The era of anonymous defamation and online impersonation has arrived. Given that the Internet provides virtually unlimited access to information, it is no surprise that claims of defamation and invasion of privacy through this medium have exploded. Unlike in traditional newsprint, where the harmful content is eventually discarded, injury inflicted via online posting continues in perpetuity, causing victims to suffer continuing harm. What, if anything, can a lawyer do to protect a client stung by Web-based bad-mouthing?

Key Statute
At the core of all online liability cases is section 230 of the federal Communications Decency Act (CDA) which states that “no provider … shall be treated as the publisher or speaker of any information provided by another content provider.” This language grants every Internet service provider (ISP) immunity from liability for defamation and invasion of privacy. (47 U.S.C. § 230.) Since the CDA’s passage in 1996, ISPs have been using their section 230 immunity as an affirmative defense against defamation claims, thereby reducing the incentive for self-policing.

Examples abound: Take the case of a successful attorney who was incessantly taunted by a disgruntled former suitor on a website almost entirely dedicated to the attorney’s defamation. The defamer continuously changed ISPs, making it impossible for the attorney to enforce injunctive relief. In another situation, a California resident was impersonated on Facebook. Such personal attacks have a significant effect on the subject’s professional life, and they can cause extensive personal stress. This type of impersonation has become so widespread that a number of groups have sprung up to raise awareness and support the victims – Stalking Victims Sanctuary and CyberAngels among them.

But what about the victim’s legal rights? The reality is that the current legal framework makes it difficult for victims in these cases to recover damages.

Strong Immunity
Section 230 provides near blanket immunity for website hosts. Immunity even extends to ISPs that affirmatively choose to re-publish information. In one case, an alternative medicine advocate named Ilena Rosenthal posted to her message board a defamatory article that had been published elsewhere about two “quack” doctors who opposed her practices. Even though Rosenthal took an active role in selecting and disseminating the article on her board, she was provided section 230 immunity because she was found to be “a mere distributor” of content. (Barrett v. Rosenthal, 40 Cal. 4th 33 (2006).)

Immunity for Internet service providers even protects those who host unlawful material. For example, when Craigslist was sued for hosting offensive and racist housing advertisements stipulating “NO MINORITIES,” the popular posting site invoked section 230 immunity. The court granted it, reasoning that Craigslist was merely republishing content provided by others. (Chicago Lawyers’ Committee v. Craigslist, 519 F.3d 666 (7th Cir. 2008).) In a corollary case, Myspace was held to be immune from liability for the sexual assault of teenage girls who had met their assailants through the social networking website. The court granted immunity to Myspace because under section 230, it could not be liable for the publication of third-party content. (Doe II v. Myspace, Inc., 175 Cal. App. 4th 561 (2009).) These rulings illustrate not only the scope of immunity granted by section 230, but also the offensive behavior it has facilitated.

Trial lawyers have alleged a broad range of torts in an effort to circumvent CDA immunity, but with little success: Courts have rejected claims for declaratory and injunctive relief. (See Noah v. AOL Time Warner, Inc., 261 F. Supp. 2d 532, 540 (E.D. Va. 2003).) In addition, claims for negligence, negligent misrepresentation, interference with business expectancy, contractual liability, misuse of public funds, nuisance, and premises liability have also proved unavailing. (See Doe v. America Online, Inc., 783 So. 2d 1010, 1013-17 (Fla. 2001); Schneider v. Amazon.com, Inc., 108 Wash. App. 454 (2001); and Kathleen R. v. City of Livermore, 87 Cal. App. 4th 684, 698 (2001).)

Tough Road
In light of these developments, is there any way to succeed on an Internet defamation claim? The quick answer is: not easily.

Given the broad immunity contained in the communications act, few courts have held ISPs responsible for damages inflicted by posted content. However, it has happened. The Ninth Circuit has found that a website acting as a “content provider” rather than a mere “re-publisher” does not have immunity. In that case, the website Roommates.com “filtered” the results displayed to users based on the preferences they selected. The court reasoned that such a “collaborative effort” fell outside the protection offered under section 230. (Fair Housing Council v. Roommates, Inc., 521 F.3d 1157 (9th Cir. 2008).)

Although Roommates demonstrates that defamation lawsuits against ISP hosts are possible in cases where the provider affirmatively acts to create content, substantial barriers remain. For one, many online posters are anonymous. Moreover, plaintiffs often face burdens both in establishing jurisdiction and in defending against the inevitable anti-SLAPP motion.

Anonymity of Posters
Although the law allows defamation victims to claim damages against the poster (instead of the ISP), this is not always feasible because the poster may be broke or of limited means. To compound the problem, there are strong protections for the anonymity of online posters, often making it impossible to uncover the person’s true identity. In California, if a plaintiff issues a subpoena commanding an ISP to identify a poster, and a motion to quash has been filed, the plaintiff must give notice to the poster and establish a prima facie case of defamation before the poster’s identity will be released. (See Krinsky v. Doe 6, 159 Cal. App. 4th 1154, 1172 (2008) (discussing plaintiff’s requirements).) These requirements make Internet defamation and privacy cases more costly and protracted, as the victim must run the gauntlet before addressing the substance of a real complaint.

