The NBA will put its marquee players on display in next weekend’s All-Star Game in Dallas, but the party-like atmosphere is sure to be chilled when the stars learn the details of the collective bargaining agreement offer presented at the end of January by commissioner David Stern to players’ union director Billy Hunter. The proposal, a source familiar with talks said, includes rollbacks that could reduce maximum guaranteed salaries, both for veterans such as Kobe Bryant and LeBron James, as well as up-and-comers like Kevin Durant and Derrick Rose, to almost a third of what they would have been eligible for under the current agreement.   Guaranteed salaries in imminent new contracts for LeBron James and Kobe Bryant would be reduced under an owners proposal to almost a third of what they would have been eligible for currently. Perhaps the biggest shocker: The owners’ proposal includes a provision that would require any pre-existing deals to be revised to conform to the new deal’s limits. The current deal is set to expire as of July 1, 2011. The league’s owners have the option to extend it one more year, but they’ve already made it clear they don’t intend to. “The league has to be careful,” said one agent who requested anonymity. “If the top players are united against David, that’s going to make for a tough fight. It could get very ugly.” Presenting a new proposal nearly 18 months in advance of the current deal’s anticipated expiration is unprecedented, several sources said. Doing so right before All-Star Weekend also seems odd, particularly since Dallas Mavericks owner Mark Cuban, the weekend’s host owner, has crowed about the event drawing a record 100,000 fans and a surrounding spectacle dwarfing that of the NFL’s Super Bowl XLIV. “It’s the most dire economic time, so they want to take advantage of that and scare the players now,” the agent said. “It is a negotiation. This is what you do.” The total value for a veteran maximum deal would be well under $60 million and for players currently on rookie salary-scale deals well under $50 million, the source familiar with the proposal said. Fully guaranteed maximum deals also could be a thing of the past, with the proposal allowing for less than half of any contract to be guaranteed. The mid-level exception and other devices that allow teams over the salary cap to sign free agents also would be abolished, several sources said, effectively creating a hard cap. Both the league and players association declined to comment on the source’s details of the proposal, as did union president Derek Fisher. “David and Billy have decided not to comment until we get to All-Star Weekend and I’ll fall in line with those two gentlemen,” Fisher said Friday night. Stern and Hunter are expected to address where negotiations stand on a new labor agreement sometime during the weekend. Ric Bucher covers the NBA for ESPN The Magazine.

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FORT LAUDERDALE, Fla. — Cincinnati Bengals wide receiver Chad Ochocinco had a simple question for DeMaurice Smith. Ochocinco wanted to know how serious the NFL Players Association’s executive director viewed the possibility of the league not playing in 2011.

“On a scale of 1 to 10,” Smith said Thursday, “it’s a 14.”

With that, the union leader painted perhaps the bleakest picture yet regarding prospects of labor strife in the league, which could be looking at a 2010 season with no salary cap and, if the collective bargaining agreement expires as scheduled in March 2011, a lockout that year.

“I keep coming back to an economic model in America that is unparalleled,” said Smith, who often repeated phrases for emphasis. “And that makes it incredibly difficult to then come to players and say, ‘On average, each of you needs to take a $340,000 pay cut to save the National Football League.’ Tough sell. Tough sell.”

Smith said the NFL would receive $5 billion from its network television deals even if no games are played in 2011. He regarded that as proof the owners are preparing for a lockout.

“Has any one of the prior deals included $5 billion to not play football?” Smith asked, referring to previous contracts that were extended or redone. “The answer’s no.”

In an interview in Sirius Radio, NFL Commissioner Roger Goodell refuted Smith’s notion that owners are aiming for a lockout.”

“You don’t make money by shutting down your business,” Goodell said. “The idea that the owners want to lock out and not play football is absolutely not the case, that’s just not good for anybody.”

Some of Smith’s nearly hour-long question-and-answer session during Super Bowl week was spent reiterating past claims, such as team values increasing “almost 500 percent” over the last 15 years. There also was a call to have all 32 NFL teams open their books to show who was losing money and how much.

Smith also said he wanted teams to contribute what, ultimately, would be millions into what he called “a legacy fund” that would better support retired players.

Most of his focus, however, was on striking a new labor deal.

“I really and truly in my heart believe we’ll get a deal done,” NFLPA president Kevin Mawae said. “But there’s going to have to be some give and some take and not just taking from one side all the way.”

The league’s response, in part, said that teams such as the Green Bay Packers — whose audited financial statements are the only ones the union said it has seen — have seen a 40 percent decline in profits.

“In most businesses, that would be a serious cause for concern,” said Jeff Pash, the NFL’s executive vice president and chief counsel. “It would indicate a serious issue that has to be dealt with. You look at your single largest expense, which is player costs.”

Indianapolis Colts quarterback Peyton Manning, whom the team plans to soon give a new contract that would make him the league’s highest-paid player, acknowledged that he has concerns.

“I think as a player, I feel we have a pretty good thing going right now in the NFL,” Manning said Thursday. “It would a shame for something to have to change along those lines. I understand kind of like when a player is holding out or a player contract, there is a business side of this that can be tough. It is not always pretty.”

Smith said the latest NFL offer to the players would reduce their share of applied revenues from about 59 percent to 41 percent. He emphasized that the teams take $1 billion off the top of the estimated $8 billion the league generates.

Pash argued that the $1 billion reflects actual costs incurred, money “invested in things like NFL Network, NFL.com, putting games on overseas, all of which is intended to and has in fact had the effect of generating substantial additional revenues, 50 percent of which go to NFL players. And the union knows that’s true, because the union has absolute rights to audit those expenses.”

Echoing previous statements by Goodell, Pash said Smith’s assertion that players are being asked to accept an 18 percent pay cut — the $340,000 per-player-average figure — was among the “misrepresentations of what our proposal is.”

“We have never said it would result in players having to take a reduction,” Pash said. “The entire point here is to generate a pool of resources to have continued investment and continued growth, which would lead to higher salaries and benefits for players.”

For now, some players say they’re bracing for issues. Mawae, the Tennessee Titans‘ center, said he even has recommended players save 25 percent of their salary next season “in the event of a lockout,” though he noted “we can’t make all 1,900 players save their money.”

“We’ve told them, ‘Don’t go out and buy a new boat. Don’t go out and buy a new car. Pay off whatever debts you have,’ ” Colts center Jeff Saturday said. “These are things we’ve been learning from history.”

Smith and Mawae said that if next season goes forward with no salary cap, it would be highly unlikely to have a new CBA with a cap reinstated.

“Virtually impossible,” Smith said.

“A very difficult task,” Mawae said.

Asked about the owners’ assertion that the 18 percent pay cut request was false, Mawae didn’t hold back.

“That is not true,” he said. “That is absolutely true they’ve asked for 18 percent.”

Meantime, the union is increasing dues for now, with the idea of returning the money as income to players, if needed, during a lockout.

“Our guys get it,” Mawae said. “Our guys understand.”

Copyright 2010 by The Associated Press

Breeding Ground : Killer Mike: How To Get In The Game, And Remain

http://www.millerlawgroup.net
Located in West Lawn, PA, The Miller Law Group, PLLC, has a great deal of experience handling business law, estate planning, and civil cases.

After the messy break-up between Conan O’Brien and NBC, how will the Peacock Network enforce it’s contractual non-disparagement clause against the comic? Good question!

The Wall Street Journal examines the issue.

By L. Kevin Levine

OK, before I even start, I recognize that this is going to be a rather cliche post (my apologies).  As we close out another year and look toward 2010 with a mix of aspirations of new business opportunities and concern for the music industry, I encourage you to take some time to assess your music business.  Consider those things that went right in 2009, as well as those that didn’t quite hit the mark.  Where do you want to be this time next year?  How do you plan to get there?

Several months ago, I wrote and posted an article titled Beware the Status Quo, in which I suggested setting aside ten minutes each day to think about your music business and how it will operate in the future.  I now challenge you to take some time before the end of the year and put pen to paper and map out your goals for 2010.  To the extent that you have not already done so, I also encourage you to thank those who have helped you to advance your career over the past year.

I hope that each of you has a wonderful holiday season and a happy, safe, and prosperous New Year.

Dealmaking in the Film & Television Industry: From Negotiations to Final Contracts
Mark Litwak
KF4290 .L58 2009
From the Publisher: Dealmaking—the popular, award-winning “self-defense” book for everyone working in the film and television industry—is now updated to include the latest legal rulings and entertainment technology developments. Addressing a general, non-attorney readership, it is a fascinating, highly accessible guide to current entertainment law’s peculiarities, “creative” practices, and practical applications.

The Miracle Case: Film Censorship and the Supreme Court
Laura Wittern-Keller and Raymond J. Haberski Jr.
KF4300 .W58 2008
From the Publisher: It was only a forty-minute foreign film, but it sparked a legal confrontation that has left its mark on America for more than half a century. Roberto Rossellini’s Il Miracolo (The Miracle) is deceptively simple: a demented peasant woman is seduced by a stranger she believes to be Saint Joseph, is socially ostracized for becoming pregnant out of wedlock, but is finally redeemed through motherhood. Although initially approved by state censors for screening in New York, the film was attacked as sacrilegious by the Catholic establishment, which convinced state officials to revoke distributor Joseph Burstyn’s license. In response, Burstyn fought back through the courts and won.

Laura Wittern-Keller and Raymond Haberski show how the Supreme Court’s unanimous 1952 ruling in Burstyn’s favor sparked a chain of litigation that eventually brought filmmaking under the protective umbrella of the First Amendment, overturning its long-outdated decision in Mutual v. Ohio (1915).

. . . More than the inside story of one case, this book explores the unique place that the movies occupy in American culture and the way that culture continues to be shaped by anxiety over the social power of movies. The Burstyn decision weakened the ability of state censorship boards and the Catholic Church to influence the types of films Americans were allowed to see. Consequently, the case signaled the rise of a new era in which films would be more mature and more controversial than ever before. Focusing on this single most important case in the jurisprudence surrounding motion picture expression, Wittern-Keller and Haberski add a significant new dimension to the story of cinema, censorship, and the history of First Amendment protections.

Music and Copyright
Ronald S. Rosen
KF3035 .R67 2008
From the Publisher: The highly topical area of copyright law, as applied to music, is widely misunderstood by lawyers, business people, and – perhaps most seriously – the federal judiciary. More than ever, there is a need to understand music infringement issues within the context of copyright litigation. In Music and Copyright, Ron Rosen provides readers with a practical and strategic roadmap to the music infringement litigation process, beginning with the client’s claim or defense and continuing through the selection and use of trial experts, discovery, motion practice, and trial.

Renowned for his expertise and career-long commitment to entertainment, intellectual property, and commercial litigation, Ron Rosen has condensed his experience into an essential guide for anyone involved in music-infringement litigation. Packed with elucidating examples from the author’s own practice, Music and Copyright navigates the often thorny terrain between notions of the legal and the musical providing practical advice, case studies, forms, and commentary along the way.

Entertainment Law & Business: A Guide to the Law and Business Practices of the Entertainment Industry
Jay Shanker, David E. Guinn, and Harold Orenstein
KF4290 .S53 2008
From the Publisher: Entertainment Law and Business is a handy resource for both the experienced and novice practitioner. It provides a broad survey of the entire industry and creative rights laws. It includes incisive summaries of all of the important areas of creative rights law: copyrights, the protection of ideas, trademark, publicity and privacy, and the major international treaties. It also provides an overview of all the major fields of entertainment (and related fields of interest for entertainment practitioners) along with illustrative agreements.

This is not an esoteric academic treatise. The book aims to aid the practitioner in the practical aspects of entertainment. Hence, the authors have attempted to highlight the key features of the major agreements in each field. They provide insights not only into what the individual provisions of the agreement attempts to regulate, but also the concerns that lie behind those provisions. They point to the types of negotiating strategies important in each agreement, passing on their experience to the practitioner.

Freedom of the Screen: Legal Challenges to State Film Censorship, 1915-1981
Laura Wittern-Keller
PN1995.62 .W58 2008
From the Publisher: At the turn of the twentieth century, the proliferation of movies attracted not only the attention of audiences across America but also the apprehensive eyes of government officials and special interest groups concerned about the messages disseminated by the silver screen. Between 1907 and 1926, seven states-New York, Pennsylvania, Ohio, Virginia, Kansas, Maryland, and Massachusetts-and more than one hundred cities authorized censors to suppress all images and messages considered inappropriate for American audiences […].

[S]ome industry outsiders, independent distributors who believed that movies deserved the free speech protections of the First Amendment, brought legal challenges to censorship at the state and local levels. Freedom of the Screen chronicles both the evolution of judicial attitudes toward film restriction and the plight of the individuals who fought for the right to deliver provocative and relevant movies to American audiences. As the fight against censorship progressed case by case through state courts and the U.S. Supreme Court, legal authorities and the public responded, growing increasingly sympathetic toward artistic freedom. Because a small, unorganized group of independent film distributors and exhibitors in midtwentieth-century America fought back against what they believed was the unconstitutional prior restraint of motion pictures, film after 1965 was able to follow a new path, maturing into an artistic medium for the communication of ideas, however controversial. Government censors would no longer control the content of America’s movie screens.

Music, Money, and Success: The Insider’s Guide to Making Money in the Music Business
Jeffrey Brabec & Todd Brabec
R673 ML3790 .B72 2008
From the Publisher: Songwriting, licensing, contracts, film & tv, composing, the internet, Broadway, recording and music publishing is a business. This book tells you how the business works… What you must know to succeed… and how much money you can make. The Brabecs, are former recording artists, entertainment lawyers, and legal services attorneys.

A jury found that the owner of California radio station, KDND, must pay $16.6 million to the surviving family of a woman who died of water intoxication.  Jennifer Lea Strange participated in a “Hold Your Wee for a Wii” contest promoted by KDND. The winner of the contest, held in 2007, was to receive the Nintendo video game for drinking the most water without either urinating or vomiting.

