Many pop stars have indulged in a fantasy-fulfilling visit to the Playboy Mansion once they've made it. However, in Drake's case, Playboy has come after him, alleging that the star's success is due in part to a song owned by the media company.

Playboy Enterprises is claiming that Drizzy's breakthrough hit "Best I Ever Had," samples the 1975 song "Fallin' in Love," by Hamilton, Joe Frank & Reynolds (also known as Hamilton, Joe Frank and Dennison), which is owned by Playboy.

According to a report posted on MissTilaOMG.com, Playboy Enterprises is suing Drake, Cash Money Records, Universal Music Group and Universal Music Group Distribution for copyright infringement.

Drizzy's 2009 hit from his So Far Gone mixtape topped the charts, vaulted the rapper from the mixtape scene and solidified the MC's status as a mainstream star. The video for "Best I Ever Had," which was heavy on scantily clad lady b-ballers, also scored a lot of buzz among his fans.

Hamilton, Joe Frank & Reynolds' 1975 song "Fallin' in Love" went to #1, the group's last big record after switching up their lineup and notching a hit in the early '70s with "Don't Pull Your Love (Out)."

Writer William Richert, represented by Neville Johnson of Johnson & Johnson and Paul Kiesel of Kiesel, Boucher & Larson, filed the lawsuit against the WGAW in 2005 on behalf of 17,000 guild and non-guild writers to whom the union owed money.

A number of European and South American countries began to impose taxes in the 1980s on distribution of copyrighted American works in television broadcasts and video rentals.

Starting in 1991, those funds were paid to WGAW, which placed them into a trust. The guild is supposed to disburse the money, whether the recipients are union members or not.

According to a guild report released in August last year, the WGAW had amassed a backlog of about $30 million in undistributed levy funds. The guild said it could not disburse the accumulating money because it could not locate the recipients.

Los Angeles County Superior Court Judge Carl West signed the final settlement agreement last week, which required the guild to "use its best efforts to pay all foreign levy funds in its possession" under the continued direction of the court.

The settlement also required the guild to post on its website a database where writers can either check to see if they're owed money or register works that may one day entitle them to foreign levies.

The settlement calls for a one-time audit of the levy program, "from inception to present," by one of the "Big Four" accounting firms - PricewaterhouseCoopers, Deloitte Touche Tohmatsu, Ernst & Young or KPMG.

The audit, which will tally the total amount of money that's ever been brought into the program, the interest accrued and the amount distributed to writers, will be posted on the WGAW website for five years and paid for with interest generated from the funds held in trust.

Money allotted for writers who can't be identified will be donated to a court-approved charity and payments intended for writers, who can be identified but not located, will become unclaimed property subject to California law.

Initially, the guild claimed it should be able to keep funds intended for identifiable writers who could not be located, but three writers objected and pushed to have the undeliverable payments become unclaimed property.

Objecting writers Eric Hughes, Art Eisenson and Stefan Avalos also succeeded in limiting the guild's scope of release, giving some class members the ability to pursue legal remedies not covered in the lawsuit.

Their lawyers, who first became involved in the case after West's approval of a preliminary settlement agreement last October, filed objections with the settlement in February and continued to be involved in negotiations until the final agreement was signed.

Those lawyers - solo practitioners Jeffrey Winikow and Steven Kaplan - requested $193,800 in fees, plus $1,023 in costs for their combined 323 logged hours in papers filed with the court late last month.

Kiesel, who did not immediately return a call seeking comment, requested $231,897 for about 300 hours of work starting in March 2008, when Kiesel became co-counsel on the case.

Winikow, who logged a total of 77 hours for the case, said he believed West will recognize the impact the objectors had on the final settlement when a motion to approve the fees goes in front of the judge at a July 1 hearing.

"It's well established that when objectors' participation presents a benefit to the class, that entitles you to reasonable attorneys' fees," Winikow said in an interview.

Kaplan did not immediately return a call seeking comment.

Although a disagreement over attorneys' fees will not impact the settlement, counsel for both sides can object to fee requests.

Johnson, who is requesting $800,299.80 in fees for his work on the case since 2005, declined comment on whether he would formally object to the objectors' fees, which would be paid out from the guild's unclaimed funds.

Anthony Segall, a partner with Rothner, Segall, Greenstone & Leheny who represented the guild, did not return calls seeking comment on the requested fees.

If approved, the settlement would bring to an end a long-running class action over the guild's inability to disburse about $30 million in foreign levies owed to screenwriters whose work has been distributed overseas. "This settlement will provide a substantial and real benefit for all class members," West said.

