Hollywood Docket: Athletes v. NCAA; Netflix v. Jerry Kowal; Oksana Baiul v. WME
A roundup of entertainment law news including appellate rulings on book scanning and 'The Bourne Identity.'
After nearly five years in court, NCAA athletes have finally made it to trial in a landmark antitrust lawsuit that contends the National Collegiate Athletic Association and its business partners have conspired to deprive athletes of compensation in the licensing of their names, images and likenesses.
On Monday, the plaintiffs called former UCLA star Ed O'Bannon to the witness stand. "I was an athlete masquerading as a student," O'Bannon testified in an Oakland federal courtroom. "I was there strictly to play basketball."
At the bench trial before U.S. district judge Claudia Wilken, the plaintiffs also called Dr. Roger Noll, a professor of economics at Stanford, who echoed the athletes' arguments that the NCAA is "a cartel that creates a price-fixing scheme among its members" by imposing compensation limits for athletes.
The athletes in the case have decided to forgo the possibility of monetary damages on individual claims in favor of seeking an injunction. If judge Wilken sides with athletes, it might shake up the NCAA's amateurism rules and allow athletes to negotiate deals and attempt to stake some of the billions of dollars paid by broadcasters for licensing rights.
In the months leading up to the trial, a separate lawsuit involving the publicity rights of athletes was settled with Electronic Arts and the Collegiate Licensing Company paying $40 million to athletes and on Monday, the NCAA announcing its own $20 million settlement. Some EA executives were expected to testify in the the antitrust lawsuit that continues today.
In other entertainment law news:
- On Tuesday, the 2nd Circuit Court of Appeals handed down the latest opinion in the decade-long legal fight over efforts by university libraries to electronically scan books in their collection. After addressing whether the plaintiffs in HathiTrust had standing to bring copyright claims -- domestic U.S. authors' associations lacked standing while the federal appeals court ruled foreign authors associations could proceed on behalf of members -- the 2nd Circuit made a major pronouncement on the issue of "fair use," holding that the legal doctrine allowed universities to create a full-text searchable database of copyrighted works. The 2nd Circuit remanded the issue of whether the preservation of digital copies infringed rights but said that an abandoned project involving orphan works (works in copyright, but with indeterminate rights-holders) wasn't ripe for adjudication.
- A New York appeals court won't let the widow of Anthony Lazzarino sue Warner Bros. for transferring away rights to The Bourne Identity. Lazzarino once held film rights in the Robert Ludlum book and made a deal with Warners' Orion that entitled him to a 3.75 percent interest and a presentation credit on any film. Warners passed on the movie and it ended up in the hands of Universal. Lazzarino's widow still sought payment, arguing that Warners caused Universal's film to be produced. But last year, a New York judge rejected the attempt. An appeals court has now affirmed the ruling, saying Lazzarino's deal "does not contemplate such a payment," and even if Warners violated Lazzarino's "right to match," the claim was barred by statute of limitations."
- The Alabama-based singer who sued Owl City's Adam Young over "Good Time" has agreed to withdraw her claims that the song was stolen. A stipulation for dismissal was filed on Monday. As a result, $525,901 in ASCAP money that was escrowed pending the resolution of the case will be disbursed to Young. Last month, the parties also agreed to dismiss claims against Carly Rae Jepsen in this case.
- Netflix is looking to strike what it calls a "sour-grapes lawsuit" filed by Jerry Kowal, its former director of content acquisition who departed for Amazon in the summer of 2013. Kowal is suing after allegedly being blacklisted from the digital video industry. Netflix now states in court that when Kowal resigned from Netflix, he took with him a host of confidential documents, including international content deals that were outside his job responsibilities at the company. Kowal is said to have downloaded materials on vacation, weeks before he resigned. Netflix says that it began investigating the "malfeasance" and that what Kowal is complaining about -- Netflix's alleged efforts to interfere with his employment at Amazon -- constitutes constitutionally protected petitioning activity. As such, Netflix is looking to take advantage of California's anti-SLAPP statute, meant to deter frivolous litigation at an early stage. "At best, Kowal's lawsuit is a meritless attempt to retaliate against the Netflix Defendants for Netflix's exercise of its right to investigate Kowal's taking of confidential documents and to try to resolve its anticipated lawsuit against Kowal before having to file a lawsuit," says Netflix's motion. "At worst, the complaint amounts to a blatant smear campaign." Netflix follows Amazon's own attempt to escape the lawsuit.
- Last month, the William Morris Agency prevailed against Oksana Baiul in the figure skater's claims of being robbed of tens of millions of dollars during her career. The judge in the case slammed the lawsuit as "frivolous and, frankly, bizarre," but dismissed Baiul's claims largely on statute of limitations grounds. Here's the judge's opinion, which is already on appeal. Baiul also recently lost a lawsuit against NBCUniversal, which is now demanding the former Olympian pay significant legal fees in her attempt to "extort" the media company.