Grosso v. Miramax applied

NY Times: Lawyer Is Upping the Ante in Claims of Idea Theft in Hollywood: “The latest in a long line of gadflies who contend that it’s their job to keep the studios honest, Mr. Marder has spent the last two years capitalizing on having won a federal appeals court decision that makes it easier for writers who pitch an idea or circulate a script to make a claim of theft stick.”
This Times article discusses the effect of the 9th Circuit’s ruling in Grosso v. Miramax (2004).
The Patry Copyright Blog: Grosso Mondo: Bad Ideas Never Die: “Bad Ideas never die; no I’m not talking about the proposal to extend protection to fashion designs, but to protecting ideas themselves.”

links for 2006-07-27

Reality TV and the Law

The only summer reality tv show to capture my interest has been Rock Star: Supernova, which could be considered Mark Burnett’s take on American Idol. Fortunately, Burnett’s version of the talent competition format is much better than Idol’s. First, the judges (Tommy Lee, Jason Newsted and Gilby Clarke who are forming the band “Supernova”) have a personal interest in seeing who wins the competition, because the winner will be fronting their band. Secondly, the contestants are encouraged to rearrange and reinterpret their songs with the aid of the House Band. Unfortunately, none of the members of Supernova nor associate judge Dave Navarro are able to criticize the contestants as well as Idol’s Simon Cowell. But I digress.
Supernova is also the name of a California band that formed in 1989 and released its major label (Atlantic) debut album, Ages 3 and Up, in 1995. Among the uses made in commerce of the Supernova brand, the band’s song Chewbacca was used by Kevin Smith on the Clerks soundtrack and by the 1997 MTV Movie Awards, where MTV and Carrie Fischer awarded Chewbacca (Peter Mayhew) the award our favorite Wookie never received at the end of Star Wars.
Supernova: Chewbacca (iTunes link).
Supernova (founded in 1989) filed a lawsuit in the federal district court for the Southern District of California against Mark Burnett Productions, CBS Broadcasting, Rockstar Entertainment Inc., JMPB Inc., as well as Tommy Lee, Jason Newsted and Gilby Clarke. Here’s the complaint: Supernova From Cynot3, LLC v. Mark Burnett Productions, Inc.
The plaintiffs claim:
1. Willful Trademark Infringement
2. False Designation of Origin (§43(a) of the Lanham Act)
3. Intentional Interference with Prospective Economic Advantage
The plaintiffs seek:
1. Declaratory Judgment that Defendants are Not Entitled to Registration of the Marks SUPERNOVA and ROCK STAR: SUPERNOVA
2. Injunctive relief
3. Damages (including treble damages for willful infringement, punitive damages and attorney fees)
MTV reports: Supernova Sue ‘Rock Star: Supernova’ Producers, Bandmembers: “The lawsuit, filed in federal court in San Diego, names Mark Burnett Productions, Rockstar Entertainment Inc. and CBS Broadcasting as defendants, along with Tommy Lee, Jason Newsted and Gilby Clarke — the three future members of the group this season’s ‘Rock Star’ is supposed to spawn and endow with a lead singer. After someone’s chosen to front the band, the foursome will eventually record and release fresh material before touring the nation, all under the Supernova moniker.”
In other reality TV legal news, 43(B)log reports on a California contract case of Reality TV jurisprudence: “The network and producers tried to compel arbitration pursuant to a release agreement executed by the siblings (some of whom were minors) prior to the broadcast. The court found the arbitration clause unconscionable and thus unenforceable.”

Keywords in Commerce?

Eric Goldman, Technology & Law Marketing Blog: Search Engine Liability for Selling Keywords Redux–800-JR Cigar v. GoTo.com: “this case reinforces the completely unsettled nature of keyword purchases and trademark law. Combined with the other two search keyword cases this year that reached directly opposite results to each other (Edina Realty and Merck v. Mediplan), there really is no way of predicting how the next case is going to come out. In some ways, the law applicable to search engines selling keywords has not advanced in any meaningful way from 2000 when this case was first filed.”

