United States: In Brief - Gere/Sarandon Film in Pre-production Legal Clash

Last Updated: May 12 2011
Article by Gergana Miteva

This article first appeared in Entertainment Law Matters, a Frankfurt Kurnit legal blog.

  • Gere/Sarandon film in pre-production legal clash. The writer and director of Arbitrage, Nicholas Jarecki, and the film's former producer, Michael Ohoven, have each filed complaints against one another over who owns the production rights to the film. The two collaborated on the screenplay without a written contract for months, casting Richard Gere and Susan Sarandon and securing the film's budget. It is now up to the courts to determine whether an option agreement for Ohoven to acquire rights in the production was ever executed. The Hollywood Reporter reports that the sticking point was Jarecki's insistence on shooting the entire film in New York, while Ohoven sought a more budget-friendly state like Louisiana. Jarecki was the first to file a complaint, asking a New York federal court to declare him sole owner of the copyright. Last week, Ohoven, through his production company, Infinity Pictures, hit back in California state court. He claims Jarecki used his reputation (he produced Capote and other critically acclaimed films) as a "stalking horse" to lure prominent actors. This off-stage drama sets a promising backdrop for the thriller, for which production is scheduled to begin this month.
  • Online post of entire copyrighted article deemed fair use. Copyright crusader Righthaven suffered its second defeat in federal court to a non-profit organization which published on its Web site a Las Vegas Review-Journal story about the local police's relationship with immigrants. As a copyright enforcer for the newspaper, Righthaven had sued the Portland, Oregon-based immigration organization for copyright infringement, but federal judge Hon. James Mahan ruled that the charity's publication was "fair use." In a rare application of the fair use exception to exploit an entire copyrighted work, Judge Mahan said Righthaven's use of the copyright was afforded lesser protection because its objective was to litigate rather than to protect the creative work, and it gave the non-profit no opportunity to remove the story before resorting to legal action. Further, the non-profit posted the article online for non-commercial educational purposes and targeted a different audience than the newspaper. Since last year, according to Paid Content, Righthaven has filed roughly 250 lawsuits against various Web sites and blogs and recently lost a similar case on fair use grounds (though that case involved only partial use of copyrighted work). While it is early to speculate, this decision may have significant implications for non-profits and publishers everywhere.
  • OK for Oprah to read from presidential trivia booklet. The Hollywood Reporter is reporting on the dismissal of a $100 million copyright infringement lawsuit against the talk show queen for allegedly using material from a presidential trivia booklet without permission. The author, Charles Harris, claims Oprah read content from the booklet on air, asking kids questions about presidential facts, one of which called for the name of the heaviest U.S. president – identified as William Howard Taft at 354 pounds. Oprah said Harris failed to register his booklet as a compilation, which, as the court noted, is the one circumstance where historical facts are afforded copyright protection. The court reiterated that facts are not copyrightable unless presented in some original form and that, while the booklet had "some hallmarks of originality," in its essence it was a "piece of raw data," rather than a creative work.
  • Online store thrilled to pay $950,000 for Beatles copyright infringement. Online music store BlueBeat.com has settled its $1 billion lawsuit with EMI – for less than $1 million. EMI, owner of the copyrights in many Beatles works, sued when BlueBeat offered the entire Beatles catalog on its Web site at the "unreasonabl[y] low" price of 25 cents a song, without permission. By the time BlueBeat took down the infringing music, it had already sold 67 million Beatles songs. EMI won the first battle when a federal judge refused to indulge BlueBeat's unusual argument that the infringing music files were "psycho-acoustic simulations" of the songs and scheduled a trial to determine damages. To BlueBeat's delight, the settlement agreement came just a day before the trial. "I felt that was sort of an acknowledgement on their part that they don't have the damages they claimed," said a BlueBeat lawyer. Before BlueBeat stepped in to offer Beatles music online, EMI had elevated the online product to cult status by withholding it for years; indeed, only last year did iTunes add the Fab Four to its catalog.
  • Hungry for Howard Stern's Porky's sequel? Prepare for an extended fast. Just as controversial radio host Howard Stern was rolling up his sleeves to produce the next installment of the 1982 raunchy teen comedy, Mole Entertainment went to a Los Angeles Superior Court to claim that it owns the rights to the franchise. In 2001 the rights holder Lontano Investments granted Mole Entertainment the exclusive option to make a Porky's sequel within a certain number of years. Apparently to retain its Porky's remake rights, Mole produced a speedy sequel in 2009 named Pimpin' Pee Wee, but did not distribute it. With no knowledge of the sequel, Lontano went ahead with another Porky's follow-up with Howard Stern. Lontano maintains that to exercise its option, Mole would have had to put up a minimum budget of $10 million (it had only expended $1 million). On the bright side, the temporarily derailed Howard Stern sequel is still on track to begin production.

www.fkks.com

This alert provides general coverage of its subject area. We provide it with the understanding that Frankfurt Kurnit Klein & Selz is not engaged herein in rendering legal advice, and shall not be liable for any damages resulting from any error, inaccuracy, or omission. Our attorneys practice law only in jurisdictions in which they are properly authorized to do so. We do not seek to represent clients in other jurisdictions.

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