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Lindsey Lohan Heads to Court

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Lindsey Lohan can’t seem to escape the law, but this time she is heading back to the courtroom where she is the one pursuing the lawsuit. Lohan is suing the makers of Grand Theft Auto for using her “likeness” in the video game’s fifth installment. In her suit, she alleges that the creators based one of their characters, Lacey Jones, on Lohan, without gaining her permission. According to a Forbes article, Lohan stated that the creators incorporated her voice and image, by using Lohan’s fashion line, including similar hats, hairstyles, sunglasses, and jean shorts. The game’s minor character is described as a famous actress who complains about fame and reveals that she is anorexic (Lohan has admitted to having in an eating disorder in a past interview with Vanity Fair). It also features a hotel named the Gentry Manor, a hotel based on a real Los Angeles hotel where Lohan lived for a time.

Like Lohan, many celebrities, and even athletes, use right of publicity laws to prevent others from profiting on unauthorized uses of their names or likeness. In Re NCAA student-Athlete, a college football player sued EA for right of publicity and false endorsement under the Lanham Act for using his image, including his same height, weight, skin tone, hair color, home state, and play style (In Re NCAA Student-Athlete Name & Likeness Litigation 724 F.3d 1268 (9th Cir. 2013) In this case, the Ninth Circuit used a transformative test to see whether the avatar was sufficiently different to obtain 1st Amendment protection. This test, also used in the Third Circuit, looks to whether the new work added significant creative elements so as to be transformed into something more than the original work. The court held that the video game creators replicated the player’s likeness and in doing so, the company sought to “capitalize on the respective fan bases for the various teams and players” knowing that “consumers enjoy and, as a result, purchase more EA-produced videogames as a result of the heightened realism associated with actual players” (In Re NCAA at 1272).

Right of publicity laws were created to allow a person to control the use of his or her image, and generally, video games get a high level of protection because they are works of entertainment. In order for Lohan to prevail, she needs to prove that the Grand Theft Auto creators profited by clearly using her image in a non-parody way, without adding any form of expression. It seems to me that she will have trouble convincing the court that she has been blatantly exploited by the game’s creators.

-Skylar Young

Sources:

https://www.youtube.com/watch?v=za1l4ibHrsU

http://www.forbes.com/sites/erikkain/2014/07/03/lindsay-lohan-vs-rockstar-games-does-she-have-a-case-against-grand-theft-auto-v/

Zimmerman Falls Short in Defamation Claim

Race Debate Continues

The 2013 Zimmerman trial (State of Florida v. George Zimmerman) was without a doubt one of the most racially charged trials of this decade. Zimmerman’s acquittal led to thousands of protests across the United States, many of which broke out into dangerous riots. Many black leaders even demanded that authorities pursue a civil rights case against Zimmerman, including the NAACP, one of the largest black advocacy organizations in the nation.

According to a Pew study, 62 percent of white Americans thought the trial focused too much on race, while 72 percent of black Americans thought race played a major role in the outcome and needed to be discussed. Now, about one year later after the Florida jury found Zimmerman not guilty on all counts, the race debate continues. This time, Zimmerman brought a suit for defamation against NBC, but the Florida judge ruled that he had no case because he failed to prove that the television network acted maliciously, a factor required to win a defamation suit involving a public figure.

Zimmerman argued that the network’s broadcasters made him appear racist with their edited version of his 911 Call that he made on the night of Trayvon Martin’s shooting. In 2012, NBC broadcasted excerpts of the call, which read: “This guy looks like he’s up to no good…He looks black.”

The full transcript of the call reflects that Zimmerman never volunteered that Martin was black, but was instead answering a question from the police dispatcher about the teen’s race. The unedited transcript read: “The guy, is he black, white, or Hispanic?” in which Zimmerman responded: “He looks black.”

Zimmerman stated that the edited version made his call seem racially motivated, and since the airing of the transcript, he claimed that he has been publicly ridiculed and harassed. NBC acknowledged the error and issued an apology to Zimmerman.

In order for Zimmerman to have prevailed on his defamation claim he needed to show actual malice because he is considered a “public figure,” (such as a celebrity or politician) a standard set in the New York Times Co. v. Sullivan, (1964). The judge presiding over the case stated that Zimmerman became a public figure after he shot Martin, and at the time of the aired transcript he was engaged in an extremely important case of public concern.

Under case law, public figures are held to a higher standard because they have assumed public roles and therefore have a greater opportunity to publicly defend themselves to defamation and libel claims. If Zimmerman was able to show that he was a private individual, he would have only had to prove negligence, a lower standard. Private individuals generally lack the resources to defended defamation claims and are therefore afforded greater protection by not having to prove actual malice.

Because Zimmerman was not able to prove that NBC acted in actual malice, his case was thrown out. Mere manipulation of the transcript was not enough to show that the network acted in way to intentionally hurt Zimmerman.