Jurisdictional Barriers
When defamatory material is posted on the Internet from another state, asserting jurisdiction in the plaintiff’s home state can be difficult. To establish personal jurisdiction, the injured party must satisfy the Supreme Court’s “Calder effects test,” which requires that the plaintiff prove the defendant “purposefully directed” the publication toward the forum state. (See Calder v. Jones, 465 U.S. 783 (1984).) Although this test is more flexible than the “minimum contacts” standard, it still presents a substantial hurdle. If the plaintiff cannot establish both that the defendant engaged in “conduct expressly aimed at or targeting the forum state” and “intent to cause harm in the forum,” the court will dismiss the case. (Pavlovich v. Superior Court, 29 Cal. 4th 262, 271 (2002).)

The Anti-SLAPP Statute
In California, the anti-SLAPP statute (Cal. Civ. Proc. Code § 425.16) presents a serious problem to plaintiffs considering litigation for defamation that may be related to public issues. This law allows a defendant to file an early motion to dismiss, provided the challenged activity is constitutionally protected speech. (§ 425.16(b)(1).) Once the motion is filed, the plaintiff must show a reasonable probability of winning the underlying action. Should the plaintiff fail, the defendant is entitled to costs as well as attorneys fees. (§ 425.16(c)(1).) Moreover, the filing of an anti-SLAPP motion generally stays discovery until the motion is resolved. (§ 425.16(g).) The anti-SLAPP statute is a powerful defensive tool that can delay the underlying defamation action – sometimes for years. (See Grewal v. Jammu, 191 Cal. App. 4th 977 (2011).)

Injunction Barriers
A common option for plaintiffs is to include a request for injunctive relief to force a “takedown” of the offensive post. However, some ISPs are so emboldened by their CDA immunity that they disregard such requests (especially if they are not parties to the litigation).

One of the most egregious examples of this phenomenon is Ripoffreport.com. The consumer-oriented website has the reputation of not only being host to many instances of Internet defamation, but also being cavalier about regulating the content on its site – even after becoming aware of defamatory publications. In one case, the victims of defamation secured court injunctions against three websites that hosted defamatory content. However, when they asked another court to enforce the injunction, it was determined that Ripoffreport.com was not legally required to respect the injunction, as the site was not acting in “active concert” with the poster. (Blockowicz v. Williams, 630 F.3d 563 (7th Cir. 2010).)

In light of these current challenges – including the broad scope of the CDA and the numerous other issues that arise – legal recourse against online defamation is exceedingly difficult. Although some remedies are available, as a practical matter most plaintiffs will be left at the mercy of the Internet service provider to take down the content voluntarily. This is likely to remain the case until the legal protections for ISPs are altered.

Looking Ahead
Because there are few effective remedies for Internet defamation, businesses such as Reputation.com have emerged to offer extra-legal solutions to online smear campaigns. Such sites work to “push down” defamatory content in Web search results to make them less visible. The very existence of such services is indicative of the law’s failure to stem the tide of Internet libel. For injured plaintiffs who seek legal redress, few alternatives are available.

Nonetheless, a recent case may create a small window of opportunity. In a rare decision, the court in Jones v. Dirty World Entertainment Recordings, LLC (840 F. Supp. 2d 1008 (E.D. Ky. 2012)) denied summary judgment on section 230 immunity grounds to the defendant Dirty.com because the website went beyond mere hosting, and “specifically encouraged development of what is offensive about the content.” (840 F. Supp. 2d at 1012.) In reaching this decision, the court weighed three factors: the very name of the site encouraged defamatory content; the site selected which posts to publish, and added eye-catching “taglines”; and Dirty.com periodically added “comments” to many posts to increase the dialog of defamatory content. Although this case is arguably in conflict with mainstream case law regarding section 230, it may serve (along with the Roommates.com decision) as a template for future plaintiffs who seek to avoid dismissal under the CDA.

Suing Abroad
Another option is to bring suit in a foreign court. The United Kingdom, for example, has more plaintiff-friendly libel laws, which makes success in defamation lawsuits less difficult for injured claimants. (Siobhain Butterworth, “A Minor Triumph For Libel Reform,” The Guardian, March 16, 2011.)

Procedurally, the U.K. maintains a multiple-publication rule, allowing multiple claims to be brought before the courts, even if the statute of limitations has passed on the first instance of publication. (See Duke of Brunswick v. Harmer, 117 E.R. 75 (1849).) This stands in stark contrast to the United States’ “single publication” rule, which allows only one cause of action for libel, regardless of whether the content is republished. (See Lori A. Wood, Cyber-Defamation and the Single Publication Rule, 81 B.U.L. REV. 895, 897 (2001).)

English law is also more favorable to defamation plaintiffs substantively. In American courts, the plaintiff bears the burden of proof, whereas British courts reverse this burden. (See Swanson, The Burden to Prove Libel, 20 Cardozo J. of Int’l & Comp. L. 71 (2012).)

However, plaintiffs who hope to litigate overseas face several problems. For one thing, it has become increasingly difficult to enforce foreign judgments in American courts. Several states – including New York and California – have passed “libel tourism” laws preventing enforcement. (See Cal. Civ. Proc. Code § 1716(c)(9).) Parallel federal legislation is also in place, effectively barring the enforcement of foreign defamation judgments unless they meet American legal standards. (See 28 U.S.C. §§ 4101-4105.) Additionally, legislators in the U.K. have introduced a bill that would require plaintiffs there to demonstrate that the U.K. is the most appropriate forum to bring their claim. (Ministry of Justice, Draft Defamation Bill, CP3/11, March 15, 2011.) Another move under consideration in Britain is amending the libel laws to more closely mirror those of the United States, including adopting the single- publication rule. Regardless of whether this new legislation passes, it is clear that pursuit of an international claim is growing more difficult.

