by JSEL | Apr 26, 2019 | Highlight
Last week, a Los Angeles Superior Court judge denied a motion for summary judgement submitted by Stranger Things creators, Matt and Ross Duffer, in a breach of implied contract suit filed by independent filmmaker Charlie Kessler. Kessler claims the Duffers stole the idea for their show after he pitched his own project to the brothers at the 2014 Tribeca Film Festival.
With sky-high ratings, an accompanying book deal, and a PlayStation VR game in the works, Stranger Things has made its mark as the single most popular streaming show of all time. Based in small-town 80’s America, the series (originally titled The Montauk Experiments) focuses on the disappearance of a young boy and the dark forces that unfurl as his family and friends search for answers. What starts as a simple missing persons case develops into a supernatural mystery that includes top-secret government experiments, children with extraordinary psychic abilities, and a monster from another dimension. Though viewers have embraced the innovative premise of the Duffer Brothers’ creation, filmmaker Charlie Kessler alleges that the idea was taken directly from his short film, Montauk, as well as his accompanying feature-film screenplay, The Montauk Project. Like the Duffers’ story, Kessler’s work centers on the search for a missing boy, a battle against paranormal forces, and the discovery of an abandoned military base that conducts secret experiments on children.
It may seem odd that Kessler chose to bring an implied-contract claim, rather than a copyright infringement complaint. However, under federal copyright law, Kessler has no case. Ideas – even those that are finely detailed and significantly developed – cannot be copyrighted. This means that a film idea, and “any of the characters portrayed [with]in it” is largely free for the taking, regardless of who thought of it first. Under the contract claim, however, Kessler can (and does) allege that there was a “mutual [understanding]…that [the Duffers] would not disclose, use, and/or exploit” Kessler’s ideas. The Duffers aim to show that they independently created Stranger Things prior to meeting Kessler, a complete defense against the filmmaker’s claims in the state of California. (See Teich v. General Mills, 170 Cal.App.2nd 791, 799 (1959)).
While the Duffers’ motion for summary judgement cites emails from 2010, three years before Kessler’s alleged pitch, that detail their plans for a supernatural film project, Judge Michael L. stated that the brothers provided insufficient “verifying evidence of the originality of their idea,” raising several issues surrounding the ownership of original work. The emails directly reference central elements of Stranger Things, such as a protagonist who is “[a]bducted with a group of other psychically gifted…children,” a “[s]ecret underground research facility,” and the “opening up another dimension” that leads to a “creature…escap[ing].” Considering the specificity of these plot details, one must wonder: what doesconstitute sufficient, unrebutted evidence of the originality of a creative idea?
The answer to this question could have a serious impact on Hollywood’s creative circles and the manner in which artists develop and pitch their ideas. With the possibility of an implied contract breach stemming from standard mingling lurking on the horizon, industry movers may become more hesitant to hear casual pitches from relative unknowns. This, of course, could make it increasingly difficult for independent artists to break into the Hollywood sphere and secure financing for their projects. On the flipside, the protections Kessler seeks to establish may give emerging writers and directors some comfort that, should they manage to pitch their next big project to potential collaborators, sponsors, or producers, their work will be safe from copycats.
The trial, now with a May 7th start date, is set not only to provide insights into the development of Netflix’s runaway series, but may also serve as an indicator for how the entertainment industry as a whole could evolve to regulate the free exchange of creative ideas.
Matt Shields and Susannah Benjamin are Entertainment Highlight Contributors for the Harvard Journal of Sports and Entertainment Law and current first year students at Harvard Law School (Class of 2021).
Image: Lowtrucks, Stranger Things logo, CC BY-SA 4.0
by JSEL | Apr 23, 2019 | Highlight
Judge Edgardo Ramos for the Southern District of New York ruled that that actions of University of Arizona men’s basketball coach, Sean Miller, and Louisiana State University men’s basketball coach, Will Wade, are irrelevant to the upcoming college basketball bribery trial and will thus not have to testify. An audio from a wiretap of Wade allegedly discussing an offer to a recruit, believed to be LSU player Javonte Smart, will also not be permitted during the trial.
The coaches were subpoenaed for a trial involving sports agent Christian Dawkins and Adidas representative Merl Code over federal bribery and conspiracy charges. Federal prosecutors say Dawkins and Code paid college assistant coaches to direct their players towards them for professional representation.
Defense attorneys argued that testimony from Miller and Wade, in addition to audio evidence and recovered text messages, was necessary to show the state of mind Dawkins was operating under when he was accused of bribing assistant coaches. In regards to Miller, they argued that because of his alleged willingness to pay his players, he has more influence over players than his assistants.
The prosecutors argued, though, that a lot of people may be influencing players. While Judge Ramos agreed to grant the prosecutors’ motion to keep both coaches from testifying, he said the motions “are subject to being revisited depending on how the evidence at the trial plays out.”
