https://piercellp.com/case-summaries daily 0.75 2020-06-24 https://images.squarespace-cdn.com/content/v1/594083dec534a5a22551f582/1588258329886-GCXVBIWZWCHB5SXVB4WD/image-asset.jpeg Case Summaries https://piercellp.com/case-summaries/2020/6/5/executive-order-on-preventing-online-censorship monthly 0.5 2020-08-28 https://images.squarespace-cdn.com/content/v1/594083dec534a5a22551f582/1591394869362-MLKJ1OJKSIWTP13OVGB3/907684-trump-newness.jpg Case Summaries - Executive Order on Preventing Online Censorship - Executive Order on Preventing Online Censorship Last week, Twitter took unprecedented action by attaching fact checks to two of President Donald Trump’s tweets, prompting the President to tweet, “[w]e will strongly regulate, or close them down, before we can ever allow this to happen." The two tweets at issue called mail-in ballots “fraudulent” and warned that “mail boxes will be robbed.” Twitter did not censor or remove the President’s tweets, but it did provide a link beneath the tweets that would take users to a page providing fact checks and articles about the merits of the President’s allegations. Trump Tweeted that the social media platform ‘interfered in the 2020 Presidential Election’ and that ‘he would not allow such a thing to happen.’ For years, many conservatives have alleged a systematic bias in the tech sector and demanded that they should not continue to be treated as publishers and thus, should not enjoy liability protections as “platforms” under federal law. In other words, social media giants could face lawsuits over the content on their platforms. On May 28, 2020, President Trump took the first steps in taking away such protections granted to social media platforms by signing an Executive Order on Preventing Online Censorship. The order targets social media companies and is intended to pave the way for regulators to amend Section 230 of the Communications Decency Act. The implications of these developments are alarming, especially the fear of foreign influence on US elections via social media platforms, and the push to fact check untrue or inaccurate stories to battle such influences. The other obvious implication will be the down pouring of suits that will be filed against social media companies if regulators remove social media company’s liability protections. However, what will most certainly happen is a drawn-out balancing act between protecting individuals 1st amendment rights and stopping the spread of inaccurate information. by Arya Mansour https://piercellp.com/case-summaries/2020/6/4/eligibility-rules-change-for-the-pga-awards-and-dga-awards-due-to-covid-19 monthly 0.5 2020-08-28 https://images.squarespace-cdn.com/content/v1/594083dec534a5a22551f582/1591313148632-E5IHTW5BXZXAEN3BBHKK/PGAawards.jpg Case Summaries - Eligibility Rules Change: PGA Awards, and DGA Awards Due to Covid-19 https://images.squarespace-cdn.com/content/v1/594083dec534a5a22551f582/1591313118844-H5HZ2TR20VWU7FQSQZD3/DGAawards.jpg Case Summaries - Eligibility Rules Change: PGA Awards, and DGA Awards Due to Covid-19 https://piercellp.com/case-summaries/2020/6/4/dunham-v-lei-et-al-no-20-cv-03716-cd-cal-apr-23-2020 monthly 0.5 2020-08-28 https://images.squarespace-cdn.com/content/v1/594083dec534a5a22551f582/1591312980224-DE2WPXP3AJ227E29DSXY/DunhamvOoshirts.png Case Summaries - Dunham v. Lei, et al., No. 20-cv-03716 (C.D. Cal. Apr. 23, 2020) - Dunham v. Lei, et al., No. 20-cv-03716 (C.D. Cal. Apr. 23, 2020) In April of this year, Jeff Dunham, one of the top ten highest paid comedians of 2019, filed a lawsuit against Ooshirts, Inc., and its owner Raymond Lei, for the unauthorized selling of merchandise brandishing Dunham’s name and characters in an attempt to profit off of the Covid-19 pandemic. The suit alleges that Ooshirts, Inc. exploited the name, photograph, image/or likeness of Jeff Dunham, which are protected copyrights and trademarks owned by Dunham, on face masks and t-shirts. Dunham seeks no less than $150,000 per registered copyright, no less than $2 million per registered trademark, $10 million in general and special damages, and