Entertainment Litigation Blog

COMMUNICATION IN THE SOCIAL MEDIA AGE

By now, you've seen the image. In June 2011, the Vancouver Canucks lost game 7 of the 2011 Stanley Cup Finals to the Boston Bruins in Vancouver. Chaos ensued, and Vancouver burned. Sports fans rioting in disappointment over losing a championship (or in celebration of winning one) is hardly unusual. However, as the people of Vancouver rioted in the streets, a picture captured a couple in a private, intimate moment against a backdrop of smoke and police in riot gear. The photographer and the media reporting on the Vancouver riot did not know their names. They were simply the kissing couple.

Not surprisingly, the stark contrast between the violence in the background and the kissing couple lying on the street was a sensation -- the picture went "viral" -- disseminated worldwide on social networks as well as traditional media. With that kind of coverage, there was no chance that the anonymous couple would stay anonymous for long.

After the jump, I'll discuss the implications of the instantaneous spread of information and social media -- particularly on anonymity and expectations of privacy.

Continue reading "ENTERTAINMENT & MEDIA LITIGATION: LOSING ANONYMITY" »

STUDIO SETTLES COPYRIGHT INFRINGEMENT CLAIM BROUGHT BY TATTOO ARTIST

Late last month, Warner Bros. settled the copyright infringement lawsuit brought by the tattoo artist who designed the tatoo which appears on the face of former world heavyweight boxing champion Mike Tyson. The tattoo artist, S. Victor Whitmill, sued Warner Bros. for copyright infringement in April 2011 because Ed Helms' character in The Hangover: Part II sports a similar tattoo to the one Tyson made famous. Whitmill initially sought (unsuccessfully) to prevent or delay the release of the film. When that failed, Whitmill pursued his lawsuit in Missouri federal court, seeking damages and removal of his purported copyrighted work in any further exploitation of the movie. The settlement, of course, now eliminates the chance that Warner Bros. might be forced to digitally alter the movie.

After the jump, I'll discuss some of the legal issues raised by Whitmill's claims and why Warner Bros. likely felt it had to settle the case.

Continue reading "ENTERTAINMENT LITIGATION: WARNER BROS. SETTLES "HANGOVER II" LAWSUIT" »

JURIST ONE STEP CLOSER TO BECOMING FIRST FILIPINO-AMERICAN STATE SUPREME COURT JUSTICE

My practice and this blog is focused on entertainment, media and intellectual property litigation. However, the past week -- an historic one for the Filipino and Asian American legal community -- was consumed by the confirmation process for California Court of Appeal Associate Justice Tani G. Cantil-Sakauye and her nomination to become the first Filipino-American justice of the California Supreme Court, and first Asian-American Chief Justice of California. On Wednesday, August 25, 2010, Justice Cantil-Sakauye's confirmation hearing before the Commission on Judicial Appointments took place at the California Supreme Court in San Francisco. I was privileged to testify in support of Justice Cantil-Sakauye's nomination on behalf of the Philippine American Bar Association.

More on my testimony and Justice Cantil-Sakauye's hearing after the jump.

Continue reading "ENTERTAINMENT LITIGATION: COMMISSION ON JUDICIAL APPOINTMENTS CONFIRMS NOMINEE FOR CHIEF JUSTICE" »

JUDGES, ACADEMICS AND PRACTICING LAWYERS GATHER FOR YEARLY CONFERENCE

The 2010 Ninth Circuit Judicial Conference took place last week in Maui, Hawaii with United States Supreme Court Associate Justice Anthony M. Kennedy as the keynote speaker. The Ninth Circuit holds a judicial conference every year in one of its districts -- Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon or Washington. (The Ninth Circuit also includes Guam and the Commonwealth of the Northern Mariana Islands.) I was privileged to serve as a Lawyer Representative of the Central District of California from 2004 through 2008, attending conferences in Spokane, Washington, Huntington Beach, California and Honolulu, Hawaii. This year, I was invited as an "ex officio" Lawyer Representative.

After the jump, I'll share some thoughts about the conference and its importance to the legal profession.

