Conservatives In The Media Can Rest A Bit Easier Today

By Eriq Gardner

For the past year, conservatives have complained ad nauseam about the impending return of the "Fairness Doctrine." But it seems clear by yesterday's 87-11 vote in the Senate to explicitly ban any revival that the hullabaloo was a little bit on the silly side.

What exactly is the "Fairness Doctrine"?

It's a much maligned FCC policy implemented from the 1940s to the 1980s that required public broadcasters to air "balanced" coverage of controversial issues. Some see the "Fairness Doctrine," unenforced since 1987, as a potential tool to clamp down on the success and influence of Rush Limbaugh, Sean Hannity, and right-wing radio.

During the campaign, President Obama had expressed his view that he didn't support the return of the FCC policy. Conservatives didn't believe him.

Time will tell if they give him a little bit more credit now. Some on the right are pointing to an amendment to yesterday's vote that directs the FCC to promote diversity in media ownership. They see this amendment as a bad sign that the administration will achieve its ends through other means.

We'll also be watching how yesterday's vote impact the FCC's ability to regulate the airwaves. 

During debate, some Democrats argued that preventing the FCC from implementing any "public interest" rules might prevent the FCC from doing its business on other ends, such as regulating rules over children's programming, enforcing public safety protocol, or any future bit of business. Recently, for example, the Senate has held hearings on possibly regulating violence in broadcast media. 

The FCC always seems to walk a slippery slope when doing anything these days. Any action typically sparks big court challenges. We'll probably see less of that in the coming years. The administration seems serious about fostering diversity in the media, but it's approach on many other issues tends to be quite laissez-faire.

Morgan Freeman survives crash, but not lawsuit

By Eriq Gardner

Oh, the troubles that lawyers get their clients into sometimes.

Morgan Freeman is being sued in Mississippi after he allegedly got inebriated and lost control while driving his Nissan Maxima on the way home. The car flipped in the air "several times" and then went into a ditch. The passenger, Demaris Meyer, was airlifted to a Memphis hospital, allegedly suffered "serious and disabling injuries, including a broken left wrist and right scapula, a torn labrum in her right shoulder, pulmonary contusions, cervical strain and numerous bruises and lacerations."

She's now suing Freeman for unspecified damages. Here's the complaint.

Here's where Freeman's identified lawyer, William Luckett, comes into the picture: It was supposedly Luckett who introduced Freeman to Meyer at the Bayou Bend Golf & Country Club. Later, it was Luckett's home where the party continued (and where alcohol allegedly was provided). There, Freeman invited Meyer back home with him, "indicating that not only would Ms. Meyer have her own bedroom in which to stay, she would have her 'own house.'"

If the case goes to trial, we assume that Luckett might have to recuse himself as Freeman's attorney to possibly testify. We assume Freeman will be looking for a new lawyer.

The music industry has it bad, but how bad?

By Eriq Gardner

If being president of France and married to a famous musician can't keep Nicolas Sarkozy out of copyright trouble, what hope is there for the rest of us?

The band MGMT, creators of astonishingly tough songs to remove from our head, are suing Sarkozy after he used their song "Kids" in an online video.

Lest we compare this case to Jackson Browne's battle vs. John McCain, it seems as though Sarkozy is admitting his error with an offer to make amends by giving the band one euro.

One euro? An anti-SLAPP suit is more insulting. Wait...what's the exchange rate these days?

Eminem loses himself from big case against Universal Music

By Eriq Gardner

We noticed an interesting story posted on The Wrap website Monday about Eminem going to trial against Universal Music Group in a case that could help decide how much royalties are due to music artists from sales on iTunes and other third-party digital distributors.

An interesting issue, but the website might have mixed up the true identity of the plaintiffs involved. 

In the complaint, the plaintiff is listed as F.B.T. Productions, which TheWrap indicated to be "the rapper's publishing company."

However, is Eminem really a party to this dispute? 

Since the story posted, UMG's publicity machine has been pointing out that F.B.T. Productions is actually a company owned by Marky and Jeff Bass, two brothers who are credited with some production on Eminem's early works. Here's an old story about the relationship between Eminem and the Bass Brothers.

TheWrap is correct in illustrating the potential importance of this case — helping to define whether downloads fall under the category of "licensing agreements," covering physical release of CDs and vinyl records, or under the category of "distribution arrangements," which have lower royalty rates. The case also questions whether record companies like UMG actually have the right to distribute music digitally. (This suit is similar to a class action filed by the Allman Brothers Band and Cheap Trick against Sony BMG.)

UMG is arguing it has the rights to make distribution arrangements with digital vendors. Ironically, some at the company believe that FBT's real beef should be with Eminem—not UMG—although we assume that if the case has made it to trial, questions over standing have been resolved in FBT's favor.

"The claims made by FBT Productions are completely baseless as a matter of fact and meritless as a matter of law, and we look forward to presenting our side in court," says UMG spokesperson Peter Lofrumento. 

UPDATE: The case didn't go very far. A Los Angeles federal jury ruled for UMG and said that royalties don't change just because a song is sold online.

