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d that he was a famous musical recording artist and songwriter in 2001 he wrote fifteen compositions for an album end of amnesia released by defendants he alleged that mitchell repeatedly represented that defendants would enter into a written agreement to pay him for the right to use the sound recordings and musical works in end of amnesia but never did so still ward created sound recordings of his compositions and allowed defendants to hold the masters pending a written agreement ward registered the copyrights in 2005 ward initially filed a state court lawsuit alleging that defendants were selling his material without a license then dismissed and refiled in federal court when it was pointed out that copyright claims are subject to exclusive federal jurisdiction the specter haunting the claims here it seems to me is rano v sipa press 987 f 2d 580 9th cir 1993 which holds that even an oral nonexclusive license is not revocable until the 35 year period has passed in the absence of a different express or implied period while breach could entitle ward to terminate the license in the 9 th circuit he s otherwise out of luck the court rejected the argument that the entire claim was barred by the statute of limitations the complaint only sought damages for the last four years and damages from beyond that period would likely be barred but no determination needed to be made without a record ward also adequately pled a claim for breach of an oral contract including a promise to enter into a written agreement and a claim for fraud however the court also denied a request for judicial notice of a c d email from ward s attorney which if properly authenticated would be strong evidence against the fraud claim also it is worth noting that one can only wonder if the allegations are true why plaintiff sat on his rights for almost a dozen years knowing full well that he had been defrauded still we are only at the pleading stage and the claim must go forward plaintiff s claim for conversion of the master recordings also survived though not his claim for conversion of profits from the sale of the album since a claim for generalized money isn t a conversion claim ward s california ucl claims were that defendants attempted to take complete control over the copyrighted works and profitably promoted their record label by representing to the public that they had the authority and consent to exploit plaintiff s copyrighted material though not raised by defendants put this way the claim seems like an excellent candidate for preemption based on dastar if the lanham act would conflict with the copyright act when interpreted in this way where the alleged misrepresentation comes as far as i can tell from mere sales distribution of works labeled truthfully as being written performed by ward then conflict preemption would also get rid of a state law claim premised on the same allegations admittedly few courts have noticed this and see below the court found this claim unclear about the underlying violation of the law and to state a claim based on the fraudulent prong of the ucl the complaint must satisfy rule 9 b which it didn t general claims of deception based on defendants representing that they have the authority and consent to exploit p laintiff s copyrighted material were insufficient ward also brought right of publicity claims as to which defendants did argue preemption here at the pleading stage the court found that the allegations went beyond rights equivalent to any of copyright s exclusive rights misappropriation of ward s identity for the purpose of promoting defendants record label and website that went beyond being based entirely on alleged unauthorized distribution of copyrighted material i m assuming that if it turns out that the website just says we are proud to have end of amnesia in our catalog or some such this claim fails at least i hope so also note that dastar conflict preemption would go beyond 301 all that s analyzed here and i think dastar would definitely cover the we are proud hypo ward s lanham act claims were similar that by using his name likeness and musical works within the promotion of defendants business and record label defendants have deceived the public into believing that plaintiff is affiliated and or participating in the promotion in addition ward alleged that defendants deceived and confused the public into believing that defendants have the authority and consent to sell and or distribute plaintiff s musical compositions constituting unfair competition the court found that this failed to state a claim for false designation of origin not mentioning dastar but did state a claim for false representation in advertising promotion obviously there are a bunch of post dastar cases that are relevant here and perhaps they ll get a workout later even if this claim survives dastar would a consumer s belief as to defendants authority and consent be material to a purchasing decision seems unlikely if the works really were written and performed by ward why would a consumer care about the details of the contract posted by rebecca tushnet at 1 15 pm no comments email this blogthis share to x share to facebook share to pinterest labels california copyright dastar false advertising music preemption right of publicity fair use question of the day overthinkingit s deconstruction of call me maybe originally blocked on youtube maybe young harvard guys are more acceptable than foucault in comments fred von lohmann speculates disclaiming any specific knowledge that perhaps overthinkingit made use of youtube s dispute resolution mechanism but that would still leave the interesting question of why a stop start rendition interspersed with commentary which clearly couldn t function as a replacement for the official video needed to use the dispute resolution mechanism when for all that i can tell the lipsyncing harvard guys never did one possibility is that even with the commentary the use of some clips of the official video triggered an automatic filter because of the sound video match posted by rebecca tushnet at 11 58 am 4 comments email this blogthis share to x share to facebook share to pinterest labels copyright music my former colleague david vladeck at the ftc via consumer law policy blog here s an adweek story on the ftc s revitalized approach to false and misleading advertising and bcp director vladeck s role in it posted by rebecca tushnet at 11 30 am no comments email this blogthis share to x