Continue reading "ENTERTAINMENT LITIGATION: 2010 NINTH CIRCUIT JUDICIAL CONFERENCE" »

THE IMPORTANCE OF A STRONG LAWYER-CLIENT RELATIONSHIP

The lawyer-client relationship can -- and should -- be among the most intimate relationships -- grounded in mutual trust and respect, with open and honest communication. A client comes to the lawyer with a problem -- the lawyer learns all of the facts and charts the course to a solution -- and both are on the same page as they work together towards the resolution of the problem. However, as with any other personal relationships, it's no surprise that lawyers and clients can hit rough patches in their journey -- even when the relationship is a "good" one. This post is about examples of what can happen when the lawyer-client relationship deteriorates into an adversarial one.

There are many factors to consider when deciding whether to file litigation. I've previously touched on certain "downsides" to such litigation -- the potential that the litigation will spiral out of control or that the litigation will result in unintended consequences and embarrassing disclosures. This post is about the downside to strategic litigation choices -- including the decision to file a lawsuit in the first instance -- and how those choices can affect, positively or negatively, the strength of any lawyer-client relationship.

After the jump, two recent lawsuits between lawyers and clients -- including one case involving one of my mentors -- illustrate the importance of full and open communication between lawyers and clients during any litigation.

Continue reading "ENTERTAINMENT LITIGATION: WHEN THE CLIENT AND LAWYER TURN ON EACH OTHER" »

WHEN DOES A LAWYER GET TO DITCH A CLIENT

Mel Gibson's recent diatribes -- lending credence to the widely held view that he's a racist and abuser of women -- provoke an old but interesting debate about lawyers' duties to clients and when a lawyer can "fire" a client. Last week, Matthew Belloni of The Hollywood Reporter wrote a post on his THR, Esq blog about Gibson's lawyer, Tom Hansen, staying "loyal" to Gibson -- unlike Gibson's agents who dumped him.

THR's post was about deal lawyers. One lawyer, quoted (anonymously), says that he/she "couldn't represent someone who I didn't personally believe in" and that "a lawyer should be judged by who he chooses to get into business with -- and who he stays in business with." Interesting.

After the jump, why I disagree with this sentiment.

Continue reading "ENTERTAINMENT LITIGATION: REPRESENTING THE UNPOPULAR CLIENT" »

GOVERNOR SCHWARZENAGGER NOMINATES JUSTICE TANI CANTIL-SAKAUYE TO BECOME FIRST FILIPINO-AMERICAN ON STATE SUPREME COURT

July 22, 2010 is an historic day for the Filipino-American legal community. Justice Tani Cantil-Sakauye of the California Court of Appeal has been tapped to become California's first Filipino-American Supreme Court justice and the first Asian American woman to head any state supreme court. As the President and Chief Executive Officer of the PABA Foundation -- the fundraising arm of the Philippine American Bar Association -- it's a proud day for me and the entire Filipino-American legal community.

View the Governor's press conference here.You can read PABA's press release celebrating Governor Schwarzenagger's historic announcement here. You can also read the press release of the National Asian Pacific American Bar Association (NAPABA) about Justice Cantil-Sakauye's nomination here.

Congratulations Justice Cantil-Sakauye.

ACTRESS CLAIMS BABY GIRLFRIEND COMMERCIAL IS ABOUT HER

Actress Lindsay Lohan is once again in the news. This time, however, it's not because of what Lohan and her running buddies have done in some nightclub, or the latest in the ongoing feud between Lohan and her father. Instead, Lohan has made the news by filing a $100 million lawsuit against the online stock trading company, E*Trade, over their "milkaholic" baby girlfriend commercial.

Lohan's break as an actress came in the 2004 motion picture "Mean Girls." After that film, Lohan tried to expand her influence into the music arena, releasing a couple of albums to mixed reviews. Lohan graced the cover of Vanity Fair magazine (right) with a pictorial spread that evoked images of Marilyn Monroe. However, instead of becoming a "triple threat" -- actress/model/singer -- Lohan has become more widely known for being fodder for tabloids and paparazzi. With stories about her lesbian lover and their widely reported breakup, stints in rehab, car accidents, public feuds with her father and "overexposed" pictures of Lohan all over the 'net, Lohan is now the symbol of young Hollywood and their unabashed desire to have a good time.

Now comes Lohan's latest foray into the news: a $100 million dollar lawsuit against E*Trade for their latest "baby" commercial. After the jump, I'll detail why Lohan's lawsuit has the feel of a publicity stunt. And if you haven't seen the commercial which debuted during the Super Bowl, you can view that after the jump as well.