Andrew Distell is a Sports Highlight Contributor for the Harvard Journal of Sports and Entertainment Law and a current first year student at Harvard Law School (Class of 2021).
Image: Jeff Turner, USAirwaysCenter-2008NCAAWestRegional, CC BY 2.0
by JSEL | Apr 19, 2019 | Highlight
As of April 15th, the European Union officially approved a controversial new Copyright Directive that has left members of the art and tech worlds fiercely divided. The Directive, which was narrowly approved by the European Parliament in a 348 to 274 vote last month, has now been given the green light by 19 out of the 28 EU member states, which leaves EU members with 24 months to comply with the new measure.
Under fire is Article 17 of the Directive (previously referred to as Article 13), which renders platforms like YouTube, Facebook, and Instagram liable for the misuse of any copyrighted material that users upload to their sites. As liability shifts from individual users to the tech giants themselves, platforms will need to either buy licenses to the copyrighted content, remove the content entirely, or prevent copyrighted material from being posted in the first place. Prominent artists like Paul McCartney and Björn Ulvaeus are in support of the Directive, asserting that YouTube and its peers are unfairly profiting off of creative labor it has not paid for, feeding a cycle of IP theft. To put this complaint into context, a user may currently upload a video with an unauthorized background song. users flock to the video, platforms profit from the increased traffic generated by the appropriated content. while the artist, who bears the onus of reporting the infringement, receives nothing.
Though the Directive may seem like a much-needed response to artistic exploitation, platform spokespersons, emerging artists, and notable tech figures like Jimmy Wales and Tim Berners-Lee are more concerned about its chilling effect on creative expression. This concern is not unfounded. The Directive will almost inevitably cause platforms to utilize automatic filters to police new uploads—filters that are notoriously ill-equipped to discern between fair use and infringing content (take YouTube’s $100 million dollar Content ID system as an example). This means that derivative art forms such as memes, parodies, and music mixes could be under threat—a fear which is particularly relevant in the internet age, where creative appropriation is not only commonplace, but celebrated.
In addition to the censorship issue, the Directive may further aggravate the divide between prominent artists and those struggling to make a name for themselves in the industry. As YouTube CEO Susan Wojcicki points out, platforms may not have the financial and technological resources available to comply with the Directive’s provisions; consequently, they may end up limiting content providers to a select number of large, vetted companies because smaller, individual providers are too difficult to monitor effectively. This would only further the already powerful monopoly that brand-name artists have over the creative industry, making it even more difficult for rising artists to gain exposure for their work.
Not only does the Directive spell out issues for artists, it also means trouble for the platform managers. Because the EU requires each nation adopting the Directive to formulate its own unique interpretation of the measure’s language—which critics call “maddeningly vague” — tech companies may have to devote resources to develop customized mechanisms and procedures to fit numerous regulatory regimes. As “#SaveYourInternet” protests carry on in Berlin, Poland, Austria, and Portugal, questions remain: who is the biggest loser here, the artists or the platforms, and is the Directive championing creativity, or destroying it?
Matt Shields and Susannah Benjamin are Entertainment Highlight Contributors for the Harvard Journal of Sports and Entertainment Law and current first year students at Harvard Law School (Class of 2021).
Image: ClkerFreeVectorImages, Copyright-40632, CC0 1.0
by JSEL | Apr 16, 2019 | Highlight
Baseball is the national pastime of both the United States and Cuba, but players from the Caribbean nation who dream of playing in the Major Leagues have only two options: defect during international tournaments or embark on maritime journeys at the mercy of human smugglers. Both options are extremely dangerous and preclude any chance of return to the players’ homeland.
Toward the end of the Obama presidency, however, an agreement was reached that would have removed the need for players to attempt smuggler-aided escapes from Cuba to fulfill their goal of playing in the U.S. Under the agreement, players would have been permitted to “to retain their Cuban citizenship, travel to the U.S. with their families and return to their homeland in the off-season.” In exchange, MLB clubs that signed Cuban players would have paid up to 25% of the signing bonus to the Cuban Baseball Federation.
Cuba had released the list of the first group of 34 MLB-eligible players.
The U.S. embargo against Cuba makes it illegal for Cuba to enter into financial arrangements with a U.S. entity unless the arrangement is licensed by the Treasury Department. But the Obama administration had determined, with support from MLB, that the Federation was “itself not part of the Cuban government,” allowing MLB to legally negotiate with the Federation.
In a major blow to MLB, the Treasury Department recently backed away from the previous administration’s position regarding the Federation and rescinded the landmark agreement. Thus, MLB and its member clubs would be violating the embargo by paying commissions to the Federation. According to National Security Council spokesman Garrett Marquis, the Obama-sponsored agreement would have “institutionalize[d] a system by which a Cuban government entity garnishes the wages of hard-working athletes who simply seek to live and compete in a free society.”
