Die hard fans of The Sopranos will surely enjoy Baer v. Chase, a dispute in the Third Circuit between David Chase, creator of the hit series, and Robert Baer, an attorney who purportedly contributed ideas to Chase during the show's initial development.
The trail of events leading up to the lawsuit is well-worn: A producer meets with a person who has knowledge of a certain area; Ideas are exchanged; Follow up calls, meetings and letters transpire; An oblique verbal assurance of compensation is uttered; Nothing is put in writing; The show is produced and becomes a huge success; The contributor now wants to get paid.
Unlike many half-baked "He stole my idea" claims, however, this case contains concrete evidence of plaintiff's contribution. For example, Baer put Chase in touch with several good fellas who "told true and sometimes personal stories involving loan sharking, a power struggle with two uncles involving a family business, and two individuals, Big Pussy and Little Pussy." These facts (which exist in the public record) bear a striking resemblance to Sopranos characters Uncle Junior and Pussy Bonpensiero. Seriously, what writer could've thought up a mobster named "Pussy"?
Central to Baer's breach of contract claims is proving the existence of an actual compensation agreement. Siding with the defense, the Court found there was neither an express oral contract, nor an implied-in-fact contract stemming from Baer's interaction with Chase. Crucial terms, such as price and length of relationship, were simply too vague to support contract formation. Plaitiff's misappropriation claim was also denied, as none of the ideas presented to Chase were "novel" as the law requires.
Though most of Baer's appeal took a beating, he does have one last chance to recover. The Third Circuit preserved his equitable claim of quantum meruit, which asserts that a quasi-contract was formed when Baer rendered services of value to Chase's project. On remand to the U.S. District Court of New Jersey (presided by the Honorable Judge Pisano!), plaintiff may be able to recover some consideration for his script critique and idea contributions, if certain procedural requirements are met.
Oddly enough, the dispute between Baer and Chase seems to have provided fodder for a Second Season Sopranos episode entitled "D-Girl." In D episode, Christopher Moltisanti (Michael Imperioli), a young wiseguy/aspiring screenwriter, befriends a film producer and his female script assistant. Eager to impress the Hollywood pair, Christopher takes them on an insider's tour of Jersey and shares first-hand stories of mafia activity. By the end of the hour, the unscrupulous producer has used Christopher's stories and ideas in his own work, without reciprocation. An angry Christopher has just learned his first lesson in Hollywood ethics. Sound familiar?
Baer v. Chase is not the first legal incident to spring from the award winning show. The Sopranos has no shortage of lawsuits or lawyers. In March of 2003, James Gandolfini (Tony Soprano) filed a complaint against HBO seeking to break his existing contract with the show. That suit was ultimately withdrawn by Gandolfini's attorney Martin Singer when HBO agreed to renegotiate the Boss' salary. As for lawyers connected to the show, Lloyd Braun, a former entertainment law practitioner, is reported to have "developed the concept for HBO's Emmy Award-winning drama." Incidentally, Braun was recently hired by Yahoo! to head its media and entertainment division.
Lawyers are not traditionally thought of as innovators of creative entertainment. This case suggests otherwise. It also suggests that lawyers entering the exciting world of showbiz should keep their legal wits about them. And never forget the golden rule: Get Everything In Writing.
Posted by AZ on December 22, 2004 11:07 AMBig Easy rap artists Juvenile and D.J. Jubilee did battle in the Fifth Circuit's Positive Black Talk Inc. v. Cash Money Records Inc., over two songs that both "include the poetic four-word phrase 'back that ass up.'"
According to PBT's copyright infringement complaint, Juvenile recorded "Back That Azz Up" (released on 400 DEGREEZ album) after hearing Jubilee's "Back That Ass Up" (from the TAKE IT TO THE ST. THOMAS album). D.J. Jubilee's song enjoyed modest success, while Juvenile's song "blew up," as they say in the business.
The Fifth affirmed the appealed rulings of the lower court, including, most notably, the judgment in favor of Juvenile on the copyright claim. The Court held that although Jubilee was the registered copyright holder of his own song "Back That Ass Up," the jury correctly found that: 1) Jubilee failed to proved that Juvenile factually copied "Back That Ass Up"; 2) the defendants proved that Juvenile independently created "Back That Azz Up"; and 3) Jubilee failed to prove that "Back That Azz Up" is substantially similar to "Back That Ass Up."
