Kelley Drye’s Entertainment And Media Practice: Early Resolutions To Complicated Problems

Monday, December 19, 2011 - 11:48

Editor: Please tell us about your professional background.

White: I have been practicing for 37 years, largely in the area of complex commercial litigation, and I have spent 33 of those years practicing with my partner Michael O’Connor. Over those years, my practice has remained focused on general commercial litigation with an emphasis on entertainment-related litigation – which is itself a broad spectrum. Generally, I represent companies (and sometimes individuals) involved in the development, production or distribution of entertainment programming, especially television shows and motion pictures. I’ve also had a great deal of experience with antitrust claims, securities litigation and corporate governance litigation.

Editor: Your firm recently joined Kelley Drye. How are they integrating?

White: Last spring, the firm I founded with Mike O’Connor 16 years ago, White O’Connor Fink & Brenner, merged with Kelley Drye, and that merger has been an outstanding success. Kelley Drye has a number of other practice areas, but commercial litigation has always been its heart and soul, as it was at White O’Connor. Interestingly, we had virtually no conflicts among our clients because most of our long-term clients are in the entertainment area, while Kelley Drye’s are in banking and other corporate sectors.

In terms of practice, we have synergies in crossover areas such as copyright and trademark, where Kelley Drye has a great deal of strength, as do we. Likewise, both firms handled insurance, but in different industries and contexts.

Kelley Drye has offices in major cities across the country, and a number of our long-term clients have offices and operations outside California. Pre-merger, I handled major lawsuits in Chicago and New York for some of our West Coast clients, and handling such cases – for example, Abend Trust v. Spielberg, Paramount Pictures Corporation, et al., which we won in the Southern District of New York in  2010 –  will be that much easier now.

Editor: In the Abend case, you successfully represented Paramount, Steven Spielberg and others. Would you share the facts of that case?

White: When the motion picture Disturbia came out in 2006, a number of movie critics wrote that it was a knockoff of the Alfred Hitchcock thriller Rear Window, which was based on a short story. The current owner of that short story brought a copyright case in New York, claiming that Disturbia infringed the copyright of the Rear Window short story. Indeed, there are many similarities between the basic elements of the two plots – in both, an individual who is trapped in his home witnesses his neighbor engaged in ambiguous activity that he interprets as criminal activity, perhaps murders.

However, as we argued in court and as the federal judge agreed on summary judgment, a plot device is not sufficient to establish a copyright claim. Copyrights protect specific expressions, not underlying ideas or basic plot lines. The plaintiff believed the movie reviews would make his case, but we proved there was not actual similarity of dialogue, setting, or the other very specific criteria that courts use to determine whether there has been a copyright violation. One fundamental premise of copyright law is that there is no protection for ideas, which are truly, as Justice Brandeis famously wrote,” as free as the air.”

Editor: Can you share with us the cases you handled around the Survivor television show’s name?

White: We had two trademark cases involving the name of the Survivor television show. In Chicago, the band Survivor, which still performs, claimed its trademark had been violated. Likewise in Hawaii, the company that makes Surfvivor suntan lotion similarly sued. We won both cases on summary judgment, and both were upheld by the Seventh Circuit and the Ninth Circuit, respectively.

Editor: What about Marder vs. Lopez?

White: Marder, the copyright case we won in both the district court in Los Angeles and the Ninth Circuit, had its roots in the movie Flashdance. Maureen Marder, upon whose life Flashdance was allegedly based, had signed a release before the movie was produced in the early 1980s, but there was no reference to copyrights in that contract. In 2005, Jennifer Lopez paid homage to the film in the video to her song “I’m Glad,” and Ms. Marder claimed that she was a co-author of the film and that JLo’s video violated her copyright.  We convinced the district court (and later the Ninth Circuit) that even though copyright rights were not specifically mentioned in her release of rights, they were covered by the breadth of that release.

The case was thrown out on a Rule 12 motion, the opportunity in federal court for the defense to bring a motion to dismiss a case before taking any other action. We have been extremely successful, over several decades, in getting cases dismissed both on Rule 12 motions, at the outset, and on summary judgment motions, following discovery.

Editor: You have defended several high-profile defamation suits, winning motions to dismiss.  Can you tell our readers about Price v. Stossel, ABC; Ianni v. Courtroom TV, MTV; and Tamkin v. CBS?

