Great news to report - late last night, on the last day of the regular session, the Washington state House of Representatives passed the bill to renew the Motion Picture Competitiveness program, ESSHB 5539, by a vote of 92 to 6. Governor Gregoire now has 20 days to sign the bill into law. Hat tip to Washington Filmworks and everyone who contacted their legislators in support of the bill.
RC3, the developers of an app called "Joustin Beaver," have petitioned a Florida district court for a declaratory judgment that the app does not infringe the rights of Justin Bieber. RC3 filed the lawsuit as a preemptive strike in response to a cease and desist letter from Bieber's lawyers. In the lawsuit, RC3 claims that the app is protected speech under the First Amendment because it is a parody of Bieber's celebrity persona:
"The App, a video game, is a parody of the commercial success of the Defendant and any celebrity. The parody app portrays a beaver floating on a log down a river. The beaver presents with bangs, a lance, and a purple sweater. The beaver knocks 'Phot-Hogs' that are attempting to take his photograph into the river with his lance. The beaver also signs 'Otter-graphs.' The beaver also must dodge the 'whirlpool of success,' which will lead beaver out of control, while navigating the river."
Bieber's camp objected to the game on the grounds that it implied a false endorsement by Bieber, and infringed on his rights of publicity (i.e., his image and likeness). If the lawsuit moves forward, the outcome will likely depend on whether Bieber can show that consumers would be confused as to affiliation, sponsorship, or endorsement by Bieber. However, if RC3's parody accomplishes its purpose, consumers will not be confused because they will recognize that "Joustin Beaver" is merely making fun of Justin Bieber. Judge for yourself:
Under the Copyright Act, public venues such as bars, restaurants, nightclubs, gyms, and the like (as well as terrestrial and online radio stations) must obtain public performance licenses from music copyright owners in order to play music. The three performing rights societies - ASCAP, BMI, and SESAC - represent music copyright owners and collect blanket licenses from the various venues where music is played in public. The performing rights organizations then distribute the income collected to the copyright owners. ASCAP has reported revenues at record high levels, totaling $935 million in 2010 alone. The reputation of the performing rights societies has been that they generally focus more on compliance rather than enforcement. However, the following case should be a cautionary tale for those who refuse to obtain the proper licenses from performing rights societies.
East Coast Foods, Inc., owner of the chain of restaurants known as "Roscoe's House of Chicken and Waffles," has lost an appeal of a judgment awarding damages, attorney's fees and costs arising out of the restaurant's failure to obtain a license from ASCAP to play music in the restaurant. The district court granted summary judgment to the Plaintiffs (consisting of various songwriters and music publishers, represented by ASCAP), based primarily on the testimony of an ASCAP representative that visited Roscoe's and heard numerous recognizable songs played by both a DJ and a live band in the restaurant. East Coast Foods challenged the testimony as expert testimony by a lay witness that should have been excluded from evidence by the district court. The Court of Appeals disagreed:
"[I]dentifying popular songs does not require scientific, technical, or other specialized knowledge...On the contrary, identifying music is a reflexive daily process for millions of radio listeners, amateur karaoke singers, and fans of Name That Tune reruns...Clearly, the district court correctly determined that [the representative's] testimony was admissible."
The Court of Appeals concluded that the district court correctly determined that there was no issue of material fact that the Defendant committed copyright infringement. The Court of Appeals affirmed the award of statutory damages against the Defendant in the amount of $36,000, as well as the far greater award of $162,728.22 against the Defendant for the Plaintiffs' attorney's fees and costs. Although the fee award was discretionary, the Court of Appeals showed little empathy, finding that the Defendant could have avoided liability by purchasing a valid license at any point during the seven years in which ASCAP made repeated requests for Defendant to do so.
Moral of the story: don't ignore a request by a performing rights society to obtain a proper license to play music at your venue. The case is Range Road Music, Inc. et. al. v. East Coast Foods, Inc., et. al., Docket No. 10-55691, U.S. Ninth Circuit Court of Appeals, filed February 16, 2012. A copy of the full opinion can be found here.
The Senate has passed SB 5539, the bill to renew Washington's Motion Picture Competitiveness Program. The program offers funding assistance of up to 30% for movies, television shows and commercials filmed in Washington that meet certain spending thresholds ($500,000 for feature films; $300,000 for television productions; and $150,000 for commercials); use local businesses and workers; and offer health and pension benefits. The renewal of Washington's film incentive is vital to the local film industry, as investors will simply not allow productions to be filmed here when there are 40 states that currently provide inventive programs.
Renewal of the program makes economic sense: according to a Washington State Joint Legislative Audit and Review Commission review, for the $20 million the state put into the incentive program since 2007, film companies spent about $137 million. In other words, the state and its workers got an almost sevenfold return on their investment.
The bill will now be referred to the House of Representatives for consideration. Stay tuned.
In July, reality television star Kim Kardashian sued Old Navy alleging that the company falsely implied Kardashian's endorsement by using a celebrity "look-alike" in an Old Navy jeans television commercial. The complaint alleged Kardashian is "well known for her distinctive and consistent look, fashion, and style," and that the Old Navy advertisement was "likely to cause confusion...in the minds of the consuming public as to an association of Kim Kardashian with Defendants' products and services." Kardashian's complaint includes claims for unfair competition under the Lanham Act as well as for violation of California's common law and statutory right of publicity laws.
Old Navy has answered Kardashian's complaint and disputes Kardashian's claim that the advertisement is likely to deceive consumers as to affiliation, sponsorship, or endorsement by Kardashian. Kardashian's most difficult evidentiary burden will be proving likelihood of confusion, which can be demonstrated through testimony of actual confusion or through consumer surveys. Judge for yourself whether the Old Navy advertisment implies a false endorsement: