Category Archives: Advocacy

CDAS brings in partner Carole E. Handler and associate Brianna Dahlberg to expand its West Coast Litigation, Entertainment, and IP practice

Cowan, DeBaets, Abrahams & Sheppard LLP is expanding its West Coast litigation, entertainment, and intellectual property practice with the strategic hire of a two-person litigation team, led by Carole E. Handler, who joins the firm as a partner in CDAS’s Beverly Hills office as of April 1, 2017.

Ms. Handler is a nationally recognized litigator on copyright, trademark, entertainment, and antitrust cases. She has handled numerous groundbreaking cases throughout her career, representing clients in the motion picture, telecom, fashion, sports, and other industries on matters involving entertainment, copyright, competition, and new media.

Her work includes representing clients in the motion picture industry in complex copyright and antitrust litigation. Widely known as “the lawyer who saved Spider-Man,” Carole represented Marvel Entertainment Company for over a decade in copyright and other litigation, and was responsible for the trial strategy that allowed Marvel to recover the motion picture rights to its iconic Spider-Man property. In representing Pfizer, she was one of the lead attorneys who succeeded in having the then-largest trademark verdict in history reversed. But perhaps one of the cases of which she is most proud involves her work on a nine-week pro bono jury trial for a Holocaust survivor to recover the rights to her life story, which is now being developed into a motion picture.

Carole has successfully represented major motion picture producers and distributors in litigation involving antitrust and copyright issues and continues to support her clients’ efforts as new media revolutionizes traditional ways of reaching consumers. Carole also handles infringement claims for a number of fashion clients, for which copyright is an increasingly crucial issue. Carole regularly submits amicus briefs on copyright and antitrust issues in the Second, Third, Sixth, Ninth, and Eleventh Circuits, as well as the Supreme Court, and California courts.

She has also been an adjunct professor at USC law school for over 13 years, where she has taught both antitrust and IP courses.

“Carole’s practice is perfectly synergetic with CDAS’s litigation practice in New York, which also centers on IP, media, and entertainment disputes,” explains Eleanor M. Lackman, co-chair of CDAS’s Litigation Group. “She helps us take the strong practice that we have built on the East Coast and replicate that type of focus and service on the West Coast, which provides a major benefit for our clients across the country.”

Carole was immediately drawn to CDAS by the firm’s commitment to strategic growth in key industry sectors, which allows it to serve a wide variety of clients, its openness to new approaches, and its focus on important media issues, which are central to her practice. “In addition to the superior quality of CDAS’s nationally recognized attorneys, its dedication to innovative legal thinking, the depth of its IP practice and its focus on copyright and media – it is also the unusual firm that has a real commitment to internal development and gender diversity equality and practices it.” Carole notes that the majority of CDAS’s equity partners are women.

Joining Carole is Brianna Dahlberg, an associate who has worked with Carole since 2011 and has extensive trial and pretrial experience in entertainment, IP, and contractual matters. Both Carole and Brianna join from Eisner Jaffe, which they joined from Lathrop & Gage.

More information about Carole E. Handler is available at http://cdas.com/carole_handler

More information about Brianna Dahlberg is available at http://cdas.com/brianna_dahlberg

ABOUT COWAN, DEBAETS, ABRAHAMS & SHEPPARD LLP

CDAS is a New York and Los Angeles entertainment, media and IP law firm that has served clients for over 25 years in the traditional content and media businesses as well as in emerging technologies. Practices in our majority-women owned firm include: film, television, visual arts, music, digital media, publishing, fashion, theatre, advertising and marketing, copyright, corporate formation, finance and M&A, employment, litigation, technology, trademarks, brands and venture. Our strong commitment to understanding our clients’ businesses and budgets allow us to offer individualized attention that includes in-depth industry knowledge as well as focused legal advice in litigation and transactional matters that only a niche boutique law firm like CDAS can provide.