The WGA, which has collected and distributed the levies since 1991, was supposed to send that money to union and non-union writers, but the guild claims that some of the funds started pooling after several recipients could not be located.

Writer William Richert, represented by lawyers from Johnson & Johnson and Kiesel, Boucher & Larson, filed the class action in 2005 over the guild's inability to disburse the money, which comes from taxes on cable broadcasts and video rentals of movies and programs in several European and South American countries.

The settlement, which West granted preliminary approval to last fall, calls for the accounting and distribution of the levy funds the guild has collected the past two decades.

Objectors to the agreement included the Australian Writers' Guild Authorship Collecting Society, which claimed the class definition is too broad and would prevent Australian writers from pursuing potential future legal action over undistributed levies against the WGA.

Also objecting to the settlement were two writers who claimed the agreement did not guarantee payment to class members and that it didn't provide an accounting of who has been paid.

"My preliminary inclination is to override the objections and give the settlement final approval," said West, who assured objectors that the court would oversee the ongoing administration of the agreement.

Lawyers for the guild, the class and the objectors agreed to meet outside of court to amend the existing agreement and to draft a final agreement order by next week for West to sign.

Lawyer Battles Unions in Foreign Levies Cases

By Jean-Luc Renault
Daily Journal Staff Writer

LOS ANGELES - Neville Johnson, the 60-year-old founder of Beverly Hills' seven-attorney firm Johnson & Johnson, sat hunched over a counsel table during a morning hearing last week at the Central Civil West Courthouse.

Neville L. Johnson

He already reached a nearly identical settlement over the same issue in 2008 against the Directors Guild of America. With a similar case against the Screen Actors Guild nearing a settlement, Johnson is poised to go three-for-three. But West put the brakes on that momentum temporarily after he directed both sides to tie up a few loose ends in the agreement.

Johnson has an intimidating presence. He's a big, gruff guy whose gravely voice is punctuated with expletives. He's got a sense of humor that puts others at ease, and his toothy smile glints with the same impish charm flashing behind his crisp blue eyes. "He's a funny guy," said Lincoln Bandlow, a Lathrop & Gage partner who defended several clients in the entertainment industry against plaintiffs Johnson represented. "In one case, I had won a motion after Neville lost an earlier one," Bandlow said. "He said to the judge 'If you're going to give him one, you should give me one, too!'"

That's how Johnson has been able to aggravate opponents while, at the same time, win them over. "He can be fun to argue against in court, and he can be frustrating to argue against, too," said Bandlow. "He's a pit bull with a bone - he'll grab a hold of it and keep shaking even after you think you've prevailed and moved on. But whenever I get a call from somebody who wants to sue a record label or a big company, Neville is the first guy I tell them to call." Tenacious as he is, peers say Johnson can sometimes get carried away when arguing for something he believes in.

Paul Kiesel, a partner with Kiesel, Boucher & Larson who is co-counsel on the WGA and SAG class actions, said Johnson "can, at times, be unbridled in his passion." "Neville brought me into these cases to provide a calming influence over a very passionate personality that he brings," Kiesel said. Johnson, who often describes his cases as David versus Goliath, would be proud of that characterization. "Everyone in this town wants to make a deal with someone we want to sue," Johnson said. "And that's what we do."

Johnson knew he wanted to be a lawyer by the time he was 12. That's when he was awestruck after watching Marvin Freeman, a lawyer and family friend who later became a Superior Court judge, argue in court. But after studying sociology and journalism at UC Berkeley, the Loyola High grad took a detour on those plans and founded the "Night Times," a Bay Area newspaper. He said journalism, like law, had always appealed to him as a career. "In both areas, I like that you can take on large adversaries for the benefit of society," he said. But after a dispute with a business partner a year later, Johnson left the news business and to pursue a law degree. "Law school was the single most important event and turning point in my life," he said. "It sort of gave me a reason for being on the planet."

After graduating from Southwestern Law School in 1975, Johnson had stints in private practice and as a public defender. He went solo in 1978, and his big break came three years later when he started representing Yoko Ono and the estate of John Lennon. In 1984, he sued Earth, Wind & Fire's publishing company in a separate case and won. Johnson represented Mark Sanders, a telephone psychic service employee, in a lawsuit filed against ABC in 1993. A reporter from the network had used a hidden camera and microphone to record conversations with Sanders at the service's office as part of an investigative report. The 5-year case, which Johnson eventually won before the state Supreme Court, redefined news-gathering laws.

