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Later this month, a California federal judge will consider whether to clarify the injunction that stopped VidAngel’s disc purchase-based filtering service in light of the company’s new platform, which piggybacks on users’ other streaming accounts.
VidAngel announced the $7.99-per-month service in June and was quickly questioned by the Hollywood studios with which it’s fighting a contentious legal battle. Disney, Lucasfilm, 20th Century Fox and Warner Bros. sued last summer, claiming VidAngel was operating as an illegal, unlicensed streaming service by allowing users to “buy” a disc for $20, watch a filtered stream of that movie and then “sell back” the film for a $19 credit.
U.S. District Judge Angre Birotte in December issued an injunction pausing VidAngel’s service while the litigation plays out. The filtering company appealed — and announced its new platform just days after arguing before the 9th Circuit.
The filterer is asking Birotte to clarify whether its new service is subject to the injunction that barred the old one, arguing it has addressed concerns about decrypting the discs, honoring streaming release windows and undercutting other companies’ costs. After receiving repeated criticism from the studios in court, VidAngel is firing back — and hoping to use the studios’ own words against them.
“One would think that because VidAngel has eliminated decryption, eliminated every alleged harm Plaintiffs offered any evidence at all to support, and based its new system on the purchase of authorized streams from LSSs as Plaintiffs previously told both this Court and the Ninth Circuit it should, Plaintiffs would now approve of VidAngel’s new technology,” writes VidAngel attorney David Quinto in a July 10 filing. “Notwithstanding their pious statements concerning filtering, Plaintiffs have now been thoroughly outed that they are trying to kill filtering.”
VidAngel also fights the studios’ claim that clarifying the injunction would materially alter the decision the appeals court has been asked to make.
“Granting the motion will not alter that VidAngel used the technology it used during 2015-16, and granting the motion will not affect Plaintiffs’ right, if any, to recover damages for VidAngel’s past use of its technology,” writes Quinto. “VidAngel’s motion does not address the enjoined service and technology. It concerns only a new service and technology that the Court necessarily could not consider in issuing its Preliminary Injunction Order.”
VidAngel had also asked the court to clarify whether VidAngel would be allowed under the injunction to “as a courtesy” stream to about 12,000 customers filtered versions of copies of films they purchased and did not sell back. Disney called the request “audacious” and suggested that if VidAngel wanted to “make whole” the users, it could give them a refund or “mail the users the discs they supposedly own” and those people could use a service like ClearPlay to watch the films with filters. VidAngel on Monday withdrew the motion.
A hearing is currently set for July 31.
In other entertainment legal news:
— Ohio State University football players are the latest group of athletes to sue over the use of their likeness. Former Cleveland Browns linebacker and current Fox Sports analyst Chris Spielman is suing OSU and IMG College, a division of WME-IMG, on behalf of a class of former and current student-athletes. Spielman says the university hung 64 banners with the images and last names of notable OSU football players around the stadium as part of a partnership with Honda — without getting permission or compensating them. “Defendants OSU, IMG/WME, and/or their Co-Conspirators have unreasonably and illegally restrained trade in order to commercially exploit former OSU student-athletes previously subject to its control, with such exploitation affecting those individuals well into their post-collegiate competition lives,” writes attorney Brian Duncan. “The conduct of Defendants OSU, IMG/WME, and its/their Co-Conspirators is blatantly anticompetitive and exclusionary, as it wipes out in total the future ownership interests of former student-athletes in their own images — rights that all other members of society enjoy — even long after student-athletes have ceased attending The Ohio State University and/or participating on the Football Program.” The lawsuit seeks trebled damages, disgorgement of profits and a declaration that OSU’s agreements with other entities that impose restrictions on the class are void and unenforceable. (Read the full complaint here.)
— The heirs of Melvin B. Tolson are asking the court to add a Louisiana false advertising claim to a lawsuit against Oprah Winfrey’s Harpo Films, The Weinstein Co. and MGM over his portrayal by Denzel Washington in 2007 film The Great Debaters. David Wayne Semien sued in March on behalf of Tolson’s living descendants, claiming they should have been compensated for the use of his name and “unique life experiences.” “Had the defendants sought permission to use Mr. Tolson’s name, image, identity, persona, reputation, distinctive attributes, and unique life experiences commercially in making and distributing a film about his life, then the family members represented here would have insisted on being fairly and adequately compensated,” writes attorney Scott Wilson. “Defendants’ actions are likely to cause, and have caused, confusion, and misled the public, which has been and is being led to believe that Mr. Tolson’s family endorses, sponsors, and/or is otherwise affiliated or associated with the film when, in fact, they are not.”
— Green-Light International has declared Chapter 7 bankruptcy following a more than $2 million arbitration loss. Raven Asset-Based Opportunity Fund II took GLI to arbitration in 2016, alleging the sales agent breached their contract by misappropriating nearly half a million dollars. A JAMS arbitrator in June issued an award against GLI, finding that it engaged in egregious misconduct inconnection with its sales of Imperium, starring Daniel Radcliffe, and Urge, starring Pierce Brosnan. Jeffrey Benz awarded $765,000 in damages, plus $186,000 in sanctions and attorneys’ fees and another $900,000 plus in sanctions against GLI for failing to produce its bank account statements. Raven is represented by Mathew Rosengart and Matthew Gershman of Greenberg Traurig.
— Former CAA TV business affairs exec Laura Sher has joined Cowan, DeBaets, Abrahams & Sheppard as a partner in its New York office. Sher’s hire is part of the firm’s expansion of its entertainment and television practice. “I’m delighted to be part of CDAS,” said Sher in an announcement. “Their ability to match a very high level of skill and experience with business-conscious client relations makes it a great platform for my re-entry into private practice.” Prior to CAA, Sher worked in legal affairs and business development for AMC Networks.
— CDAS also recently hired Carole E. Handler as a partner in its entertainment and IP litigation group. Handler, who specializes in copyright, trademark and antitrust cases, repped Marvel Entertainment for more than a decade and is credited with creating the trial strategy that allowed the company to recover the motion picture rights to Spider-Man in the late 1990s. Along with Handler, associate Brianna Dahlberg also made the move from Eisner Jaffe to CDAS.
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