Entertainment Law Index
I.
The Nature of Entertainment Law
A. Legal Rights in Ideas? (CB 3-28, GS 1).
Pg. 1 -- Kalem Co. v. Harper Brothers  Ben-Hur with silent movie made from written
book…words written on paper is expression of idea in tangible medium…movie based on
book even though Ben-Hur historical figure…if work is copyrightable and copyrighted
then others cannot make derivative work from copyrighted work
Pg. 2 --- Joseph Burstyn v. Wilson priest approval of films = uncons….protected by
1st Am…..just b/c movies are for profit doesn’t mean no cons. Protection…movies are
not commercials/infomercials but expression of art and therefore 1st Am. applies
Pg.2 Zacchini  Human cannonball case & cannot show entire clip b/c of right to
publicity…elements of claim are like copyright b/c to give incentive to authors/creators
to write/create = reason for copyright….court says this is same….TV station won b/c no
showing of intent to harm individual here which is a req. for TV station…right of
publicity vs. right to broadcast news…but H.C. won b/c when 1st am right destroys
market for performers act then performer wins
Notes  in New Orleans court found that photographs which were digitally touched up
were art and protected by 1st Am.
Pg. 4 --- 17 USC 102copyright info and what it protected --- author is whoever set up
the shot according to pg. 5’s Burrow-Giles Lithography v. Saroany
Pg. 5 Blaustein v. Burton  producer wants Elizabeth Taylor to be in his movie…has
official meeting to discuss movie…industry custom would be to cut him in…this gets
into K law b/c ideas can be consideration for an implied in fact K (=true K things were
said, we had deal I did my part and they didn’t do theirs)….Court says jury gets to decide
whterhe there was deal or no deal….quasi K is based on unjust enrichment and reliance
(elements for quasi K are here)…even if no understandin that Blaus be producer he gave
them idea, they wanted the idea, and then they unjust enriched by stealing it which causes
obligation to pay…QUASI-K REQS. HERE
Pg. 7 ---- Star Patrol v. Saban Ent. Power Rangers implied in fact K….company SPE
developed Might Morphin Power Rangerrs idea and pitched it to Saban and Saban said
no….agreement up front was Saban would not use idea w/out coming to terms with SPE
but he did so he loses…IMPLIED IN FACT K CLAIM ELEMENTS HERE ON PG.
8
Pg. 8 --- Faris v. Engberg  Dick Enberg Sports Show…guy only discussed he wanted
to have Dick come host the show so no understanding that he wanted to get paid for his
show from that network so they were ok to steal his who apparently
Pg. 8 = statutory license/compulsory license notes from Katkin
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B. Overview of Copyright Law (CB skim 39-43, read 43-51, 85-91, 124-131, GS 5-8, 12-13, ML
133-167).
Pg. 9  International & Global Implications of Ent. Law & Practice  Berne
Convention stuff…moral rights stuff in pg. 12 about how u can be credited…pg.12 length
of copyrights here…right of an artist to have someone capture their work and stop others
from doing it on pg.13…pg. 14 Defenses to copyright claims
Pg. 15  Garon application of IP law to distance Educaiton  works made for hire stuff
& what is in public domain  calendar of Renewal dates here  works made for hire
are made in scope of E or commissioned works this is on pg. 18…copyright is personal
property….CCNV v. Reid = employer-employee multifactor test factors….Licenses <
Assignment on pg. 17
Pg. 19 Scops of Kually acquired rights ---- Boosey & Hawkes  Disney Fantasia
case…K said any type if medium so Disney was ok to release on VHS….”any manner,
medium, or form”…intent analysis = useless b/c neither party thought about home
viewing at time of K….can bring either copyright or K claims but you are better off K
claims usually b/c you can K what you want
Pg. 21  Random House v. Rosetta Books  E-Book Case ….need to examine K to
figure out answer of whether RB can publish e-books when it wasn’t discussed in initial