A Legislative Remedy
One possible solution to the problem of Internet defamation is to amend section 230 to more closely resemble the Digital Millennium Copyright Act, with its system of notice and take-down procedures to regulate copyrighted material online. (See 17 U.S.C. § 101.) If ISPs can be forced to take down copyrighted material, proponents assert, why can’t defamation victims enjoy similar protection, especially since the harm is more intimately felt? There is sure to be spirited debate from all corners on this sensitive issue.

On the international front, several measures have been proposed to stem Internet defamation. The U.K. is weighing whether to create a takedown system that would establish a streamlined, clear-cut procedure for the removal of defamatory or libelous Internet content. The process would be different depending on whether the author is identifiable or anonymous, thus also making anonymous posters easier to find. (Ministry of Justice, Draft Defamation Bill, CP3/11, ¶ 93, March 15, 2011).

The underlying goal of these efforts is to reduce the instances of Internet defamation and increase the remedies available to victims, while still allowing for robust public debate on issues of importance

http://www.callawyer.com/clstory.cfm?eid=928446&wteid=928446_Remedies_for_Web_Defamation

Neville L. Johnson, a partner at Johnson & Johnson in Beverly Hills, handles civil litigation, including media and entertainment matters. Ashley Hunt and Zita Aradi contributed to this article.

by Neville L. Johnson, founding partner specializing in entertainment litigation at Johnson & Johnson LLP

& Eric Mueller, editor-in-chief of the UCLA Entertainment Law Review

The National Conference of Personal Managers (NCOPM) lost the first round of its fight against the constitutionality of the California Talent Agencies Act (TAA), California Labor Code Section 1700 et seq., on March 5, when U.S. District Court Judge Dean Pregerson granted a motion to dismiss a lawsuit challenging the TAA. NCOPM v. Edmund G. Brown, No. CV 12- 09620 (C.D. Cal.). So where does this leave the current regulation of talent agents and personal managers?

The TAA

The state Legislature has grappled with the procurement of employment in the entertainment industry for decades. The ongoing regulatory tension comes from the attempt to simultaneously govern personal managers and talent agents – professions which overlap. Managers often have no choice but to seek employment for clients who are unable to get licensed agents.

The enactment of the TAA in 1978 established the current regulatory framework. The growing concern was the attempt to bifurcate the roles and regulation of “personal managers” and “talent agents.” The TAA aimed to clarify this distinction by redefining “artists’ managers” as “talent agents.” According to the TAA, talent agents are individuals engaged in the occupation of procuring, offering, promising or attempting to procure employment for an artist. Personal managers, in theory, act strictly as coordinators and advisors for an artist’s career opportunities. The TAA establishes that no person can act as a “talent agent” without first obtaining a license from the labor commissioner.

A disgruntled artist believing a personal manager has violated the TAA can file a “petition to determine controversy” with the labor commissioner, and the decision then may be tried de novo in superior court. (The labor commissioner originally had exclusive initial authority to hear and resolve disputes. However, the U.S. Supreme Court held in Preston v. Ferrer, 552A U.S.A 346 (2008), that when parties agree to arbitrate all questions arising under a contract, the Federal Arbitration Act supersedes state laws vesting jurisdiction over a dispute in an administrative forum, thus allowing arbitration of unlawful procurement disputes.)

Managers often have no choice but to seek employment for clients who are unable to get licensed agents.

Until 2008, the vast majority of claims resulted in management contracts being voided ab initio and all earned commissions being forfeited or, if previously paid, ordered disgorged. That year, the state Supreme Court decided Marathon Entertainment v. Blasi, 42 Cal. 4th 974 (2008), which held that while fully voiding the parties’ contract is an available remedy, the labor commissioner has discretion to apply the doctrine of severability to enforce the remaining lawful portions of management agreements.

Following Blasi, the labor commissioner began applying severability and awarding managers a portion of their earned commissions. For example, in Dwight Yoakam v. The Fitzgerald Hartley Co., No. TAC-8774 (2010), the commissioner chose not to void ab initio oral contracts between Dwight Yoakam and Gary Ebbins, a former personal assistant turned “in-house” manager, and between Yoakam and The Fitzgerald Hartley Co. (FHC), Yoakam’s music management firm. The commissioner instead severed the various unauthorized procurement provisions. FHC had repeatedly violated the TAA by negotiating for certain services that did not fall within the act’s recording contract exemption for music managers, but the commissioner was persuaded to apply the severability because the William Morris Agency performed many of the licensed agent activities. This demonstrated the collateral nature of the procurement activities in a personal manager agreement, thus warranting severability.

Despite the increasing use of severability, however, the commissioner still voids management contracts ab initio when the evidence demonstrates that the “central purpose” of the contract is to unlawfully procure engagements.