all profits from the sale of the unauthorized merchandise. On the positive side of things, Dunham and his wife plan to contribute the recovered damages in this suit to charities benefiting Covid-19 relief efforts. by Arya Mansour https://piercellp.com/case-summaries/2020/6/4/daniels-et-al-v-the-walt-disney-company-et-al-case-no-18-55635-9th-cir-mar-16-2020 monthly 0.5 2020-08-28 https://images.squarespace-cdn.com/content/v1/594083dec534a5a22551f582/1591312918063-KD48MOJW7X85B1FI5PHB/moodsters.png Case Summaries - Daniels, et al., v. The Walt Disney Company, et al., Case No. 18-55635 (9th Cir. Mar. 16, 2020) - Daniels, et al., v. The Walt Disney Company, et al., Case No. 18-55635 (9th Cir. Mar. 16, 2020) In Daniels, et al., v. The Walt Disney Company, et al., the Ninth Circuit held that The Moodsters, characters representing emotions, created by Daniels, were not "sufficiently delineated" to be eligible for copyright protection, because the characters in The Moodsters changed their shape and personality throughout the movie. Therefore, Disney was not found liable for copyright infringement for the use of characters that represented emotions in its Pixar movie “Inside Out”. by Arya Mansour https://piercellp.com/case-summaries/2020/6/4/emotes-in-fortnite-battle-royale monthly 0.5 2020-08-28 https://images.squarespace-cdn.com/content/v1/594083dec534a5a22551f582/1591312765185-5KZZHR3IDNWX04LRS6VF/epicgames-sick.jpg Case Summaries - Emotes in “Fortnite: Battle Royale” - Epic Games, Inc. v. Sick Picnic Media, LLC, No. 19-cv-11215, ECF No. 1 (S.D.N.Y. Dec. 6, 2019 Last year, Epic Games received a demand letter from Mathew Geiler, owner of Sick Picnic Media, regarding Epic Games’ usage of Geiler’s character named “Dancing Pumpkin Man” performing a dance called “Pump It Up”. Epic Games preemptively filed a complaint seeking declaratory judgment arguing that Gieler’s character was not protectable because Geiler did not create the attributes of the character. However, Epic Games settled the case before a judgment on the merits was rendered. by Arya Mansour https://images.squarespace-cdn.com/content/v1/594083dec534a5a22551f582/1591312174957-26AI7E7N7XVI3B9K4LRC/battleroyale.jpg Case Summaries - Emotes in “Fortnite: Battle Royale” - Emotes in “Fortnite: Battle Royale” In 2018, five individuals, one of which was none other than the Fresh Prince of Bel-Air actor Alfonso Ribeiro, filed lawsuits against Epic Games, the creator of one of the highest-earning video games, “Fortnite: Battle Royale”. These five cases all centered around copyright infringement claims based on digital recreations of the plaintiffs’ dance moves in Fortnight called “emotes”, celebratory dances performed to taunt another player, or to celebrate a win in the game. However, because the copyright registrations of these cases were still pending in the Copyright Office, all five cases were withdrawn after the Supreme Court’s decision in Fourth Estate Pub. Benefit Corp. v. Wall-Street.com LLC, held that the Copyright Office must have registered or rejected a copyright application before a copyright infringement suit is brought. by Arya Mansour https://images.squarespace-cdn.com/content/v1/594083dec534a5a22551f582/1591312690898-HN2DXFFJ1VV2CWA29RRX/image-asset.jpeg Case Summaries - Emotes in “Fortnite: Battle Royale” - Brantley v. Epic Games, Inc., No. 8:19-cv-00594-PWG, ECF No. 1 (D. Md. Feb. 26, 2019 Two University of Maryland basketball players, Jaylen Brantley and Jared Nickens, also sued Epic Games based on emotes in Fortnite. However, the two athletes alleged that they popularized, instead of creating, “The Running Man”, the dance moves they claimed Epic Games infringed upon. After the ruling in Fourth Estate Pub. Benefit Corp., the attorneys for the athletes amended their complaint by removing the copyright infringement claim. Afterwards, Epic Games filed a motion to dismiss, which is still pending. by Arya Mansour https://piercellp.com/case-summaries/2020/4/30/harith-iskander-v-laugh-factory-inc-district-court-cd-california-feb-12-2019-19-cv-01076 monthly 0.5 2020-04-30 