K
C. Submission of Ideas and Transfer of Rights (CB 28-37, 91-124, GS 1-4, 8-9, 11-12).
Pg. 22 --- Nadel v. Play-by-Play Toys  TOY MAN..novelty to the buyer =
consideration for a K or implied in fact K or quasi-K…this is a K implied in fact claim
b/c manifestation of mutual assent is through conduct rather than words..could also be
misappropriation of prop which requires original or novelty in absolute terms which is
hard to shw…toy monkey that spins around
Pg. 24 --- FASA Corp. v. Playmates Toys Inc  TOY MAN 2 ….attorney signed waiver
but did not have capacity to do it…also said this waiver was void as against public
policy….idea here was Battletech…form says he is signig his rights away as IP
inventor…company steals his ideas and they lose…form invalid b/c he was waving future
claims which court said no, no, no on…can waive state claims but cannot waive federal
claims
BILL COSBY case ….cosby show got made and dude said it was his idea but court said
this is obviously an idea that was out there in the world b/c Bill Cosby was so popular so
no claim
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Pg. 25 --- Music Law Stuff between here  gives sample nondisclosure
agreement…talks about how to get stuff copyrighted and what is required
Pg. 28 --- Nichols v. Universal  Forbidden Lovers Play --- idea too general and can’t
be copyrighted but if you do a line-by-line reenactment then its copyrightable or if you
have a very distinct character (i.e. Darth Vader) then copyrightable…this is derivative
work stuff
Pg. 29 --- Sheldon v. MGM  True Story can’t copyright……can make 2 different
movies based on same true story but if you start using scenes from fictionalized parts of
the story then no go on this and copying beyond fair use
Pg. 31 --- Zambito v Paramount Pictures Corp. Raiders of the Lost
Ark…..similarities were on abstract levels…court granted SJ…swashbuckling
archeologist is general….character development is big thing (i.e. Spock/Darth
Vader)….feel different or like a rip-off?
Pg. 31 --- 20th Century Fox v. MCA  Star Wars v. Battlestar Galactica….13
similarities…judge watched show…dfd says they taking well-trodden themes and those
are not copyrightable….too many issues of fact
Pg. 32 ---Ringgold v. BET  BET Quilt Case….27 secs of it blew up market for her to
sell this for show stuff so she wins…not de minimis if author loses revenue…Fair Use
Factors here
Pg. 33  Leigh v. Warner Bros.  Midnight in the Garden of Good & Evil….book
cover = movie poster and that was not what was licensed for…movie poster goes to jury
but movie scenes do not…requires substantial similarity and question is put 2 pics in
front of jury and say does this look like it was copied from that
D. Ethical Issues in Representation of Creative Artists (CB 142-155, skim ML 53-104).
Pg. 35 --- NY CA MA require licensing for talent agents
Pg. 36 --- Wil-Helm v. Lynn  Loretta Lynn has crappy agent….mgr breached fid.
Duties….lynn owes them $ from before breach but this is offset by how much they
undervalued her performance amounts (this = gross neg.)…implied K to perform well
and drunk mgr. did not
Pg. 37 --- Croce v. Kurnit  Jim Croce singer dies in plane and wife wants $....lawyer
breached fid. Duties b/c he knew peeps were relying on him and didn’t advise them to
find their own rep…lawyer breached fid. Duty…uncons. Not here b/c objective
Pg. 39 has Eden case on repping kids where minor K cannot get rid of and must pay,
only allowed in NY and CA that minors can be held to K
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Pg. 41 --- Look in my notes for ML 53-104 which is about mgrs
Pg. 43 --- attorney stuff in ML book
II.
Trademarks and Right of Publicity
A. Trademarks (CB 243-251, GS 26, ML 187-204).
Pg. 47 -- Talks about what TM covers
Pg. 48 --- Dastar v. 20th Century Fox  WWII Manifesto….used clips from Fox’s TV
show which was in P.D. and that was fine but may have to pay author who that series was
based on/…it is TM violation to use in commerce any false designation of origin that is
likely to cause confusion
Pg. 47 --- Band Names ML 
Pg. 44 Trademark & Rights of Publicity in ML --- TM is more about consumer
protection…how to get a TM is on pg. 48
REVERSE PASSING OFF EXPLAINED ON PG.47
TM requires at least 2 different good under name
Nominative Fair Use Test pg. 48
B. Right of Publicity (CB 251-262, GS 26-27).
Zacchini Human Cannonball Case Again
Pg. 50-51 --- NY Civil Rights Law & Cal. Civil Code  exceptions for rights of
publicity are here
Pg. 52 --- Downing v. Abercrombie  Surfer Photo Case ….CL cause of action for
commercial misappr. Must prove 4 things which are on pg.52…likelihood of
confusion factors for TM are on pg. 52….nominative fair use factors pg. 52…fair
use in TM law is called nominative fair use….court also discussed why this is not