For instance, in Kyle Bluff v. Paris Djon, No. TAC-17277 (2011), the commissioner voided a music management agreement in its entirety and ordered the management company to disgorge all of the earned and previously paid commissions. Similarly, in Duane Chapman v. Boris Krutonog, No. TAC-3351 (2012), Duane “Dog” Chapman was awarded $534,450 in a claim against Boris Krutonog, an executive producer on the series “Dog the Bounty Hunter.” The commissioner determined that Krutonog’s actions to recover producer’s fees on the series were in fact a veiled attempt to recover compensation for managing the Chapmans.

Of course, the TAA provides personal managers with a safe harbor when they “act in conjunction with and at the request of a licensed talent agency in the negotiation of an employment contract.” In Tony Plana v. Tracy Quinn, No. TAC-15652 (2012), Tracy Quinn, Tony Plana’s talent manager, had agreed with Plana’s talent agent that she would reach out to a casting talent executive for the TV show “Ugly Betty.” The commissioner cited the historical tendency to treat acts completed in furtherance of securing employment as part of “the negotiation,” and held that Tracy Quinn was entitled to the safe harbor. Deciding not to void the management agreement in its entirety, the commissioner held that Quinn’s additional unlawful procurement activities were entitled to severance.

Conversely, in Josh Todd v. Todd A. Meagher, No. TAC-13418 (2012), the commissioner held the TAA did not provide Todd Meagher, rocker Josh Todd’s personal manager, with safe harbor protection where he agreed with Todd’s talent agent that they “should work every angle” together. The commissioner ultimately held that Meagher’s entire management agreement was illegal, void and unenforceable. Likewise, in Brian Transeau v. 3 Artist Management, No. TAC-7306 (2009), the commissioner held that 3 Artist Management was not entitled to safe harbor protection when the evidence demonstrated that manager’s practice was “to solicit, procure, negotiate and then pass off the contract to a licensed talent agent” to finish the deal. Simply having a licensed talent agent finalize the deal is not sufficient to warrant safe harbor protection.

The NCOPM

This history leads us to the TAA‘s most recent court challenge. In November 2012, the NCOPM filed a constitutional challenge against the TAA on the grounds that it unfairly singles out personal managers without due process, is unconstitutionally vague for failing to define “procure employment,” violates the First Amendment by restricting commercial speech, violates the Commerce Clause by discriminating against out-of state personal managers, and violates the 13th Amendment – resulting in involuntary servitude – because personal managers are not properly compensated for labor, and violates the Contracts Clause.

Judge Pregerson dismissed each NCOPM argument, stressing that California courts have interpreted the phrase “procure employment” on multiple occasions and determined that it is not vague. The court found no merit in the First Amendment challenge, noting that the TAA regulates conduct, not speech, nor was the court persuaded by the Commerce Clause challenge, as there was no proof that the managers were ever refused licenses because they were located outside of California. The 13th Amendment challenge was found wanting because personal managers have full discretion to refrain from procuring employment for their clients or to obtain a license to do so. Finally, the court ruled that the Contract Clause is only relevant when a law is enacted after the formation of a contract, which did not occur in this case. The NCOPM has appealed this decision.

Since Blasi was decided, the commissioner has heard 39 TAA disputes. Managers have found themselves on the losing end of all 15 cases that directly addressed unlicensed procurement activities. Of these, 11 have resulted in the management contracts being voided ab initio, while only four have been held to be severable.

Severability is far from a guarantee. The most comprehensive protection for personal managers against voided management contracts is to engage talent agents at the earliest feasible stage, something often very difficult to do. Due to the consistently adverse rulings by the labor commissioner, which so often result in voided contracts and disgorged commissions, personal managers should seriously consider and probably negotiate mandatory arbitration clauses in their management agreements to present their cases in forums that are more favorable to their position. Managers should weigh the cost of a labor commissioner hearing and a superior court trial and attendant appeals against the cost and speed of arbitration. Until the Legislature modifies the law relating to procurement in the entertainment industry – unlikely given the politics involved – personal managers must continue to tread lightly.

Neville L. Johnson is a founding partner specializing in entertainment litigation at Johnson & Johnson LLP.

Eric Mueller is a 3L at UCLA and editor-in-chief of the UCLA Entertainment Law Review.

Daily Journal – California’s Largest Legal News http://www.dailyjournal.com

A judge won’t dismiss class action claims over a record label’s accounting.

Like many musicians, Martha Davis has been looking at her royalty statements and wondering whether she should be getting more income when consumers buy music off of digital outlets.

Davis was the lead singer of the 1980′s Los Angeles-based New Wave band, The Motels, who hit it big with the songs, “Only the Lonely” and “Suddenly Last Summer.” She’s among a throng of recording artists who have filed lawsuits against major record labels for not turning over enough royalties on digital music. She’s the lead member of a nationwide class action against EMI Group and Capitol Records and alleges that if the defendants counted digital music as “licenses” rather than “sales” — because there’s no physical manufacturing happening on iTunes — she’s be seeing a much heftier royalty rate, per her contract.

The question for a judge in her case is whether Davis waited too long to bring her claims. Should she have filed a complaint, say, when Apple introduced iTunes 12 years ago and record labels began accounting for income there as “sales”?

On Thursday, U.S. District Judge Yvonne Gonzalez Rogers rejected Capitol’s arguments that her claims were barred by statute of limitations.

