On this day in 2001, the California Supreme Court held that an artistic image of a celebrity is subject to right of publicity liability only if the image is not transformative. In Comedy III Productions, Inc. v. Gary Saderup, Inc., the court ruled that a charcoal drawing of the Three Stooges sold as reproductions in the form of lithograph prints and T-Shirts was not “commercial speech,” and belonged to the category of fully protected expressive speech. However, the Court found the use was not transformative because the artist’s sketch was merely a “literal” and “conventional” depiction of The Three Stooges used to exploit their fame. Therefore, the artwork was not immunized by the First Amendment and was an infringement of the postmortem rights of publicity of the Three Stooges.

On this day in 2003, Apple launched its iTunes Music Store. The company claimed to provide a convenient legal alternative for downloading music. The store initially offered about 200,000 tracks from all the major labels. Apple CEO Steve Jobs said, “It’s not free, but it’s 99 cents a song, pretty doggone close. . . There’s no legal alternative that’s worth beans.”

According to Apple, the iTunes Music Store now has a catalog of over 12 million songs; it sold its 10 billionth song in February 2010.

The L.A. Times’ Company Times blog reports that Activision Blizzard has been sued by 38 former and current employees of video game studio Infinity Ward, maker of the “Call of Duty” franchise. They claim to be owed up to $125 million in unpaid royalties and compensatory damages.

In March, Jason West and Vince Zampella, the former heads of Infinity Ward, sued Activision for breach of contract and wrongful termination. Earlier this month, Activision countersued, alleging, among other things, that West and Zampella met with other publishers while still under contract, and that the pair held future versions of the “Call of Duty” franchise hostage so that Activision would give into their demands. Two weeks ago, West and Zampella launched a new development studio, Respawn Entertainment. Respawn is aligned with Electronic Arts.

On this day in 2005, the Family Entertainment and Copyright Act (FECA), was signed into law.

• The law, which amended § 2319 of the federal criminal code, made it illegal to use a camcorder or similar device to record a movie in a movie theater. Under 18 U.S.C. § 2319B, first-time violators may be fined and face up to three years in prison; subsequent offenders may face up to six years in prison.
• The law amended §110 of the Copyright Act and § 1114 of the Trademark Act to allow for movie sanitizing technologies such as the technology used by ClearPlay, which instructs specially-designed DVD players to censor particular parts of a DVD by skipping certain video and audio content.
• The law amended § 408 of the Copyright Act, directing the Copyright Office to issue regulations to establish procedures for the preregistration of particular works being prepared for commercial distribution. The works must be of a type that have a history of being infringed before release.
• The law amended § 506 of the Copyright Act so that it criminalizes distribution over the Internet of a work being prepared for commercial distribution. First-time violators may be fined and face up to three years in prison; subsequent offenders may face up to six years in prison. If the offense was committed for purposes of commercial advantage or private financial gain, the penalties increase up to five and ten years for first-time and subsequent violators respectively.
• The law amended § 108 of the Copyright Act to allow libraries to make copies of orphan works.
• The law reauthorized the Library of Congress’s film preservation activities.

The Supreme Court has agreed to rule on the constitutionality of a California law banning the sale or rental of violent video games to minors. In Schwarzenegger v. Video Software Dealers Association, California has asked the Court to extend the same “variable obscenity” standard to violent content that has been used in cases involving laws prohibiting minors from accessing obscene material. The statute at issue, Cal. Civ. Code §§ 1746-1746.5, prohibits the sale or rental of a violent video game to anyone under 18. Violators are subject to a civil penalty of up to $1,000. And all violent video games must carry a 2“ x 2“ solid white “18” label on the face of the package.

The statute contains two definitions for a “violent video game.” The first definition, defined in § 1746(d)(1)(A), is a modified version of the the three-part Miller test for obscenity (notably, among other significant alterations, the statute omits a “community standards” requirement in the first description under 1746(d)(1)(A)):

(d) (1) “Violent video game” means a video game in which the range
of options available to a player includes killing, maiming,
dismembering, or sexually assaulting an image of a human being, if
those acts are depicted in the game in a manner that does either of
the following:
(A) Comes within all of the following descriptions:
(i) A reasonable person, considering the game as a whole, would
find appeals to a deviant or morbid interest of minors.
(ii) It is patently offensive to prevailing standards in the
community as to what is suitable for minors.
(iii) It causes the game, as a whole, to lack serious literary,
artistic, political, or scientific value for minors.