share to facebook share to pinterest labels advertising false advertising ftc monday november 12 2012 news for storage jars who vote this nyt article on the obama campaign s behavioral marketing discusses the dream team of researchers who communicated what marketers often aided by members of this very team have long known about selling products and services the team included robert cialdini whose influence is a must read for any advertising lawyer posted by rebecca tushnet at 10 47 pm no comments email this blogthis share to x share to facebook share to pinterest labels advertising self dilution i spent half of the time watching revenge s interstitial ads starring many cast members last night confused about why neiman marcus had copied target s logo for its holiday line turns out they re in a partnership it didn t seem that the retailers got placement in the show itself but they did get exclusive sponsorship in the national ad slots local broadcasters could add in their own ads and their ads mini episode will also run when the show streams online so does this make the main show s mention of narciso rodriguez a commercial use posted by rebecca tushnet at 10 48 am no comments email this blogthis share to x share to facebook share to pinterest labels advertising saturday november 10 2012 safeway and alfred bell v catalda via ben golant this cake wrecks post indicates that safeway attempts to stop intrepid bloggers from taking pictures of their disasters scroll down for a funny nsfw halloween example by claiming copyright even on masterpieces like this one so apparently they are taking seriously judge frank s instruction a copyist s bad eyesight or defective musculature or a shock caused by a clap of thunder may yield sufficiently distinguishable variations having hit upon such a variation unintentionally the author may adopt it as his and copyright it though i m tempted to ask how long that thunderclap lasted in this case posted by rebecca tushnet at 9 40 pm no comments email this blogthis share to x share to facebook share to pinterest labels copying copyright friday november 09 2012 fox and frauds cablevision spat is breach of contract not false advertising in re cablevision consumer litigation 864 f supp 2d 258 e d n y 2012 plaintiffs sued cablevision for not giving them credits for a 2 week period in 2010 during which they couldn t watch fox channels because of a licensing dispute between fox and cablevision allegedly because cablevision rejected numerous reasonable proposals cablevision s terms of service include a provision for giving customers credit for each known program or service interruption in excess of 24 hours which cablevision didn t do here with a small exception for customers who ordered extra world series coverage here the breach of contract claims survived because plaintiffs interpretation of the tos was a reasonable one while the claims for breach of the covenant of good faith and fair dealing and the state law consumer protection claims failed the court also dismissed plaintiffs request for an injunction requiring cablevision to do better in its contracts with content providers the consumer protection claims were under the laws of new york connecticut and new jersey first the court held that rule 9 b didn t apply to the ny claims at least where the alleged conduct didn t involve an affirmative misrepresentation but didn t need to resolve the issue because the claims flunked rule 8 ny s gbl 349 requires 1 a consumer oriented practice that was 2 materially misleading or deceptive and 3 that caused the plaintiff resulting injury here the allegations were that cablevision represented that it would carry the fox channels despite having reason to know that an interruption of that service was imminent failed to warn subscribers in advance that the fox channels would be disconnected billed for service in advance and later failed to credit subscribers for the disruption but plaintiffs didn t specify any affirmative misleading representations and the alleged omission wasn t objectively misleading cablevision s lineup wasn t set in stone and the tos explicitly contemplated service and program interruptions so the alleged omission couldn t have misled a reasonable consumer into believing that no service interruptions would occur failure to provide a credit didn t count as a deceptive practice because that was a mere breach of contract claim which is generally insufficient to state a 349 claim for the same reasons 350 which bars false advertising was no help connecticut s unfair trade practices act bans unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce which also covers practices that violate public policy but here too the claims failed because they merely stated a breach of contract claim in disguise with no aggravating circumstances likewise new jersey s consumer fraud act didn t apply in cases of wrongful omissions the njcfa requires a showing that the defendant acted with knowledge and plaintiffs didn t allege that cablevision intended to mislead customers by not timely advising them of the impending cutoff the njcfa also requires more than a mere breach of contract posted by rebecca tushnet at 7 29 pm no comments email this blogthis share to x share to facebook share to pinterest labels consumer protection contracts false advertising procedure newer posts older posts home subscribe to posts atom email 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january 63 2013 572 december 46 november 36 october 37 september 48 august 52 july 38 june 36 may 56 april 59 march 73 february 41 january 50 2012 598 december 56 november 41 ftc wins against make money fast claims court dismisses natural claim on primary jurisdi contract language isn t commercial speech unusual 230 defense against virtual ownership claims okay very obvious joke routine california class certification highlights aba journal blawg 100 google raters manual how to make a supercut it s about power reading list seo manipulation today s trademark question brave new world that has such software in it rtfs kids as less careful consumers math and advertising reproduction and accuracy the hollywood reporter on tm claims against films self dilution pictures or it s not false advertising original claim as false advertising referential uses don t cause blurring an example boop oop a do over descriptive trademark means uniqueness claim wasn oral music deal leads to multiple claims and dasta fair use question o...
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