Author: Elissa "Eli" Buenrostro

Oh, those Boys again: Beastly about ‘Girls?’

When two idealistic interests clash — artists’ wishing to protect their creations from commercial exploitation vs. advocates desiring to increase the now fractional representation of women in science, technology, engineering and mathematics (STEM) fields — where does the law come down? To those concerned about music and copyright, a recent case calls into question the bounds of owners’ rights. It’s all about a recent legal scuffle between the Beastie Boys and toy company GoldieBlox over a parody of the lads’ hit Girls in a television commercial. It has created quite the buzz within the blogosphere, because the toy company promotes products that bust sexist stereotypes to encourage girls to consider interests in STEM endeavors. But late last month, the Beastie Boys shared an open letter with the New York Times asserting that they would not allow their music to be used in product advertisements. Based on their statements, the hip-hop group may be a bit off-beat to the tune of copyright control and ownership. Sure, copyright holders generally have exclusive rights to control the use of their work – but that list is short. Copyright owners can often be restricted by several limitations –  the fair use doctrine, the substantial similarity test, the de minimis doctrine, and whether the work in question is actually an original work of authorship, just to name a few. GoldieBlox would seem to hold...

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Law seeks harmony for airborne instruments

Attention airborne musicians: Are flight crews or an airline forcing you to check your axe? Instead of burning and fiddling a sad song on the world’s smallest violin, know your legal options under the FAA Modernization and Reform Act of 2012, Section 41724. After of lobbying by the union, the American Federation of Musicians, President Obama sent a valentine to performers, signing on Feb. 14, 2012, a 145-page law in which airlines are told that they “shall permit a passenger to carry a…musical instrument in the aircraft cabin, without charging the passenger a fee in addition to any standard fee that carrier may require for comparable carry-on baggage, if…[the instrument] can be stowed safely…and [if] there is pace for such stowage at the time the passenger boards the aircraft.” Under this legislation, guitar-sized instruments (or smaller) can be go on an aircraft at no extra charge. Instruments larger than a guitar can be allowed on board if owners buy a seat for that tuba, cello or whatever the precious musical cargo might be. Many have praised this law, calling it “great news for professional musicians throughout the U.S. and Canada.” The legislation has won applause for assisting traveling musicians in protecting their means of livelihood and art and bringing an end to the “confusion over musical instruments as carry-on baggage,” though troubling incidents continue to crop up, affecting artists...

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‘Soul man’ film suit gets the appellate boot

Grammy-winning musician Sam Moore, one of the original “Soul Men,” recently lost his high-profile trademark battle at the appellate level against The Weinstein Co. LLC and MGM Studios Inc., ringing in another big Hollywood win. Moore was half of the successful soul duo, Sam & Dave, known for hits such as Soul Man and Hold On, I’m Comin. He sued the defendants over the 2008 film, Soul Men and its soundtrack. Among his many claims, Moore asserted that the movie, starring Samuel L. Jackson and the late Bernie Mac, was an appropriation of his life story for defendants’ monetary gain. He also said the film’s soundtrack violated his interest in the song, Soul Man, and his common law trademarks in the phrases “Soul Man” and “Soul Men” – to name a few. Last year, a federal judge in Tennesse dismissed the suit and Moore appealed to the U.S. Court of Appeals for the Sixth Circuit, which recently affirmed the lower court ruling and dismissed all of Moore’s claims. In rejecting Moore’s claim the movie was an appropriation of his life, the appellate court noted that even if he could prove this, the First Amendment nevertheless protected the movie because it “without a doubt…added significant expressive elements to any purported use of Moore’s identity.” The court also dismissed his claim that the use of the phrase “Soul Men” was a misappropriation...

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Filmmaker wins a First Amendment shield

Joyce McKinney, a onetime Wyoming beauty queen who once captured screaming headlines in British tabloids over a sordid sex case, recently became a legal footnote, as a California appellate court tossed out much of her lingering lawsuit against noted documentary filmmaker Errol Morris. Elizabeth Grimes, a state appellate judge, found that Morris’ documentary about McKinney, was a work protected by First Amendment rights to freedom of speech. The court also noted that the film’s topic, indeed, was newsworthy – one of public interest – and that McKinney was a limited-purpose public figure who voluntarily involved herself into the story when she agreed to be part of the documentary. McKinney’s suit had its roots in a tawdry tale that blew up more than three decades ago, when the British tabloids launched into a frenzy over claims that she had a role in abducting and sexually abusing what she claimed was her fiance — he a Mormon missionary, who told police she had chained him to a bed in a country cottage and forced him into sex. The former Miss Wyoming swore that the tabloids made up the entire tale, dubbed by some, the “manacled Mormon” case. More than three decades later, she attempted to clear her name. In 2008, McKinney was approached by Morris, an Oscar-winning American filmmaker, to see if she wanted to be interviewed about the tabloid press....

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Burbling of monster babe: It’s ‘work for hire’

Amanda Lewis, an ex-employee of Activision Blizzard, has been “WOW’d” by the loss of her recent federal copyright infringement suit against the video-game publishing powerhouse. Activision, along with co-defendant, Blizzard Entertainment Inc., developed and distributed the chart- and revenue-topping online game, World of Warcraft (WOW). While working as a “game master” for WOW, Lewis’ job included a role in creating content and helping customers. When Activision emailed its employees about an open-auditions for game voice-over work, Lewis sought and won the gig.  She twice recorded the voice for a “baby murloc,” a new promotional character, during her normal work hours and was paid her usual, hourly rate. Activision, however, failed to inform Lewis that her voice could be used for other reasons. After she had been terminated from Activision, she discovered that the character and her voice had been made part of the game itself and she sued for copyright infringement, alleging that her previous employer used her recordings without her consent. Activision sought summary judgment against Lewis, asserting that her claim failed for two reasons: 1) She didn’t own a copyright in the voice of the character because it was a work made for hire, and 2) Activision was a joint author, and. therefore, could not be held liable for copyright infringement. The court focused on whether Lewis was “employed to perform” her voice-overs, ultimately finding Lewis was;...

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