“Family Guy” Tweet Gets Marlon Wayans Sued for Discrimination

August 28th, 2014 by

Wayans-TweetComparing an actor to Cleveland of Family Guy may have seemed funny at the time but it got comedian Marlon Wayans in a whole lot of trouble.  Pierre Daniel is suing Wayans for race discrimination, misappropriation of likeness and a whole bunch of other claims due to the tweet.

The 44 page complaint filed against Wayans isn’t the model of legal drafting but we will do our best to decipher the allegations.  Pierre Daniel worked as an actor on the upcoming movie, Haunted House 2….the complaint is not clear as to if Daniel is a star of the movie or a background actor.  During the filming of the movie, Wayans is alleged to have routinely leered, stared and rolled his eyes at Daniel and ridiculed Daniel for having an afro.   On September 4, 2013, Wayans posted a picture on Twitter stating that Daniel looks like Cleveland Brown from  Family Guy and the now cancelled spin-off, The Cleveland Show;  Wayans also used the n word in his tweet.  Daniel fought back by filing this lawsuit.

Daniel claims that Wayans and the movie company, by not stopping the conduct, discriminated against Daniel because he is African-American.  Daniel also claims his image was misappropriated as Wayans did not have permission to use Daniel’s likeness on Wayan’s Twitter feed and website.  Daniel claims that these actions have caused him to suffer emotional and mental distress, embarrassment, fright, shock, anxiety and pain and as a result Daniel needs medical care, X-rays and laboratory exams. Daniel seeks unspecified damages for his 13 causes of action related to this tweet.   Apparently words do hurt and in the case of this plaintiff, they hurt a lot.



Posted in Film / Television, Internet

Porn Classic “Deep Throat” Gets Down and Dirty with “Lovelace”

August 27th, 2014 by

The production company behind one of the most famous adult films of all time, Deep Throat, had their lawsuit against the Weinstein Company dismissed when the court held that the use of the film’s copyrights and trademarks in the bio pic, Lovelace, was Fair Use.

Deep Throat is a famous pornographic film released in 1972 and stars Linda Lovelace. I guess the judge’s law clerks did some in-depth watching on the skin flick because the court’s opinion contains a highly detailed and explicit recital of the movie’s plot…we will refrain from doing so but just leave you with one quote from the court, the film is “replete with explicit sexual scenes and sophomoric humor…”   Besides owning the copyright to the film, the producers are also owners of the LINDA LOVELACE and DEEP THROAT trademarks.

In 2013, the Weinstein Company released the movie, Lovelace, starring Amanda Seyfried which tells the story of Linda Boreman, the woman who portrayed Linda Lovelace and how she was coerced into the adult film, her later success, and then eventual disdain for the industry.  Much to the law clerks’ chagrin, and they note as such, Lovelace does not contain any pornographic scenes or nudity.

Plaintiffs allege that three scenes from Deep Throat are recreated, in part in, Lovelace. The scenes contained plot, actions and conversations taken from the copyrighted film without permission.  Besides the film being ripped off, plaintiff claims that the trademarks of the film and its star are used without consent.

The court dismissed all of the plaintiff’s claims finding that the movie’s use of copyrighted material fell under the doctrine of Fair Use.  The court found that the use was transformative as it added new, critical perspectives to the Deep Throat movie and that the recreated scenes are markedly different because they contain cuts to actors playing the film’s producers and camera crew. The court also dismissed the trademarks claims finding that plaintiff fails to allege that consumers are likely to be confused by defendants’ conduct.  This case proves that even adult film makers don’t get lucky all the time.





Posted in Copyrights, Film / Television, Trademarks

NCIS’s “Bert the Farting Hippo” Gets CBS Sued for Copyright Infringement

August 26th, 2014 by

I must admit that I have never seen an episode of NCIS but “Bert the Farting Hippo” may convince me to tune in. CBS was sued for copyright infringement for allegedly stealing the look of a puppet hippo and using it to make merchandise branded as “Bert the Farting Hippo”.

For the past 40 years, Folkmanis (yeah, don’t say the name of this company out loud around impressionable youngsters) has been the creator, manufacturer and distributor of fine stuffed animal puppets. In 2002, Folkmanis began distributing its stuffed hippopotamus that can be seen on the left below. In 2003, the puppet started appearing as a prop on the CBS hit show, NCIS, and was accompanied by a dubbed sound effect of a fart attributable to the big guy. The puppet was referenced as “Bert the Farting Hippo” and has appeared on more than a dozen episodes of the show.