Neutral Policy

CDT: Focused Internet Neutrality Legislation Warranted To Protect Open Internet: “In the absence of legislated safeguards, there is a real risk that today’s network operators could choose not to retain the core elements of Internet neutrality. This risk, and the potential consequences, are simply too great to take no action. Once new, non-neutral networks and business arrangements have been put in place, overturning them is likely to be extremely difficult. Legislation is warranted to ensure that neutrality will continue to be factored into network architecture and business plans from the start.”
Full CDT report: Preserving the Essential Internet
Daniel Weitzner, MIT: The Neutral Internet: “The debate thus far, however, has proceeded on the mistaken assumption that this is an either/or choice; that we have to choose between a non-discriminatory, slow, insecure network or a potentially discriminatory, high-speed, cleaner Internet tied together with other broadband services. This paper argues that it is possible to preserve the neutral, non-discriminatory essence of the Internet, without sacrificing future growth of new Internet services and other broadband infrastructure.”
NewsForge: Today’s cell phone system argues for retaining network neutrality: “It turns out that we have a privately owned and controlled network all around us, one that closely mirrors the technical functionality of the Internet, but where there has never been a requirement for net neutrality: the US cellular phone network.”
Sen. Ron Wyden (D-OR) pledges to hold any telecom bill that does not protect a neutral internet: Wyden Blocks Telecom Legislation Over Ineffective Net Neutrality Provision: “The bill makes a number of major changes in the country`s telecommunications law but there is one provision that is nothing more than a license to discriminate. Without a clear policy preserving the neutrality of the Internet and without tough sanctions against those who would discriminate, the Internet will be forever changed for the worse. This one provision threatens to divide the Internet into technology `haves” and `have nots.” This one provision concentrates even more power in the hands of the special interests that own the pipelines to the Internet.”
And finally, a modest proposal for broadband policy from Andy Kessler in The Weekly Standard: Give Me Bandwidth… No one to root for in the net neutrality debate: “Telcos and cable companies have no choice but to lobby for legislation that bars neutrality. Because without the ability to extract money from the webbies for the use of their not-so-fast Alexander Graham Bell-era wires (forget that you and I already overpay for this), AT&T or Verizon might not have any business model going forward. With no real competition, they’d rather keep U.S. telecommunications in the Flintstone era and overcharge for calls to Grandma than upgrade their networks. Since 1998, telecommunications companies have outspent computer and Internet firms on politicians $231 million to $71 million, just to keep the status quo.”

ABA Report on Presiidental Signing Statements

Today, the American Bar Association released a “blue-ribbon panel” report on the harm that Presidential Signing Statements are doing to separation of powers and the constitutional republic: “The American Bar Association opposes, as contrary to the rule of law and our constitutional system of separation of powers, the issuance of presidential signing statements that claim the authority or state the intention to disregard or decline to enforce all or part of a law the President has signed, or to interpret such a law in a manner inconsistent with the clear intent of Congress”
New York Times: Legal Group Faults Bush for Ignoring Parts of Bills: “In a comprehensive report, a bipartisan 11-member panel of the bar association said Mr. Bush had used such ‘signing statements’ far more than his predecessors, raising constitutional objections to more than 800 provisions in more than 100 laws on the ground that they infringed on his prerogatives.”
Lyle Denniston, SCOTUSblog: Analysis: ABA, the courts and the presidency:

A task force of the American Bar Association is urging Congress to give the Supreme Court and lower federal courts the power to judge the constitutionality of a president’s public statements of how new laws will be enforced — apparently, before a president ever takes action to carry out such a statement. For the first time in history, it appears, the courts would have the authority to review presidential intentions, as opposed to fully formed or final actions. That is perhaps the boldest (though least explained) of the recommendations that the task force made on Monday in a new report that is sharply critical of presidential “signing statements” — the official utterances of presidents when they sign a new piece of legislation into law, putting their spin on meaning.

Marty Lederman, Balkinization: ABA Task Force Report on Presidential Signing Statements: “But I am a bit surprised by the Report’s central conclusion, which is that the President may not refuse to enforce statutes that he deems unconstitutional.”
William Patry: ABA and Signing Statements: “This is a serious issue on its own, but it is also a window into a systemic crisis in our country: a President who is contemptuous of the Constitution, the rule of law, and anything and anybody who stands in the way of what he wants to do. Within the Administration, these steps are the actualization of a ‘unitary executive’ theory. The term ‘unitary’ is quite telling, since it replaces three with one. Most people would call the result of a unitary form of government a dictatorship.”

links for 2006-07-25

TiVo Genericide?

Matt Haughey, PVRBlog: Quit saying “tivo” when it isn’t a TiVo: “I know I’m being a bit of a stickler here, but last week on Pimp My Ride, they opened the show by saying they’d stick hi-def TiVo into a guy’s van. I watched closely knowing that’s no easy task and unsurprisingly, even though you hear the word ‘TiVo’ in the episode about half a dozen times, it most definitely wasn’t TiVo.”
Haughey concludes, “I know on the one hand it’s a testament to how great a product/service is when people use it as a generic term but in the case of TiVo it seems to be leading to a lot of customer confusion.”