Judge Rogers gives two big reasons in her ruling (read in full here) why her claims aren’t time-barred.

First, although Capitol believed that Davis was contractually required to give written notice of an objection upon receiving a royalty statement, the judge says that the allegations arguably support a basis for tolling, meaning that the time in which she needs to object is paused. The judge says that it’s a question of fact, which is another way of saying that it won’t be resolved until later after the parties engage in fact-finding.

Second, the judge says that Davis can make the case that she was prevented from learning about the alleged errors by the record company’s misrepresentations or concealment.

“Here, Davis alleges that Capitol knowingly underpaid her and other class members by reporting digital download licenses as sales of physical record sales, and concealed the fact that Capitol improperly accounted for sales,” the judge writes.

Judge Rogers also declines to dismiss a claim for declaratory relief over Capitol’s argument that it is duplicative of her claim for breach of contract. The judge also refuses to reject claims that Capitol breached a covenant of good faith and fair dealing and violated California’s Unfair Competition Law.

“Davis’s allegations regarding the circumstances of the fraud here are sufficiently particular,” writes the judge. “The facts as to who made the decisions regarding the alleged misleading royalty statements are facts peculiarly within the control of Capitol. Davis’s general allegation of Capitol’s knowledge is permissible.”

If Capitol can take any solace from the ruling, it’s that the judge has denied the possibility of punitive damages.

Still, Capitol and EMI are facing big claims. This lawsuit brought by seven lawyers at four different law firms aims to represent others in the relevant class. According to an amended complaint, EMI’s roster of artists include Coldplay, Beatie Boys, Gorillaz and Norah Jones. In general, the royalty rate for a “sale” is about 15 percent whereas for a “license,” it’s about 50 percent.

A side-note: Capitol Records recently experienced a big legal win against ReDigi, an upstart service which aimed to take advantage of the First Sale doctrine of copyright law to allow its users to resell “used” digital music.

In Davis’ lawsuit, the lawyers quoted Capitol’s ReDigi complaint in an attempt to show that record label was being somewhat two-faced by arguing in a different context that digital audio files were licensed (which would mean that they weren’t subject to the First Sale doctrine). In the ReDigi complaint, the record companies used the phrase “distributes and licenses,” which then got changed (among other language modifications) by Davis’ lawyers as “redistributes and licenses.”

Capitol wanted the judge to strike the passage from Davis’ complaint.

Judge Rogers responds, “While it is clear that Davis did not directly and accurately quote the language from the ReDigi complaint, the error does not change the meaning of the ReDigi allegations in any significant way. The Court does not condone Davis’s misquotation, but neither does it find the allegation ‘immaterial, impertinent, or scandalous’…”

E-mail: eriq.gardner@thr.com; Twitter: @eriqgardner

 http://www.hollywoodreporter.com/thr-esq/motels-singer-advances-lawsuit-digital-442941

These attorneys helped shape the face of entertainment

By Variety Staff
http://variety.com/2013/biz/features/litigators-1200334503/

Top litigators include Lawrence Iser, Mark Holscher, Christopher Landau, Neville L. Johnson, Neville L. Johnson, Neville L. Johnson, Glenn D. Pomerantz, Daniel A. Rozansky, Robert M. Schwartz…

Neville L. Johnson
Founding partner, Johnson & Johnson
Southwestern, 1975

Johnson filed class actions against the five major Hollywood studios alleging endemic underpayment on homevideo and digital media for pre-1980s movies for writers, producer, actors and directors. He also co-counseled in three class actions against record industry companies over digital download royalties regarding years of underpayments to artists. Johnson defended blues icon B.B. King in a claim that was then voluntarily dismissed. “It’s exciting to challenge practices in the music, film and television industries that violate the rights of talent for compensation they are owed,” Johnson says.

Peter R. Afrasiabi
Founding partner, One
USC, 1997
John Tehranian
Founding partner, One
Yale, 2000
This team won the case Mavrix v. Brand Technologies in which a celeb photo agency sued the owners of a Hollywood gossip website alleging infringement of certain photos featuring singer Stacy Ferguson (aka Fergie). It defined the Internet activities that can give rise to personal jurisdiction to bring out-of-state copyright infringers to face charges in California in connection with their unlawful activities. In the past year, at least 86 federal court decisions have cited the case, which has substantially increased the ability of content owners to bring suit in their home jurisdiction when infringers exploit copyrighted works online before a national audience. “In this sense, for our clients — from the largest studios to the up-and-coming artists — we regularly serve as a profit, rather than cost, center,” says Afrasiabi. “The type of counsel we provide has a profound impact on both our relationship with our clients and, ultimately, their perception of value from the legal industry.”

Mark Holscher
Partner, Kirkland & Ellis
Berkeley, 1988
Christopher Landau
Partner, Kirkland & Ellis
Harvard, 1989
This pair made headlines earlier this year when they secured a $19 million award for Don Johnson in his suit against Rysher Entertainment over profits from his TV series Nash Bridges. While L.A.-based Holscher focuses on showbiz, recently repping private equity fund Melrose 2 in a breach of contract suit against Paramount and “Survivor” producer Mark Burnett in a dispute over ownership of his production company, the Johnson case was a rare Hollywood outing for Washington, D.C.-based Landau, an appellate specialist who has successfully argued before the Supreme Court for clients such as Hughes Aircraft and Allstate Insurance. But the two worlds aren’t so far apart, according to Landau: “Whether you’re making a TV show or a movie or presenting your case in a courthouse, you want to be able to tell a story that people relate to and understand.”

