United States: In Brief

Last Updated: July 25 2011
Article by Gergana Miteva

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

Don't mess with the Zohan, Jayms Blonde! The Second Circuit has affirmed a lower court's copyright infringement ruling in favor of the creators of You Don't Mess With the Zohan, starring Adam Sandler. Plaintiff Robert Cabel is the creator of a comic book entitled The Hair-Raising Adventures of Jayms Blonde, which the court described as a "light in tone and replete with humor" storyline of a former U.S. Navy Seal who becomes a hairstylist and moonlights as a secret agent. Cabel argued that the movie's promotional materials featuring Sandler holding a blow dryer pointed to the camera, Sandler's posture, and the movie's plotline infringed on his copyrights in the comic book. The court reasoned that the similarity between the posters and the comic book end with striking a fighting pose and "wielding the blow dryer as a weapon," both of which were deemed unprotectable ideas. The potentially protectable elements of the images, the court pointed out, were dissimilar: one character is holding a weapon disguised as a blow dryer, the other a commonplace blow dryer; one character is facing the viewer with legs spread, the other stands with his right leg forward; and, importantly, the two have different hairstyles and wardrobes. The court also found the storylines to be different – while Jayms Blonde was a gay man hairstylist and secret agent, Zohan was a former Mossad secret agent who became a hairstylist (and a womanizer) to escape his past employ.

You know you authored a joke when...Jared Edwards, a former assistant to the Wayans Brothers, settled his court case against his former bosses for copyright infringement and breach of contract over their 2009 book 101 Ways To Know You're A Gold Digger. In his complaint, Edwards charged that the brothers stole his jokes from a manuscript he had proposed to co-publish with them, entitled You Know You Are a Gold Digger When . . . .Edwards claimed that gold-digger jokes in the book such as "Your hands are shaped like money clips" and "[Before you go to] sleep, you count money instead of sheep," were lifted verbatim from his manuscript. By his lawsuit, he sought a permanent injunction, a percentage of the book's profits, all copies of the books, and punitive damages. The Wayans brothers claimed Edwards' copyright registration was fraudulently obtained and that any authorship he claimed was "work for hire" entitling the defendants to whatever work Edwards did within the scope of his employment with them. The Wayans brothers are best known for starring in the comedies "White Chicks" and "Scary Movie." Trial was set to begin on July 12, but the parties reportedly settled to the case on the eve of trial.

$480,000 statutory damage award for infringement of tattoo designs. A Virginia federal court ruled in favor of a tattoo designer in a copyright infringement case. The plaintiff had licensed hundreds of his designs to defendant, an airbrush body art retailer. The court found that defendant breached its licensing agreement with plaintiff when it created derivative designs by changing the colors and ceasing to pay royalties. The sticky point for the court was deciding how many copyright infringements occurred for the purposes of calculating statutory damages. Plaintiff conceded that, to save money on copyright registration, he compiled 24 books of 50 designs each and registered the books, rather than each design. In his complaint, the plaintiff argued that he was entitled to a separate statutory award for each infringed design, amounting to $2 million in damages. However, the court awarded statutory damages for each infringed book, rather than for each infringed design, because the plaintiff sold his work in the same format as he had registered it, suggesting that the books themselves were copyrightable compilations. The Court awarded plaintiff statutory damages in the amount of $20,000 for each of the 24 tattoo books, for a total of $480,000 in statutory damages.

Righthaven loses another one.Embattled copyright enforcer Righthaven lost yet another copyright infringement lawsuit because of lack of standing and a fair use defense. It is just one in a series of unfavorable decisions for the copyright crusader, which has filed over 200 lawsuits against online bloggers and commentators. This time, the alleged infringer was a Vietnam veteran who posted an entire Las Vegas Review Journalarticle entitled "Public Employee Pensions: We Can't Afford Them" on an online discussion forum. Righthaven sued on behalf of the copyright owner, Stephens Media, with whom it had a contractual relationship, sharing copyrights and proceeds of damage awards and settlements. While the contract had language suggesting full transfer of rights to Righthaven, the court focused on restrictions on the transfer and Stephens Media's unilateral right to regain possession at any time. The court concluded that the contract conveyed only "illusory" copyrights: "These carveouts deprive Righthaven of any of the rights normally associated with ownership of an exclusive right necessary to bring suit for copyright infringement..." The court also pointed out that even if Righthaven had the right to sue, it would still lose the case on fair use grounds. The court held that even though the blogger had posted the entire article and the work had some creative elements, he had not used it for commercial purposes, but rather to spur a political discussion, and Righthaven failed to present any evidence that the infringement had an impact on the potential market for the work. The Righthaven cases continue to result in somewhat surprising decisions, including the one in this case that the posting of an entire article was fair use; it appears that judicial distaste for Righthaven's business model may be driving this type of result.

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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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