Continue reading "ENTERTAINMENT LITIGATION: LINDSAY LOHAN SUES E*TRADE FOR $100 MILLION" »

HOW VIEWERS ARE IMPACTED BY "TAPE DELAYED" COVERAGE OF 2010 VANCOUVER OLYMPICS

As a sports fan in California, "watching" the 2010 Olympics has been a frustrating experience. NBC has provided the west coast with little live coverage. So those of us who live in the "tape delayed" part of NBC's coverage map have a choice: (a) cease using communication devices and social media to avoid learning of results; or (b) watching the television coverage in spite of knowing the result.

I received a message on Twitter from a reporter from the Los Angeles Times asking if I would speak on the record about the issue. Never one to turn down an opportunity to speak my mind, I agreed. The LA Times article appears here.

My thoughts on the implications of tape delayed coverage on viewers after the jump.

Continue reading "ENTERTAINMENT & MEDIA: DELAYED TELEVISION COVERAGE OF OLYMPICS" »

NY FEDERAL JUDGE RULES THAT ALLEGEDLY DEFAMATORY STATEMENTS ABOUT ANNA NICOLE SMITH'S ATTORNEY/COMPANION SHOULD BE PRESENTED TO A JURY

Last Wednesday, on August 12, 2009, a federal district court judge in New York ruled that the defamation case filed by Anna Nicole Smith's former attorney and companion, Howard K. Stern, against the publisher and author of the book "Blonde Ambition: The Untold Story Behind Anna Nicole Smith's Death" should proceed to trial against the author, MSNBC investigative reporter, Rita Cosby. Judge Dennis Chin's decision provides several interesting legal tidbits as well as a glimpse into the media frenzy that followed Smith and her death.

"Blonde Ambition" made several explosive revelations about Smith, Stern, and Larry Birkhead, Smith's other love interest and father of her baby, Dannielyn. Cosby wrote among other things that (a) Smith caught Stern and Birkhead having oral sex with each other at a party in Los Angeles, (b) Smith remarked that Stern was gay, (c) Smith watched a sex tape of Stern and Birkhead on a regular basis as witnessed by her nannies, (d) Stern regularly "pimped" out Smith to others to have sex with and (e) Stern played a role in Smith's death. As expected, these revelations made Cosby's book an instant best-seller. However, also as expected, Stern was none too pleased with the contents of that book -- and sued Cosby and her publisher for defamation in New York.

The following are the highlights of Judge Chin's decision. You can see a copy of Judge Chin's ruling here.

Continue reading "ENTERTAINMENT & MEDIA LITIGATION: HOWARD K. STERN'S DEFAMATION CLAIM SURVIVES SUMMARY JUDGMENT" »

ROCK STARS SUE CALIFORNIA REPUBLICAN SENATE CANDIDATE OVER TWO SONGS

Since the election of Barack Obama, there appears to be a rash of lawsuits filed by rock and roll stars against Republican candidates for office. I previously wrote about Jackson Browne's federal case against the Republican National Committee and Senator John McCain over the use of Browne's song "Running On Empty" in an Ohio internet campaign spot. That case reportedly has apparently settled on confidential terms, resulting in an apology from the McCain camp.

In April, Eagles star, Don Henley, and Mike Campbell, guitarist for Tom Petty & The Heartbreakers followed suit -- literally. Henley and Campbell filed two lawsuits against Republican California State Assemblyman, Charles DeVore who is running for the Senate seat currently held by Democratic Senator Barbara Boxer. The lawsuits arise from DeVore's use of of the music in the songs "Boys of Summer" (which Henley and Campbell co-wrote) and Henley's "All She Wants To Do Is Dance" in political spots where DeVore replaced the original lyrics with his own politically motivated lyrics.

While many are surprised that the RNC, McCain and the Ohio Republican Party settled so quickly, the issues in the Henley/Campbell suit seems less likely to favor the rockers.

Continue reading "ENTERTAINMENT LITIGATION: ANOTHER REPUBLICAN POLITICIAN SUED OVER USE OF MUSIC" »

"TRUTH IN CHARITY" ENCYCLICAL TOUTS NEW GLOBAL ECONOMIC STRUCTURE BASED ON SOCIAL AND ETHICAL RESPONSIBILITY

It's been a while since I wrote a new post on this blog. I apologize for that. I thought I'd make my first post in some time to comment on Pope Benedict's June 29, 2009 Encyclical Letter "Caritas in veritate" -- Truth in Charity.

