“Where Are They Now”: Law Law Land Edition

by Greenberg Glusker Fields Claman & Machtinger LLP
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This time last year, Law Law Land joined the hackneyed proud tradition of legal blogs offering year-end lists of cases to watch in the coming year (though in our defense, we did try to mix it up by reviewing totally absurd cases as well as totally important cases).  But “year in review” and “year to come” are cultural clichés that never held much appeal to me.  “Where are they now?” on the other hand?  That’s more my speed.  (Maybe that’s why I always adored the last five minutes of every episode of VH1’s Behind the Music, where the program would show the artist in their current, everyday life and tease the inevitable “impending comeback.”)  So what has become of those five big cases we told you to watch this year?  And did we pick good ones or not?  (Preview:  Yes, we did.  Oh shush, I don’t care if we’re biased.)

Viacom v. YouTube:  It’s the case that just won’t die.  When we last left Viacom — which led a cadre of content owners in a billion-dollar holy war against YouTube for its “Wild West” early years of unfiltered, infringement-heavy content — the company was appealing a federal court’s dismissal of its copyright infringement claims against YouTube.  And sure enough, in April 2012, the Second Circuit revived the case, holding that while the Digital Millennium Copyright Act (or DMCA) generally shielded YouTube from liability for its users’ acts of infringement, Viacom could continue to pursue the site based on allegations that YouTube willfully turned a blind eye to, or exerted “substantial influence” on, its users’ infringing activities.

Surprisingly, internet rights groups were largely pleased with the decision, which declined to create an affirmative duty for companies like YouTube to actively monitor their users’ submissions for infringing content.  Meanwhile, the decision has become the centerpiece for other, lower-profile litigations surrounding related issues.  For instance, a group of major record labels who have been locked in litigation against video service Vimeo for three years just moved to eliminate Vimeo’s DMCA defense based on the principles set out in the Viacom/YouTube decision.

Marathon v. Fox & SpillaneTalent manager Rick Siegel’s years-long crusade against California’s Talent Agencies Act — which notoriously allows clients to void contracts with, and even reclaim previously-paid commissions from, managers who “procure employment” for them without a state-issued agency license — seems to have gone nowhere in the year since we last wrote about it.  As of the end of 2011, Siegel’s long battle with his former client, actress Rosa Blasi, had morphed into a lawsuit by Siegel against his former attorneys, by which Siegel hoped (with the support of the talent management community) to use a procedural end-around to directly assault California’s law.

But while Siegel’s efforts may have failed, the talent managers of California have not gone gentle into that good night.  In November 2012, the National Conference of Personal Managers (of which Siegel is a member, though his direct involvement with its recent efforts is unclear) brought a direct constitutional challenge against the Talent Agencies Act in federal court — one where they get to challenge the law in the abstract, without worrying about a sympathetic celebrity litigant clouding the minds of judge and jury.  It may still be a long shot — anytime someone tries to claim that a law violates the Thirteenth Amendment’s prohibition on involuntary servitude, you have to raise your eyebrows a little — but it’s a clear sign that the ongoing conflict among agents, managers, and state labor regulators will continue to rage for months and years to come.

Scorpio Music v. Willis:  My god, can it be?  Yes, I think it is — that rare and beautiful lawsuit that actually results in somebody winning and somebody losing (rather than everyone settling and walking away)!

This case involved the efforts of Victor Willis, the original “Police Officer”/lead singer of the Village People, to reclaim his share of the copyright in the iconic “YMCA” (among several other Village people hits) from music publishers Scorpio Music and Can’t Stop Productions.  And you know what?  He did.  Willis’s lawsuit was the first major test case for the “copyright termination” provisions of the 1976 Copyright Act that are applicable to post-January 1, 1978 works, and widely considered the first major copyright termination case involving a songwriter.  The decision addressed many issues which will be vital to such songwriter termination lawsuits, including the right of a songwriter to terminate only his share of a copyright grant without the cooperation of other co-authors (such as co-writers, bandmembers/performers, and, potentially even producers and sound engineers) — and sets the stage for possible future showdowns involving Bob Dylan, Tom Waits, Tom Petty, and other high-profile musicians who have sent copyright termination notices of their own.

Of course, no one is happier about this than Willis himself, who sounds like he was raring for a fight — and now relishes his victory.

Viacom v. Time Warner Cable:  When we wrote, in December 2011, about Viacom and Time Warner’s clash over Time Warner Cable’s launch of an iPad app that allowed subscribers to view Viacom channels on their mobile devices, the dispute was already see-sawing between “almost resolved” and “fighting to the death.”  But sure enough, by May 2012, the case had settled — with media outlets reporting (despite the confidential nature of the settlement) that Time Warner would not pay Viacom anything extra for iPad streaming of Viacom channels.

But that one settlement hardly resolved the future of the television industry, which continues to struggle to find a new business model in an on-demand, anti-advertising, rapidly technologically evolving age.  Less than two weeks after Viacom and Time Warner Cable settled their iPad dispute, ABC, CBS, NBC, and Fox all went to war with Dish Network over its new AutoHop feature, which allows subscribers to automatically remove commercials from their DVR recordings of broadcast TV shows.  In November, a federal judge in California denied Fox’s attempt to block Dish Network from offering the AutoHop service, but the victory for Dish Network was incomplete, as the judge indicated that she was inclined to accept some of Fox’s copyright infringement theories.  Dish Network and the networks have essentially picked up exactly where Viacom and Time Warner Cable left off, effectively seeking to define the future of television industry and technology in the courtroom instead of the R&D lab.  Great.

Zuffa v. New York:  In November 2011, the owner of Ultimate Fighting Championship brought a constitutional challenge to New York State’s then-14-year-old ban on the public exhibition of mixed martial arts, claiming that the statute violated UFC’s First Amendment, Fourteenth Amendment, and other constitutional rights.  While the case rages on, UFC has a few less weapons remaining in its legal arsenal.

In August 2012, federal judge Kimba Wood in New York dismissed two out of seven of UFC’s claims — based on the Equal Protection and Due Process clauses of the Fourteenth Amendment — after applying a highly deferential “rational basis” standard for assessing the New York state legislature’s legislative action (i.e., asking whether the legislature had some “rational basis” for the law).  A helpful note to plaintiffs in constitutional law cases:  if you’re challenging a law and your claim is subject to a “rational basis” review, you lose.

UFC’s First Amendment claims, and its challenges to the New York ban as being vague and overbroad, live on.

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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