The win also kick-started Johnson's invasion-of-privacy and defamation practices - strange pursuits for a former newsman. "I do find it somewhat ironic that I became one of the lawyers who had significant success suing the media for right of privacy and defamation," Johnson said. "But media has its problems like any other industry. I did a valid public service by keeping them on the straight and narrow."

That's how Johnson views the majority of his cases: public services benefiting the little guys. The guild cases are a prime example. The money, known as foreign levies, came from European and South American countries that began collecting taxes in the 1980s on video rentals and cable retransmissions of movies and TV shows to compensate copyright holders. In 1991, the countries started sending the funds to the three guilds, which were supposed to disburse the money to union and non-union directors, writers and actors. But the guilds said some recipients were impossible to locate, and after nearly 15 years the unions were sitting on tens of millions of dollars in undistributed funds.

Johnson learned about the money from Eric Hughes, a candidate for WGA president in 2003 and 2004. Hughes had gained access to the union's financial records from a board member and, through his research, learned that the directors' and actors' unions were also holding large amounts of undistributed levies in trust. He passed along that information to Johnson, after which the lawyer asked current clients who fit the mold to serve as lead plaintiffs in each of the suits against the guilds.

"He was a mastermind behind all these," said law partner Doug Johnson, who is not related, and who also worked on the cases. The DGA case was the first to reach a settlement, the terms of which required the guild to do a full accounting of its foreign levy program and keep a database on its Web site where directors can claim their portion of the more than $10 million in undistributed funds. The 2008 settlement netted $399,538 in attorney awards and fees for Johnson's firm, just short of the $400,000 the lawyers had requested for their 436 hours of work. Lead plaintiff William Webb was awarded a $15,000 incentive fee for his involvement in the case. West, also the judge from the DGA case, approved a similar settlement agreement with the WGA in September. Although the sum of the WGA's undistributed levies was larger, the settlement arrangement involving a Web database was essentially the same as the DGA's. Pending West's approval, requested attorney fees in the WGA settlement range between $500,000 and $1.75 million.

Johnson is also requesting that William Richert, a non-union screenwriter and one of the lead plaintiffs on the case, receive an incentive payment of $20,000. The other two lead plaintiffs, Maude Feil and Ann Jamison, would receive $3,500 each if approved. Johnson is also representing Ken Osmond, who played Eddie Haskell in "Leave it to Beaver," in another class action against SAG involving $8 million in undistributed levy funds, which is set to follow the same path as the other two lawsuits. "I'm not going to say it was cookie cutter, but our work did become somewhat easier as each case developed," said Johnson, adding that the lawsuits were necessary to dislodge the funds being held by the guilds. "The Number 1 goal in all these cases is to provide accountability and transparency, and I think we've gone a long way in achieving that end," he said. "It was the only way."

On the weekends, Johnson pursues eclectic hobbies. Fifteen years ago, the opposite was true. Johnson was all work, all the time, and it was taking its toll on the wearied lawyer. That changed when a priest friend pulled the busy lawyer aside one day. "He told me to respect the Sabbath," said Johnson, who was raised Catholic. "Hey, I'm down with that! One does not have to spend their entire life working." Johnson's most recent side project is recording and releasing albums under the stage name Trevor McShane, which was, until recently, a secret identity. As McShane, Johnson's deep, twang-inflected vocals are laid over a bed of bluesy rock n' roll - the kind one would expect to see married baby boomers dancing to after having three too many beers at their local bar and grill. But during the week, he insists that he's all Johnson.

"First and foremost, I practice law," he said. "I don't want to be perceived as someone not serious about being a lawyer - by clients, judges and opposing counsel. But I'm serious about getting my music out to the public." With big plans this year - he's releasing one new song for each week of 2010 - he said it would have been hard trying to keep his identities separate to fans and music critics. Besides, it probably would have been even more difficult to sell some of the dubious claims in McShane's biography, which tells about the reclusive musician's stints as a Tibetan monk-in-training, a merchant seaman, a graduate student in Bulgaria and a science professor at a small Midwestern university. It sounds a bit kooky, but McShane's sort of an inside joke for Johnson, who laughs when talking about pursuing his other passion in life. "We're only on this planet for a limited amount of time," said Johnson. "I don't want to be one of those people at the end of my life saying, I should have done this."

As such, in September 2007, Kohen instructed his attorney, defendant Brandon Hull ("Hull"), to write to Nordstrom to demand that Nordstrom stop selling Haute Stuff's shirts within 48 hours of the letter and pay restitution to Kohen's company of $1.00 per Chick Magnet and Ladies Man shirt sold.