In his latest and third encyclical letter, Pope Benedict comments about the current global economic crisis and mentions certain intellectual property rights, the litigation of which constitutes a large part of my practice. The sentence in the Pope's letter which has generated reaction in the intellectual property community is this: "On the part of rich countries there is excessive zeal for protecting knowledge through an unduly rigid assertion of the right to intellectual property, especially in the field of health care."

Here are my thoughts on the subject -- from the perspective of a Catholic intellectual property lawyer and Coldplay fan.

Continue reading "ENTERTAINMENT LITIGATION: POPE BENEDICT, INTELLECTUAL PROPERTY RIGHTS AND COLDPLAY" »

PRIVACY AND ACCURACY ARE AT RISK WITH ABILITY TO INSTANTLY COMMUNICATE

Technology and the explosion of social networking sites are changing the paradigm of how and when we communicate with each other. Facebook, YouTube and the most recent craze, Twitter, together with rapidly improving camera/video cellular phone technology, allow instant communication to thousands of people. Communication that includes pictures and video, as well as text.

The potential uses for these expanding media are seemingly endless. The question is -- is that a good thing?

Continue reading "ENTERTAINMENT LITIGATION: THE SOCIAL NETWORKING CRAZE" »

COMMENTARY ON A CITIZEN'S OBLIGATION TO SERVE

Last month, I was summoned to jury duty in a not-so-desirable area of Los Angeles County. I was happy to serve and fulfill my obligation. For a trial lawyer, serving on a jury -- and even just appearing for jury duty and being a part of a jury pool -- is educational. However, some people seemingly will go to great lengths to avoid jury service.

The following is my rant on what I observed some people are willing to do to avoid serving on a jury.

Continue reading "ENTERTAINMENT LITIGATION: JURY DUTY" »

ROCKER JACKSON BROWNE SURVIVES REPUBLICAN NATIONAL COMMITTEE'S ANTI-SLAPP MOTION

Jackson Browne's 1977 iconic song "Running on Empty" is the focal point of a federal court lawsuit which highlights the tension between the First Amendment's strong protection for political speech and the rights of an artist to control his work. Browne sued the Republican National Committee (RNC), Senator John McCain and the Ohio Republican Party (ORP) because the ORP used "Running on Empty" in a web ad during the 2008 presidential campaign without Browne's permission. Browne, a well known activist who favors liberal causes and candidates, sued.

Continue reading "ENTERTAINMENT LITIGATION: FEDERAL COURT HANDS REPUBLICANS ANOTHER LOSS" »

PROMOTING THE 2009 PHILIPPINE BAR ASSOCIATION DINNER

Here's the video of my appearance this afternoon on the "Kababayan LA" television show on KCSI-TV 18 in Los Angeles hosted by Jannelle So.

I appeared on the television show to promote the 2009 Philippine American Bar Association and PABA Foundation Installation Dinner.

JUDGE DISMISSES MOST OF CLEMENS' CASE AGAINST FORMER TRAINER

In my prior post about protecting celebrities and their reputation, I commented on the defamation lawsuit that Roger Clemens brought against his former trainer, Brian McNamee. Clemens sued McNamee over McNamee's statements to investigators led by former Senator George Mitchell, as revealed in the infamous "Mitchell Report" concerning drug use in Major League Baseball, as well as statements McNamee made to Clemens' friend and Yankee teammate Andy Pettitte. As I previously wrote, a defamation lawsuit is a legitimate aggressive course of action to pursue -- but one which requires complete assurance that the factual and legal grounds of the case is solid, not just an expensive PR gambit.

On February 12, a federal judge in Houston dismissed the majority of Clemens' case against McNamee. Given the many embarrassing facts about Clemens' character and reputation that have been revealed, and now the order which effectively guts Clemens' case, the Clemens lawsuit is another example of that aggressive strategy gone awry.

Continue reading "ENTERTAINMENT LITIGATION: UPDATE ON ROGER CLEMENS' DEFAMATION LAWSUIT" »

CONGRESS MAY ATTEMPT TO LIMIT LIBEL SUITS IN FOREIGN COUNTRIES

In my recent post about protecting your reputation, I alluded to the recent trend of filing defamation (libel) cases in the UK because of that country's less restrictive burdens of proof. Lance Armstrong filed such a case over reports in the European press alleging that he used performance enhancing steroids during his incredible cycling career.