https://images.squarespace-cdn.com/content/v1/594083dec534a5a22551f582/1588258739815-UKN19UXN3I2OZCDUP5FB/Harith+Iskander+Laugh+Factory.jpg Case Summaries - Harith Iskander v. Laugh Factory, Inc., District Court, C.D. California, Feb. 12, 2019, 19-cv-01076 - Harith Iskander v. Laugh Factory, Inc., District Court, C.D. California, Feb. 12, 2019, 19-cv-01076 Malaysian Comedian, Harith Iskander, sued the Laugh Factory comedy club for failing to pay him $100,000 in prize money after he won the "Funniest Person in the World Contest" in 2016. Iskander says that the club owner, Jamie Masada, only paid him $10,000 and made the rest of the prize money contingent on Iskander's completion of numerous press appearances. Masada countersued stating that Iskander used his access to the club in order to extract trade secrets and open his own club in Malaysia named "Joke Factory Comedy Club." Judge Fitzgerald decided to take the matter under submission. According to Masada's motion for summary judgment, Iskander used the comedy contest to get close to Masada and exploit that relationship to obtain Laugh Factory's trade secrets. Only after Iskander acquired those and opened his own club in August, 2018, did he claim he was owed the balance of the $100,000 prize money. https://piercellp.com/case-summaries/2020/4/30/chooseco-llc-v-netflix-inc-district-court-district-of-vermont-feb-25-2020-no-219-cv-00008-wks monthly 0.5 2020-06-24 https://images.squarespace-cdn.com/content/v1/594083dec534a5a22551f582/1588259107361-0TJ0LJU901NZA25EV9QG/ChoosecovNetflix_Vermont.jpg Case Summaries - Chooseco LLC v. Netflix, Inc., District Court, District of Vermont, Feb. 25, 2020, No. 2:19-cv-00008-WKS - Chooseco LLC v. Netflix, Inc., District Court, District of Vermont, Feb. 25, 2020, No. 2:19-cv-00008-WKS Chooseco, the company behind the Choose Your Own Adventure book series, January sued Netflix in January, claiming the Black Mirror interactive film, Bandersnatch, violated its trademark rights after years-long license negotiations between the two companies reached a dead end. In an answer filed by Netflix, the studio admits it did seek a license from Chooseco but denied that it had anything to do with Bandersnatch. Netflix also asserted that its use is protected by the First Amendment and fair use, that there's no likelihood of confusion, that the claims are barred by the doctrine of genericide, and that the viewer does not step into the shoes of the main character in Bandersnatch, but instead controls the main character as an outside force. Additionally, Netflix requests a declaration that it hasn't violated Chooseco's rights, and cancellation of the Chooseco's trademarks. https://piercellp.com/case-summaries/2020/4/30/kirkman-et-al-v-amc-network-entertainment-llc-no-356331-la-super-aug-14-2017-bc672124 monthly 0.5 2020-04-30 https://images.squarespace-cdn.com/content/v1/594083dec534a5a22551f582/1588259345959-Z9GJE5HHICOWR15M0ZEG/image-asset.jpeg Case Summaries - Kirkman et al v. AMC Network Entertainment LLC, No. 356331, L.A. Super., Aug. 14, 2017, BC672124 - Kirkman et al v. AMC Network Entertainment LLC, No. 356331, L.A. Super., Aug. 14, 2017, BC672124 Creators and producers of the show "The Walking Dead" claim AMC exploited its vertically integrated corporate structure to reduce amounts owed to profit participants. Plaintiffs claim the AMC neglected to mention that it would be producing the show in house. The imputed licensing fee was not clearly defined at the time of the contract's signing, a fact for which plaintiff's lawyer, Nessim, fastidiously grilled the opposing side's negotiator. The trial, which was set to continue in early March 2020, has been postponed (due to COVID-19 shut downs). https://piercellp.com/case-summaries/2020/4/30/prager-university-v-google-llc-9th-circuit-feb-26-2020-no-18-15712 monthly 0.5 2020-04-30 https://images.squarespace-cdn.com/content/v1/594083dec534a5a22551f582/1588259581032-MN6Q9YWICMDWZNUSGM35/Prager+University+v+Google+LLC.jpg Case Summaries - Prager University v. Google LLC, 9th Circuit, Feb. 26, 2020, No. 18-15712 - Prager University v. Google