Lawyers for the family of Strange, who died at age 28, leaving her husband and three children, asked for between $34 million and $44 million.

Plaintiffs lawyers offered evidence in the form of audio recordings of the morning show that held the contest for the Sacramento Superior Court jury.  On the recordings, the jury heard disc jockeys joke about contestants throwing up and the possibility that someone could die from drinking too much water. Even after several on-air calls from listeners expressing concern that drinking too much water was dangerous, the jokes continued.

Attorneys for the defense argued that Strange’s death was unforeseeable and that her death resulted from her own contributory negligence in drinking too much water.

The jury found that disc jockeys and station managers acted negligently within the course and scope of their employment in holding the contest and therefore, Entercom Sacramento, the radio station’s owner, was held liable.

Attorneys for the plaintiffs argued that the owner’s parent company, Entercom Communications Corp. of Philadelphia, should also be held liable since company legal counsel did not sufficiently advise and train the local station with regards to its policy against holding contests that were dangerous.

This case highlights the importance of obtaining legal counsel before participating in, sponsoring, or facilitating contests involving other individuals; especially events that endanger or place in peril, the life and/or limbs of contestants.

In Nguyen et al., v. Taylor et al., the North Carolina Court of Appeals dismissed an appeal in a libel action brought against rapper “The Game,” on the ground that non-final orders are not subject to immediate appeal by a plaintiff in defamation suits.  In Nguyen, five Greensboro police officers filed a complaint against rapper Jayceon Taylor, also known as “The Game” for libel and slander.  The relevant facts surrounding this case are as follows:

On October 28, 2005, Taylor and his entourage visited the Four Seasons Mall in Greensboro.  During this visit, a member of Taylor’s entourage carried a video camera and recorded the events that transpired while inside the mall.  A mall security guard advised Taylor that filming inside the mall was not permitted and that the filming had to stop.  Taylor refused and the Greensboro Police department was contacted to provide assistance.  Plaintiffs Romaine Watkins, David Gregory, and Matthew Brown, who were all police officers working off-duty at the mall, responded to the security guard’s call and repeatedly requested that Taylor and his entourage leave the premises. Taylor refused the police officers requests and allegedly responded by making threats and engaging in disorderly conduct.  Officers determined that there was probable cause to arrest Taylor for criminal trespass, communicating threats, and disorderly conduct.  Watkins attempted to arrest Taylor but he physically resisted.  The officers sprayed pepper spray after members of Taylor’s entourage refused to stay back.  At that point, two additional officers came to the scene.  Taylor was arrested and transported to the Guilford County Jail. 

Following his release on bail, Taylor made certain statements to a local reporter, including “They thought I was Rodney King, man” and “they really kicked our (censored).”  In addition, footage of the entire fiasco appeared on a DVD titled “Stop Snitchin’ Stop Lyin’,” which included an image of one of the officers on the back cover of the DVD.   The caption on the back cover read “Exclusive:  The full 15 minute footage of The Game being wrongfully arrested in North Carolina.”  The footage also appeared on You Tube.  Accordingly, the officers brought the claims for libel and wrongful appropriation against You Tube, Inc., Universal Home Video, Black Wall Street Publishing, LLC and other named defendants. 

The defendants moved to dismiss the officers’ complaint for failure to state a claim.  The trial court granted the motion on many of the claims and the officers’ brought the current appeal.  The Court of Appeals rejected the officers’ arguments, holding that under North Carolina law, “[a]n interlocutory order is not immediately appealable except in two instances:  (1) the trial court certifies that there is no just reason for delay pursuant to Rule 54(b)… and (2) the interlocutory order affects a substantial right which will be lost if the order is not reviewed before a final judgment is entered.”  Finding that neither of the two exceptions applied to the instant case, the Court of Appeals affirmed the trial court’s dismissal.

The Sinister Yung Breeze

On behalf of our worldwide audience, Joe Stern-McGovern, global agent and President of Universal Artists, International, is pleased to announce the return of Yung Breeze, former partner of DTA of Houston’s hardcore street duo, The Brigade. Known for such hits as Degradation, Block Bleed, Krunch Time, Real Where I’m At, Mob Style, and Hands if You Feel Me, our listeners can come to expect the return of these classics to the shelves and in downloads on the coming site and charitable brainchild of Joe Stern-McGovern, www.endhivaids.com, dedicated to eradicating HIV/AIDS in our lifetime.

Produced by Joe Stern-McGovern in the earliest days of Universal Artists, International, Yung Breeze was a budding prodigy discovered through H-Town’s young producer, Mastamind, along with his cohort, B-Fly, on the hard streets of Houston’s notorious 3rd Ward. With many a scuffle and near miss with the local Texan thugs and corrupted, as well as close encounters with Harris County’s finest, Yung Breeze was molded by the environment in which he was raised.

