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

When life serves you LimeWire... The record industry may finally be enjoying some lemonade after a Manhattan federal court decided that damages may be awarded per infringed song in its lawsuit against peer-to-peer file sharing software LimeWire. In 2006, thirteen record companies sued LimeWire for hosting as many as 11,000 of their copyrighted sound recordings. Last year, the labels scored their first major win in the case when the judge agreed that LimeWire indirectly infringed on their copyrights by inducing users to download pirated content. While the actual award will be determined by a jury next month, the ruling that both albums and single songs constitute infringed "works" threatens to bump up the damages to billions of dollars.

Viacom/YouTube lawsuit. The Hollywood Reporter is reporting that the two giant media companies have exchanged appellate briefs. Viacom is appealing from a ruling that YouTube postings of copyrighted Viacom content qualified for the Digital Millennium Copyright Act's "safe-harbor" exception. This holding places the burden on copyright owners to police YouTube for infringing material. A New York federal court had ruled that YouTube could invoke the "safe harbor" because it had no way of knowing whether a video is licensed by the owner or that the owner objects to its posting. In its brief, Viacom argues that placing the duty on copyright holders frustrates anti-pirating efforts because it allows newsworthy videos to be up long enough to satisfy viewers' interest and compete with Viacom's own content providers. The media conglomerate further maintains that YouTube's business model is based on actively attracting infringing content and "intentionally blind[ing] itself" by disabling its monitoring software. YouTube counters that its service is entirely based on "legitimate origins," providing a platform for aspiring artists, human rights causes, political information, etc., and that only Viacom is in a position to distinguish between clips that it uploaded itself for promotional purposes and pirated videos, claiming that even some clips in Viacom's complaint were posted by Viacom itself or its agents.

Reality show Catch 22: To pitch or not to pitch? A Manhattan federal court recently handed down an opinion which is likely to make aspiring reality show producers think twice before pitching their ideas to a network. In Castorina v. Spike Cable Networks, Inc., the plaintiffs sued Spike TV, claiming that its 2006 reality show Pros vs. Joes ripped-off their show Two Left Feet, which they unsuccessfully pitched to the network in 2004. The Second Circuit Court of Appeals ruled that while both shows pit professional athletes and amateurs against each other, the similarities end there. The court deemed most ideas for Two Left Feet to be "stock elements" that flow naturally from the very concept of amateur versus professional sports competitions in basketball, hockey, baseball, and football: "Indeed, it is difficult to fathom a sports reality program designed for the American television market that, instead of featuring these sports, would instead pit amateur Americans against professional camel jockeys, cricketers, and haggis hurlers." The judge acknowledged that the Two Left Feet concept could not have been too detailed because the reality show genre leaves specifics to the participants. But under established law, only unique, particularized expressions of an idea can be copyrighted, leaving open the question whether reality show content enjoys less copyright law protection.

"Muppet Workshop" in royalties squabble. Former executive producer for Married with Children, Russel Marcus, is suing Disney, Jim Henson Co. and The Muppets Studio, claiming he is owed royalties for coming up with the idea for in-store customer-designed Muppets. Marcus says that in 2000, Disney bought the rights from him to develop a workshop in its stores offering customers the opportunity to create their own Muppets from a generic Whatnot Muppet. Reportedly, when Marcus contacted Disney to seek his share of the profits, the company replied that the endeavor has not been financially profitable, though a 2008 New York Times article quotes a Disney store manager rejoicing that "overnight, the workshop went from a soft opening to a global phenomenon. . . . ."

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