covered under the 1st Am. here
Insert GS HERE
C. Sound-Alikes (CB 262-270).
Pg. 55 --- Midler v. Ford  Bette Midler yuppy campaign…..tort claim and not reall
right of publicity…criminal and tort b/c of CA law…no unfair comp. b/c Midler didn’t
do commercials…trading on her mark …consumer confusion that she was
endorsing……..intentionally deceived consumers
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Entertainment Law Index
Pg. 56 --- Waits v. Frito Lay Gravelly Voice Tom Waits….can’t protect or TM
gravelly voice but Frito had intent to deceive once Tom Waits turned them down…no
competition claim here b/c waits does not do commercials…false endorsement claim
under section 43a of the lanham act…dmg to Waits is harm to reputation and he could
hold out for higher price to do commercials down the road
D. Tensions Between Right of Publicity and Freedom of Speech (CB 270-287, GS 28-37).
Pg.57--- Comedy III Prods. V. Saderup  3 stooges charcoal drawings…court asks if
peeps are buying for artist painting or people on the art…Saderup loses that
argurment…throws out 1st am claims … Court says Saderup not covered b/c consumers
want to buy 3 stooges stuff so no transformative use here, this is derivative use and not
protected…court says parody/satire okay b/c its transformative…
Pg. 59 --- Parks v. LaFace Records  Rosa Parks Song…sucka MCs move to the back
of the bus….1st Am and protected work of art….transformative use….Rogers v. Grimaldi
test (1) whether title has any relevance to underlying work (2) if it does, does it mislead
consumer… transformative use = whether a ley observer would recognize the alleged
copy as having been aprpropirated from the copyrighted work --- purpose and character
of the use:…Transformative Use Factors = Has the material you have taken from the
original work been transformed by adding new expression or meaning?...Was value
added to the original by creating new information, new aesthetics, new insights and
understandings?
INSERT GS HERE
III.
Entertainment Contracts
A. Key Topics of Negotiation: Credit, Compensation and Creative Control (CB 289-315, GS 38-42,
ML 303-344).
Pg. 62 --- Key Topics of Negotiation: Credit, Compensation and Control 
pg. 62 – Williams v. UMG  Baller Blockin re-edited with no credit…reverse passing
off b/c they are trying to pass of his work as their own….he assigned copyrights and
therefore rights and credits to them so no go and D gets SJ
pg. 63 --- Smith v. Montoro  reversed by Dastar…editor took name out of credits
pg. 63 --- Fleet v. CBS  polish filmmaker has rights to his film sold to CBS and he
gets nothing…was a right of publicity claim…state right of publicity conflicts with
copyright law here and copyright law wins b/c it is federal

pg. 64 ---- Kirby v. Sega  Lady Ulala in Sega Game ….distinguishable enough that Sega wins
their case here…transformative use found here… test for derviative vs. transformative = If a
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product containing a celebrity's likeness is so transformed that it has become primarily the
defendant's own expression of what he or she is trying to create or portray, rather than the
celebrity's likeness, it is protected by the First Amendment.
pg. 65 – Tamarind Lithography v. Sanders garbage case about remedies
pg. 65 – Lee v. Marvel Ent.  Stan Lee entitled to all profits…K doesn’t say only
Hollywood profits so he is entitled to all profits
pg. 66 --- King v. Innovation Books Stephen King’s The Lawnmower Man …okay to
say based on a Stephen King short story since no confusion that Stephen King was
endorsing it
Pg. 66 --- Miramax v. Columbia  Scream vs. Saw What you Did Last
Summer…consumer confusion that WesCraven did Summer b/c it said from the make
of Scream….misleading so PL must prove consumer confusion
B. Post-Partnership Ownership: Band-Name Disputes (ML 187-204, CB 315-329).
INSERT ML HERE
Pg. 66 --- Brother Records, Inc. v. Jardine Beach Boys Friends &
Family….consumer confusion goes all the way from name to the way they adversied
it…no classic or nominative fair use here (pg. 67)
Pg. 67 --- Jardine v. Love derivative SH, fid. Duty case of Beach Boys

Pg. 68 --- In re Applications of Atlantic Recording Corp. Dream Street 3/5 of Band Leaving
Case …. K stood up and producer got rights… Marshak v. Treadwell --- concerned "The
Drifters" a singing broup well known in 1950s and early 60s for Under the
Boardwalkd.etc. ..court held that to demonstrate ownership of a common-law mark in a
group name, a claimant must show (1) that the mark was valid and legally protectable (2)
that they owned the mark and (3) that another's use of the mark to ID his group was likely
to create confusion concerning their origin….once created the right/s exists until clearly
abandoned
Pg. 68 --- Kassbaum v. Steppenwolf Productions, Inc. Formerly of Steppenwolf
OK….nominative fair use doctrine applies…not tricking consumers but accurately
describing himself…analogy to playboy playmate
IV.