It's one thing for a celeb like Armstrong to sue the European press in the UK over a story. The problem comes when libel defendants in the US, who may not have the resources to defend themselves, are sued in the UK.

Here comes the US Congress to the rescue.

Continue reading "ENTERTAINMENT LITIGATION: PREVENTING "LIBEL TOURISM"" »

BATTLE OVER THIS YEAR'S SUNDANCE FESTIVAL PHENOM REVIVES AGE OLD QUESTION: WHEN IS A DEAL CONSIDERED A DEAL?

The fight over the rights to "Push: Based on the novel by Sapphire" reflects the same battle that has been fought time and again in Hollywood: when is a deal considered a deal. "Push" was the undisputed darling of the Sundance Film Festival last month. The film built up a steady buzz during the festival week. "Push" ultimately garnered the festival's US grand jury and audience prizes. And now, "Push" has spawned dueling lawsuits in New York and Los Angeles filed by the two suitors for North American distribution rights, The Weinstein Company (TWC) and Lionsgate.

So who knew that this drama -- about an illiterate African American teen in late '80s Harlem who is pregnant by her own father and abused by her mother -- could cause such a legal ruckus?

Continue reading "ENTERTAINMENT LITIGATION: SUNDANCE FILM "PUSH" SPARKS MULTIPLE LAWSUITS OVER FILM RIGHTS" »

I am the President and CEO of the PABA Foundation and on the Board of Governors of the Philippine American Bar Association. This is a fun evening in which we pay homage to our heritage while honoring leaders of our community. We need and welcome your support. Please RSVP by downloading the formal invitation here. Hope to see you there.

TAKING A LESSON FROM BASEBALL'S STEROID SCANDALS

The task of protecting celebrities from public humiliation is difficult and complex. In a recent post, I discussed strategies to protect celebrities and, in particular, the need to be absolutely sure about the true facts before embarking upon aggressive response strategies. Recent revelations about the use of performance enhancing drugs in baseball illustrate the problems for celebrities facing scandalous allegations.

The way different players handle these difficult issues can provide lessons on how to deal with such accusations against any celeb.

Continue reading "ENTERTAINMENT LITIGATION: UPDATE ON PROTECTING CELEBRITIES" »

ANDY KENNEDY'S ARREST LEADS TO COMPETING CIVIL CLAIMS

The defamation lawsuit filed by University of Mississippi head basketball coach, Andy Kennedy, has taken some interesting twists. Kennedy was arrested on December 18, 2008 after allegedly punching a cab driver in the face and using ethnic slurs outside a Cincinnati nightclub. A valet attendant supported the cabbie's claims in a police report. The next day, Kennedy filed a defamation lawsuit against both the driver and valet.

As I previously wrote, filing a "preemptive" defamation lawsuit can be a valid, aggressive response in order to false accusations. However, the Kennedy case illustrates the kind of unintended consequences that may result when a lawsuit is brought so quickly after an incident.

Continue reading "ENTERTAINMENT LITIGATION: UPDATE ON DEFAMATION CASE FILED BY OLE MISS BASKETBALL COACH" »

WELL KNOWN ENTERTAINMENT LAWYER TAKEN TO TASK OVER HIS REPRESENTATION OF LATE WRITER-DIRECTOR COLLIN HIGGINS

The Daily Variety reported yesterday that entertainment lawyer, Barry Hirsch, has been sued by the trust of the late writer-director, Collin Higgins, for malpractice. You can find the Variety story here.

According to the report, the Higgins trust sued Hirsch on January 14 for malpractice and conflicts of interest over Hirsch's representation of Higgins on his deal with Fox to rewrite the screenplay for the film "9 to 5" in 1979. Fox hired Higgins to rewrite Patricia Resnick's original screenplay for that picture.However, Resnick later wrote a stage musical based on "9 to 5" -- and Hirsch supposedly represented her in that endeavor.

That did not sit well with the Higgins trust.

Continue reading "ENTERTAINMENT LITIGATION: BARRY HIRSCH SUED FOR MALPRACTICE" »

PROTECTING CELEBRITIES FROM DEFAMATION AND INVASION OF PRIVACY

It's been said that "a good reputation is more valuable than money." When it comes to celebrities -- and most recently sports figures -- reputation is both valuable and easily tarnished. In this electronic age, damaging information can circulate instantly through cyberspace. Rumor quickly becomes generally accepted fact. Pictures can go "viral" and disseminated to millions at the speed of light. Once established, public perception becomes very difficult if not impossible to change.

