Reading Between the Lines vs. Twilight Movies: The Most “Creative” Market Definition I’ve Ever Read

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I think the award for most creative market definition (at least for 2013) has to go to the plaintiff in Between the Lines Productions, LLC v. Lions Gate Entertainment Corp., Case No. 13-cv-3584 (S.D.N.Y. May 30, 2013). There, the producers of a parody film called “Twiharder” recently filed suit against Lion Gate, the makers of, among other things, the popular Twilight movie series.

“Defendants’ anticompetitive conduct sets the benchmark example for why James Madison and Thomas Jefferson were apprehensive in the months leading up to the Philadelphia Convention about granting authors even limited copyright monopolies over their works,” Between the Lines writes in its complaint.

According to the (219!) page complaint, the defendants have sought to monopolize the “conversation” in “adjacent” or downstream markets, i.e., in markets downstream of the primary market “of original intention targeted to consumers of teen fantasy romance.” One of the downstream markets is the “Z Market,” defined as the market for the creation of novel works that are repulsed by the Twilight movies. Allegedly, defendants have achieved the monopolization of these “Fair Use Zones” through a highly oppressive intellectual property enforcement policy that uses sham cease and desist notices and a compendium of prohibited trademark / service mark registrations to chill speech and exclude all competition from the “Z Market.”

The complaint actually details five (!) different relevant antitrust markets and contains a full-page chart (at page 112) detailing them all.

The plaintiff seeks $375 million in damages for alleged breaches of federal antitrust laws.

Look, this is fun and creative. It illustrates nicely what happens when Hollywood bumps into antitrust law. But all I can say about these market definitions is: good luck with that.  To the extent the plaintiff was hoping to get some publicity for its creativity, kudos.

[View source.]

Topics:  Competition, Copyright, Motion Picture Industry, Movies, Parody

Published In: Antitrust & Trade Regulation Updates, Art, Entertainment & Sports Updates, Intellectual Property Updates

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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Howard Ullman
Orrick, Herrington & Sutcliffe

I am a litigator who focuses on antitrust, unfair competition, and business tort issues --... View Profile »


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