Journey to the Past?

anastasiaBy Danielle Ollero

Last October, our Blog discussed the legal woes of the hit Broadway musical Hamilton. It may come as no surprise that Hamilton is not the only show plagued by litigation.

Many of us may remember the animated film Anastasia released in 1997, with its melodious songs and heart-warming story of a girl in search of her forgotten family. What girl doesn’t dream of discovering that she is a lost princess? Lucky for us, on June 28, 2016 Playbill made the happy announcement that Tony-winning writer Terrance McNally and composers Lynn Ahrens and Stephen Flaherty were seeking to resurrect this childhood fantasy for live audiences as a new Broadway musical. However, a lawsuit may prevent Anastasia from ever becoming a theatrical reality.

At issue is the way in which McNally, Ahrens and Flaherty  wanted to reimagine the story, unveiling the plot in a manner closer to the historic life of Anastasia rather than the whimsical fantasy depicted in the film. One of the most noticeable changes would be the absence of the film’s villain Rasputin and his humorous talking bat sidekick, Bartok. Instead, new villains would be introduced through characters who represented the Communist Regime. What’s more, the group hoped to have several new songs added to the score. This new version premiered during the spring of 2016 at the Harford Stage in Connecticut.

On December 8, 2016 plaintiff Jean-Etienne de Becdelievre accused the writers of stealing their plot from a play written by playwright Marcelle Maurette in 1952. Becdelievre, heir to Maurette, alleged several copyright law violations in his complaint, and asked that the musical be barred from opening its doors on the planned date of April 24, 2017 at the Broadhurst Theatre. Of mention, he argued that Fox Animation Studies had a license to produce the 1997 film as an adaptation based on Maurette’s play. However, the musical is significantly different from the film version, with “multiple characters, plot lines, and other creative elements that are in the original play” and not in the film. Therefore, the limited film license does not cover the new musical and, arguably, the produces and writers have no license to produce the musical based off of the play.

In response, the producers, including Bill Taylor, called the lawsuit “wholly without merit,” arguing that a license is not necessary because the musical’s story is not taken from the previous play, but from “the historical story or the real-life Anastasia Romanov.” Based on this argument, they filed a motion to dismiss the case.

On January 24, 2017 New York Southern District Court Judge Alvin K. Hellerstein denied the motion to dismiss the case. Judge Hellerstein explained that the “motion asks me to dismiss a claim for copyright infringement by comparing the copyrighted work to facts that are alleged to be historical, to another play based on the same facts, and to a current work that is said to be infringed. Defendants’ motion . . . asks me to make this comparison before Answers are filed, and without guidance by experts. I am unable to make such a complicated comparison. In order to do so, I would need to take judicial notice of facts said to be historical—an inappropriate exercise. I would also have to analyze similarities and differences among different literary expressions.”

After Judge Hellerstein’s ruling, the defendants filed an answer to the complaint on February 7, 2017. Their attorneys said that they remained “confident” in their position to prevail on a substantive ruling.  “The works simply are not substantially similar,” said Dale M. Cendali, attorney representing Terrance McNally. “They have different settings, different characters, and different plots.  In fact, none of the dialogue is the same.  Any similarities are due to unprotectable historical facts or ideas.”

However, this ongoing battle probably means that the show is unlikely to meet its opening day, though its website still appears to be selling tickets. It will be fascinating to see the way that this case unfolds in its substantive legal questions, as well as for the life of the show. Perhaps this production team did not journey enough into the past when creating this historic musical.

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Are My Emails Beyond the Grasp of the U.S. Government?

gavelBy Mackenzie Olson

Companies like Microsoft and Google store a lot of customer data in storage centers overseas. As of July 2016, 2nd Circuit precedent indicated that, due to the foreign location of those centers, the U.S. government could not compel these companies to turn over data, even by issue of a search warrant. The case that rendered this decisions was In the Matter of Warrant to Search a Certain E–Mail Account Controlled and Maintained by Microsoft Corporation. (But also take note of the dissent in the denial of en banc review). As the Southern District of New York adjudicated the Warrant case, the Second Circuit Court of Appeals was its final arbiter. Accordingly, the Court of Appeals’ judgment only controlled as precedent in that jurisdiction. And though its opinion has been persuasive elsewhere, at least one judge, based in the Third Circuit, now disagrees with its outcome.

