July 24, 2014 12:51pm PT by Austin Siegemund-Broka, Eriq Gardner
Hollywood Docket: Chubby Checker Settles Penis-Size App Lawsuit
Hewlett-Packard has settled a trademark infringement suit regarding the name of a penis-measurement app sold in its app store.
Ernest Evans, the singer-songwriter who performed as Chubby Checker, sued HP last year for selling the app under the punning title "The Chubby Checker." In the settlement, filed July 22, HP admits no liability but agrees not to make use of the singer’s stage name, related trademarks or likeness.
The suit had claimed contributory trademark infringement against the software company, as the app was designed and named by a third party but approved by HP for sale in its app store.
The company claimed in a motion to dismiss that it had authorized the app without knowledge of Chubby Checker’s trademarks, and that upon learning of them in the 2012 cease-and-desist letter from Evans’ attorneys, had removed the app within days. A judge sided with Evans that he was "internationally known" as Chubby Checker and that HP's "detailed" app approval process should have discovered his name. Evans' trademark infringement claims were allowed.
But his claims of unfair competition and right of publicity — claims under state law — were dismissed on the basis of Section 230 of the Communications and Decency Act. The statute holds that online “service providers” cannot be held responsible for the content third parties publish on them.
In other entertainment law news:
Dan Lin, Roy Lee and Doug Davison are defending their fraud claim against Legendary Pictures over this spring's monster hit Godzilla. Last month, Legendary Pictures submitted a demurrer that argued the removal of the three producers couldn't rise to fraud because it happened nearly three years after a producing agreement was made. The producers have now responded to this by saying that Legendary never had any intention of honoring an agreement with them, that they were induced to steer Godzilla to Legendary rather than other studios, that they were induced to give significant creative contributions, "all while concealing an intent to remove [them] at some later time upon satisfaction of those objectives." Here's the full response to the demurrer.
Rupert Murdoch’s News Corp has settled three more lawsuits over phone-hacking. Actor Rhys Ifans, comedian and TV host Michael Barrymore and an agent settled for undisclosed damages over allegations that the company’s tabloid News of the World had their phones hacked. An eight-month criminal trial ended last month with the acquittal of former News of the World editor Rebekah Brooks and the conviction of former editor Andy Coulson of conspiracy to hack phones.
In other hacking news, Sony has signed an agreement to settle a class-action suit over the 2011 hack of its online PlayStation Network. Personal information from 77 million users was stolen in the hack, including names, addresses, email addresses and passwords. Sony apologized to gamers, shut down the network for several weeks, and attempted to win back users with free credit card monitoring and a "welcome back" promotion that included free games. The new preliminary agreement would provide users joining the class-action suit with $15 million worth of free games and services, including free subscriptions to the Sony Music Unlimited streaming service. A judge has yet to approve the agreement.
Lionsgate has been hit with a shareholder class-action suit for failing to disclose a Securities and Exchange Commission investigation. By Feb. 11, 2013, the studio was under SEC scrutiny for transactions it made to prevent a hostile takeover by Carl Icahn in 2010. The investigation, which Lionsgate settled with the SEC for $7.5 million in fines, was not made public until Mar. 13, 2014. Wolf Haldenstein Adler Freeman & Herz filed the class-action suit on behalf of shareholders who purchased Lionsgate stock between those dates. The studio’s stock value fell in the weeks following the disclosure of the investigation, but in recent weeks has risen again to $32.05 a share. A Lionsgate rep says the lawsuit is wholly without merit.
After the Supreme Court ruled last month that video streaming service Aereo violated copyright by broadcasting copyrighted content, another streaming service, FilmOn X, continued to stream local broadcast programs to New York users’ smartphones and tablets for the two weeks following the decision. The company held that while Aereo’s streaming without royalties was disallowed, FilmOn was willing to pay royalties like a cable system. A federal judge in Manhattan has now said she will likely hold FilmOn in contempt of court for streaming after the Aereo ruling. Judge Naomi Reice Buchwald said that as an online content provider, FilmOn could not simply declare itself a cable company with the right to stream broadcast signals.
Earlier this year, a U.K. judge ruled that Fox's hit show Glee infringes the trademark of an Oxford comedy club named the "The Glee Club." This week, news reports circulated that the judge had ordered Fox to change the name of the show in the U.K. But that's not all. According to this report of the judge's decision, the plaintiff is being allowed to go after the show's profits. What's more, Fox might have to inform viewers of the court's judgment.