Hollywood Docket: Netflix Defeats Claim by Deaf Blogger Who Fought for Captioning

Plus other entertainment legal news, including a setback for Dr. Dre regarding Beats royalties and a Disney-Lucasfilm suit over vinyl bracelet charms.
Netflix's 'House of Cards'

Should Netflix be considered a public place?

The question became central to the lawsuit filed in March 2011 against the company by deaf blogger and activist Donald Cullen. He claimed in his proposed class action that the streaming service behind House of Cards and Orange Is the New Black violated federal and state disability laws by not captioning some of its video library.

Cullen claimed he continued subscribing to the service because of alleged promises by Netflix executives of extensive captioning on the website, on which he said they never delivered. He further argued he and other deaf subscribers were forced to pay a "deaf tax" because they had to subscribe for a higher rate to access captioned videos.

Netflix won the first round, defeating Cullen's claims with a motion to dismiss in 2012. Cullen appealed to the court of the Ninth Circuit, which handed him a second defeat Wednesday.

In both rulings the courts focused on language in the Americans With Disabilities Act that bars discrimination in "any place of public accommodation."

"We have previously interpreted the statutory term 'place of accommodation' to require 'some connection between the good or service complained of and an actual physical
place,' " reads the appellate decision. The court decided the Netflix website couldn’t be considered a public place — like a movie theater — because it occupies no physical location. It therefore didn't violate the law with incomplete captioning.

Cullen's attorney Jack Fitzgerald of the Weston Firm was unavailable for comment.

In other entertainment law news...

- It's been an up-and-down week for Dr. Dre (aka Andre Young) and Jimmy Iovine in the multisided battle they're facing over royalties for their Beats headphone label. On Mar. 30, the moguls and Beats were dismissed with prejudice from the claims they faced from Hinrichs & Associates, a tax and auditing firm assigned to receive royalties for the design firm Pentagram. But on Thursday they were denied their motion to evade the claims from Steven Lamar, who says he came up with idea for Beats but was excluded from the Beats-Pentagram royalty split. Via parent company Apple, Beats declined to comment.

- "This case concerns the concerted, systematic and wholesale theft of various world-famous intellectual properties owned by Plaintiffs," reads the complaint filed Thursday by Disney, Lucasfilm and the Muppets Studio. Specifically, the case concerns vinyl toys — bracelet charms produced by a Florida woman named Sunny Welker for her company Vinylies. The studios — which also include Sanrio, the Japanese company behind Hello Kitty — claim Welker sold charms of their characters with knowledge she was infringing on their copyrights and trademarks (though they’ve now been mostly removed and Vinylies' Etsy page currently reads, "Please make note we can not sell any Disney Characters"). The plaintiffs want at least $200,000 for each trademark infringement and $2 million additionally if the infringement was intentional. THR has reached out to Welker for comment.

- Paramount has quickly beaten a potential class action suit over obtaining consumer reports for prospective employees. Michael Peikoff sued the studio in January claiming it violated the Fair Credit Reporting Act by obtaining a consumer report on him when he applied for a job there in 2011. The studio notified prospective hires in its disclosure form they could inquire with the company about consumer reports procured about them, but the FCRA requires employers disclose their plans to get consumer reports "in a document that consists solely of the disclosure." Still, the studio won dismissal of the lawsuit with prejudice Mar. 26 because it didn’t show “reckless disregard" for the statute, only slight noncompliance. Read the rulingTHR has reached out to Peikoff's attorney for comment.

- The tenacious music streaming service Grooveshark might just have received the decisive blow in its six-year legal struggle with EMI. The Universal-owned music publisher was granted summary judgment Mar. 27 on its claims against Grooveshark parent Escape Media for 2,807 unauthorized, EMI-copyrighted songs on Grooveshark’s servers. Escape claimed to be protected under the Digital Millennium Copyright Act's safe harbor provisions, but New York federal judge Alison Nathan found Grooveshark didn't meet the law's standards. Total damages could amount to $420 million, but the streaming service could appeal the ruling. In a statement to Billboard, Escape outlined plans for new policies to bring Grooveshark under the DMCA’s protection.