Second Circuit Revives “Small Group Defamation” Claim By Fraternity Against Rolling Stone

In an opinion this week by Judge Forrest (sitting by designation), the Second Circuit reversed in part Judge Castel’s dismissal (covered here) of claims brought by a University of Virginia fraternity against Rolling Stone magazine over a widely discredit article telling the story of a source named “Jackie” being gang raped at a fraternity party.

The Second Circuit found that the complaint made out a plausible claim of “small group defamation” : Continue Reading

Playwright Prevails in Challenge to Parody of “How the Grinch Stole Christmas!”

Last week, Judge Hellerstein ruled that a parody of “How the Grinch Stole Christmas!” constituted fair use and did not infringe on the defendant’s copyright or related trademarks.  The plaintiff, New York playwright Matthew Lombardo, brought the suit against Dr. Seuss Enterprises over his “one actress 75-minute comedic play featuring a rather down-and-out 45 year-old version of Cindy-Lou Who.”  The plaintiff argued that the play was parody and thus fair use, and Judge Hellerstein agreed:

The key question I must therefore resolve, is whether the Play comments on Grinch by imitating and ridiculing its characteristic style for comic effect, or, as defendant contends, merely exploits the characters, style and themes of Grinch in order “to avoid the drudgery in working up something fresh.” Defendant argues that the Play “does not poke fun of the Seussian rhyming style,” but instead usurps that style in order to sell a commercial work. Nor, according to defendant, does the Play comment on or ridicule the characters and themes of Grinch; it merely “uses Grinch, Cindy-Lou, the Grinch character, and the dog Max as building blocks for a sequential work, featuring those same characters in the Seuss-created settings of Mount Crumpit and Who-Ville.”

Defendant’s assessment misses the mark. The Play recontextualizes Grinch’s easily-recognizable plot and rhyming style by placing Cindy-Lou Who – a symbol of childhood innocence and naivete – in outlandish, profanity-laden, adult-themed scenarios involving topics such as poverty, teen-age pregnancy, drug and alcohol abuse, prison culture, and murder. In so doing, the Play subverts the expectations of the Seussian genre, and lampoons the Grinch by making Cindy-Lou’s naivete, Who-Ville’s endlessly-smiling, problem-free citizens, and Dr. Seuss’ rhyming innocence, all appear ridiculous.

Judge Rakoff: “KinderGuides” to Literature Infringe Copyrights of Original Works

In an opinion last week, Judge Rakoff ruled that children’s illustrated versions of classic novels called “KinderGuides” infringed the copyrights associated with the original works.  He rejected the defendants’ arguments that the removal of adults themes and addition of commentary rendered the publishing of the Guides “fair use”: Continue Reading

Judge Cote: First Verse of “We Shall Overcome” Not an Original Work Subject to Copyright

Last week, Judge Cote granted a motion for summary judgment challenging the copyright for the civil rights anthem “We Shall Overcome.”  Plaintiffs, the We Shall Overcome Foundation, argued that the similarities between the copyrighted song and a 1948 version in the public domain meant that the first verse of the famous song was not sufficiently original to survive a copyright challenge.

Judge Cote agreed, noting the overwhelming evidence of the connection between the copyrighted version of “We Shall Overcome” and older, historical versions: Continue Reading

Judge Sweet: Lynyrd Skynyrd Movie Cannot Proceed

In an opinion this week, Judge Sweet granted a permanent injunction against a film depicting the band Lynyrd Skynyrd, finding that it violated a 1988 consent order limiting the use of the band’s name and songs.  The agreement, originally overseen by Judge Sweet, was entered into by surviving family and band members from a 1977 plane crash that killed the band’s lead singer, Ronnie Van Zant, and other band members.  The film was a collaboration between Cleopatra Records and former Lynyrd Skynyrd drummer Artimus Pyle.

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Judge Rakoff: Sarah Palin’s Allegations Against NY Times Do Not Amount to Necessary Showing of Maliciousness

In an opinion today, Judge Rakoff dismissed Sarah Palin’s defamation suit against the New York Times (see our prior coverage here) because the allegations (even taking into account additional facts from an evidentiary hearing) amounted to a showing of negligence, at best.  The opinion begins:

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Judge Pauley Approves Class Rep Whose Brother-in-Law is Class Counsel

In an opinion Wednesday, Judge Pauley ruled that a securities class action plaintiff, Benjamin Gross, could serve in that role notwithstanding that co-lead counsel for the class, Jack Zwick, is his brother-in-law, and notwithstanding that neither promptly disclosed the relationship: Continue Reading

Judge Failla Warns Against “Creative” Efforts to Evade Page Limits

At the end of an opinion today, Judge Failla issued the following warning:

Before concluding, the Court pauses to express its dissatisfaction with the blatant circumvention of its briefing-length restrictions . . .   The parties . . . are hereby warned that future attempts to evade the Court’s page limits, by relegating entire arguments to the footnotes, or by using other “creative” formatting devices, will not be taken kindly.  Going forward, the parties would do well to seek the Court’s leave to enlarge page limits, rather than attempting to hide their unauthorized enlargements in plain sight.

Similar conduct was the subject of a sanctions order from Judge Marrero in April (see our coverage here).

Second Circuit Reverses Judge Rakoff, Finds Uber Arbitration Clause is Enforceable

As part of the ongoing Uber antitrust litigation, the Second Circuit yesterday reversed Judge Rakoff’s earlier ruling that the arbitration clause in Uber’s terms of service was not enforceable (see our previous coverage of Judge Rakoff’s decision here, and the interlocutory appeal here).

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Judge Swain Awards Tiffany $19.35 Million in Trademark Case Against Costco

In an order yesterday, Judge Swain awarded $19.35 million in trebled profits and punitive damages to Tiffany & Co. for its trademark infringement claims against Costco.  The case stemmed from Costco’s use of the term “Tiffany” to describe generic rings sold in the jewelry section of its stores.  The award is an increase over the original amount awarded by the jury after a trial last year.

As part of the ruling, Judge Swain found that Tiffany was still entitled to punitive damages, even though it sought an accounting of profits rather than actual damages:

Costco also argues that, because Tiffany only sought an accounting of profits and not “actual damages,” it is precluded from seeking punitive damages. Although some courts in the Second Circuit have drawn a distinction between actual damages and profits for the purposes of the Lanham Act, others have characterized both as “actual damages” available under the Lanham Act.  Furthermore, the Lanham Act itself contemplates the possibility of an award of statutory damages (sought here), which permits consideration of both punitive and compensatory factors, without the need to establish profits or actual damages in the recognition that such measures of monetary relief may be difficult to prove in these cases.  The provision for statutory damages in the Lanham Act thus explicitly provides a mechanism to compensate plaintiffs even in the absence of proof of actual damages or profits.  Accordingly, the Court finds that punitive damages are not preluded in this case by Tiffany’s pursuit of an accounting of profits and statutory damages rather than “actual damages.”

Our full coverage of the case is here.

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