Lawrence Iser
Managing partner, litigation
Kinsella Weitzman Iser Kump & Aldisert
Hastings, 1980
Sometimes a legal action doesn’t reverberate until several years have passed. For example, Iser’s victories on behalf of musical artists Jackson Browne in 2008 and David Byrne in 2010 — whose songs were used without permission by the campaigns of presidential candidates — didn’t have full impact until 2012’s presidential race. Those lawsuits forced candidates to secure licenses to publicly perform songs at campaign events. “It was very exciting to observe that we’d successfully educated the political establishment to respect artists’ rights and not to use copyrighted works without permission,” Iser says.

Barry Langberg
Shareholder, Brownstein Hyatt Farber Schreck
U. of San Francisco, 1968
Langberg won a precedent-setting award for Las Vegas mogul Steve Wynn in a defamation lawsuit against “Girls Gone Wild” creator Joe Francis late in 2012. The $19 million decision — the largest in the Internet age — is considered by legal industry publication the Recorder among the Top 5 California Million-Dollar Verdicts of 2012. The Recorder cites Langberg and his team for a “brilliant courtroom strategy.” The victory’s message? “There’s a consequence for malicious actions,” he states, “and if you intentionally spread lies virally, the price you pay will be very high.”

Daniel Petrocelli
Partner, O’Melveny & Myers
Southwestern, 1980
Ranked as one the country’s top trial lawyers, Petrocelli recently won a landmark victory for Warner Bros., securing its rights to the Superman character and franchise after years of litigation. Similarly, he won federal appeals for Disney concerning its trademark rights to its “Winnie the Pooh” franchise. Previously, Petrocelli repped Warner Bros. successfully in a legal challenge over the creation of “The Last Samurai”. His long track record of high-profile cases began with the successful wrongful death suit against O.J. Simpson.

Glenn D. Pomerantz
Partner, Munger, Tolles & Olson
Harvard, 1983
Pomerantz’s highest-profile case may have been successfully defending ABC against CBS’ effort to stop the premiere of reality series “Glass House.” The Eye claimed it ripped off its franchise “Big Brother.” In a genre that depends on real interactions in a real setting, the case showed it was very “hard to prove substantial similarity,” a key to copyright claims, he notes. Pomerantz also overcame opposition to help obtain federal approval for Universal Music Group’s purchase of EMI, and won a ruling on behalf of Fox from the 9th Circuit that rejected a challenge to cable “bundling” of channels, which may have the farthest reaching implications for the business.

Daniel A. Rozansky
Partner, Stroock & Stroock & Lavan
Loyola, 1992
Rozansky client Aramid Entertainment lent tens of millions to David Bergstein and Ron Tutor’s companies, then sued when it didn’t get paid back. But they were up against litigious defendants who not only filed cross-complaints but even sued Rozansky himself. That suit was dismissed, and Rozansky was awarded attorney’s fees, but he also recovered $2 million in unpaid tax credits along with confidential settlements. He says that the cases have reminded him that “if you can stay true to your legal fundamentals and values, at the end of the day, you should be able to get to the finish line.”

Robert M. Schwartz
Partner, O’Melveny & Myers
USC, 1984
At last year’s E3 vidgame conference, “Call of Duty” developers Jason West and Vince Zampella wore T-shirts that read “Terms of the settlement are strictly confidential.” Just days before their suit against Activision was to go to trial, with perhaps $1 billion at stake, they came to an agreement finalized by their attorney, Schwartz, who says the case showed “the talent that make these incredibly popular games are no longer faceless drones that sort of get pushed around by the publishers.” Also, Schwartz defended Warner Bros. and the CW in a vertical integration case filed by the creators of “Smallville.”

Stanton “Larry” Stein
Partner, Liner Grode Stein Yankelevitz Sunshine Regenstreif & Taylor
USC, 1969
Covering cases involving entertainment and media litigation and intellectual property, Stein has repped such high-profile clients as producer-performer Timbaland, singer LeAnn Rimes and filmmaker Michael Moore. He notes that since the advent of the Internet and today’s rapid technological innovations, “provisions in existing entertainment contracts have not kept abreast and often do not even address important financial and intellectual property rights. The legislature often moves too slowly and therefore the judicial system will be responsible for deciding the rights of the various players in the industry.”

Orin Snyder
Partner, Gibson, Dunn & Crutcher
U. of Pennsylvania, 1986
Snyder represented Voom HD in a breach of contract case against Dish Network, landing a whopping $700 million settlement in the dispute over Dish’s dropping of an affiliation agreement. He’s also involved in what will be one of this year’s most closely watched antitrust cases, over the pricing of e-books, as he represents Apple, the target of the federal government’s suit. The Voom case, Snyder says, “reinforces the message that companies are prepared to take cases all the way if necessary.”