In 2010, Folkmanis agreed to produce Bert for sale on CBS’s online store and later made key chains with a smaller version of Bert on them. In 2012, CBS cut out Folkmanis and had a company in China produce another hippo that was still branded as Bert. Folkmanis claims that this new version of Bert is a copy-hippo of their copyrighted version of the animal.

In order to establish copyright infringement, Folkmanis must show that the two works pictured below are substantially similar. Also, a hippo is a hippo and unless there is something unique to a design, the look of a hippo is not protectable under copyright.  Folkmanis seeks profits which it estimates as $733,000. Maybe CBS should have stuck with another stuffed character like “Flatulent Fox”.




Posted in Copyrights, Film / Television, Internet

Tolkien’s Estate Doesn’t Want Anyone Using a “Bagg-ins” Catheter Bag

August 25th, 2014 by

hobbitIf they had Lord of the Rings branded medical devices, who could say no?  Well, the estate of the late author, J.R.R. Tolkien, doesn’t want you to think that you are using a Tolkien branded device as it opposed the trademark registration for a catheter bag called “Bagg-ins”.

bilboMary Marshall Enterprises, Inc. is a medical device company that has several patents on catheter bags.  In September, in association with one of these products, Mary Marshall filed a trademark registration for the term BAGG-INS for “medical devices used for supporting fluid and waste collection bags”.  Hard to tell if the company was paying homage to the Tolkien character but there does not appear to be a hairy-footed hobbit pictured on the bags themselves.

The company that owns Tolkien’s trademark thinks the name of this handy medical device is trying to create some association with its BILBO BAGGINS and FRODO BAGGINS trademarks.  Since 1937, the original publication of The Hobbit, Tolkien and his estate have utilized the Baggins clan and registered trademarks related to the names.  In fact, according to the trademark opposition, behind the Bible the Lord of the Rings is second-most popular among men.

Tolkien’s Estate claims that Mary Marshall knew of the Lord of the Rings books and movies and adopted the BAGG-INS mark in bad faith with intent to cause confusion and deception and to create a false suggestion that the mark is associated with Tolkien’s trademarks and works.  Tolkien’s estate wants the registration refused or it unleashes Smaug.



Posted in Brands, Film / Television, Trademarks

A Monkey, Tree or Ghost Cannot Copyright Photographs

August 22nd, 2014 by

Well, the Copyright Office has weighed in on the simian selfie.  In an amusing statement from the Copyright Office they detailed that:  “the Office will not register works produced by nature, animals, or plants. Likewise, the Office cannot register a work purportedly created by divine or supernatural beings, although the Office may register a work where the application or the deposit copy state that the work was inspired by a divine spirit”  So a work can be inspired by a spirit but the actual spirit cannot take the photograph in order for it to be registered by the Copyright Office. Therefore, the monkey selfie below and any future photographs taken by tomato plants, Casper, or Treebeard are in the public domain.


Originally Posted on August 7, 2014

This is one strange “tail” that sounds like a scenario fit only for a law school final exam essay.  Generally, the person who takes a photograph is the owner of the copyright to that photograph, but what if the photo was taken by an animal? Who owns the copyright?

David Slater is a British wildlife photographer who has started a very big copyright dilemma.  In 2011, Slater was preparing to take photographs of macaques in Indonesia when one fame-loving critter stole a camera and took hundreds of photos including some cute selfies that would make Kim Kardashian jealous. The monkey selfies went viral and wound up as a free image to use on Wikimedia Commons.  Slater, believing that he owns the photograph, sent Wikimedia a takedown request but was met with resistance.  Wikimedia claims that Slater is not the owner of the photographer, the macaque is.  Slater believes that since it is his camera and he set up the photo shoot, he should own the image.

So who owns the photograph? Animals, despite a large lobby group lead by Bambi, Garfield and Bugs Bunny, do not have rights; domesticated animals are even considered personal property under the law. But under copyright law, the photographer is the owner of the photograph.  It is a unique question that may never go answered unless Slater commences legal action.  Until then, I will eat my banana and ponder this quandary.



Posted in Copyrights, Internet, Technology

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