Music Industry: Publishing
A. Overview of Music Industry (CB 421-425, skim ML 4-8).
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General overview in book is highlighted but this is lame
B. Music Publishing Agreements (ML 169-186, CB 425-430, GS 55-56).
Pg. 77, 79Publishing Your Band’s Music – record K stuff on pg. 72 talks about royalty
rate…reversionary rights after 35 years
Pg.79 --- Folkways Music Publishers v. Weiss Lion King Case….confusion as to who
owns copyright and which parts are copyrightable
Pg. 78 --- 4 ways composers make $ --- pg. 79 discusses mechanical licenses and
composition clauses
Pg. 81 mecahnical royalties stuff again
C. Performing Rights Societies and Copyright Enforcement (CB 430-459, GS 56).
Pg. 81 Performing rights societies explained
Pg. 82 --- Broadcast Music v. 315 West 44th St. Rest. Corp.  Cafe plays music & BMI
collects…just b/c they weren’t making $ doesn’t mean they don't’ have to apy
Pg.82 --- Highfill v. La Salle Music Pub.  Donation at door = pay up….made $ by
donation which was not mandatory= you have to pay for license…not for profit defense
does nto apply…if $ coming over the table then license required
Pg.83 --- Jobete Music Co. v. Johnson Communs., Inc. BMI but no ASCAP license =
bad news for radio station…innocent infringer does not = DJ accidentally played song
but may = broadcaster relied on record label that said BMI but was actually
ASCAP….did it in good faith is an element
Pg.83 --- Herbert v. Shanley Co. Restaurant with no cover charge + music =
infringing…..some limitations listed on this on pg. 84, like less than 4 speakers and
whatnot
Pg.85 --- US v. ACCAP bunch of garbage
D. Grand Performing Rights v. Small Performing Rights (CB 459-468).
Pg. 88 is grand vs. small performing rights  2 basic tests to determine are (1) a song is
used to tell a story or (2) a song is performed with dialogue, scenery, or costumes
Pg. 88 --- Frank Music Corp. v. MGM  Kimset Musical still under copyright but
play is not….loses b/c they substantially stole the musical numbers which they could not
do unless they could establish the costumes and what not included in this were historical
and they were not
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Pg. 89 --- Robert Stigwood Group v. Sperber JC Superstar case…took 20/23 songs
and performed in concert with no costumes or dialogue but still told the story of the it so
loss…also consumer confusion here b/c of touring companies name
V.
Music Industry: Sound Recordings
A. Finances in the Recording Industry (CB 469-473, GS 57).
Pg. nothing
B. Producers and Copyright Ownership (CB 473-482, GS 57-58).
Pg. 89 --- Systems XIX v. Parker KRS-One … joint work requires (1) intent to mergie
authorship which can be shown by conduct or words into a unitary whole and (2)
contributed copyrightable subject matter to the joint work
Pg. 90 --- Forward v. Thorogood Friend paid for recording sessions doesn’t get
copyright to them b/c no artistic contribution…..Thorogood didn’t intend to give
Forward copyright by giving him demo tapes
C. Scope of Prior Licenses (CB 482-494).
Pg. 91 --- Thomas v. Gusto  Shady record co. was buysing copyrights to songs and
not paying artists but privity of K bit them in the ass
Pg. 93 --- Greenfield v. Philles Records  Dirty Dancing Song with Phil
Spector…even though 1 sided K it was still enforced…K was not silent about future uses
and therefore upheld “now or ever known”
Pg. 94 --- Furry Records v. RealNetworks mp3 reocrdings of artist uncons. Shot
down b/c PL was a lawyer and not dumb…if you sign a K it will be enforced
D. Promotion and Exploitation of Recording Artists (CB 494-503, GS 58-59).
Pg. 95 --- Contemporary Mission v. Famous Music Corp.  Priest signing case….ABC
bought K…PL can proceed against Famous who sold to ABC b/c if ABC is not
performing you can sue assignee…weren’t promoting records like in Lucy, Lady Duff
Gordon….ABC dropped promo for song that would likely have made top 10 so they owe
them money by statistics they’d gathered
Pg. 96 --- Sound City Recording v. Solberg  Solberg rescinded K which was not
performed in time allotted….material breach of K and right for recission kicks in
here…CA law only allows for rescission upon material breach
INSERT GS HERE
E. Term of Years, Renewals, and Extensions of Recording Contracts (CB 503-518).
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Pg. 97 --- EMI Latin v. Bautista  Los Kumbia Kings case…..fine print of K and how
to calculate albums made here…not bound by 2002 agreement b/c 2002 agreement
cancelled 1998 agreeemnt
Pg. 99 --- MCA Records v. Newton-John  Olivia Newton John signs deal with 10
albums in 5 years…cannot keep her under K for more than 5 years, Newton-John tries to
wiggle out under < $6k per year but court doesn’t buy this b/c she could make up how