'Watchmen' Watch: Warner Bros. and producer Larry Gordon will wait to discuss who's to blame for Fox lawsuit

By Matthew Belloni

Of all the people watching how “Watchmen” does at the boxoffice, Larry Gordon might have the most complicated feelings.

The veteran producer has an A-list backend deal on Warner Bros.’ R-rated graphic novel adaptation and stands to gain financially if it becomes a hit. But if Warners has its way, Gordon also could be on the hook to the studio for a hefty percentage of the film’s grosses based on his role in the legal debacle that ended with Fox owning a piece of the “Watchmen” property.

For this reason, Gordon and Warners have put off until after the $130 million Zack Snyder epic opens next Friday to resolve their standoff over what amount — if anything — Gordon should reimburse the studio for the cost of settling the litigation.

A clear idea of what Gordon might be liable for won’t emerge until the film has largely played out, which could be a month or two, but if the pic is a mega-grosser it could be tens of millions. 
Fox sued Warners last February, claiming copyright infringement based on agreements the studio had with Gordon in the early 1990s.

The case was a rare public showdown between studios over a potential blockbuster and highlighted the challenge of maintaining a clear chain of title on projects that bounce around in development over many years.

When Judge Gary Feess ruled Dec. 24 that Gordon did not secure proper rights to “Watchmen” from Fox, Warners settled the case rather than face a possible injunction against the film’s release.
The Warners settlement gave Fox a $1.5 million reimbursement for development costs as well as up to 8.5% of the film’s worldwide grosses, although the percentage is lower until the film breaks even.

That could put Gordon in a strange position: The better the film does, the more he could pocket as a profit participant but the more he might have to fork over to make Warners whole. That’s because Warners claims its agreements with Gordon contain an indemnity clause requiring the producer to  reimburse it for unforeseen problems with the picture.

Neither Gordon nor his litigation lawyer Dale Kinsella would comment, but they have maintained in court filings that Gordon is not responsible for the litigation and owes Warners nothing. Reps for Warners also declined to comment, but several sources said the studio plans to aggressively pursue Gordon for the settlement costs. In court papers Warners said Gordon should be liable “for all damages Warner Bros. suffers as a result of Fox’s claims.”

That collection effort will now wait until Warners has a better idea what to ask for.

Complicating matters further is Gordon’s position in the litigation that his own transactional attorneys who negotiated the deals are in part to blame for the mess. Gordon’s litigation lawyers, who are not in the same firm as the transactional attorneys, wrote to Judge Feess that Fox’s lawsuit might be traced to errors in the negotiation process by Fox business affairs execs as well as by Gordon’s own counsel at Jake Bloom’s law firm.

Gordon, who is still repped by the Bloom firm, is now said to be pushing for that firm’s malpractice
insurance carrier to make a contribution to any financial settlement. The Bloom firm declined to comment.

The amount of any settlement likely will depend on how well the film does.

“Watchmen” premiered Monday night in London to mixed reviews, with the critic from tabloid News of the World (which is owned, ironically, by Fox topper Rupert Murdoch) calling the 2 1/2 hour epic “spirit-crushingly disappointing” but several others predicting approval from fans of the Alan Moore-Dave Gibbons graphic novel.       

The Killers take a hit out on manager

By Eriq Gardner

The Killers are a band that have established a great reputation for, ahem, killer hooks that you just can't quite get out of your head.

Success equals fame, and fame translates to lawsuits, especially from those left behind. Last week, for instance, a former drummer sued the band My Chemical Romance for royalties due.

It's less than surprising to see The Killers now tied up in contentious litigation with their former manager, Braden Merrick, but the length of this case and damages alleged is quite startling.

Billboard reports that three years after Merrick sued the band members and their current manager for $16 million each, the band has retaliated with a lawsuit for "multi-million-dollar damages in missed concerts and lost touring revenues...via the bungling of merchandising and promotional opportunities.”

The litigation has taken some nasty turns. The Killers went before before the California Labor Commissioner seeking to void their contract with Merrick and recover all commissions paid to him, plus interest.

Also, according to Billboard, Merrick’s attorney, Howard King, called the Killers’ quest to void Merrick’s contract under the California law a “scheme” designed to provide the band a “$10,000,000 windfall.”

Jackson Browne wins a round in John McCain case

By Eriq Gardner

We've been paying an inordinate amount of attention to a lawsuit brought by singer Jackson Browne against John McCain after the Republican presidential candidate used Browne's "Running on Empty" in a campaign commercial. That's because the case seems like it might influence how future political campaigns use copyrighted music.

Especially now that a California district court has denied McCain's motion to dismiss the lawsuit. Previously, McCain's lawyers went hard after Browne, alleging that the singer's lawsuit was a misuse of the judicial system in an attempt to trample First Amendment protected speech. On Friday, the District Court allowed the case to go forward and denied McCain's anti-SLAPP motion.

Here's Judge Klausner's order. 

The judge had to weigh the probability of Browne prevailing on his claim against McCain. He rules that he'll "adopt the more lenient meaning of the term 'probability' such that Plaintiff needs to show a mere possibility of success on his claim" and that the defendant "has not shown that political expression's broad First Amendment protection bars, as a matter of law, all actions based on allegedly improper use of a person's identity in campaign-related materials."