 

– Skylar Young

Sources:

http://bigstory.ap.org/article/part-zimmerman-defamation-lawsuit-dismissed

http://www.people-press.org/2013/07/22/big-racial-divide-over-zimmerman-verdict/

http://www.nbcnews.com/id/3891881/ns/about/t/nbcnewscom-corrections-clarifications/

Legal Perspective: Australia and U.S. Film Markets – To Subsidize or Not?

by

Jose Landivar, Arther Law’s Industry Insider Blog

Quick, someone tell me how the Australian film industry works and what involvement the government has in funding films and subsidizing its burgeoning film industry? Any takers? Good, then this article is for you.

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Read More…

American Film Market Conference Echoes Predictions of Growth in Chinese Film Markets

by Nicole Joyce, Arther Law’s Industry Insider Blog

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On November 6th in Hollywood the annual American Film Market Conference was held. The AFM conference is eight days of non-stop movies from large blockbusters to independent films. During the course of the conference approximately 400 films are shown, some making their premier at these events.

The event also involves networking events and seminars for the approximately 8,000 guests that come to the event annually. The attendees include acquisition and development executives, agents, attorneys, directors, distributors, festival directors, financiers, film commissioners, producers, writers, and press members.

This year the AFM reflected the growing awareness of the quickly growing Chinese film market. Currently in China there are 10 movie screens built a day. It is also predicted that the Chinese film market will overtake the US film markets in profits in the next five years.

This year the AFM counted as one of its attendees the China Film Group, the largest state-owned production and distribution company. The attention is not one sided however with some of these big production companies looking to Hollywood for investment in there Chinese productions. This could mean bigger budgets and more international casts.

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Hollywood is also not just interested in old talent in the Chinese market, but are particularly interested in the new producers and directors coming from the region. Several directors are making their debut, such as Vicky Zhao (So Young,), Guo Jingming (Tiny Times) and Xu Zheng (Lost in Thailand).  

Crisis Fixer: Judy Smith, The Real Olivia Pope

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ABC’s smash hit show isn’t completely fictional, Shonda Rhimes based her drama on the crisis management world through the life of Judy Smith. Smith is the founder and President of Smith & Co, a leading strategic and crisis communications firm with offices in Washington D.C. and Los Angeles.  Just as Olivia Pope, Smith has worked with high profile clients including Monica Lewinsky during her scandal with former President Bill Clinton, Senator Craig from Idaho, actor Wesley Snipes, NFL quarterback Michael Vick, Clarence Thomas during his Supreme Court Confirmation hearings, Kobe Bryant and his legal issues, and the family of Chandra Levy. She also worked with the congressional inquiry of Enron, and the United Nations Foundation and World Health Organization response to the SARS epidemic. Recently Paula Deen hired Smith to help her battle her racism allegations.

Smith’s “fixer” skills aren’t the only thing she has going for her, she also works as a corporate consultant for BellSouth, Union Pacific, Nextel, United Healthcare, Americhoice, Wal-Mart, Radio-One Inc., Waste Management Corporation, and American International Group, Inc. (AIG) assisting them with corporate communications issues such as mergers and acquisitions, product recalls, intellectual property litigation, corporate positioning, and diversity.

Smith’s role in the White House coincides with Pope’s role because both women held the position as Press Secretary for the White House.  Smith however, was an Assistant United States Attorney and was Special Counsel to the U.S. Attorney of the District of Columbia, where she oversaw legal and communications work on a number of high profile criminal and civil cases prior to joining the White House staff.

Before the show, Smith floated well below the radar.  In 2012, it was reported that Smith’s crisis management and communications firm, Smith & Co., was not listed in phone directories and had no Web site. Smith also said she did not have business cards.  When asked to meet, she insisted on coming to you. Her caller id only showed “Verizon”.  Olivia Pope portrays this same life, and demonstrates the importance of confidentiality and concealment that is beneficial to both Pope’s and Smith’s clients.

Crisis Management is a field that Smith dominates. Attempting a Google search for “Crisis Fixer” yields the top 20 results all referencing Ms. Smith.  Contrary to a quick Google search, Smith is not the only crisis manager out there. Crisis management is a field that lawyers sometimes find themselves in, working as solo practitioners or  with firms.  Companies also use internal legal personnel to serve this purpose.  Legal professionals are equipped with the communication skills, legal expertise, and strategic thinking to attack crisis and create a solution.  However, it is evident that Ms. Smith has created a monopoly in this area by being the most sought after “fixer” to solve high profile problems.

Judy Smith serves as Co- Executive Producer of Scandal and provides insight and technical expertise on crisis management issues, but continues to maintain confidentiality for her clients by not sharing information regarding their specific situations.

Scandal airs on ABC on Thursday nights at 10/9c.