muc she has to to make her record
F. Accountability Under Recording Contracts (CB 518-528).
Pg. 100 – Peterson v. Highlands Music  Louie Louie Case….didn’t keep track of
things and neglected to pay artists then sold to Highlands…Highlands may be required to
pay…talks about recission as extreme measure when maerial breach and SOL problems
but every time new sale the SOL ticked again
Pg. 101 --- Cabot v. Jamie Record Co.  signed over sound recordings….stopped paying
him and 10 years later he wants recission but court won’t grant for 2 reasons (1) he was
getting periodic stms and (2) ongoing obligation
G. Legal Issues in the Recording Studio (ML 231-268).
Pg. 103 --- as stated above
H. Album Artwork (ML 205-230).
Pg. 106 --- as stated above
VI.
A.
Music Industry: Miscellany
Performance and Touring (ML 113-132).
Pg. 108 --- as stated above
B.
Duplication: Manufacturing Your Own Recordings (ML 269-282).
Pg. 110--- as stated above
C.
Distribution: Selling Your Self-Released Music (ML 283-302).
Pg.112 --- as stated above
D.
Taking Your Band Online (ML 345-352).
Pg.114 --- as stated above
E.
Taxes (ML 353-391).
Pg.115 --- as stated above
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VII.
Music, Piracy & Technology
A.
Unauthorized Recording and Distribution (CB 531-535).
Pg. 117 --- as stated above
Pg. 117 --- US v. Moghadam - bootlegging concerts and making $ …congress can
enact this legislation under commerce clause and di…”substantial effects” test of
commerce clause
B.
Traditional Bootlegging of Branded Merchandise (CB 535-546).
Pg. 118--- Plant v. Does Led Zeppelin bootleg t-shirts didn’t have dfds so no
go…jurisdiction problem with no dfd…..case/controversy issue under Article III of cons.
Pg.118 -- -SKS Merc, LLC v. Barry Toby Keith bootleg t-shirts did have dfds so win
and nationwide injunction…general balancing test for preliminary injuctions on pg.
119
C.
Unauthorized Distribution Using Peer-to-Peer File Sharing (CB 546-577, GS 60-68).
Pg.120 --- A&M Records v. Napster  Napster case….contirbutory infringement here as
well as vicarious…contributory infringement = whether Napster knew of infringement
and financially benefits from it pg. 121…vicarious liability = pg. 123 and requires (1) if
Napster benefits financially from infringement committed by its users and (2) if napster
has right/ability to supervise conduct of users…hub and spoke system
Pg.124 – In re Aimster Copyright Litig.  no hub and spoke but rather
supernode…willful ignorance = knowledge by should have known…Posner talks about
slink dress store here…test for substantial infringement in 2nd liab. Cases pg.
125…posner thinks secondary liability same as VL
Pg. 126--- MGM Studios v. Grokster(only S.Court one from Supp.)  software mfgs
liable for secondary infringement for encouragaing and profiting from direct
infringement…VL b/c they had actual knowledge and control…here we show intent so
no need to compute the % of substantial noninfring uses…judge ducks question….3
factors showing intent were: (1) kept refusing to use filtering tools (2) profit directly from
having more users --- gives them incentive to promote more infringement…inducement
showed intent also talks about this on pg.131
Pg.128 --- Ellison v. Robertson  AOL novel on newsgroup …goes back down to see if
14 days was unreasonable time to remove….AOL probably rec’d no financial gain here
so no VL likely…for VL must be substantial portion of income to meet threshold
SECONDARY COPYRIGHT ELEMENTS ON PG.129
VICARIOUS COPYRIGHT ELEMENTS ON PG.129
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SAFE HARBORS ON PG.130
D.
Consumer Services and Electronics (CB 577-587, GS 68).
Pg. 131--- as stated above for the intro
Pg. 131 --- RIAA v. Diamond Multimedia Sys.  RIO mp3 Player..ok b/c it does not
meet statutory def of copyier of music & also has substantial noninfringing uses like a
computer
Pg. 132 – UMG v. MP3.com  copyright infringement b/c it destroyed market when
group made users prove they owned copyright to listen to songs…also said peeps could
give their friends login info
FAIR USE FACTORS PG. 132-33
E.
Digital Audio Transmissions (CB 587-594, GS 69-76).
P. 133 Music Licensing Reform stuff
DON’t forget the DE-CSS Case which involved circumvention stuff for the DMCA
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