Trib Calling Dick Tracy

Tribune Media Services has sued Warren Beatty, seeking to recover rights to the "Dick Tracy" comic strip series. Beatty purchased the rights in the 1980s, which resulted in the film starring Beatty and others in 1990. According to the complaint, Tribune's contract with Beatty allowed it to get the rights back if Beatty did not start any other projects based on the comic strip within five years after the release of the film.

After many years had passed, Tribune sought the rights back from Beatty, but he claimed to be in production on a half-hour special for the sole purpose of extending his rights. Beatty then sued Tribune, asking a court to bless his maneuver. However, in December, Tribune filed for bankruptcy protection and Beatty's lawsuit ground to a halt.

When a company files for bankruptcy protection, all litigations against it are automatically stayed. This allowed Tribune to commence its own lawsuit -- within the friendly confines of the Bankruptcy Court -- asking that the court award it the rights to "Dick Tracy." We'll see how the case proceeds.

Doing Time

When considering the consequences of copyright infringement, we tend to think about money damages or an injunction that stops a project dead in its tracks. Would anyone be surprised to learn that you could go to jail for copyright infringement? If so, put on a DVD and actually watch the warning. When you see it, you will learn what Kevin Cogill knows -- that copyright infringement can be criminal and result in up to one year in prison and a $100,000 fine.

Kevin Cogill uploaded nine tracks from the new Guns N' Roses album "Chinese Democracy" to the internet prior to the album release. He was prosecuted for criminal copyright infringement and ultimately pled guilty. In his plea, Cogill admitted that he got the tracks from a third-party, but the source was undisclosed. The uploaded tracks were available for download by the public at large. Through advertising on his website, Cogill profited from the availability of the songs on his website. Now, the government has asked that he be sentenced to six months imprisonment in an effort to deter other infringers. In particular, the government called leaks of pre-release works a "serious and growing commercial threat demanding more of a punishment than a slap on the wrist." The RIAA, the recording industry trade association, in a victim impact statement, claimed that the recording industry lost more than $3 million in sales as a result of Cogill's acts. The $3 million in sales roughly equals 150,000 copies of the album.

Hero Trumps Romantics

If you practice really hard, you could have an opportunity to try your hand at The Romantics' "What I Like About You" on Guitar Hero. Apparently, The Romantics weren't thrilled about video game immortality and they sued. The Romantics et al. v. Activision Publishing, Inc., et al. We'll discuss two theories of interest.

First, The Romantics asserted a violation of their right of publicity. The right of publicity is a state common law concept that protects an individual's right to commercially exploit their own name and likeness. Here, The Romantics sought to protect the sound of their voice, which they claimed was distinctive -- like Bob Dylan is distinctive. Michigan law has never recognized a right to protect the sound of a voice, even a distinctive voice. There is plenty of logic in this. Imagine all of the impressionists that would be out of work.

Second, The Romantics argued that Guitar Hero traded on their name in fame in selling the game -- a claim we lawyers call false endorsement. Again, The Romantics based their claim on their "distinctive sound.". Here too, the Court found no support for this position in the caselaw. On this claim, the Court concluded that The Romantics had failed to establish that the use of the song in the game was likely to cause confusion or mistake between the game version of the song and the original. There was no dispute that the song version of the game was a new recorded version, for which the game publisher had obtained a synchronization license. The result seems right to us. Any dissent?

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