Joe Stern-McGovern Posing with The Brigade

While Yung Breeze’s lyrics and the vehemence of his delivery are part in parcel of who he has become, his aura and essence are more of a product and statement of that which he has personally witnessed within his community and the back alleys of Sharpstown, as well as the peril he’s bourne on his shoulders rather than a radical call for violence, rebellion, and disobedience. When he cries out for justice and equality, his words ring with crystal clarity as those of an individual whose lived the life against which he protests with endurance, contempt, and integrity, and simultaneously maintains the roots of who he’s developed into as a man of pride and consequence.

If you wish to know how the other side of the tracks has lived and survived without personally endangering yourself and your future, take a quick listen to the furious tales of the dark side as portrayed on the microphone and in the studio by the genuine article, Houston’s Yung Breeze.

In spite of the anger and resentment one might expect from such an individual, Yung Breeze has developed into a rather charitable individual, donating his time and talent to Joe Stern-McGovern and Universal Artists, International’s struggle against the spread of HIV and the devastating consequences of AIDS.

Look for future production of Yung Breeze through the likes of Shaka Productions, as well at  H-Town’s legendary recording hot spot, In the Jar Studios, run by the studios owner and operator, Al Loya, techincal afficianado and savvy engineer to some of hip hop’s fastest rising legends.

“When I first met Yung Breeze, he was a struggling youth who had a great sense of pride, an enormous gift of expression, and a knack for conveying his particular genius through the local street venacular of the areas hoods and ruffians. Originally recording at one of the illest and most infamous studios in the shadier side of town, Psyche Ward, Yung Breeze was picked up and developed by the genius of the wonder twins, Boss and Ripp.” Collectively, these forces of the city’s darker and far more dangerous neighborhood known as Southwest Houston, Soufwest to the locals, have come to the forefront in recent days.”

Joe Stern-McGovern can personally vouch for the validity of the young anti-hero as through his entrancing telling of the first photo shoot the act was to experience as the entity which would come to be known as the Soufwest Brigade, or simply, The Brigade, led by street veteran and surprising genius given his circumstances, DTA, “Don’t Trust Anyone”, a meeting in which the photographer was so terrified, he insisted the photo shoot take place in broad daylight in a local downtown Houston city park.

The Southwest Brigade

True to his name, DTA came to generally distrust those who held the strings to his future as well as his cohorts, and the split was made as DTA went MIA and Yung Breeze continued the journey on the road to stardom solo. For those dedicated and loyal fans of DTA, fear not, he is yet in his prime and will surely rise back to the surface given the timing, motive, and opportunity, as his tales are of equal importance to those of any and must be expressed through the venue known widely as hip hop.

Currently holed up in Al’s “In the Jar Studios”, Yung Breeze is deliberating the path of his next turn towards truth and the betterment of society and the world around him through analysis of the streets and the general feeling of the times.

“Youths such as Yung Breeze sadden me in a way,” states Joe Stern-McGovern. “He’s just about the age my son would’ve been had he lived, and upon reflection it fills me with a sense that somehow I, as a part of society,  have failed our younger generations, leaving them to inherit a world abandoned to greed and the mismanagement of our leaders and botched policies of the government, an entity whose best intentions are questionable.” Those who have chosen such selfish ends will now come to face the fury and ambitions towards societal justice and self-correction from the likes of DTA, Yung Breeze, two halves of the Brigade.

For more information about Yung Breeze or DTA, please visit us at www.myspace.com/universalartists or www.universalartists.net. For information about booking either of the duo domestically or internationally, please write to Joe Stern-McGovern’s assistant at either joesternmcgovern@myspace.com or www.myspace.com/joesternmcgovern. For inquiries of the artistic nature or to explore your own future as an artist at Universal Artists, International, please write to Shaka of Shaka Productions at shaka@universalartists.net.

Light Brigade Records

For donations to the Pediatric AIDS Foundation, please visit our writer’s page at www.universalartists.net. If you are interested in either sponsoring or investing our endeavours at fighting the battle  against HIV/AIDS, please write to joe@universalartists.net, or universalartists@myspace.com attention, Joe Stern-McGovern.

For information regarding the sales of Universal Artists, International’s products or charitable goals, or to download singles towards charity from your favorite Universal Artists, International artist please visit our latest site, www.endhiveaids.com, currently under construction and built by www.lubashadesign.com.

For information about our colleagues abroad, please visit www.pure-records.com or write to info@pure-records.com in Tokyo, Japan attention, Eric. Please look for our international release throughout greater Japan, Eastern Asia, and Australia in early 2010.