Aside from dealing in bass subject matter of the streets, this opinion contains a treble discussion of the intricacies of copyright infringement actions, including curing procedural defects in jurisdictional matters and providing adequate proof of factual copying.
"A must-read for entertainment industry counsel shopping for the right forum." -- David Manning, Ridgefield Press
Posted by AZ on December 20, 2004 11:22 AMIn Bassiouni v. Central Intelligence Agency, the venerable Judges Easterbrook, Posner and Sykes of the Seventh Circuit deftly smothered a law professor's appeal that arose out of his request for documents from the CIA.
Some Background: In 1983, Mahmoud Cherif Bassiouni, head of DePaul Law School's International Human Rights Law Institute and a frequent participant in human-rights activities, asked the CIA for copies of all documents that mention him. The Agency said that it had documents, but wouldn't provide any additional information (dubbed a "no number, no list response"). In 1999, the prof again tried to get information out of the CIA, but received another "no number, no list response." Bassiouni then brought this action under the Freedom of Information Act and the Privacy Act to compel the Agency's disclosure.
The Seventh held that although the professor's request is harmless, the CIA is not required to make further disclosure. Revealing details of its holdings could seriously compromise the intelligence gathering process as well as risk the safety of Agency operatives. Judge Easterbrook likened the CIA's record repository to a Roach Motel: "papers go in but they don't come out."
When faced with a request for information, there are two stances the government may take when it wants to be unhelpful: the "Glomar response" (a refusal to acknowledge that it has responsive documents) and the "no number, no list response". This opinion establishes a new term of art, the "Bassiouni response," which now encapsulates both unhelpful positions, "which are legally identical."
Posted by AZ on December 8, 2004 11:55 AMIn Michael Rossi v. Motion Picture Association of America, the Ninth Circuit disposed of a movie website's appeal against the MPAA. The underlying suit brought by Rossi (dba InternetMovies.com) claimed 1) tortious interference with contractual relations, 2) libel, 3) intentional infliction of emotional distress, and other harms relating to the MPAA's temporary shutdown of the internetmovies.com website, which was effectuated by a cease and desist letter to Rossi's ISP.
The Ninth affirmed the lower court's ruling, holding that the MPAA was not liable to Rossi on the tortious interference claim because its actions complied with the "notice and takedown" provisions of the DMCA (17 U.S.C. § 512). As to the defamation and emotional distress claims, the Court found them unconvincing because the notice to the ISP was a privileged communication under the DMCA and was sent "within the bounds of decency."
Perhaps the most interesting portion of this case is the discussion of the DMCA's "good faith belief" requirement, which states that a party must have a good faith belief that infringing activities are occurring on a suspected site before it can send a takedown notice to the site's ISP. Rossi argued that the MPAA did not have an objective good faith belief before sending the notice because they did not do an investigation into the activities of internetmovies.com. Had the MPAA conducted such an investigation (by clicking on links advertising free movie downloads), it would have found that no infringement was actually occurring at internetmovies.com.
Instead, the Court sided with the MPAA, holding that there must only be a subjective good faith belief that infringing activity is occurring. Judge Rawlinson's arrival at this conclusion is supported by case law, Congressional intent and overall statutory structure of the DMCA.
The Court's subjective interpretation of good faith belief may be construed as giving copyright owners a license to shoot first ask questions later. Alternatively, it could be viewed as a reasonable decision in light of the facts of this case. Internetmovies.com revealed the following contents: "Join to download full length movies online now! new movies every month"; "Full Length Downloadable Movies"; and "NOW DOWNLOADABLE." These statements were followed by graphics for a number of the MPAA's copyrighted motion pictures.
Regardless of one's view on the issue, this particular DMCA decision helps define the narrow boundaries of tort exposure under the DMCA. Since the statute's inception, the DMCA has proven to be a heavy-handed and sometimes effective approach to copyright infringement on the internet, and it has created a big grey area as to acceptable and unacceptable online behavior. After reading this case, I feel compelled to pass on the guidance uttered by counsel for a prominent electronic consumer rights organization: "Just don't get caught."
Posted by AZ on December 1, 2004 12:14 PM