So what can be done to protect a celeb's privacy and reputation -- and at what cost?

Continue reading "ENTERTAINMENT LITIGATION: WHAT IS YOUR REPUTATION WORTH?" »

SETTLEMENT PROMPTED BY CHRISTMAS EVE RULING

Certain details of the settlement between Fox and Warner Bros. over the "Watchmen" movie have been reported since my post yesterday on the end of the litigation between the studios.

The settlement apparently was prompted by a ruling by the court on December 24 that the film's producer, Larry Gordon, failed to properly secure the rights from Fox before setting up the project at Warners and that Fox owned the copyright to the property. Since Warners' rights were based on whatever rights Gordon acquired, the Christmas Eve ruling likely meant that Warners would have been enjoined from releasing "Watchmen" at the permanent injunction hearing scheduled for next week. The ultimate settlement between the parties was therefore inevitable.

Continue reading "ENTERTAINMENT LITIGATION: "WATCHMEN" SETTLEMENT UPDATE" »

FOX AND WARNER BROTHERS COME TO AN APPARENT AGREEMENT ON UPCOMING TENTPOLE FILM

In a filing with the United States District Court in Los Angeles yesterday, Fox and Warner Bros. revealed that they have apparently settled their differences over the upcoming motion picture, "Watchmen." The studios have been embroiled in a lawsuit since February 2008 over who controls the right to produce and distribute a motion picture based on the "graphic novel." Warner produced the picture and is the movie's distributor. Fox claimed that it still owned the rights to make and/or distribute any film based on the property.

I was asked to comment on the dispute for the Los Angeles Times in a story penned by John Horn in November 2008. That story details the long arduous process of getting the story to the silver screen -- which in large part caused this dispute among the studios.

Now that the film's opening is approaching, it's no surprise that the studios want to settle.

Continue reading "ENTERTAINMENT LITIGATION: STUDIOS SETTLE "WATCHMEN" LITIGATION" »

JURY REJECTS PHOTOGRAPHER'S CLAIM THAT REEVES RAN HIM OVER WITH HIS PORSCHE

A Los Angeles Superior Court jury cleared actor Keanu Reeves of any wrongdoing in an entertainment litigation filed by a photographer who claimed that Reeves ran him over with his Porsche. The photog, Alison Silva, claimed over $700,000 in damages and allegedly broke his wrist when Reeves tried to drive away as Silva tried to take his picture. Jurors deliberated for less than an hour before rejecting Silva's claim earlier this week.

The Reeves case is interesting -- not because a jury found in Reeves' favor -- but because entertainment litigations filed against celebrities of Reeves' stature rarely go to trial.

Continue reading "ENTERTAINMENT LITIGATION: KEANU REEVES WINS TRIAL AGAINST PAPARAZZI" »

HOW THE DIGITAL MILLENNIUM COPYRIGHT ACT (DMCA) PITS WEBSITES AGAINST TRADITIONAL MEDIA COMPANIES

The growing power and influence of the internet presents a different kind of challenge to traditional media companies. Social networking websites like YouTube and MySpace were once viewed as novelties with limited reach. Now visited by millions of users 24 hours a day, these user-friendly websites present a legitimate threat to traditional media companies and the manner in which people obtain information and spend their free time.

The battle between the new media and traditional media turned ugly last March when Viacom filed a billion dollar suit against YouTube for copyright infringement.

Continue reading "ENTERTAINMENT LITIGATION: MEDIA WARS -- YOUTUBE VS. VIACOM" »

AGGRESSIVE GOVERNMENT TACTICS PUT ALL MEDIA INCREASINGLY AT RISK

Recently, news media organizations have faced government pressure to reveal sources or other information or face criminal prosecution. The most infamous of these cases involved Judith Miller of the New York Times. Miller went to jail when she refused to reveal her confidential source for a news story in connection with a grand jury investigation. (Another reporter working for Time magazine agreed at the last minute to reveal his confidential source when his source gave him permission to do so.)

Yesterday's New York Times reveals a new tactic -- a government investigative subpoena which also threatens prosecution of the target for the mere disclosure of the subpoena. Apparently, the First Amendment is not what it used to be.