Now on Sale, Casey Rankin's, "Speaking in Tongues"

Connecticut’s “Hollywood East” tax credits program played a prominent role in the 2009 CT Digital Media Business Conference, which was held on November 11 at UConn’s Stamford Campus.  Here are a few interesting notes on the State’s film and digital media industry and the controversial tax credit:

• Various speakers stressed that the State must be consistent in its message and approach to attract film and digital media businesses to Connecticut.  The debates in the General Assembly over whether the tax credits are working as intended and changes to the credits appear to have left some uncertain as to whether State is committed to the incentives that were first enacted in 2006.
• On the other hand, the current economic climate in Connecticut and throughout the country was discussed as a factor that caused the tax credits to be scrutinized more closely.
• Building infrastructure to support the film and digital media industry is still a priority, and a necessity.
• The video game industry was mentioned more than once as a segment that could be important to the State’s economy.  To this end, see Gregg Lallier’s post Connecticut Video Game Industry – Promise and Pitfalls.
• Governor Jodi Rell’s announcement that she would not run for reelection did not go unnoticed.  First, Stamford Governor Dannel Malloy, who has designs on running for Governor, delivered the keynote address.  Second, the issue of jobs in the upcoming election could provide an interesting tie-in with the tax incentives for the production of film and digital media.

-Dan Fitzgerald

In a suit for copyright infringement, a New York court found for music composer Karen Manno and awarded her over $50,000 in attorney fees and damages.  In the suit, Manno alleged that Karaoke Producer Tennessee Production Center, Inc. released several unauthorized records that contain Manno’s co-authored composition titled “The One.”  In response to the suit, Tennessee Production argued that its practice was not illegal or unauthorized because it tried to pay royalties to artists through the use of a program that tracks songs and licenses.  According to the company’s Chief Executive Officer, Tennessee Production was “continuing its efforts to identify every publisher to become fully licensed,” but was not “able to research, negotiate with, and execute licenses with each and every owner of copyrighted songs.”  Finding that these statements and the company’s own evidence demonstrated that Tennessee Production was well aware that it was making sales of numerous songs without having permission from the owners, the court determined that Tennessee Production “recklessly disregarded the possibility” that selling a disk with Manno’s song on it “represented infringement,” and thus was liable for willful copyright infringement. 

It is important to note that under the Copyright Act, a court can award an enhanced recovery of up to $150,000 per infringing work if the court finds the infringement was willful. 

While Manno did not recover a large damages award, this case is still significant because it reaffirms the position that companies cannot disregard copyright laws without penalty.   In short, there are a number of remedies for music composers and other owners of copyrighted material whose rights have been violated.

Rapper Lil Wayne and CEO of Cash Money records Brian “Birdman” Williams have a lawsuit filed against them by a man claiming he was not paid for the use of his voice off of their album “Like Father, Like Son” and Williams’ album “5 Star Stunna”.

The lawsuit was filed by Thomas Marasciullo, who says that they had him do spoken word recordings and then used his voice without his permission and without cutting him a check. Marasciullo claims that his recordings were used without his expressed permission in a total of 9 tracks on those two albums.

Thomas Marasciullo says that his daughter found out about the misuse of his voice when she was trying to download a ringtone of Aretha Franklin’s song “Respect”, also the title of one of the songs from “Like Father, Like Son” that Marasciullo alleges feature his words.

Many artists, especially rap artists are being sued for copyright infringement due to the nature of how most songs are created.  Sampling the musical works from previous released tracks from different genres is a popular way that producers use to develop catchy beats and hooks. 

Artists and record labels should research the origin of any sampled music they use in their work before releasing it for sale to the public.  They should also seek legal counsel when copyrighting their work to prevent any liability for infringement.

Courtney Love has been sued by fashion designer, Dawn Simorangkir for posting derogatory comments on Twitter about service she received from the designer.  The Twitter postings described Simorangkir as an “asswipe nasty lying hosebag thief,” with “a history of dealing cocaine.”  

In her motion to dismiss the suit, Love claimed that she spoke out about Simorangkir because she “believe[s] strongly in the right of consumers to publicly warn other consumers about unscrupulous vendors.”

California’s anti-SLAPP law protects “any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest.”

SLAPPs – Strategic Lawsuits Against Public Participation – are civil complaints or counterclaims (against either an individual or an organization) in which the alleged injury was the result of petitioning or free speech activities protected by the First Amendment of the U.S. Constitution.  SLAPPs are often brought by corporations, real estate developers, or government officials and entities against individuals who oppose them on public issues.  Typically, SLAPPs are based on ordinary civil tort claims such as defamation, conspiracy, and interference with prospective economic advantage.  While most SLAPPs are legally meritless, they effectively achieve their principal purpose: to chill public debate on specific issues.