On February 3, 2017, Magistrate Judge Thomas J. Rueter of the Eastern District of Pennsylvania issued an opinion and subsequent orders compelling Google to turn over certain data stored in overseas facilities, per the request of two previously issued search warrants.

In his opinion, Judge Rueter explains that, “the present dispute centers on the nature and reach of the warrants issued pursuant to section 2703 of the Stored Communications Act, 18 U.S.C. §§ 2701 (“SCA”).

He frames the relevant issues as follows: “The court must determine whether the [g]overnment may compel Google to produce electronic records relating to user accounts pursuant to search warrants issued under section 2703 of the SCA, or in the alternative, whether Google has provided all records in its possession that the [g]overnment may lawfully compel Google to produce in accordance with the Second Circuit’s ruling.” Rueter ultimately holds that “compelling Google to disclose to the [g]overnment the data that is the subject of the warrants does not constitute an unlawful extraterritorial application of the [SCA].”

In its reporting of the decision, news outlet Reuters particularly emphasizes Judge Rueter’s reasoning that “transferring emails from a foreign server so FBI agents c[an] review them locally as part of a domestic fraud probe d[oes] not qualify as a seizure . . . because there [i]s “no meaningful interference” with the account holder’s “possessory interest” in the data sought . . . [the retrieval] has the potential for an invasion of privacy, [but] the actual infringement of privacy occurs at the time of disclosure in the United States.”

Orin Kerr, law professor at The George Washington University School of Law, notes numerous problems with Judge Rueter’s decision. “The issue in this case is statutory, not constitutional. Even if you accept the (wrong) framing of the issue as being whether the SCA applies outside the United States, the answer has to come from what Congress focused on, not where the constitutional privacy interest may or may not be. Where you place the Fourth Amendment search or seizure strikes me as irrelevant to the extraterritorial focus of the statute.”

Kerr further contends that, “Even accepting the court’s framing, I don’t think it’s right that no seizure occurred abroad. As I see it, copying Fourth Amendment-protected files seizes them under the Fourth Amendment ‘when copying occurs without human observation and interrupts the stream of possession or transmission’. . . . That test is satisfied here when the information was copied. The court suggests that bringing a file back to the United States is not a seizure because Google moves data around all the time and ‘this interference is de minimis and temporary.’ I don’t think that works. Google is a private company not regulated by the Fourth Amendment, so whether it moves around data is irrelevant.”

It will come as no surprise that Google plans to appeal the Third Circuit decision. Likely a slough of other tech and media companies that previously filed amicus curie briefs in the Microsoft case will file briefs again, such as Apple, Amazon, AT&T, eBay, and Verizon.

Key questions that remain, then, are what will the Third Circuit decide on review?

Will the court follow the precedent set by the Second Circuit in Warrant?

Will it adopt the reasoning of the dissenters in the denial of Warrant‘s en banc review?

Will it follow Judge Rueter’s reasoning in the case at bar?

Or will it render an entirely novel opinion?

And though we can be sure that the losing party will petition the Supreme Court, one also must consider whether a final player emerge, in the form of Congress directly intervening? After all, the SCA was enacted in 1986, and many consider it not only out of date, but also relatively unworkable for modern technological issues. The time certainly seems ripe for a statutory update.

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Two Copywrongs Make A Copyright: Archiving Environmental Protection Agency Data Against the Trump Administration’s Demands

powerplantBy Gwen Wei

Five days after the inauguration of President Donald J. Trump, his administration officially instructed the Environmental Protection Agency (“EPA”) to delete all references to climate change from the agency’s website.

The demand generated an instant outcry: from the media, members of the scientific community, and believers in global warming at large. Continue reading “Two Copywrongs Make A Copyright: Archiving Environmental Protection Agency Data Against the Trump Administration’s Demands”

Supreme Court Hears Oral Arguments for Lee v. Tam

lee-v-tam-picBy Kiran Jassal

The Supreme Court of the United States recently heard oral arguments for Lee v. Tam to decide whether the disparagement provision of the Lanham Act is facially invalid under the First Amendment. The disparagement provision resides in Section 2(a) of the Lanham Act and states that a trademark which “[c]onsists of…matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute…” may not be registered.

In 2011, Simon Shiao Tam filed a trademark application for his band name, “The Slants.”

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Public Records in the Age of Trump

twitterBy Jeff Bess

It is  more than cliché to observe that the advent and evolution of the internet has deeply transformed modern society in many ways, both micro and macro. Indeed, not a clearer example exists than the role social media played in the 2016 presidential election. With over twenty million followers on Twitter and nearly 35,000 tweets, Donald Trump leaned into this direct line to the masses to set a new high water mark for social media ubiquity in pursuit of the White House.

