The firm handles all types of entertainment law matters, including transactional advice in the music, merchandising, literary publishing, film, television, broadcast, new media, video gaming, internet, art and art galleries fields and related litigation.
Right of Publicity
Gonzalez v. Country Wide Home Loans, Inc., San Francisco Superior Court. In December 2009, the firm obtained a $600,000 settlement on behalf of three actors whose images were used without authorization in advertising by the now defunct Countrywide Home Loans and its successor, Bank of America. Sergio Gonzalez, Rachel Jacobsen and Jake DeAnda performed in a television commercial for Countrywide in 2004. Countrywide took still photos of the actors at the shoot without their knowledge or consent, and proceeded to use them in direct mail and online advertising for several years. The defendants' conduct was particularly egregious since they had been caught several times and had promised repeatedly to stop using the images. To the firm's knowledge, this is the highest settlement or verdict in state history for a pure right of publicity case for non-celebrity plaintiffs. The case is Gonzalez v. Countrywide Home Loans, Inc. - San Francisco Superior Court Case Number: CGC 09 485949.
Luce et al. v. Selena Gomez et al., U.S. District Court, N.D. Cal. PE&G attorneys Nick Carlin and David Given, along with co-counsel Elliot Cahn, on behalf of their clients, the Bay Area band Luce (Tom Luce, Matt Blackett, Brian Kroll and Lawrence Riggs), settled the band's copyright infringement lawsuit against Selena Gomez and the writers of Gomez's 2010 hit song "A Year Without Rain." Luce had contended that "A Year Without Rain" infringed on their song "Buy a Dog." The defendants denied the allegations. The terms of the settlement are confidential.
Dunbar v. Gottwald, U.S. District Court, N.D. Cal. The firm represented clients Tommy Dunbar, co-founder and songwriter for the pop group THE RUBINOOS, and co-writer James Gangwer, in a lawsuit against pop superstar Avril Lavigne and her producer and co-writer Lukasz (“Dr. Luke”) Gottwald for copyright infringement, alleging that the Lavigne/Gottwald song “Girlfriend,” which was a No. 1 worldwide hit song for much of 2007, infringed on The Rubinoos’ 1979 hit song “I Wanna Be Your Boyfriend,” written by Dunbar and Gangwer. The controversy drew wide media attention, and is the first high profile song infringement case known to have been played out on the Internet. The controversy engendered dozens of YouTube videos independently created by fans of both sides comparing the two songs, which became the most-viewed videos on YouTube for several weeks, and popular sites such as AOL and TMZ ran internet polls asking users whether they thought Lavigne and Gottwald had copied from the Rubinoos (the majority of both polls said “yes”). The case was settled in December 2007 on confidential terms.
Gilbert Properties Partnership v. Baerwald, U.S. District Court, C.D. Cal. The firm represented the heirs of the late singer/songwriter Kevin Gilbert in a lawsuit against David Baerwald alleging that Baerwald refused to give co-writing credit or royalties to Gilbert for the hit song "Come What May", which was featured as the sole original song in the film Moulin Rouge. Shortly before trial, Baerwald and other defendants agreed to settle, acknowledging Gilbert as co-author of the song and agreeing to pay Gilbert's heirs his share of songwriter royalties.
Mendler v. Winterland, U.S. District Court, N.D. Cal. The firm successfully defended at trial Winterland Productions, the world's then largest purveyor of music industry merchandise, in a copyright infringement action brought by a photographer. In a 2-1 decision, the Ninth Circuit Court of Appeals remanded the copyright infringement claim on a closely contested issue involving the use of digital photo technology. Back in the trial court, the firm successfully defeated plaintiff's six-figure damages claim, convincing the trial court to reduce it to less than $10,000.
Digital Copyright Infringement
Newton v. Diamond, et al., Ninth Circuit Court of Appeal. The firm participates as counsel on amicus curie brief in ground-breaking case involving jazz musician James Newton’s claim of copyright infringement against the Beastie Boys and related parties. The Ninth Circuit Court of Appeals adopts many of the arguments the firm makes on behalf of clients DJ Shadow, Om Records, legendary record producer Denzil Foster (En Vogue) and others in support of Beastie Boys’ position that digital sampling of three note music composition is not an infringement of Newton’s musical score, in the process establishing that sampling is not de facto infringement in all cases.
Copyright Ownership Dispute
Watts v. Watts, U.S. District Court, N.D. Cal. The firm represented the daughters of famed Eastern philosopher Alan Watts in an action brought by a disinherited sibling involving rights to the deceased’s literary works. The firm successfully defended the clients' position, resulting in a victory before an arbitrator and an award of costs and attorneys' fees. Earlier, the firm prevailed in federal court against separate claims made by other disinherited siblings involving so-called "renewal" copyrights.