Hull sent a cease-and-desist letter to Nordstrom (without carbon copy to Haute Stuff) on Oct. 5, 2007. Nordstrom acquiesced, immediately pulling the "infringing" goods off its shelves and "depublishing" them from its website. On Oct. 19, 2007, after the cease-and-desist letter, Kohen e-mailed an employee at NAZ stating: "I am afraid Chick Magnet has well and true become public domain. It is an indefensible property where it comes to infringement."

Despite Kohen's statement, Hull continued to assert to Nordstrom that NAZ did own copyrights in the words. In December 2007, Hull e-mailed in-house counsel at Nordstrom, Barbara Barbilleaux, confirming that his client did not have any registered copyrights for the Chick Magnet and Ladies Man designs but nonetheless claiming that his client had common law copyright protection for the designed based on his client's purported independent creation and use in commerce of the designs. Haute Stuff sued NAZ, in connection with defendants' cease-and-desist letter and conduct, for allegedly destroying the business relationship between Haute Stuff and Haute Stuff's largest customer. Kohen and NAZ sought indemnity from Hull for allegedly failing to properly advise them.

PLAINTIFF'S CONTENTIONS: The plaintiff contended that Hull's assertion that had no legal basis because, as it is widely known, common law copyright no longer exists in American law. Moreover, Haute Stuff's intellectual property lawyer, who dealt with Hull and Nordstrom at the time, testified that Hull admitted to him that Hull knew that NAZ's assertions to Nordstrom were legally baseless, but that Kohen was a very aggressive client and used such cease-and-desist letters to his competitor's customers as a calculated means to squelch competition. Indeed, over the five years preceding NAZ's cease-and-desist letter to Nordstrom, the defendants had engaged in a systematic pattern of fraud to eliminate its competition in the apparel business, especially with respect to competitors who sold t-shirts with commonly used words and/or short phrases on them.

Gabriel further testified that Hull told him that his client had been very successful in court on its "legal theory" that common words like Chick Magnet and Ladies Man could be copyrighted. However, when Gabriel asked Hull to send him each complaint that had been filed by NAZ and the case name and number for each such case, Hull failed to provide him with any such information. This is because NAZ had never actually sued anyone for copyright infringement. Hull eventually stopped returning Gabriel's phone calls and refused to respond to his multiple inquiries.

Thus, defendants poisoned and destroyed Haute Stuff's business relationship with Nordstrom. At least two Nordstrom employees, including its own in-house counsel, told Haute Stuff's attorney that Nordstrom would not continue its business relationship with Haute Stuff because of defendants' letter. Nordstrom stopped ordering from Haute Stuff for seven months, and meticulously phased out Haute Stuff as a Nordstrom vendor.

DEFENDANT'S CONTENTIONS: Kohen and NAZ contended that plaintiffs failed to demonstrate bad faith. Defendants contended that Kohen and NAZ relied upon the advice of counsel that the position advanced was legally viable. Defendants contended that, as a matter of copyright law, registrations are not necessary to establish copyright rights. Kohen contended that he was not aware that the claims advanced were not legally cognizable under copyright law. Defendants further contended that Haute Stuff's declining sales with Nordstrom were caused by Haute Stuff's poor performance as a vendor and not as a result of defendants' cease and desist letter.

DAMAGES: Haute Stuff's claims included interference with contractual relations, interference with prospective advantage, violation of the Lanham Act and trade libel. As compensatory damages for the California tort claims, Haute Stuff sought lost profits at present value in the amount of $1,768,476.

For the Lanham Act claims, Haute Stuff's damages expert valued the lost goodwill at $1,412,602 and calculated lost profits of $1,768,476. At trial, Haute Stuff would have elected to recover its lost profits, which would have approached $1.8 million based on additional interest on the date of a judgment. The Lanham Act also authorizes trebling of Haute Stuff's compensatory damages in cases where willful conduct is shown, and does not preclude an award of punitive damages on state law tort claims. In "exceptional cases," the prevailing party on a Lanham Act claim may recover its attorney's fees where there is "bad faith or other malicious conduct."

The attorney's fees could have reached $400,000 had there been a trial.
Kohen and NAZ contended that the damage calculations were flawed and unsupportable.

SETTLEMENT DISCUSSIONS: At the beginning of the case, defendants offered high five figures and plaintiff countered at $2.3 million.

RESULT: The case settled for $1.75 million.

Douglas L. Johnson has been named a Super Lawyers “Rising Star” in the area of intellectual property litigation for the last five consecutive years (2006-2010). (Rising Star attorneys represent the Top 2.5% of their profession in Southern California for lawyers 40 year old and younger).

Selected to Super Lawyers:
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