Joel R. Weiner
Partner, Katten Muchin Rosenman
Berkeley, 1988
In the past 12 months, Weiner has worked on high-profile cases defending NBC Universal over copyright infringement claims for such shows as “Heroes,” “The Biggest Loser,” “Animal Practice” and Bravo’s “Million Dollar Decorators.” Through the years he’s found a way to expedite this process. “If these cases can get decided earlier, it’s more efficient and less expensive for studios and the networks. That way, they can focus on creating new projects instead of litigation. The cases we are handling are clarifying for the industry the scope of copyright protection, which will hopefully reduce the need for litigation.”

Howard Weitzman
Partner, Kinsella Weitzman Iser Kump & Aldisert
USC, 1965
Weitzman successfully represented “Two and a Half Men” creator Chuck Lorre in the Charlie Sheen lawsuit, and Justin Bieber in several litigation claims, including a paternity suit. He currently reps the Michael Jackson estate, dealing with multiple litigation claims and as well as handling transactional and business matters with Cirque du Soleil, Sony ATV and other revenue opportunities. “Resolving high-profile disputes, given increased news coverage and social media, is a challenge when balancing the clients’ interests versus the public’s insatiable appetite for gossip.”

Jonathan Zavin
Partner, Loeb & Loeb
Columbia, 1973
Zavin reigns as the go-to litigator for fending off copyright infringement claims. In the past year, he has successfully defended MGM and Fox Home Entertainment’s rights to “Raging Bull” and the creators of “The Big C,” and won a dismissal for Viacom against a claim that its “SpongeBob SquarePants” ukulele infringed on Gibson Guitar’s trademarked “Flying V” shape. But he spent most of his time defending DreamWorks Animation against two claims that it stole the idea for its blockbuster “Kung Fu Panda.”
Profiles compiled by Hillary Atkin. Iain Blair, Ted Johnson, Todd Longwell, Michael Palumbo and Michelle Salemi.

Glen Larson is taking a “ready, fire, aim!”-approach to recouping millions in lost profit participation claims; the studio is fighting back, even subpoenaing his ex-wives.

From the moment that veteran TV producer Glen Larson, 76, filed a lawsuit in 2011 against Universal City Studios over millions of dollars in profits from hit series he created — classic genre shows like Knight Rider, Buck Rogers in the 25th Century, Magnum P.I. and the original Battlestar Galactica – the situation was bound to get ugly.

Fights over so-called “Hollywood Accounting” are nothing new, but Larson’s complaint was particularly scathing.

“As the shows make more money for Universal, the deficit that Larson Productions must overcome continually increases,” the complaint stated. “It’s Hollywood’s version of being a sharecropper.”

Since the lawsuit was lodged in a L.A. Superior Court, both sides have engaged in the sort of mud-wrestling that sometimes occurs when heavy-hitting Hollywood litigators match up against each other. Except this time, the lawsuit has flummoxed the judge and now has triggered a long list of subpoenas, including several sent to Larson’s ex-wives.

The case has grown so complicated that at a recent hearing, Universal’s attorney suggested that it might take as much as a one-month-long jury trial to sort through the issues.

The pre-trial discovery process is rarely one that’s shown on TV legal dramas (Universal’s cable TV series Suits is a fine exception), but can factor quite importantly to the resolution of a dispute.

In this instance, Universal is quite upset that Larson — the 76-year-old producer who spent decades on some of its most successful shows — has taken what it calls a “Ready, Fire, Aim” approach to money. The studio would have preferred that Larson ordered up an audit of his profit participation agreements rather than kicking open the courtroom gates to dig around for dirt.

In turn, Larson has his own qualms with Universal’s behavior.  Universal allegedly never once sent him profit participation statements despite his shows earning hundreds of millions of dollars. The producer is represented by attorney Neville Johnson, who previously handled the lawsuit of Jack Klugman, star of the Larson-produced show Quincy, M.E., and is also playing a key role in recently-filed lawsuits against five major studios — including Universal — over home-video revenue.

In other words, Johnson is engaged in a full-frontal assault on Hollywood Accounting, and believes he’s on the cusp of turning over documents that will expose a dirty fraud being perpetuated on the industry’s creative class. Like many profit-sharing disputes, the Larson case involves issues like net income and distribution costs. One of the big claims in the lawsuit is that when Universal makes a TV series, it deducts distribution fees from gross receipts, then charges up-front expenses but only books revenue from licensing agreements much later.

Not surprisingly, the studios have not made Johnson’s crusade financially easy for his boutique firm to pursue. In the Larson lawsuit, frustrated by Universal’s unwillingness to simply hand over all the documents he wishes to see, Johnson has made “high priority” requests for discovery — and the lawsuit has dragged on for months as the two sides do a tango over whose responsibility it is to identify which shows Larson holds profit participation. The number is anywhere from four shows to 21 shows, and amazingly, the parties haven’t pegged down an exact figure.

It’s been Judge James Dunn‘s responsibility to sort through the mess against the backdrop of a L.A. Superior Court that is experiencing a budget crisis necessitating closures and layoffs.

At a hearing in February, the flabbergasted judge repeatedly pressed Universal’s lawyers, “What is the difficultly in identifying the TV shows in which Glen Larson, a profit participant, played? … Either he does or doesn’t have a right to contingent compensation… What is the issue there?”

“It sounds simple,” said one of Universal’s lawyers. “It’s not all that simple.”