Maritime Hall v. KRS-One, U.S. District Court, N.D. Cal. The firm represented the renowned San Francisco live music venue Maritime Hall in a dispute over recordings made by it during a performance by rap artist KRS-One and later featured on one of the artist’s gold-selling record albums ("I Got Next") released by Zomba Records. The firm successfully defeated the artist’s and record label’s motion for summary judgment, in doing so establishing one of the clearest statements by a federal court on rights in authorship deriving from the creative contributions of record producers in and to copyrighted sound recordings. The case settled soon thereafter.
Guercio v. Chicago Records, Los Angeles Superior Court. The firm represented James William Guercio, a Grammy Award winning producer of the band CHICAGO, in a lawsuit against the CHICAGO band members and their record company. The action alleged breach of the parties’ agreement and also sought recovery of unpaid royalties and other monies. The band counterclaimed, alleging that client had improperly withheld consent to various licensing opportunities. Following a jury trial and an accounting, the firm obtained a judgment for almost $1 million in favor of the client and also prevailed on the counterclaim. The matter later settled on confidential terms.
LucasFilm Ltd. v. Sport Fun, San Francisco Superior Court. The firm represented LucasFilm in an action seeking to collect unpaid royalties from a company granting the license to market sports-related products and toys using Lucasfilms’ Star Wars trademark and other marks. The firm successfully obtained a writ of attachment, and then prevailed on defendant’s claim that the monies attached were exempt. The case settled shortly thereafter.
Black v. Lucasfilm Ltd., Marin Superior Court. The firm defended Lucasfilm Ltd. in an action filed by Campbell Black, author of the short story based upon the screenplay for the Academy award-winning motion picture RAIDERS OF THE LOST ARK, claiming that he was owed over $4 million in unpaid royalties. The firm successfully defended the client, reaching a settlement in which the case was dismissed and no monies paid.
Doobie Brothers v. Paul Curcio, et al. U.S. District Court, M.D. Fl. The firm represented the renowned classic rock band DOOBIE BROTHERS in a suit against Florida-based promoter Paul Curcio and three former members of the band to prevent them from touring and promoting themselves as the "Original" DOOBIE BROTHERS in violation of federal trademark law. The firm successfully obtained a Preliminary Injunction on short notice, following a hearing in which the court praised the firm's work and preparation. In further proceedings, the firm was successful in having the defendants held in contempt of the injunction and obtaining an award of attorneys' fees. The firm eventually obtained entry of a permanent injunction and a money judgment in excess of $1 Million, later upheld by the 11th Circuit Court of Appeals.
Band Partnership Dispute
Dead Kennedys v. Jello Biafra, San Francisco Superior Court. The firm represented the legendary punk rock band DEAD KENNEDYS and achieved a "complete victory" on appeal brought by the band's former front man Jello Biafra from a jury verdict in client's favor following a three-week trial. The appellate decision upheld over $200,000 in compensatory and punitive damages, together with the band's right to continue to control all of its creative works and musical properties. In related federal court proceedings, the Firm successfully argued to remand the action to state court, convincing the federal court to award the firm's clients attorneys’ fees and costs for having to fight off removal of their action from state court. The case was the subject of feature articles in the S.F. Weekly, S.F. Examiner, and Spin Magazine. Following conclusion of the trial, the band went back out on the road for the first time in 16 years. The New Yorker later published a feature on the band's tour.
Jerry Garcia Estate Settlement
Carolyn Garcia v. Estate of Garcia, Marin County Superior Court. In a case nationally televised on Court TV, the firm successfully represented Carolyn "Mountain Girl" Garcia, ex-wife of the late Jerry Garcia of Grateful Dead fame, in a lawsuit against Jerry's estate to enforce a property settlement agreement entered into by the late musician and his former wife. Praising the quality of Ms. Garcia's representation by Phillips, Erlewine & Given LLP, the Court awarded Ms. Garcia attorneys' fees and the right to the remainder of the dissolution agreement, totaling more than $4.5 million. The case was followed by local and national media, broadcast live on Court TV, and covered by leading news outlets including The New York Times, CNN, The San Francisco Chronicle and The American Lawyer. Following settlement of Ms. Garcia's claims against the estate, the firm took on the representation of the majority of Jerry Garcia's heirs (including his daughters and brother), and later helped to establish the Jerry Garcia Estate LLC for the post-estate administration of Jerry's invaluable intellectual property rights.