Media Contact: Jennifer Besada, jbesada@cdas.com, (212)-974-7474

 

 

A Victory for Creators and Licensors in Maloney vs T3 Ninth Circuit Decision

Maloney v. T3Media 

By Brianna Dahlberg of Cowan DeBaets Abrahams & Sheppard LLP

On April 5, 2017, in a victory for visual content creators and licensors, the Ninth Circuit affirmed the dismissal of a lawsuit brought by former college athletes alleging that T3Media had misappropriated their names and likenesses by selling licenses to photographs from the NCAA Photo Library. The Ninth Circuit held that the athletes’ claims for right of publicity and unfair competition under California law were preempted by the federal Copyright Act.

Read the entire article here.

Ninth Circuit Affirms Right To Display, License And Sell Photographic Prints Without Violating Subject’s Publicity Rights.

Maloney v. T3Media 

By Brianna Dahlberg of Cowan DeBaets Abrahams & Sheppard LLP

On April 5, 2017, in a victory for visual content creators and licensors, the Ninth Circuit affirmed the dismissal of a lawsuit brought by former college athletes alleging that T3Media had misappropriated their names and likenesses by selling licenses to photographs from the NCAA Photo Library. The Ninth Circuit held that the athletes’ claims for right of publicity and unfair competition under California law were preempted by the federal Copyright Act.

In their putative class action lawsuit, the athletes had sought to hold T3Media liable for displaying the photographs online and for offering non-exclusive licenses to consumers permitting them to download a single copy of a chosen image for non-commercial art use. The athletes did not own copyright to the photographs at issue—the copyrights were owned by the NCAA, who had contracted with T3Media to store, host, and license the images. T3Media responded to the athletes’ lawsuit by filing a special motion to strike under California law, which was granted by the district court. The Ninth Circuit affirmed the district court’s decision throwing out the athletes’ lawsuit and awarded attorneys’ fees to T3Media.

In its opinion, the Court clarified the test for determining whether a right of publicity claim is preempted by the Copyright Act. Section 301 of the Copyright Act provides a two-part test for determining whether a state law claim is preempted: first, the court asks whether the subject matter of the state law claim fell within the subject matter of copyright; and second, the court asks whether the state law rights asserted were equivalent to rights within the scope of copyright. Applying this test to the athlete’s right of publicity claims, the Court drew a distinction between claims based on the unauthorized use of a person’s likeness in advertising, and claims based on the mere display or distribution of an artistic work:

[A] publicity-right claim may proceed when a likeness is used non-consensually on merchandise or in advertising; but where a likeness has been captured in a copyrighted artistic visual work and the work itself is being distributed for personal use, a publicity-right claim is little more than a thinly-disguised copyright claim because it seeks to hold a copyright holder liable for exercising his exclusive rights under the Copyright Act.

The Ninth Circuit’s opinion in T3Media’s favor is consistent with longstanding practices in the visual content industry. It affirms that visual content creators and providers, by merely displaying and offering for license images that depict people, do not make any use that implicates the right of publicity. The decision provides clear guidance that will allow visual content creators and licensors to continue to offer creative, newsworthy, and culturally important images to the public.

Cowan, DeBaets, Abrahams & Sheppard LLP submitted an amicus brief in support of T3Media on behalf of the Associated Press, the Digital Media Licensing Association, Getty Images (US), Inc., the Graphic Artists Guild, the National Press Photographers Association, Inc., PhotoShelter, Inc., the Professional Photographers of America, Shutterstock, Inc., and ZUMA Press, Inc. [A copy of the amicus brief is here). We thank everyone who participated and joined the brief. The attorneys representing T3 Media were extremely grateful for our industry support to counter all the amicus briefs submitted by the various sports’ leagues.

 

DMLA Empirical Research Study for Section 512 Study

 On March 21, 2017 DMLA filed additional comments to our original comments filed with the  Copyright Office for the Section 512 Study.  These comments included the results of an empirical research study that we conducted of our members and their contributors.

The Survey asked whether respondents monitor the Internet for copyright infringements of their or their contributors’ work, and examines their reasons for deciding whether or not to monitor and their experiences if they do monitor, specifically with the Digital Millennium Copyright Act’s (“DMCA”) notice-and-takedown procedure.  We received over 1200 responses.

You can see the comments sent to the Copyright Office and the results to the survey here.

