Saturday, August 8, 2015

Swimming with the Sharks: Intellectual Property in the Entertainment Industry



Over the past few years, the entertainment industry has seen a dynamic shift pertaining to the frequency and volume with which litigation has been filed against studios, filmmakers, artistic talent, and third party partners.  This trend is not solely limited to any individual sector of the industry, but has become persistently observable in every market segment.  

      
     In recent history, the scope of this type of litigation has even reached the federal district court level via Hart v. Electronic Arts, Inc., 717 F.3d 141 (3d Cir. 2013) as noted by Cummins (2014).  This case in particular hinged primarily on the right of a collegiate athlete to protect his individual brand image in lieu of waiving his rights to compensation under the official “amateurism” rules established by the NCAA, whereby a collegiate athlete is restricted from using his or her image, name recognition, or athletic ability to gain compensation or promote a product or service in any form (Cummins, 2014).  In the view of both the Third and Ninth Circuit courts, the right-of-publicity for the individual was viewed as superior to the First Amendment right of the defendant, Electronic Arts, as it pertained to using the likeness and biological information of an individual within its video game franchise as a form of freedom of expression.  In rendering it’s decision, the Third Circuit, relied heavily upon the transformative use test as the reference point in which to determine whether or not the rights or both parties were in alignment with the protections afforded by the established rights-of-publicity and the freedom of expression clause of the United States Constitution.  The trend of the transformative use test can also be viewed in cases such as the recent lawsuit filed against entertainment industry mogul Curtis (50 Cent) Jackson III, for the violation of the plaintiff‘s, Lastonia Leviston, right-of-publicity via the release of a sex tape.  As Rayne (2015) reports, the claims made by Ms. Leviston also revolve around the lack of stated permission to publicly release the footage and the ensuing damage to her commercial reputation as a result of the content release.  
 

 As a result of the decisions of cases such as Hart and Leviston, an interesting trend has emerged; consequentially ushering in a new type of litigant within the entertainment industry.  Known as the copyright troll, these litigants have become the recipients of several lucrative settlement agreements via the filing of multiple defendant lawsuits, with their key motivation consisting of creating a standalone revenue stream based on litigation.  In his analysis, Sag (2015) notes that these types of lawsuits predominantly involve an element of pornography and public distribution via file sharing torrents.  Additionally, these types of litigants utilize public shaming, via the release of the identities of the defendants, as leverage in obtaining settlement agreements in Multi-defendant and Joinder-defendant cases, especially where the file sharing of pornographic material has occurred, (Sag, 2015).  An example of this strategy in use can be observed in the legal filings against Vivid Entertainment by Kim Kardashian, Kimberly Kardashian vs. Vivid Entertainment LLC.  


 Ultimately, a decision such as Hart vs. Electronic Arts, in addition to the constant filing of litigation as demonstrated by copyright trolls has dramatically transformed the landscape of the entertainment industry.  The results of these events has established new standards for obtaining permission of use regarding the likeness or image of individuals, as well as setting a benchmark liability standard by which future cases will be weighed upon.  The broader ramifications of these actions can be witnessed in the lawsuits regarding Andrew Ainsworth, Lucasfilm Limited and others (Appellants) v. Ainsworth and others (Respondents) & Lucasfilm Ltd v. Shepperton Design Studios Limited et al.  In these cases, Lucasfilm Limited filed lawsuits in both the United States and also in the United Kingdom against the original designer of the Star Wars Stormtrooper uniform.  The issue at the heart of the matter was the recreation and sale of Star Wars trademarked assets to the public, without the express consent of Lucasfilm Limited (Vollans, 2012).  In the United State ruling the courts found that Mr. Ainsworth had indeed violated the rights of property of Lucasfilm Limited and ordered Ainsworth to pay damages in the amount of $12,500,000 including legal fees.  However, the Supreme Court of the United Kingdom did not render a similar verdict for the subsequent filing for enforcement of the United States verdict.  According to Vollans (2012), the court found that the claims made by Lucasfilm Limited did not meet the standards for copyright protections under the Copyright Design and Patents Act of 1988 under the laws of the United Kingdom Parliament.  In conclusion, the court ruled that Ainsworth had not committed an act of copyright infringement and subsequently dismissed the claim for enforcement of the United States ruling as well as the subsequent filings within the United Kingdom.  

              
 In summary, the legal complexity surrounding intellectual property rights involve nuances and established thresholds whose specificity and application can only be truly understood by legal professionals with extensive experience in entertainment law.  The protections and legal liabilities for violating the jurisdictional laws both domestically and internationally can vary to the extent that a work of intellectual property may or may not qualify for protections under the laws of a specific locale.  Thus when working in the entertainment industry, it is imperative for talent as well as their management team to be aware to the general laws regarding intellectual property and have a well designed strategy regarding the protection of the right-of-publicity and right-of-property as it pertains to the image and commercial marketability of the underlying intellectual property assets within the portfolio of the talent. 




References



Andrew Ainsworth. [Online image]. Retrieved August 8, 2015 from http://originalstormtrooper.com/news-3-w.asp

Cummins, G. R. (2014). The Right of Publicity in Video Games Plays Hardball with the First Amendment. Intellectual Property Litigation, 25(2), 7-16.

NCAA Football 13. [Online image]. Retrieved August 8, 2015 from http://www.ea.com/ncaa-football-13

Rayne, N. (2015). 50 Cent Testifies in Sex Tape Lawsuit, Plays Down Details About His Finances. Time.Com, N.PAG.

Sag, M. (2015). Copyright Trolling, An Empirical Study. Iowa Law Review, 100(3), 1105-1147.


Star Wars Stormtrooper. [Online image]. Retrieved August 8, 2015 from http://www.rpgalchemy.com/101-star-wars-encounter-ideas-1-50/

Vollans, T. (2012). The Empire Strikes Back? Lessons from the Supreme Court's judgment in Lucasfilm Limited and others (Appellants) v. Ainsworth and another (Respondents) [2011] UKSC 39, July 2011". Journal Of International Commercial Law & Technology, 7(3), 276-281.

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