White: One of the weapons we have in California to protect news reporters and broadcasters from defamation cases is the anti-SLAPP (Strategic Litigation Against Public Participation) motion, which is broader and more developed in California than in any other state.

For all three of the defamation cases you mention, we persuaded the court to dismiss the claims under California’s anti-SLAPP statute. Where there is a public interest in the defendant’s alleged defamation of the plaintiff, the anti-SLAPP statute enables the defendant to bring evidence into court demonstrating that the plaintiff’s case is not well founded. If you can meet the threshold for the court to accept your anti-SLAPP motion, then the plaintiff must present evidence to show at the very outset why the case is legitimate and should be allowed to go forward. The California courts and legislature have stated that the participation by the public in issues of public interest is so important that you can’t file a SLAPP suit, thereby curtailing speech, unless you have a valid claim.

I believe that Tamkin, which was recently dismissed on appeal in the California Court of Appeal, will become a major precedent because it expanded the protection of the anti-SLAPP statute for people involved in the production and distribution of motion pictures and television shows.

Editor: You’ve also handled employment discrimination issues in the entertainment sector. Would you describe the facts of the highly publicized 2007 case in which a prominent actor’s production company was sued?

White: It drew publicity because our client was Laurence Fishburne, who has a production company with a very small staff, one of whom became pregnant. She made a claim that she was discriminated against because she was pregnant and her lawyer received a lot of press attention when she filed that lawsuit. However, during discovery, the plaintiff and her lawyer simply refused to give us documents containing evidence that we were confident would exculpate our client and clearly refute the claims. The court dismissed the case, and the court of appeals upheld.

For our best clients, we handle a large number of sensitive, difficult or high-level employment cases. In this challenging economy the number of employment claims is increasing, and I think that trend will continue.

Editor: On a different note, you secured the dismissal of a purported class action against Scottrade, a major online brokerage house. How did you do so?

White: We have helped represent Scottrade on a number of cases over the years. The case you mention was a consumer class action claiming that Scottrade’s advertising was misleading and therefore violated California advertising law. While the plaintiff claimed this was a false advertising and not a securities case, we were able to convince both the district court and the Ninth Circuit otherwise - because the claims attacked the commissions charged by brokers on nationally traded securities, and that raised a federal securities issue. The significant tightening of federal law governing securities class actions over recent years includes the Securities Litigation Uniform Standards Act, or SLUSA, which preempts state laws governing falsity of statements made in the purchase or sale of publicly traded securities. We successfully persuaded the district court that this particular state-law claim was truly a federal securities case and was therefore preempted by federal law.

Editor: The challenges wrought by digital media – piracy, copyright violations – are a source of legal disputes for many entertainment lawyers. Do you see such cases in your practice?

White: Yes. Digital media issues come up in every possible way because digital content and online, Internet platforms are the way business is being done today, with all of our clients. On the entertainment front specifically, every one of our clients is having to transfer business over to digital and online platforms, and all of those new platforms are generating business and, consequently, disputes. Many of the disputes arise because people entered into a motion picture or TV series contract as long as 40 years ago, and that content is now suddenly being used on cell phones, on-demand platforms and other distribution channels that didn’t exist when the contracts were made.

We’ve done a lot of work applying old contracts to new media. The estate of Mario Puzo filed a lawsuit over "The Godfather" – not the movie, but the video game. At issue was how does a video game that is based on a motion picture fall within the various categories of a contract that was written before video games existed? Such platform issues are at the crux of many legal dilemmas today.

Editor: What are some current legal trends that may impact businesses and industries on the West Coast?

White: The greatest challenge our clients are facing is to exploit the opportunities that exist on the Internet, while also protecting against loss of business because of the Internet. The music industry failed to embrace digital formatting and Internet distribution – indeed, they tried to prevent it – and as a result the economics and the practices of the music industry have been changed dramatically, largely for the worse. That is what movie industry professionals lie awake thinking about.

The motion picture and TV industries came later in this cycle because the bandwidth required to transmit video files is significantly larger than what is required for audio, but these days that bandwidth is commonplace. Today, there is still a serious problem with digital piracy and unlicensed use; we’ve handled many cases from antitrust to actual criminal theft. The digital revolution is both the biggest challenge and the greatest opportunity that the entertainment business is facing today, and this will only increase as more platforms are created. Our clients have devoted huge resources to figure out the next steps in moving their content onto those platforms in a manner that generates revenue rather than losing it.

Please email the interviewee at awhite@kelleydrye.com with questions about this interview.