IP/Entertainment Law Weekly Case Update for Motion Picture Studios and Television Networks -- November 21, 2012


Table of Contents

Alexander v. Murdoch, USCA Second Circuit, November 14, 2012
 Click here for a copy of the full decision.

  • Second Circuit affirms dismissal of plaintiff’s copyright infringement and other claims against defendants, creators and producers of television series Modern Family, finding no substantial similarity between the show and plaintiff’s copyrighted treatment and pilot script for a television series.

Plaintiff Martin Alexander, acting pro se, filed suit against defendants, the producers of the television comedy series Modern Family, asserting copyright infringement, as well as various related state law claims, based on allegations that defendants copied his copyrighted pilot treatment for a television show he titled Loony Ben. The district court granted defendants’ motion to dismiss plaintiff’s claims, finding that no substantial similarity existed between Loony Ben and Modern Family. (Read our summary of the district court’s decision here.) On appeal, the Second Circuit, in a summary order, affirmed the district court’s dismissal, agreeing with the magistrate judge’s “thoroughly articulated reasoning.”

Noting that the appropriate inquiry is whether the alleged copying of protectable elements is “quantitatively and qualitatively sufficient to support a finding of infringement,” based on an examination of similarities in elements of the works including the total concept and feel, theme, characters, plot, sequence, pace and setting, the court agreed with the lower court that “the sparse and minor similarities between the allegedly infringing work—the television series Modern Family—and the copyrighted work—the pilot treatment for the television series Loony Ben—are insufficient to establish infringement.” The appeals court held that the two works shared common concepts only at the most general level, insufficient to support a finding of similarity. In addition, the appeals court found that any overlapping character traits and plot aspects plaintiff alleged amounted to superficial and de minimis details, involved general abstractions insufficient to merit protection or were unprotectible scènes à faire standard to a work about family life.

The court also declined plaintiff’s request to impose sanctions against defendants, concluding that plaintiff’s allegations of defendants’ misconduct were either “wholly unsupported by the record or demonstrably false.”


Bollea v. Gawker Media, LLC, USDC M.D. Florida, November 14, 2012
 Click here for a copy of the full decision.

  • District court denies motion for preliminary injunction by Hulk Hogan to compel removal of sex tape from website and to prevent tape from being posted on other websites, finding that tape was a matter of public concern protected by the First Amendment.

Plaintiff Terry Gene Bollea, known professionally as the wrestler Hulk Hogan, sought a preliminary injunction against defendants Gawker Media and related entities, requiring defendants to remove excerpts from a sex tape of Bollea and a woman not his wife that defendants posted on Gawker.com on or about October 4, 2012, and to prevent defendants from posting any portion of the sex tape on any other website. The district court denied his motion.

According to Bollea, six years prior to this case, he engaged in consensual sexual relations with a woman who was not his wife and the encounter was videotaped, allegedly unbeknownst to plaintiff. Defendants obtained a copy of the sex tape and posted excerpts of it on their website without Bollea’s permission. Defendants allegedly have refused numerous requests from Bollea to remove the excerpts from the site. Bollea filed suit against defendants, asserting a number of claims including invasion of privacy by intrusion upon seclusion, publication of private facts, violation of the Florida common law right of publicity, intentional infliction of emotional distress, negligent infliction of emotional distress and copyright infringement, and filed a motion for a preliminary injunction.

The district court held that a plaintiff seeking a prior restraint on speech must establish that the restraint will be effective and that no less extreme measures are available. Bollea failed to overcome the presumption that the preliminary injunction would be an unconstitutional prior restraint because defendants’ First Amendment rights override plaintiff’s right of privacy. Noting the U.S. Supreme Court had recently recognized that the heart of First Amendment protection is speech on matters of public concern, the court reasoned that the sex tape constituted a matter of public concern, demonstrated by Bollea’s public persona, his reality television show, his own book describing his affair, and his own public discussion relating to his marriage and the tape, and that the inappropriate or controversial nature of the speech does not affect whether it is a matter of public concern. The court also found that plaintiff was not entitled to a preliminary injunction because he failed to demonstrate that he would suffer irreparable harm if the tape were not removed. Embarrassment and economic loss do not justify a preliminary injunction, according to the court. In fact, noting the Supreme Court has repeatedly recognized that even minimal interference with the First Amendment freedom of the press causes an irreparable injury, the court found that compelling the removal of the tape from the website would disserve the public interest. In addition, the court concluded that this was a case in which “the proverbial ‘cat is out of the bag[,]’” since the tape had already been posted and injunctive relief likely would be ineffective.

For more information, please contact Jonathan Zavin at jzavin@loeb.com or at 212.407.4161.

Westlaw decisions are reprinted with permission of Thomson/West. If you wish to check the currency of these cases, you may do so using KeyCite on Westlaw by visiting http://www.westlaw.com/.

Circular 230 Disclosure: To assure compliance with Treasury Department rules governing tax practice, we inform you that any advice (including in any attachment) (1) was not written and is not intended to be used, and cannot be used, for the purpose of avoiding any federal tax penalty that may be imposed on the taxpayer, and (2) may not be used in connection with promoting, marketing or recommending to another person any transaction or matter addressed herein.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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