Continue reading "ENTERTAINMENT LITIGATION: THE FIRST AMENDMENT ISN'T WHAT IT USED TO BE" »

ACTORS' DEAL EXPIRES WITH NO PACT ON THE HORIZON

July 1 has come and gone with no deal in place which would prevent another crippling strike in Hollywood. The Screen Actors Guild and the Alliance of Motion Picture and Television Producers have reportedly reached an impasse in their negotiations for a new collective bargaining agreement to replace the previous agreement, which expired at 12:01 a.m. Tuesday morning. While the two sides are scheduled to meet today, public statements by AMPTP representatives make clear that the studios are unwilling to consider any changes to their final proposal which they transmitted on Monday, June 30.

For its part, SAG has acknowledged that the studios' final proposal is "generally consistent" with the agreements that the studios brokered with other guilds, including SAG's sister union, the American Federation of Television and Radio Artists. The studios first reached agreement with the Directors Guild of America in January. That agreement helped facilitate a resolution with the Writers Guild of America after an extended writers strike which halted production virtually across the board. Recently, the studios reached agreement with AFTRA on a new agreement with that union. The voting results of the AFTRA membership should be known some time next week.

Apparently, those deals are not good enough for some at SAG.

Continue reading "ENTERTAINMENT NEWS: ANOTHER STRIKE BREWING?" »

NEW FIRM, NEW BEGINNING

Tomorrow, on July 1, 2008, I start a new practice in my own law firm -- The Avanzado Law Firm. I left my partnership at Jeffer, Mangels, Butler & Marmaro this afternoon.

In so doing, I am going back to a small firm environment which should allow for more flexibility in my practice. I will continue my entertainment and intellectual property litigation practice and hopefully expand the kinds of matters I am able to handle. It is my hope that taking full control of my legal career will ultimately allow me to better serve clients.

As I get settled in my new life and office, I hope to add new substantive posts. As I have been distracted lately, I realize that I have not been posting much. Thanks for your patience.

TELEVISION JUDGE LOSES BID TO HAVE CASE AGAINST MANAGER DECIDED BY THE CALIFORNIA LABOR COMMISSIONER

Alex Ferrer, a former Florida judge now known as Fox's "Judge Alex" on television, entered into a contract with Arnold Preston, a lawyer who provides "services" to people in the entertainment industry. The dispute between centered on the nature of those "services" -- with Preston claiming that he was Ferrer's personal manager and Ferrer claiming that Preston acted illegally as an unlicensed talent agent.

Pursuant to an arbitration clause in their contract, in 2005, Preston demanded arbitration on his claim that Ferrer failed to pay for his services. Ferrer countered with a petition to the California Labor Commissioner, claiming that the contract was void under the Talent Agencies Act because Preston acted illegally as an unlicensed talent agent.

And so began three years of litigation before the Labor Commissioner and the courts, culminating in the US Supreme Court's decision yesterday.

Continue reading "ENTERTAINMENT LITIGATION: "JUDGE ALEX" LOSES SUPREME COURT APPEAL" »

NBC filed a lawsuit on Friday, January 25, 2008 against the creator and executive producer of its three "Law & Order" series, Dick Wolf. The lawsuit reveals a dispute between Wolf and NBC over the terms of his contracts for the three highly successful programs and seeks the court's intervention to interpret -- or reform -- the agreement between the parties.

According to NBC's complaint, Wolf takes the position that the parties agreed that the 2 season guarantee means that, should NBC terminate any of the Law & Order series, he is entitled to 2 years of producing fees, essentially as a severance or "kill fee." NBC disputes that interpretation. NBC claims that the parties agreed that NBC's promise of a 2 season guarantee means that, if NBC decides not to order an additional season of episodes, NBC would be on the hook only for the remaining year on the prior 2 year order.

The parties were unable to resolve their differences during pre-lawsuit negotiations -- and rumors abound that one or more of the Law & Order series are in trouble and could be cut from NBC's lineup.

Courts are generally loathe to change the terms of written contracts. So NBC has its work cut out for it to convince the court to re-write the agreement to conform to its understanding. And NBC claims that the agreements themselves are confidential in deciding not to file the documents with its complaint. So while it's difficult to analyze the exact dispute between the parties over interpretation of unseen documents, those details will eventually become public if the parties continue to litigate the case in the courts.