The last-minute revocation seems to be directly related to Cuba’s involvement in Venezuela. According to National Security Advisor John Bolton, “America’s national pastime should not enable the Cuban regime’s support for Maduro in Venezuela.”
In response to the sudden turn of events, MLB Vice President Michael Teevan stated, “We stand by the goal of the agreement, which is to end the human trafficking of baseball players from Cuba.”
Thomas “Buddy” Bardenwerper and Andrew Distell are Entertainment and Sports Highlight Contributors for the Harvard Journal of Sports and Entertainment Law and current first year students at Harvard Law School (Class of 2021).
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by JSEL | Apr 12, 2019 | Highlight
Property owners suing Niantic, the developer of augmented reality gaming sensation Pokémon Go, for trespass and nuisance, have likely settled after years of litigation. They submitted a proposed settlement to the US District Court for the Northern District of California. The class action, a consolidation of numerous claims filed against Niantic in 2016, alleged that the developer induced Pokémon Go gamers to trespass onto homeowners’ properties. The class action settlement would force Niantic to implement stricter internal policies regarding the virtual placement of game characters on private property.
The concept of Pokémon Go is simple—players are able to capture, train, and battle virtual creatures that are “mapped” onto real-world locations, enabling every 90’s kid to live out their dream as a real-life Pokémon trainer. But by fusing the virtual and physical worlds, the game’s designer, Niantic, has raised a slew of legal issues surrounding privacy, intellectual property, and, in this case, trespass.
In one claim, a homeowner, Boon Sheridan, discovered that his house had been designated a Pokémon “gym,” which serves as a landmark where Pokémon players can gather to battle head-to-head with their rivals. As a result, activity around his quiet suburban home spiked exponentially, with Pokémon trainers battling outside his door at all hours of the day and night. One player proudly asserted his status as the gym’s owner, despite the fact that the virtual haunt is located directly on Sheridan’s property.
This raises several unresolved issues surrounding property ownership and trespass. Who owns a virtual space? Is it owned by the game designer, the player who establishes in-game dominion, or the owner of the physical location onto which the virtual space has been mapped? Who should be held responsible for the numerous trespasses that have been committed since the launch of Pokémon Go? Though Niantic has spurred players to break the law in pursuit of Pikachu, the design team itself has never stepped foot onto private property.
While homeowners disparage Pokémon Go for the increased foot traffic it has created, stores have jumped at the opportunity to boost their number of visitors, and brands like Starbucks and McDonalds have partnered with Niantic to get their locations tagged as Poké gyms. Pokémon Go has since driven over 500 million visitors to sponsored locations, with companies paying up to 50 cents per visitor attracted. As the financial stakes surrounding virtual spaces continue to grow, notions of property ownership within the AR world become increasingly significant, and perhaps one day will be as hotly disputed as the traditional property rights at issue today.
Matt Shields and Susannah Benjamin are Entertainment Highlight Contributors for the Harvard Journal of Sports and Entertainment Law and current first year students at Harvard Law School (Class of 2021).
by JSEL | Apr 7, 2019 | Highlight
A group of retired NFL players and Electronic Arts Inc. (EA) settled a lawsuit this past week regarding the use of the players’ likeness in the Madden football games in the United States District Court for the Northern District of California.
While EA licensed current players’ image, the “historic teams” rosters in the game featured retired players whose images EA had not been authorized to use. While the game did not include the retired players’ names, the players in the game possessed other attributes that could serve as identifying characteristics.
The judge in the case rejected class certification for the roughly 6,000 former NFL players in the case. Class liability could not be found because of the individuality of each player’s identity.
The suit was initially brought in 2010. EA moved to dismiss the case, arguing that it quieted speech and that its use of the players’ likenesses was transformative, incidental and in the public interest. The motion to dismiss was rejected and EA appealed to the Ninth Circuit. The court analogized this case to its ruling in Keller v. Electronic Arts Inc. (holding that EA’s use of players’ likeness in another of its video games, NCAA Football, was not transformative) and found these two cases to be indistinguishable. The Ninth Circuit, therefore, affirmed the lower court’s rejection of EA’s motion to dismiss.
After being denied cert in the Supreme Court, a trial back in California was set for September of this year until the parties reached a deal.
Andrew Distell is a Sports Highlight Contributor for the Harvard Journal of Sports and Entertainment Law and a current first year student at Harvard Law School (Class of 2021).
Image: bloque interactivo, NFL Hall of Fame quarterback Joe Montana, left, plays the XBox 360 “EA Sports Madden 13” video game with EA Sports Executive Vice President, Andrew Wilson at the Microsoft Xbox 360 E3 2012 Media Briefing in Los Angeles Monday, June 4, 2012 (cropped), CC BY-SA 2.0.