Universal’s legal team is being spearheaded by Scott Edelman at Gibson Dunn, who has become a bit of a specialist in beastly profit participation fights. For example, on behalf of CBS, he recently brought to a conclusion a lawsuit from Donald Bellisario, the creator of NCIS and JAG, who sued over spin-off money. A couple of months before that case was settled on the eve of a January trial, Edelman subpoenaed Bellisario’s medical records and wished to depose his physicians upon the revelation that the 77-year-old was experiencing a severe brain condition.

The Larson litigation is going similarly. Edelman has reacted to the plaintiff’s discovery requests by making his own bold ones. Recently, Universal has served subpoenas on many in Hollywood including the Ziffren Brittenham law firm, International Creative Management and the law firms and accountants who handled Glen Larson’s divorce from ex-wives Janet Larson and Carol Larson.

Edelman’s efforts to score documents from folks affiliated with Larson is not without legal purpose. He’s hoping to uncover evidence that the producer knew his contingent interest in shows at a date early enough that would preclude plaintiff’s claims on statute of limitations grounds. (Indeed, the clock played an important factor in the Bellisario case, and statute of limitations has become a friendly weapon for studios in fights over profits.) In prying into Larson’s divorce proceedings, there’s an expectation that at some point, there was a calculation made about the value of Larson’s profit participation.

This, of course, hasn’t gone unchallenged.

Earlier this month, Janet Larson’s law firm made a motion to quash the subpoenas based on attorney-client privilege and attorney-work product. Johnson’s firm is also attempting to quash, limit or modify the subpoena, calling it a “fishing expedition” and “egregiously overbroad,” adding that Universal is asking the third parties to identify documents relating to Larson Shows “even though Universal itself has contended that identifying the shows that Plaintiff has a contingent compensation in is so complicated and complex a task that Universal itself has supposedly been unable to perform it.”

When will this all get to trial?

A jury is tentatively scheduled to hear the dispute in November. The plaintiff’s side asked for ten days, and Edelman told the judge, “I think it’s probably a 15- to 30-day trial, and I would ask for a trial in March.”

Judge Dunn responded, “Well, ten days versus 15 to 30 days is quite a different story… I’ll give you a date at the end of the year, and we’ll see if you need a continuance.”

http://www.hollywoodreporter.com/thr-esq/inside-universals-ugly-battle-creator-438617

E-mail: eriq.gardner@thr.com; Twitter: @eriqgardner

Lan P. Vu, James T. Ryan. Nausheen Kazalbasch, Neville L. Johnson (Partner), Noelle C. Brown, Douglas L. Johnson (Partner), John D. Fowler

Douglas L. Johnson

Johnson & Johnson, LLP

439 North Canon Drive, Suite 200
Beverly Hills, CA 90210

Contact Douglas L. Johnson

T: 310-975-1080

F: 310-975-1095
Visit: www.jjllplaw.com

Practice Areas: Intellectual Property Litigation (40%), Entertainment & Sports (30%), Business Litigation (30%)

Law School: University of the Pacific McGeorge School of Law

Profile

Douglas Johnson is a partner at Johnson & Johnson, LLP.  Mr. Johnson is well known for handling high profile entertainment disputes.  Recently, he settled class actions against the Directors Guild, Writers Guild, and Screen Actors Guild for tens of millions of dollars of unpaid foreign levies.  Mr. Johnson is an expert in the field of right of publicity law and regularly speaks on the subject.  He is well known for his successes in theft of idea cases for television, including reality shows.  Mr. Johnson also specializes in profit participation litigation against movie studios, television, and cable networks.  He recently filed class actions on behalf of a number of famous individuals against each major movie studio for failure to properly pay home video royalties.  He also handles music contract and royalty disputes and is counsel in several class actions against the major record labels for digital download royalties.  This is Douglas Johnson’s eighth consecutive year as a Super Lawyers Rising Star.

Selected To

Southern California Rising Stars 2013
Southern California Rising Stars 2012
Southern California Rising Stars 2011
Southern California Rising Stars 2010
Southern California Rising Stars 2009
Southern California Rising Stars 2008
Southern California Rising Stars 2007
Southern California Rising Stars 2006

Neville L. Johnson, a former journalist, often takes the media to task for questionable news-gathering tactics, such as the use of hidden cameras or undercover reporters. (Professor David Elder’s treatise of privacy law is dedicated to Johnson.) This year the plaintiff-side litigator took on SAG, the WGA and the DGA over the millions he alleges are owed to guild members from the collection of foreign levies. The DGA settled, working out an arrangement in which an accounting firm will conduct an independent review of its foreign levies program. And Johnson was a familiar face at the Anthony Pellicano trial because he reps several alleged victims of Pellicano’s web in civil cases, including the estate of the late producer Aaron Russo. ]]> http://www.jjllplaw.com/2013/04/07/the-100-most-influential-attorneys-in-entertainment-2/feed/ 0 http://www.jjllplaw.com/2013/04/07/%e2%80%9cvoted-best-entertainment-law-by-best-of-la-tv-viewers-in-2010%e2%80%9d/ http://www.jjllplaw.com/2013/04/07/%e2%80%9cvoted-best-entertainment-law-by-best-of-la-tv-viewers-in-2010%e2%80%9d/#comments Sun, 07 Apr 2013 07:33:43 +0000 admin http://www.jjllplaw.com/?p=1119 “Voted Best Entertainment Law by Best of LA TV Viewers in 2010”

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