Los Angeles Superior Court Judge Aurelio N. Munoz denied the motion, stating that Love’s statements did not affect a large group people and involved only a “discrete private dispute” between her and Simorangkir.

“That Love is a celebrity does not transform anything Love says, especially about others, into matters of public interest,” plaintiff’s counsel argued in a brief.  “At best, Love has commented on a private dispute that…does not affect the public at large.”

Munoz also found that even if Love satisfied the “public issue” requirement of the anti-SLAPP law, the case could proceed to discovery since Simorangkir demonstrated a probability of prevailing on her claim that the Tweets were malicious statements of fact and not merely “rhetorical hyperbole.”

Love also argued that her statements were protected under the anti-SLAPP law because “Matters involving a celebrity’s personal life constitute matters of public interest if the celebrity herself is the subject of widespread public interest.”  However, Munoz concluded that “Under that theory, no celebrity could ever be found liable for defamation.”

The point that the court is trying to make here is that celebrities like the rest of society cannot escape liability for publicizing malicious and false statements about another person.  Simply put, money and fame do not allow individuals to disregard the law.

Kevin Goldberg

Press freedom and sports law expert Kevin Goldberg described major new requirements by sports teams on media coverage on the Oct. 22 DC Update edition of My Technology Lawyer Radio. The show is available via the link, which includes past shows.

Goldberg this fall delivered a compelling lecture at the National Press Club here entitled, “The Price of Admission Gets Higher: Leagues Asking for More in Exchange for Access.” He explains why this is important to the public: “Sports are no longer just sports. In many communities, they are the news. These restrictive credentials have been adopted by all facets of the entertainment industry, at all levels.”

Update is co-hosted by the show’s founder and business radio pioneer Scott Draughon and by Washington commentator Andrew Kreig. The hosts begin the show with an update on Washington policy news affecting the nation’s business, politics and quality of life.

Goldberg, a leader in the field, described how the sports industry has learned from other segments of the entertainment industry to restrict media coverage to enhance profits and image. This greatly affects public understanding of sports teams at the professional and college level ─ with the new restrictions spreading even to high school or lower level games in some locales. Among his examples:

• Publications must agree that te league, venue or event own all copyright and other interest in the photographs, audio or video taken at the game, with the newspaper getting a license to use the work for narrowly defined news purposes only.

• Leagues and events require removal of photos, audio and video from a website.
Example 1: The National Football League imposed a daily limit of 45 seconds of audio or video interviews with players or coaches. It bans live and post-24-hour coverage.
Example 2: Major League Baseball bans live coverage and pictures after 72 hours unless linked to a specific game being covered.

• Little League World Series claimed ownership of all regional playoff photos, banning free ones.

• Louisiana High School Athletic Association barred credentials to girls playoffs photographers unless “newsprint.”

Also, Goldberg described potential solutions in specific situations for sports writers and generally.

About Kevin Goldberg
Kevin M. Goldberg is Special Counsel with Fletcher, Heald & Hildreth, PLC. His expertise is in First Amendment, Copyright and Trademark issues, especially those relating to newspaper and Internet publishing. He regularly advocates issues involving freedom of speech on behalf of press organizations. Kevin also consults regularly with these organizations concerning the continued freedom of speech on the Internet, focusing on issues such as regulation and voluntary implementation of blocking software. Kevin assists newspapers and television and radio stations in prepublication review of stories for possible legal problems. In 2006, he was inducted into the National Freedom of Information Hall of Fame as one of 56 members for his service in pursuit of open government. Contact.

About Fletcher, Heald and Hildreth
Founded in 1936, Fletcher, Heald & Hildreth provides comprehensive legal services in the field of telecommunications. Details.

Listen, I am so busy I can’t see straight. I’d blog more, but I am busy feeling sorry for myself.

But I will tell you this. I had my schedule all worked out for next semester. It was going to be Homicide, Sexual Minorities, and my nod to convention, Corporations.

But the girl who sits next to me in the clinic told me today that Entertainment Law is all sex tapes and sordid affairs gone wrong. And it is taught by a professor who has no hands and brags about banging girls in the back of the campus bar. So I put myself on the wait list.

PS – what kind of karma creates a sexually deviant person with no hands? Probably what I’ll end up in my next life.