LLC, 9th Circuit, Feb. 26, 2020, No. 18-15712 The international streaming platform, YouTube, which invites millions of users daily to post public content onto its website, is not a public forum subject to judicial scrutiny under the First Amendment according a recent 9th Circuit decision. The 9th Circuit affirmed the district court's dismissal, stating that YouTube did not prohibit Appellant, Prager University, of their 1st Amendment rights when censoring their videos on YouTube. The Free Speech Clause of the First Amendment prohibits the government, not a private party from abridging speech. YouTube is a private entity, so the company does not lose its private character by merely inviting the public to use its operation as a public forum for speech. Only under rare circumstances can a private entity be subject to 1st Amendment scrutiny; specifically, if the private entity is both traditionally and exclusively governmental. In this instance, YouTube did not play a governmental function when inviting public speech through its platform, so they reserved the right to remove or restrict Prager University's content without violating the 1st Amendment Free Speech Clause. As for false advertising claim under the Lanham Act 15 U.S.C. 1125(a)(1)(B), the 9th Circuit found that censoring video content was not "commercial advertising or promotion" as the Lanham Act requires. Therefore, the 9th Circuit affirmed the district court's dismissal. https://piercellp.com/case-summaries/2020/4/30/rethinking-artists-moral-rights-in-the-age-of-social-media monthly 0.5 2020-04-30 https://images.squarespace-cdn.com/content/v1/594083dec534a5a22551f582/1588259807498-5LW5U6B613OWWSR1HSXA/image-asset.jpeg Case Summaries - Rethinking Artists' Moral Rights in The Age of Social Media - Rethinking Artists' Moral Rights in The Age of Social Media In 2013, a group or 21 graffiti artists sued a developer, Jerry Wolkoff, in New York City arguing that their work that adorned Wolkoff's building which was subsequently demolished was "work of stature" protected by the Visual Artists Rights Act of 1990 (VARA). VARA protects the "moral rights" of visual artists, and one way of protecting artists is by preventing destruction of a work. In 2002, Wolkoff hired an artist by the name of Jonathan Cohen to convert the dilapidated building into an exhibition. In 2013, Wolkoff planned to demolish the building to make way for luxury buildings. Cohen learned of Wolkoff's plan and a legal battle ensued. A few months later, Wolkoff hired workers to whitewash the graffiti before he received permits to demolish the building. In 2018, the artists were awarded $6.75 million dollars, $150,000 for each of the 45 works that were destroyed along with the building. On appeal by Wolkoff, the Second Circuit Court of Appeals upheld the monetary awards, and stated that temporary artworks can nonetheless have "recognized stature" under VARA. https://piercellp.com/case-summaries/2020/4/30/42-usc-section-1983-breach-of-the-covenant-of-good-faith-and-fair-dealing-robert-ingersoll-v-city-of-del-rey-oaks monthly 0.5 2020-04-30 https://images.squarespace-cdn.com/content/v1/594083dec534a5a22551f582/1588260439650-VM86SPFI0B4OV7TSKD1V/Robert+Ingersoll+City+Del+Rey.jpg Case Summaries - [EMPLOYMENT LAW] 42 U.S.C. Section 1983 - Robert Ingersoll v. City of Del Rey Oaks - 42 U.S.C. Section 1983 - Robert Ingersoll v. City of Del Rey Oaks Breach of the Covenant of Good Faith and Fair Dealing Robert Ingersoll worked as a police sergeant for the City of Del Rey Oaks. On April 2017, he was placed on paid administrative leave, pursuant to a misconduct investigation. The city subsequently terminated his employment, and he filed suit against the city alleging that the real reason he was fired was because he was perceived to be loyal to the prior city council. Plaintiff contended he was a victim of a wide conspiracy to fire city employees without providing them due process. Defendant denied Ingersoll's allegations and filed a motion to dismiss for failure to state a claim. 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