How Governments and Companies can Fight Cyberespionage

While rapid technological advances have been leading to greater connectivity and data storage and global growth, they have also been resulting in greater cyberespionage and intellectual property theft, especially trade secrets. Businesses are now more at risk than ever to having their corporate networks breached and having their trade secrets stolen. On average, trade secrets comprise of about two-thirds of the value of firms’ information portfolios, and once they are made public or obtained by a competitor, their value may be substantially or entirely lost.

This phenomenon is occurring globally. General Keith Alexander, the head of the National Security Agency and U.S. Cyber Command, stated that U.S. companies lose $250 billon per year due to IP theft. A survey conducted for the European Commission showed that over the past 10 years, approximately one in five respondents experienced at least one attempt or act of misappropriation. South Korea estimates that costs from economic espionage more than tripled between 2004 and 2008. It is also estimated that the largest global organizations could face $35 million in losses over a two-year period from attacks on cryptographic keys and digital certificates.

In an effort to combat increasing cyberespionage, the Obama administration released a “Sttrategy to Mitigate the Theft of U.S. Trade Secrets” in February 2013, and an issuance of Executive Order 13636 on “Improving Critical Infrastructure Cybersecurity” shortly after. The order focuses primarily on protecting critical infrastructure, and there is still room to enact laws to protect intellectual property that may be held more broadly by U.S. businesses.

The strength in trade secret laws has an effect on the level of cyberespionage in each country. Trade protection in the U.S. is relatively more advanced than in most of the rest of the world. Much of the rest of the world has very weak laws and enforcement practices, including the large emerging economies such as China, Brazil, Russia, and India. As supply chains and operations expand globally, weak rule of law and ineffective enforcement in countries will harm companies’ ability to protect their trade secrets.

What can governments and companies do to address these trade secret threats? First, a company should have its own protection program and make investments on strong security technologies and procedures. A study shows that companies that obtained “sufficiently budgeted resources” for security saved around $2.2 million annually. Governments should utilize trade policy tools to raise the importance of trade secrets protection and promote more effective deterrence. U.S. ties through the Trans-Pacific Partnership (TPP) Agreement with 11 other Asian-Pacific nations and the Trans-Atlantic Trade and Investment Partnership (T-TIP) with the European Union give it means to do so. Trade secret protection should also be considered in regional organizations and the World Trade Organization (WTO) Council for Trade-Related Aspects of Intellectual Property Rights. The U.S. government should also improve internal coordination among agencies responsible for cybersecurity and protection of trade secrets. Overall, protection from cybersecurity will require a collateral effort from companies and governments worldwide.

 

http://www.law360.com/ip/articles/478074/what-gov-ts-and-cos-can-do-to-fight-cyberespionage


Grupo Clarín Battles Argentina Government Over Media Law

Grupo Clarin and the Argentinian Government brace for legal face-off.

 A legal showdown between major media conglomerates and the Argentinian government is quickly brewing after the Argentinian government stated that it planed to seize and auction-off certain broadcast licenses as well as cable TV and fiber-optic Internet networks owned by media companies. The sell-off is being carried out pursuant to a recent media law. The stakes are high as a Supreme Court battle is about to unfold wherein free speech, antitrust, and private-property rights issues will be raised.

The media law in question is a 2009 federal law which disallows cable TV companies from holding more than 24 broadcast licenses nationwide. Grupo Clarín SA, a major media company who owns Cablevisión, who is openly defying the law, has between to 237 and 158 licenses nationwide. Other conglomerates, like Uno Medios, also surpass the 24-license cap imposed by the 2009 law.

While all media companies have been granted an injunction staying the sell-off, this injunction is set to expire on December 7th 2012. After this deadline, the federal agency created to enforce the law is set to begin sell-offs of both media licenses and infrastructure – a move that is seen by some as an expansion of the law which had been thus-far interpreted to cover only licenses.

Opponents of the law, like Clarín and Uno Medios, have called the law unconstitutional on grounds that it violations private-property rights and free speech. As a response, last week, Argentina’s Congress passed a law that allows the government to present its case directly the Argentinian Supreme Court, bypassing the typical channels through federal trial and appeals courts. Some have criticized this move and question whether direct Supreme Court appeal will only worsen an already dysfunctional federal appeals system. Last week’s law came on the same day that Mr. Martin Sabbatella, a government agent, approved the sell-off plan.

Grupo Clarín, one of the only media companies that doesn’t depend on government advertising or public funds, believes it is unfairly targeted by the 2009 law. The government, spearheaded by President Kirchner, has countered by saying that Clarín’s defiance is an attempt to undermine the anti-monopoly law and the December 7 deadline, which apply to all media companies equally. The law is intended to give broadcast licenses to local communities and requires theatres to show more local films.

Grupo Clarín is a media conglomerate which own newspapers, magazines and television and radio stations and provides cable TV. It is slated to petition the Supreme Court to rule on the constitutionality of the 2009 law. There is a strong likelihood, however, that the Supreme Court, dominated by the President Kirchner’s nominee’s, will refuse the case and could simply send it down to a lower court judge.

NOTE: Photo from Wall Street Journal.