 

The Fight Against Google Continues in the EU

Thanks to our working relationship with CEPIC,  we are kept up-to-date on the latest in the EU fight against Google.  DMLA is been part of ICOMP, which has now joined forces with OIP (Open Internet Project) to bring more pressure on Commissioner Vestager.  There are two related articles to read.  Part of one is below and the link to one from Politico is here.

Welcome to Morning Tech, your beacon of truth when there is fake news around EU’s tech politics and policies.

END OF A EUROPEAN SUCCESS STORY? After a year or so of relative silence, Google’s rivals and opponents are back in the streets, cranking up the pressure on Europe’s Competition Commissioner Margrethe Vestager to act. Last week, it was ICOMP and the Open Internet Project, this week it is Kelkoo tearing into the Shopping case.

The chief executive of Kelkoo, one of Europe’s largest shopping comparison websites, said his firm could go under next year if Vestager doesn’t take serious action in the six-year-old case. “We’ve got to the point where we have nothing left to lose,” Richard Stables told us.

Join the queue, Richard. Foundem, the original complainant, closed its website in December; Yelp announced around that time it was closing its European operations, complainant group ICOMP is pooling its resources with the Open Internet Project, while many other shopping websites have shriveled. And yet Kelkoo’s outburst is significant: It’s a big European player, with a presence in almost two dozen countries and 230 employees.

Rivals add to complaints against Google’s Android

By Nicholas Hirst/Politico

A tech lobby group filed a fresh antitrust complaint against Google with the European Commission, reiterating accusations the U.S. tech giant used its popular mobile operating system to protect its dominance over internet searches.

The Commission already has an ongoing probe into Android examining the issues raised by OIP. If the Commission accepts OIP, whose members include French-German search engine Qwant, as a formal complainant in the Android case, the lobby group would have access certain documents and could provide its views.

The OIP also announced Tuesday that it was integrating 20-plus companies from the Initiative for a Competitive Online Marketplace, a long-standing anti-Google group that is closing.

It used a press conference to criticize the length of the Commission’s probe into Google and to call on enforcers to impose “interim measures,” which could require Google to change its conduct pending a final decision. It also accused Google of acting in “bad faith.”

Google did not immediately respond to a request for comment.

OIP’s members include German publishers Axel Springer (a co-owner of POLITICO in Europe) and Hubert Burda Media, Qwant, the French search engine in which Axel Springer has a stake, French shopping website leGuide.com, U.S. photo agency Getty Images, and German broadcaster ProSiebenSat.1.

To view online

Kelkoo CEO: Google is ‘screwing’ entire online shopping industry

From Politico

— By Nicholas Hirst

The head of one of Europe’s leading price comparison websites, Kelkoo, said it’s in danger of going under next year unless the European Commission takes market-stabilizing action in its six-year case against Google Shopping.

“We might not even survive another 18 months if there is not a decision soon,” Richard Stables, Kelkoo’s chief executive, warned in an interview Tuesday.

Stables accused Google of willfully destroying a series of budding online businesses and threatening to demote rivals that objected. Foundem, the first shopping website to formally complain about Google to the Commission, closed in December.

“This is about Google screwing over an entire industry and actually really hurting consumers,” added Stables, who said he decided to speak out because “we have got to the point where we have nothing left to lose.”

However, he said it was up to the Commission to decide what solutions would restore fair competition.

Google did not respond to a request for comment, but has vigorously resisted the Commission’s accusations it hurt competition. The Commission could not immediately be reached for comment.

The Commission opened its investigation in November 2010 and formally accused Google of hurting competition in the online price comparison space in 2015. The charges were updated last year. Margrethe Vestager, the commissioner for competition, told the European Parliament last month she was doing her “utmost” to wrap up the probe.

Citing documents released erroneously by the U.S. Federal Trade Commission, Stables said Google had pursued a strategy to eliminate emerging rivals like Kelkoo since as far back as 2004. That included demoting comparison shopping websites in Google search results and luring away advertisers with the promise that they would appear in Google’s product search for free — only for Google to start charging once they had seized the market, Stables claims.

Stables also said Kelkoo’s subsidiary LeGuide had objected to Google scraping content like reviews. He claims Google responded that it would push the site down its search results if LeGuide resisted.

