The Drye Wit blog provides commentary on legal and business issues, trends, and buzz affecting the media and entertainment industry.
The trial lawyers of Kelley Drye & Warren LLP have a well-established record of winning cases for media and entertainment clients. The breadth of our practice, and the depth of our talent, extends to virtually every area of media and entertainment litigation. Representing defendants and plaintiffs in high-stakes entertainment lawsuits - our trial attorneys win and resolve disputes arising from the creation and exploitation of creative works across all media.
We frequently resolve disputes without ever exposing our clients to the risk and expense of trial, through summary judgment and other pre-trial motions, and through alternative dispute resolution. Nevertheless, our greatest strength lies in our ability to win litigation in the trial court, before a judge or jury.
Complementing their courtroom victories, our attorneys have published numerous articles concerning entertainment litigation topics. Please see our website's Publications section or attorney biographies for examples.
Trademark and Copyright
Because our entertainment clients' most valuable assets are their creative works - their intellectual property - copyright and trademark protection is essential to our clients' business success. At the same time, our clients' new ventures and new entertainment productions are subject to challenge from the holders of copyrights and trademarks registered in other works or products. We are, therefore, frequently consulted for pre-litigation advice to help maximize legal protection for our clients' intellectual property and also how to minimize our clients' exposure to copyright and/or trademark claims from others.
When litigation becomes necessary, we create strategies that focus on successful resolution - both to avoid any litigation disasters and to keep our clients' businesses running successfully.
Our litigators are frequently called upon to represent, advise and assist clients when disputes arise with the talent on successful television shows and motion pictures.
Our lawyers have been resolving talent agent and management disputes, acting, directing and producing services disputes and music industry disputes for over three decades. Talent disputes can be complex or simple, and can involve only a single individual or many people and entities. Although talent disputes are sometimes adjudicated all the way through trial and private hearings, we have been extremely successful in resolving most of these disputes without the need for lengthy proceedings.
From the courtroom or arbitration proceeding to more informal negotiations and advising clients, we get talent-related disputes resolved quickly and efficiently so that our clients can focus on the business of creating, producing and distributing motion pictures, television programming, music and other products.
Idea Submission Claims
Our litigators have proven experience in adjudicating state law idea submission disputes, which have many of the same characteristics as a copyright claim but with an additional element based on an "implied contract."
California has a robust body of law that, under certain circumstances, allows the creator of an idea for a motion picture, TV show or other entertainment project to claim an "implied contract" with production companies to whom the creator submitted his idea, in confidence and with an expectation of compensation if the idea were exploited. Our lawyers are seasoned experts in the litigation of these types of "idea submission" claims.
The breadth of our practice, and the depth of our talent, is reflected in the many victories we have won and favorable resolutions we have achieved in publicly-filed lawsuits based on claims of idea theft.
Production, Distribution and Financing Disputes
Because many of our clients engage in the production, distribution and financing of television programming and motion pictures, we are frequently retained to resolve disputes that arise from those business operations. With an extensive background and understanding of the nuances of motion picture and television finance and distribution, our lawyers get up to speed quickly in helping clients to resolve these matters, whether in pre-litigation negotiations or through a trial on the merits.
Protecting broadcasters, journalists, publishers and other media clients is one of our greatest strengths. Building on our decades of experience and trial victories, we proficiently guide our media clients in any First Amendment or related claim.
Among the many types of First Amendment claims we have defended are defamation lawsuits against both local and national news organizations, invasion of privacy claims against news-gathering journalists, claims for misappropriation of name, likeness and voice, and claims based upon speech.
Trademark and Copyright
- Defending a major studio, a highly honored producer, and several other defendants against a copyright lawsuit in New York federal court, we won summary judgment in 2010 against claims that a recent hit movie infringed the copyright of a short story upon which a 1954 classic film was based.
- Defending more than 30 named defendants, including a major motion picture studio and three well-known actresses, in 2009 and 2010 we secured the dismissal of numerous copyright and RICO claims based on the release and distribution of a successful romantic comedy. Summary judgment and award of attorneys’ fees were affirmed by the Ninth Circuit in 2012.
- Protecting the release of a 2009 premium cable documentary, we defeated both an application for temporary restraining order and a motion for preliminary injunction based on claims of copyright infringement, paving the way for the film's timely release and forcing the dismissal of the action.
- Defeated a 2009 motion for preliminary injunction that was sought, based on alleged infringement of plaintiff's trademark, to prevent the distribution of a popular reality television program on a prominent cable network.
- Secured the dismissal, with prejudice, of a copyright infringement claim against a leading television cooking show. We persuaded the district court to issue groundbreaking rulings that: (1) copyright infringement claims may be dismissed at the pleading stage based on lack of substantial similarity; (2) no amount of access can establish actionable copying if the works are not substantially similar; and (3) judicial notice is appropriate to establish that allegedly copied elements are generic and therefore not copyright-protected.
- Defended a major motion picture studio in a copyright infringement action growing out of a hit 1980s motion picture. We secured the dismissal, with prejudice, of all claims, and successfully defended that dismissal on appeal in the U.S. Court of Appeals for the Ninth Circuit in 2006.
