Sports & Entertainment Beat

As anticipated, the Trademark Trial and Appeal Board ("TTAB") decision of June 2014 cancelling six trademark registrations for the Washington Redskins team was appealed by Pro Football, Inc. In August 2014, Pro Football, Inc. filed a lawsuit in federal court against the five Native Americans involved in pursuing the TTAB cancellation in an effort to try to overturn the TTAB's holding that the term “Redskins” is offensive to Native Americans and thus is not eligible for trademark registration under the federal Lanham Act. Section 2(a) of the Lanham Act prohibits protection for terms that “may disparage” or bring people into contempt or disrepute. 15 USC §1052; TMEP §1203. On July 8, 2015, the US District Court for the Eastern District of Virginia ruled against Pro Football, Inc., affirming the TTAB's ruling that the REDSKINS marks do disparage Native Americans and that such a decision is not unconstitutional.

A New York federal judge recently ruled in Adjmi v. DLT Entertainment Ltd., 1:14-cv-00568 (United States District Court, S.D. New York, 2015) that the off-Broadway play “3C” was a permissible parody of the classic 1970s TV comedy “Three’s Company.”

Deflategate has taken its well-deserved place in the annals of all-time sports infamy.  The recent allegations against Tom Brady have not only polarized NFL fans and players alike, but have given legal professionals reason for pause as to the manner in which the investigation was conducted and the burden of proof that was applied.  The mantra repeatedly used in the report filed by league investigator Ted Wells was “more probable than not.”  This burden of proof standard is akin to “by a preponderance of the evidence,” the burden of proof used in civil trials where a plaintiff only needs to convince a jury that his legal argument is more plausible than the defendant’s version, even if the percentage in his favor is only 51%.  Conversely, in criminal trials, the burden of proof that is applied is much more onerous given the higher stakes involved.  A prosecutor is required to prove his case “beyond a reasonable doubt” to merit conviction of the alleged offender.  One could reasonably argue that Ted Wells should’ve applied a raised burden of proof, equivalent to “beyond a reasonable doubt,” to implicate Tom Brady in this scandal, given the severity of the allegations and the erosive impact on the Rushmoreian legacy of arguably the greatest quarterback of his generation, if not in the history of the NFL.

The Department of Justice recently disclosed that the FBI and Justice Department prosecutors are investigating whether the St. Louis Cardinals hacked into the Houston Astros’ computer network to steal information about the Astros’ players.  According to the New York Times, officials believe that “vengeful front-office employees for the Cardinals, hoping to wreak havoc on [former Cardinals executive and current Astros general manager] Jeff Luhnow …” orchestrated the hack.  The breach apparently occurred in 2013.  The sports implications are interesting, but the data privacy implications are crucial.  Specifically, the nearly nonexistent protection that the Astros allegedly afforded its valuable confidential information should give pause to any business that, without intensive verification, believes its information is safe.

Lawsuits by unpaid interns have become as trendy as kale salad and Taylor Swift’s bangs, particularly in the broadcast and entertainment industries.  For instance, Clear Channel Media and Entertainment (now iHeartMedia, Inc.), Fox Entertainment Group, Inc., Hearst Corporation, NBCUniversal, Inc., and International Creative Management Partners, LLC have all been hit with lawsuits by former unpaid interns claiming they were not paid minimum wage in violation of the Fair Labor Standards Act (“FLSA”).  While unpaid internships in the coveted entertainment industry have long been popular among high school, college and graduate students as a means to gain valuable experience and “build” one’s resumé, the increasing volume of unpaid wage claims may make companies reluctant to use unpaid interns, perceiving them as a risk not worth taking.  However, that view might be short-sighted, because interns may be key to the future of a company.  If an internship is structured properly, both parties (the student and the company) can benefit, although the employer company may not receive an immediate advantage from the internship.  Companies often benefit from the energy and new and creative ideas of student interns and derive intangible satisfaction from helping to train the next generation of entertainment industry professionals.  Similarly, interns who complete the internship with a positive experience “spread the word” about the company’s virtues to other students, friends, family members and colleagues they encounter wherever they end up in their careers.

Pick Team Members who have Contacts, Industry Knowledge, High Ethical Standards, and Brand-building Acumen.

Just like regular sports teams, some business teams are good and some are bad. Some teams have great players, but the players don’t work well together, because there is no strategy in place, and each player approaches the game from his or her own perspective. As a result, plays can be disjointed, unproductive and do little to advance the cause of winning the game.

The same thing can happen with the business management of an athlete’s or entertainer’s career.  When an athlete or entertainer receives what seem to be contradictory opinions from different professionals on his or her business team or worse, does not receive timely feedback from a team member, he or she can be overwhelmed, and the decision-making process disrupted, or even stalled, resulting in loss of valuable opportunities, time, money - and no one winning the game.

Joey is an 11-year-old jazz piano prodigy from Indonesia. His debut album came out Tuesday, and was the number one jazz album on iTunes. This week, he was also featured on the front page of The New York Times and had an interview with the Today Show that aired yesterday morning. The Today Show feature said Joey is “Taking the jazz scene by storm!” and “On his way to becoming the best jazz pianist of our time!”

On September 30, 2014, the Federal Communications Commission (FCC) released a statement repealing its sports blackout rule, a rule that the National Football League (NFL) has defended and relied on since 1975. The blackout rule strengthened the NFL’s own blackout policy, which prohibited local broadcast stations from televising a game that did not sell between 85% and 100% of its tickets at least 72 hours before kickoff. Similarly, the FCC rule prohibited cable and satellite operations from airing any game that was blacked out on local broadcast stations. Although the FCC’s rule applied to all sports, the NFL has not only relied upon it the most, but also fought the hardest to preserve the rule.

Well-known musicians and other entertainers often identify opportunities for innovation in their industry and are able to obtain patent protection for such inventions.  Some obtain patent protection for improvements to musical instruments or to new approaches to their craft.  Here we highlight three well known performers who were each granted one or more patents.

On October 1, 2014, a new law came into effect that excepts parody, caricature and pastiche from the scope of copyright protection in the United Kingdom.  Under the previous law, parodists bore the risk of being sued for breach of copyright if they used clips from television shows, films or songs without the copyright holder’s permission.  The new law allows the use of such content as long as the use is “fair” (meaning it does not commercially compete with the original work) and is not discriminatory in nature.