Though derided by many as misguided or un-presidential, it is undeniable that Trump’s avid use of Twitter has been and continues to be effective. Indeed his prolific social media presence was a key source of the estimated $2 billion in earned media that greatly contributed to his success. And now that he is president, do his characteristic early morning, sometimes scattershot flurries of 140-character missives count as official government records? In other words, are they subject to federal document retention laws?

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They Are Listening and It CAN Come Back to Haunt You

echo
Amazon Echo

By Tyler Quillin

 

How many smart devices with voice-activation capabilities surround you at any given moment? How many times have you thought about whether they are listening to everything you’re saying, just waiting for the word “Alexa” to wake them up from their idle eavesdropping? Well, some of your concerns may soon be answered by a court in Arkansas.

In late 2016, Bentonville Police Department of Arkansas obtained a search warrant for the recordings produce through Amazon’s “Echo” device pertaining to a bath tub murder. Echo is aptly described as an “always on” device. It continuously listens, waiting to hear the term “Alexa,” which “wakes” it up. Once awoken, Alexa will perform various tasks upon verbal request. She does everything from checking the weather or traffic, to answering trivia, to playing music through a Bluetooth connection.

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There is Also an App For That

 

judge-aiken
The Honorable Judge Ann Aiken

By Jessy Nations

At the risk of sounding older than my years, it seems we are now demanding an app for everything these days. Even when we don’t need or want an app for something, one inevitably appears. That is, except, for legal apps, which are notably absent from the app store. Sure, I can download a copy of Black’s Law Dictionary, and Google is more than happy to direct me to lawyers in my area, but last I checked the smartphone revolution hadn’t done much for the criminal justice system … for now.

However, in an effort to modernize the reentry process for former inmates, a group of developers, lawyers, and judges are working on a reentry app . The idea is to turn the justice system from Big Brother into little brother. Continue reading “There is Also an App For That”

My Other Bag Isn’t Infringing

lvBy Alex Bullock

If you ever find yourself at the grocery store with only your designer handbag to put your apples in, know that the option to carry a canvas tote bag with designer style won’t be going away anytime soon.

That’s because My Other Bag (“MOB”) sells utilitarian canvas tote bags featuring images of designer-brand handbags on their sides—which play on the belief that “my bag is a [fill in luxury brand here].” In June 2014, Louis Vuitton (“LV”), one of the world’s most valuable and well-known luxury fashion brands, filed a lawsuit in the Southern District of New York Continue reading “My Other Bag Isn’t Infringing”

Mitsubishi Regional Jet Runs into Regulatory Turbulence in the American Skies

ja21mj_2016-09-27_img_4836By Mariko Kageyama

Say you are a maker of a brand new aircraft. You show off its blueprint and miniature model and take orders before you have even constructed it. What legal risks are you willing to assume at this stage? Though this may seem a quintessential contract question, a real case involving Mitsubishi provides us an interesting twist.

On September 28 and November 18, 2016, the first two Mitsubishi Regional Jet MRJ90 test aircraft made successful ferry flights from Nagoya, Japan to Moses Lake, Washington. Built by Mitsubishi Aircraft Corporation, the MRJ90 is the first all-new commercial airplane manufactured in Japan in the last half a century. A fleet of MRJ90 test aircraft will be undergoing test flights in partnership with a local engineering firm, AeroTEC, which is based at the Grant County International Airport in Moses Lake. A team of over 200 aerospace engineers in Moses Lake, Seattle, and Nagoya is aiming to make the MRJ90’s formal certification process as smooth as possible to allow entry its into service in 2018.

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YouTube’s Content ID Policy Change Now Saves Lost Monetization for Fair Use Videos

youtube-cashBy Dan Goodman

As the late Notorious B.I.G. said, “Mo Money, Mo Problems.” Whether you believe that statement or not, it is certainly, and thankfully, becoming less true the world of monetizing videos on YouTube through fair use.

The issue of fair use in regard to Content ID claims and Digital Millennial Copyright Act (“DMCA”) takedown notices continues to be a hot topic in the world of YouTube. Most recently demonstrated in Lenz v. Universal Music Corp., the Ninth Circuit held that copyright holders must consider fair use and have a subjective belief that the material in use was in violation of copyright law before sending a takedown notice.

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