The price comparison sector has struggled over the past decade, forcing companies to sell off divisions and rivals to consolidate and stay afloat. After being snapped up for large sums, European websites Kelkoo, Ciao and LeGuide were sold. All are now managed under the Kelkoo umbrella by a U.K. investment group and employ about 230 people in Europe.

The company’s online shopping revenue continues to decline and time is running out.

Related stories on these topics: CompetitionDigital IndustryGoogleMediaOnline shoppingStartups

 

 

 

 

DMLA OPPOSES MARYLAND COPYRIGHT DEMAND LETTER BILL

On January 25, 2017 Nancy Wolff, along with representatives from Getty Images, the Copyright Alliance, MPAA, Comcast, BMI Music and others representing creators and owners of content, testified at a hearing against bill HR65 before the Maryland State Senate Finance Committee.

The Bill was trying to regulate copyright demand letters by preventing copyright owners from “making certain assertions of copyright infringement in bad faith”.  It also stipulated that a court might consider, among other factors, the absence of a certificate of copyright registration accompanying the letter s evidence of bad faith.  Read the entire story here.

 

 

DMLA Oppose MD State Law to Regulate Copyright Demand Letter

by Nancy Wolff, DMLA Legal Counsel

Sending copyright demand letters to users of images where no license is apparent has been a common practice of many DMLA members, even before images were distributed digitally. These demand letter s have been part of the copyright boot camp and form letters available to members to contact users and educate them about copyright misuse and to seek compensation if the images are not licensed.

On January 11, Maryland State Senator Edward Reilly (R) introduced a bill, HR 65 before the state legislature to regulate copyright demand letters. The bill is aimed at preventing copyright owners from “making certain assertions of copyright infringement in bad faith” and stipulates that a court may consider, among other factors, the absence of a certificate of copyright registration accompanying the letter as evidence of bad faith. The proposed remedies include the possibility of courts costs, attorney’s fees, and treble damages, including fees up to $50,000. On January 25, 2017 the Maryland State Senate Finance Committee held hearing on the bill. DMLA; Getty Images, the Copyright Alliance, MPAA, Comcast, BMI Music and other s representing creators and owners of content testified at the hearing as to the problems and burdens imposed by such a bill and provided written opposition. A copy of DMLA’s letter to the finance committee opposing the bill is [here]. The associations representing all the visual artists unanimously joined in the opposition as it would subject all copyright owner to unfair burdens in seeking compensation for infringements and violate federal copyright law. Joining our letter were the Society of Media Photographers (ASMP), National Press Photographers Association (NPPA), Professional Photographers of America (PPA), North American Nature Photography Association (NANPA), American Photographic Artists (APA), the Graphic Artist Guild (GAG) and Shaftel & Schmelzer.

Last week we learned that the Maryland Senate Finance Committee was not going to vote on the bill and as to not embarrass the member of the Finance Committee who had introduced the bill. Thanks to the Copyright Alliance for alerting us to so promptly so we could respond so quickly and for Getty Images for attending and speaking directly with Senator Reilly before the hearing. The entire content community mobilized to avoid a very problematic state bill. We will need to stay alert for other state legislatures who may feel the need to protect their citizens if complaints arise over copyright enforcement. Copyright is very different from patents and there is a push to stem what is known as patent trolling. We need to avoid being swept into the same category of bad actors. . The underlying cause in this bill seemed to be a lack of understanding as how images are licensed and the value of a rights managed image.

Response to Copyright Office on Group Registration of Photographs

DMLA together with various other visual arts associations (what we are loosely referring to a Coalition of Visual Artists –DMLA, APA, ASMP, GAG, NPPA, NANPA, and PPA) filed a joint response to a proposed rulemaking by the Copyright Office on Group Registration of Photographs.

The proposal seeks to establish new online registration procedures for groups of unpublished as well as published photographs. The proposal was quite in-depth, including an extensive history of group registration of photographs regulations and the requirements for a new proposed system. In general the coalition was in favor of improving the electronic registration process for registration of all photographs, but had some recommendations for the Copyright Office on as to how to improve the proposed system. Read more here.