- Defending the broadcast network and the merchandise distributor of a pioneering reality television show against a trademark lawsuit filed in Hawaii, we won summary judgment against "reverse confusion" claims brought by a Hawaiian company that marketed similar products under a similar trademark; that trial court victory was affirmed by the U.S. Court of Appeals for the Ninth Circuit.
- Secured the early dismissal, with prejudice, of copyright and accounting claims brought in 2005 against the producers, distributor and director of one of the most financially successful films of 2002.
- Defending the world-famous trademark of a Los Angeles radio station, we secured a TRO and preliminary injunction to prevent a Palm Springs station from using a confusingly similar name; the trademark injunction was unanimously affirmed by the U.S. Court of Appeals for the Ninth Circuit.
Idea Submission Claims
- Defended a prominent actor, a television studio and other defendants in copyright infringement action concerning a television series in the U.S. District Court for the Southern District of Indiana, obtaining judgment dismissing the action at the pleading stage; affirmed by the Seventh Circuit Court of Appeals in 2011. Also obtained dismissal of the case when the plaintiff later filed similar claims in the U.S. District Court for the Central District of California.
- Defending multiple studio and individual defendants in several idea submission and copyright claims in 2009 and 2010 regarding one of the top-grossing films of 2007.
- In 2008, the California Court of Appeal upheld the summary judgment that our lawyers won against a plaintiff who claimed that a studio's 2005 hit movie was based on an idea that plaintiff had "pitched" to a studio executive at an industry event. Both the appellate and trial courts agreed that any similarities between plaintiff's idea and the film were not substantial enough to support an idea submission claim.
- Secured the early dismissal, with prejudice, of nine of plaintiffs' ten idea submission based claims related to a broadcast miniseries.
- Defending Oscar-nominated director, production studios and others involved in creating a top-grossing 2002 motion picture, we won the dismissal of all state law claims arising from an idea submission claim and ultimately secured the dismissal with prejudice of the only remaining claim for copyright infringement.
- Represented the producer of a 2006 motion picture based on a graphic novel, we secured summary adjudication in the client's favor against numerous claims based on theft of idea theories - including breach of contract, breach of confidential relationship, breach of fiduciary duty, and fraud.
- After securing federal court orders dismissing all of a plaintiff's federal copyright claims and most of her state law claims based on the creation of a successful cable television series, we secured a favorable settlement on the eve of a further motion to dismiss plaintiff's surviving "idea submission" claims.
Production, Distribution and Financing Disputes
- Defended two television studios against a claim by two talent agencies for an increased percentage of the revenue generated by the off-network distribution (syndication) of a hit television series. Following a multi-week private trial before a retired Justice of the California Supreme Court, our clients won a confidential decision and the dispute thereafter was settled favorably.
- Defended one of the leading children's television programming producers in the world in a complex array of lawsuits - in federal court, in state court, and before the American Arbitration Association - all arising out of the worldwide distribution and merchandising of derivative works (including an animated TV series) based on a doll made famous in the early 1990s. An arbitration trial spanning four months in 2009 concluded with an interim arbitration award in our client's favor, prompting a confidential settlement and the dismissal of all pending proceedings.
- Represented a film producer in two lawsuits against fellow producers over the parties' agreements regarding the development and production of several motion picture projects. The disputes were litigated both in a JAMS arbitration and in a federal court lawsuit, and on the eve of the arbitration trial, all the disputes were settled confidentially to the parties' mutual satisfaction.
- On behalf of an independent motion picture studio, we secured partial summary judgment and subsequently a defense verdict against claims of fraud, breach of contract and breach of the implied covenant of good faith and fair dealing with respect to the financing, production and distribution of two motion pictures.
- Secured a $1.6 million verdict on behalf of an independent motion picture studio in an arbitration against a co-producer relating to the production and distribution of a motion picture. On counter-claims relating to accounting and profit participation, we won a complete defense verdict for our clients.
- Won a motion under California's anti-SLAPP Statute to secure the early dismissal of a defamation action arising from a national TV news report broadcast on two of America's leading news programs; subsequently, we also won an award for over $170,000 in legal expenses which the clients incurred in defending against the defamation lawsuit.
- In a newsgathering and publication case related to the death of actor Marlon Brando, we secured a reversal in the California Court of Appeal of a lower court's denial of the defendants' anti-SLAPP motion, and confirmed that the widespread public interest requirement in the anti-SLAPP statute is satisfied where there is public interest in the subject matter of First Amendment related activity, regardless of whether there is an independent public interest in the individuals involved.
- Representing the parent corporation and its broadcast and cable network subsidiaries, we successfully used the anti-SLAPP statute to obtain the dismissal of the plaintiff's defamation and other claims arising from the broadcast of a newsmagazine story about reality programming on one of the cable networks.
- Protecting a Los Angeles television station against defamation and invasion of privacy claims, we secured summary judgment against a sitting Superior Court judge who disputed the accuracy of a news report critical of his judicial performance; the California Court of Appeal affirmed that summary judgment on appeal, in a frequently-cited decision.