “In the News” as examples of shorter programs with notable success that were killed off by the CTA.  Also on the chopping block is the requirement that children’s programming be between 7 a.m. and 10 p.m., the requirement that programming be regularly scheduled weekly, and the mandate that broadcast networks submit extensive paperwork regarding their programs on a quarterly basis as opposed to O’Reilly’s recommendation to require the materials annually.

Critics of the proposed changes claim unwinding the CTA would result in less children’s programming on broadcast television, which disproportionally impacts millions of low income families who do not have access to the Internet or alternative means of media consumption. O’Reilly counters arguing deregulation will not eliminate children’s content from broadcast television but will rather allow broadcasters greater flexibility to design more cost-effective means of providing this content.  There is no evidence the CTA has enhanced children’s programming since the 1990s, argues O’Reilly, and the market for this programming is strong enough to sustain itself without heavy regulation.  For instance, O’Reilly cites PBS Kids (a 24/7 children’s content provider) which was licensed to approximately 100 stations nationwide covering 90 percent of U.S. television households.

The FCC is required to issue a reply to public comments by October 23 and thereafter determine an appropriate regularly scheme.  Note, the CTA’s regulations requiring kid-appropriate commercials when broadcasting children’s programming are not part of this reexamination and are expected to remain in full force.