STUDIOS INVOKE FORCE MAJEURE TO JETTISON TALENT DEALS AS WRITERS STRIKE CONTINUES

As the strike by Hollywood's writers enters its third month, studios have started to terminate overall talent deals with producers and writers. Dubbed "Black Friday" and "Black Monday" by the trades, virtually every major television production arm terminated deals this past Friday and Monday. ABC Studios started the carnage on Friday, January 11. On Monday, January 14, CBS Paramount Network TV, Universal Media Studios, 20th Century Fox Television and Warner Bros. TV followed suit with their own cuts.

The studios' efforts to jettison these deals raises interesting issues and brings to the forefront potential strategies by artists who can use contractual rights to apply pressure to their studios.

Continue reading "ENTERTAINMENT NEWS: FORCE MAJEURE CLAUSES WREAK HAVOC ON TALENT DEALS" »

The Directors Guild announced a tentative collective bargaining agreement with the Alliance of Motion Picture and Television Producers (AMPTP). The DGA's description of their tentative deal can be found here. The directors received concessions on issues relating to jurisdiction over new media as well as on compensation for internet downloads and other new media.

The widely anticipated agreement now increases the pressure on the writers, who are entering the third month of their work stoppage. Whether the writers think the directors' agreement is sufficient remains to be seen.

The Writers Guild of America strike is now entering its third month. Production on film and television projects have ground to a halt. Yet, as my JMBM colleague, E. Barry Haldeman, suggests in his Malibu Times op-ed piece, the end may be in sight.

The WGA has signed "interim" agreements with independent production companies and smaller studios, which could signal a break in the ranks of the studios which have held firm against the writers' demands. The Weinstein Company, the newly revamped United Artists and David Letterman's Worldwide Pants Production Company are among the companies who have reportedly signed such interim agreements with the WGA. Those companies are now free to resume production on their projects.

In addition, the Directors Guild reportedly has achieved some progress in its "pre-negotiations" with the AMPTP. Reports suggest that the directors can reach agreement with the AMPTP in a matter of a couple of weeks.As Barry writes, these recent events give some hope that the writers' strike can also be resolved in short order.

However, the WGA and the studios/networks have recently taken adverse actions against each other, which suggests that a resolution is not imminent. The WGA has pressured networks and studios by refusing the grant waivers for the upcoming awards season. Having reduced the Golden Globes to a reading of award winners, the Oscars and the Grammys -- usually a time for celebration in the entertainment industry -- are now in jeopardy. On the other side, ABC Studios, CBS Paramount Network TV, Warner Bros. TV, 20th Century Fox TV and Universal Media Studios have started to terminate overall deals with writers and producers. Representatives of the terminated talent vow revenge. Thus, the end result of both sides continuing to draw blood from each other is that nothing is getting produced in Hollywood.

If both sides persist in continuing this fight, the obvious conclusion is that darker days for the industry lie ahead.

E. Barry Haldeman, one of my colleagues in the JMBM Entertainment Group, wrote an interesting op-ed piece for the Malibu Times on the WGA strike. You can read his piece here. As Barry writes, the principal issue preventing a deal with the writers seems to be how to handle, and divide revenues from, new media such as cell phones and the internet. Not surprisingly, each side is wary of giving much ground because of the potential ramifications as these new media become more popular. Time will only tell if the parties will compromise on their positions.

The season premiere of the television show, Desperate Housewives, on September 29, 2007 provoked controversy when one of the show's punch lines took aim at the Filipino medical community. Teri Hatcher’s character, Susan, discusses with her doctor the possibility that she suffers from an early onset of menopause. Not pleased with his diagnosis of her condition, Ms. Hatcher quips that she would first like to check the doctor’s diplomas “to make sure they’re not from some med school in the Philippines.”

Not surprisingly, the Filipino-American medical community was highly offended by this remark.

Continue reading "ENTERTAINMENT NEWS: DESPERATE HOUSEWIVES TAKES UNNECESSARY SWIPE AT FILIPINO MEDICINE" »

INFLUX OF TRADITIONAL INSTITUTIONS MAY BE AT ODDS WITH NOTORIOUS ACCOUNTING PRACTICES

Back in the day, the ways in which movies were financed called to mind the adage about never wanting to see how sausages are made. Producers using credit cards and borrowing money from friends and family to get their movies to the silver screen were legend. Others tell of the wealthy spending millions of dollars on films to satisfy a desire to mingle with the stars or see their names on the screen.

Times have changed.

Continue reading "FILM FINANCING: WALL STREET INVADES HOLLYWOOD" »