The second definition, defined in § 1746(d)(1)(B)-(d)(3), borrows language from the federal death penalty jury instructions. California has since conceded that this alternate definition of “violent video game” is unconstitutional because it does not include an exception for material that has a redeeming value to minors:

(B) Enables the player to virtually inflict serious injury upon
images of human beings or characters with substantially human
characteristics in a manner which is especially heinous, cruel, or
depraved in that it involves torture or serious physical abuse to the
victim.
(2) For purposes of this subdivision, the following definitions
apply:
(A) “Cruel” means that the player intends to virtually inflict a
high degree of pain by torture or serious physical abuse of the
victim in addition to killing the victim.
(B) “Depraved” means that the player relishes the virtual killing
or shows indifference to the suffering of the victim, as evidenced by
torture or serious physical abuse of the victim.
(C) “Heinous” means shockingly atrocious. For the killing depicted
in a video game to be heinous, it must involve additional acts of
torture or serious physical abuse of the victim as set apart from
other killings.
(D) “Serious physical abuse” means a significant or considerable
amount of injury or damage to the victim’s body which involves a
substantial risk of death, unconsciousness, extreme physical pain,
substantial disfigurement, or substantial impairment of the function
of a bodily member, organ, or mental faculty. Serious physical abuse,
unlike torture, does not require that the victim be conscious of the
abuse at the time it is inflicted. However, the player must
specifically intend the abuse apart from the killing.
(E) “Torture” includes mental as well as physical abuse of the
victim. In either case, the virtual victim must be conscious of the
abuse at the time it is inflicted; and the player must specifically
intend to virtually inflict severe mental or physical pain or
suffering upon the victim, apart from killing the victim.
(3) Pertinent factors in determining whether a killing depicted in
a video game is especially heinous, cruel, or depraved include
infliction of gratuitous violence upon the victim beyond that
necessary to commit the killing, needless mutilation of the victim’s
body, and helplessness of the victim.

Both the Ninth Circuit and district court refused to apply the “variable obscenity” standard in this case, and held the statute unconstitutional. The Ninth Circuit said that the state failed to produce enough evidence to show that video games cause physical or neurological harm to minors, and the Act did not use the least restrictive means to further the state’s purported interests.

SCOTUSblog has a nice overview of the case.

On this day in 2007, the District Court for the Southern District of New York held that downloading a digital music file does not constitute a public performance within the meaning of the U.S. Copyright Act. In U.S. v. ASCAP, 485 F. Supp. 2d 438 (S.D.N.Y, 2007), an ASCAP rate-setting proceeding with AOL, RealNetworks, and Yahoo! Inc., the court held that a digital download is not a “performance” as defined by the Act because there is no perceptible “rendition” when a digital file is copied from one computer to another. Rather, it is a mechanical reproduction in the form of a “digital phonorecord delivery,” as defined in § 115 of the Act. The court further noted that while it is theoretically possible that a transmission could constitute both a public performance and a reproduction, “Congress did not intend the two uses to overlap to the extent proposed by ASCAP in the present case.”

On this day in 1999, the Ninth Circuit held that using a competitor’s trademark as a website metatag is likely to cause initial interest confusion and is therefore actionable under the Lanham Act. In Brookfield Communications, Inc. v. West Coast Entertainment Corp., the plaintiff, maker of a searchable entertainment-industry database, sought to prevent the defendant, a video rental chain, from using its MovieBuff trademark as a top level domain (www.moviebuff.com) and as metatags within the defendant’s website. The court explained that even though there is no source confusion because consumers know who they are patronizing once they have entered the website, “there is nevertheless initial interest confusion in the sense that, by using ‘moviebuff.com’ or ‘MovieBuff’ to divert people looking for ‘MovieBuff’ to its web site, West Coast improperly benefits from the goodwill that Brookfield developed in its mark. ”

On this day in 1980, the California Court of Appeals held that an injunction obtained by a radio station barring a former employee from wearing “any chicken suit whatsoever” invalidly restricted his right to earn a living and to express himself as an artist. In KGB, Inc. v. Giannoulas, the court noted that an employment contract did not create a contractual monopoly of all appearances by the defendant in any chicken costume. Not only does public policy disfavor injunctions preventing one from pursuing a calling, but § 16600 of California’s Business and Professions Code explicitly bars such post-employment restraints. The court said that even if an injunction was not prohibited by statute, an injunction must rest on a finding of injury to the plaintiff. The court found no injury to the station from the free publicity it received as a result of the defendant’s chicken act. However, the defendant was not permitted to wear the particular radio station’s ensemble, which included the station’s logo.

On this day in 2006, the California Supreme Court tossed out a sexual harassment suit brought by a former writers’ assistant against Warner Bros. and the writers of the hit TV show, “Friends.” In Lyle v. Warner Brothers, 38 Cal. 4th 264, 132 P.3d 211 (2006), the court, in a 7-0 decision, ruled that the plaintiff failed to establish a prima facie case of hostile workplace environment sexual harassment under California’s Fair Employment and Housing Act (FEHA). The court noted, “While the FEHA prohibits harassing conduct that creates a work environment that is hostile or abusive on the basis of sex, it does not outlaw sexually coarse and vulgar language or conduct that merely offends.” The language used among the writers who worked on the show was part of the creative process and was not aimed at the plaintiff, Amaani Lyle, or at other women in the workplace.

On this day in 1979, the U.S. Supreme Court held that, in a defamation action brought by a “public figure,” the First Amendment does not shield the press from having to answer questions concerning its editorial process. In Herbert v. Lando, the Court refused to support unequivocal protection for the editorial process, and reasoned that because the actual malice standard under New York Times v. Sullivan is subjective, discovery of this sort must be available to the plaintiff.