Courthouse News reports that former Atlanta Falcons’ lineman Bob Whitfield recently filed a complaint against former wife and “Real Housewife of Atlanta” star Sheree Whitfield for violating an October 3, 2009 court order.  According to the complaint, Sheree filed a lien claiming interest against all of Bob’s property despite Judge Westmoreland’s clear instructions that PatchWerks Recording and certain other property were to “become the exclusive property of Plaintiff” and “remain free and clear of any claim by defendant.”  In particular, Sheree’s attorney filed a writ of fieri facias, claiming a $775,000 interest in PatchWerks.  According to the complaint, the lien prevented the sale and final closing of PatchWerks, which was allegedly the only method for which Bob was able to complete payment to Sheree and comply with the Final Judgment and Decree of the underlying divorce action.  Bob says he tried to resolve the matter with his ex-wife’s attorney but had no success.   Bob is seeking a court order to lift the lien that Sheree has placed on PatchWerks and a temporary restraining order to prohibit Sheree from interfering with the sale of the property.  If the court finds Sheree’s conduct to be a willful violation of the October 3, 2009 court order, Sheree can face possible jail time and major fines.

The long arduous story of Michael Jackson’s new single, “This is It”, released on Sunday night, shows how complicated rights and ownership of music can become.

The story begins in 1983 when Paul Anka and Michael Jackson (then at the height of his stardom) co-wrote a song intended to appear on a duets album that Paul was recording.  Shortly after the song was completed, MJ pulled away from the project and took the recordings. 

In 1991, R&B singer Safire recorded a version of the song titled, “I Never Heard.”  That recording gave writing credits to both MJ and Paul Anka.  On Sunday, almost twenty years after “I Never Heard”, the Jackson estate released “This is It.”  Many people in the music industry immediately recognized the similarities between the two songs.  The problem was that Paul Anka did not receive a writing credit for “This is It.”

Prepared to take the case to court, Paul Anka and the Jackson estate have agreed to terms and Paul Anka has now received his deserved writing credit.

This song shows the need for song writers and collaborators to protect their rights.  This song took several variations over three decades and nearly led to a lawsuit.  I wonder if the this would have settled so easily had the co-writer been an unknown artist without a legal team behind him or her,  as opposed to a legend like Paul Anka.

The Free Speech Coalition has filed a complaint, challenging the constitutionality of two federal criminal statutes, 18 U.S.C. § 2257 and 18 U.S.C. § 2257A, which impose record keeping and labeling requirements on constitutionally protected sexual expressions depicting actual or simulated sexually explicit conduct.  In particular, the statutes require any “producer” of “actual sexually explicit” or “simulated sexually explicit” content to keep verification records pertaining to anyone appearing in that content.  While the statute does not appear to be burdensome on its face, the plaintiffs argue that the statutes are onerous because they apply to all visual depictions of actual or simulated sexually explicit conduct regardless of the clear and obvious maturity of the adults depicted, the artistic or educational purposes of such depictions, and the private and intimate uses of such depictions.  According to the plaintiffs, the statutes “impose substantial restrictions and burdens on a vast quantity of protected expression, and consequently, burden, chill and, in some cases as a practical matter, suppress [the] production and dissemination” of actual or simulated sexually explicit conduct and thus, are unconstitutional under the First, Fourth, and Fifth Amendments to the U.S. Constitution.  Examples of the way in which Sections 2257 and 2257A hamper plaintiffs’ constitutional rights include:

• Subjecting plaintiffs to repeated warrantless searches of their premises by government investigators who are authorized to appear without advance notice to inspect, copy, and seize anything on the premises that the government investigators believe is related to a commission of a felony;
• Raising privacy concerns relating to the public disclosure of the location of adult entertainment products; and
• Imposing an unlawful prior restraint of protected speech without any safeguards constitutionally required to prevent suppression of protected speech.

The plaintiffs in this suit include artists, sex educators, photographers, performers, commercial producers of adult expression, and those who disseminate the sexually explicit content.  If the plaintiffs prevail, the chilling effects on lawful, protected speech may dissipate.  Then government officials can focus on the statutes’ original intent, which is to prevent the production and distribution of child pornography.

By L. Kevin Levine

How successful are you as a musician?  These days, that’s not such an easy question to answer.  I know many songwriters whose idea of success is being offered their first songwriting deal.  I sometime receive puzzled looks from these folks when I ask them why they define success in those terms.  Don’t get me wrong, I don’t mean to diminish the significance of being offered a songwriting deal — by a legitimate publisher, of course (which, contrary to popular belief, doesn’t necessarily mean a big publisher).  Other musicians I know claim to have the seemingly simple goal of “just having my music heard.”  Here too, I do not want to diminish the noble aspiration of contributing to the creative fabric of the world.  However, most artists and songwriters with whom I associate are most interested in achieving commercial success (i.e., making a living through live performances and/or commercially released recordings as a writer, artist, or both).

What is the point of this post?  Put simply, you should take time to periodically evaluate and adjust your goals as a music professional.  Part of this is defining what you consider success.  After all, if you don’t take the time to define success, how will you know when you achieve it?  You may already be more successful that you thought!