The McCain campaign released a statement that seems to hold onto its legal theories. "We intend to seek immediate review of the Court's orders in the Ninth Circuit," said outside counsel Lincoln Bandlow.

Now the Pirate Bay case is really getting weird

By Eriq Gardner

Despite our skepticism that the case against Pirate Bay is going to accomplish much, the trial has offered some amusement.

Lawyers typically tell their clients to be quiet during trial. Instead, defendant Peter Sunde Kolmisoppi has a Twitter feed where he's been regularly posting updates on the status of what's been going on (including mocking the prosecutor for not knowing the difference between "megabits and megabytes").

The prosecutor, Håkan Roswall, isn't the only one confused. Witness this cross-examination of Kolmisoppi by the prosecutor:

"When did you meet [fellow defendant Gottfrid] for the first time IRL?" asked the prosecutor.

"We do not use the expression IRL," said Peter, "we use AFK."

"IRL?" questioned the judge.

"In Real Life," the prosecutor explained to the judge.

"We do not use that expression," Peter noted. "Everything is in real life. We use AFK—Away From Keyboard."

"Well," said Roswall. "It seems I am a little bit out of date."

The defense is doing a good job of "baffling" the prosecution. Wired says the technical mumbo jumbo associated with server access has the prosecutor "scratching his head over who is in charge of the BitTorrent site."

The accused founders of Pirate Bay aren't completely ahead of the game. In some respects, they are just as "out of date" as the clueless prosecutor.

For instance, Kolmisoppi also testified that according to his own survey, 80 percent of the torrents on Pirate Bay's website are legal. Pretty startling claim, and even if that's true, that leaves 20 percent that aren't legal. We recall that back in the day, Napster also tried to argue that its service comprised commercially significant non-infringing uses. Napster's arguments didn't hold much weight.

Then again, who knows what an AFUSA judge thinks?

Quiz: Which entertainment lawyer writes gossip blind items in his spare time?

By Eriq Gardner

For very obvious reasons, entertainment lawyers would make stellar gossip columnists. But what celebrity-representing attorney in his or her right mind would do such a thing?

Turns out there may be one brave soul willing to risk the amity of real and potential clients and the wrath of ethisc probes. Someone who claims to be a Los Angeles-based entertainment lawyer representing "celebrities and psuedo-celebrities" has a blog called "Crazy Days and Nights" that pokes fun at entertainers and offers blind item gossip bits, some good enough to be picked up by Gawker.

We must ask: Who is this "attorney"?

Is it Jake Bloom? Please don't tell us it's Bert Fields.

We're guessing it's neither, nor any powerful Hollywood attorney. He may be as "psuedo" as the celebrities he represents.

But the anonymous author has left a trail of clues for those who might wish to unmask the craziness. Prima facie exhibit #1: He's been posting photographs of celebrities. Is he taking them himself, licensing them, or is he committing copyright infringement? Either way, he may be in trouble.

This could be the new "Washingtonienne," or maybe just an amusing distraction. Any and all guesses are welcome in the comments.

All eyez on Tupac biopic litigation

By Matthew Belloni

We've got a story in THR today about a lawsuit filed by production company Morgan Creek against the estate of Tupac Shakur over a planned biopic about the late rapper. Story is here, and here's the complaint filed in LA Superior Court on Tuesday by Patti Glaser.

On the heels of the is-there-or-isn't-there-a-deal fight over "Push," here we've got another situation where one party (Morgan Creek) thinks a deal for Shakur's life rights was done and the other (Amaru Entertainment, run by Tupac's mom) thinks it wasn't. Who's right? Are these cases the start of a burgeoning trend? And when is a deal a deal anyways?

UPDATE: On 2/20, Amaru issued the following statement in response to our story:

We at Amaru Entertainment would like to clarify some of the recent media reports concerning a lawsuit filed by Morgan Creek Productions.  This lawsuit has no merit. We felt it was important to bring the story of Tupac Shakur, one of music’s most remarkable icons, to life onscreen; and in realizing this vision, we sought to find the best partner who would be true to Tupac’s vision and bring his unique story to life on the big screen.  In doing so, we have taken every step to ensure that our partner in this process is committed to the integrity of Tupac Shakur’s legacy and, more importantly, that they are the right people.   To that end, we have been in discussions and negotiations with several major studios and production companies, including Morgan Creek Productions.  However, at no time did we have an agreement with Morgan Creek. Sadly, Morgan Creek decided to take advantage of this situation and attempt to frustrate our project by interfering with our business relationships.  We will not be frightened by Morgan Creek’s tactics and we are absolutely confident that the movie will be produced and released. Tupac’s story is what Hollywood legends are made of – and we want to make sure that the movie tells Tupac’s story like it should be told and lives up to everyone’s expectations. “Tupac touched so many people in his brief life and it makes me feel honored in keeping his message alive.  And I want to do so with integrity - in the right way with the right people,” says Afeni Shakur.  “That’s what Tupac would have wanted.”