The case was brought by Anthony Herbert, a retired Vietnam veteran, who had accused his superiors of covering up war crimes and other atrocities. The defendant, Barry Lando, produced and edited a segment on “60 Minutes,” and wrote an article in The Atlantic Monthly, in which he challenged the veracity of Herbert’s story. Herbert brought the defamation action against Lando accusing him of falsely portraying him as a liar.

On this day in 2002, the U.S. Supreme Court declared the Child Pornography Prevention Act unconstitutional. In Ashcroft v. Free Speech Coalition, the Court held that the Act, which prohibited child pornography whether based on actual pictures of children, computer generated images or pornography in which adult actors portray juveniles, was overbroad and unconstitutional under the First Amendment. The opinion, written by Justice Kennedy, pointedly noted that the material prohibited by the Act did “not involve, let alone harm, any children.” The statute proscribed speech that was neither obscenity under Miller nor child pornography under Ferber. The Court found that the statute included a wide range of lawful speech, ranging from “a Renaissance painting depicting a scene from classical mythology” to “Hollywood movies, filmed without any child actors,” such as “Romeo and Juliet,” “Traffic,” and “American Beauty.”

Variety notes that the Writers Guild of America (“WGA“) is asking its members to approve a change to how credit is granted to “production executives” (i.e., writer-producers and writer-directors) on non-original scripts.

Currently, under the WGA Screen Credits Manual, in order to receive writing credit, a writer-director or writer-producer must contribute at least 50% of the screenplay if he or she is not the first writer. A non-hyphenate must only contribute more than 33%. The WGA Screen Credits Review Committee contends that the current rule encourages a writer offered a production credit to “think twice” before accepting the offer. In other words, the writer who has satisfied the lower threshold for non-hyphenates, but failed to meet the higher threshold required of production executives, may simply choose to forgo a producer credit if it means giving up a screenplay credit. Under the proposed amendment (pdf), production executives will receive a screenplay credit so long as they contribute more than 33% of the script. The committee believes that the proposed rule will make the credits system more fair to hyphenates. Inclusion of writer-producers and writer-directors will continue to trigger automatic arbitrations. The current credit rule for original screenplays will not change (writers receive credit for an original screenplay if they contribute more than 33% as first writer, or 50% as subsequent writer; production executives must contribute more than 50% to receive credit).

The board has already approved the changes. Members will now have the opportunity to submit statements opposing approval of the proposed changes. Voting by members will begin in late May. (Note: An informational meeting will be held for current members only at the WGA, West next Tuesday, April 20th.)

The WGA has also proposed two changes to the Television Credits Manual (“TVCM”). The first change would allow for an arbiter teleconference among the arbitrators and the Arbitration Consultant in the event that the Arbitration Committee is unable to come to a unanimous decision on a writing credit (the identities of the arbiters would remain anonymous). If the arbiters do not come to a unanimous decision during the teleconference, then the majority decision would be final. Currently, no teleconference is permitted. A similar change was added to the Screen Credits Manual in 2008.

The second proposed change would combine the TVCM and the Separation of Rights Manual (“SRM”) into one manual, reformat the document for improved clarity and understanding, and change existing language to more accurately reflect current policies and practices.

The document with all of the proposed amendments can be found here (pdf).

On this day in 2005, Death Row co-founder, Marion “Suge” Knight, was ordered to pay $107 million as a result of a default judgment in a breach of contract suit filed by Lydia Harris. Harris had claimed that she helped found the record label and was a 50% owner of the company. With only $11 dollars in his checking account, Knight subsequently filed for bankruptcy.

The U.S. District Court for the Central District of California has denied Veoh’s motion for attorney’s fees in UMG Recordings, Inc. v. VEOH Networks, Inc., 2010 WL 1407316 (C.D. Cal. April 6, 2010).

In 2009, Veoh, the Internet video sharing site, which is now in Chapter 7 liquidation bankruptcy, successfully defended a copyright infringement suit filed by UMG. As the prevailing party, the company had moved for an award of attorney’s fees under § 505 of the Copyright Act and Rule 68 of the Federal Rules of Civil Procedure. The court noted that, under § 505, the awarding of attorneys fees is discretionary and that Veoh “failed to demonstrate that UMG’s legal challenge was improper, in bad faith, or contrary to the purposes of the Copyright Act.” The court did not find UMG’s position to be legally untenable, or the manner in which the company pursued its claims unreasonable. Not only did the court refuse to grant attorneys fees under § 505, it also refused to grant fees and costs under Rule 68. The court agreed with UMG that fees under Rule 68 can only be awarded if Veoh is entitled to recovery under the Copyright Act.

Over at the Technology & Marketing Law Blog, Eric Goldman raises some good questions about Rule 68, and wonders whether the court may have gotten it wrong on that part of the ruling.

On this day in 2007, CBS Radio canceled “Imus in the Morning” after Don Imus caused a controversial firestorm by referring on the air to the Rutgers women’s basketball team as “Nappy-headed hos.” With the help of First Amendment lawyer Martin Garbus, Imus subsequently threatened to sue CBS for breach of contract; the parties settled out of court.