Whose Line Is It Anyway?

     In the midst of the lawsuit between Marvin Gaye’s estate and Robin Thicke and Pharrell Williams (trial scheduled for February 10, 2015), Sam Smith and Tom Petty have amicably resolved a similar issue. Gaye’s family accused Thicke and Williams of stealing parts of Gaye’s “Got to Give It Up” for their own song, “Blurred Lines.” Tom Petty, however, characterized Sam Smith’s melody in his Grammy-winning hit “Stay With Me” as “coincidentally” similar to that of his own 1989 song “I Won’t Back Down.” According to Petty, the word “lawsuit” was never uttered nor came to his attention, and the pair have since agreed that Petty will receive songwriting royalties and a 12.5% writing credit. However, Petty is not entitled to any of the shares from Smith’s four Grammy wins since Petty’s work is considered to have been interpolated rather than having done new work on the song.

     This is not a new concept for entertainment law. After all, how many variations on only thirteen notes are there? Beyonce, Jay-Z, Katy Perry, Eminem, and countless other big time names have been sued for as little as a single “oh” in common with another’s own tune. What is notable about this instance is the professionalism between the parties to handle the dispute without hostility and in a timely manner. The dispute was handled in its entirety “immediately.” Furthermore, Petty was able to recognize that some parts of songs—substantial or not, deliberately or non-deliberately—get incorporated into others’. He and his legal team took a relatively unprecedented and fresh approach to getting the recognition he deserved in a civil and collegial manner that rewarded Petty fairly and allowed Smith to gracefully promote his song. Hopefully, the entertainment industry can use this instance as an example of how to resolve these kinds of issues because it is not clear that these disputes will ever cease. Petty admitted in his autobiography that even he has found himself writing his songs while (consciously or unconsciously) channeling other’s songs.

     The entertainment industry is replete with opportunities for copyright and trademark infringement—it is virtually unavoidable. Yet, the way this case was handled illustrated a precedent that the industry may wish to look to emulate. Parties can reach an amicable agreement without public attention and potential embarrassment. The media is quick to jump on any drama or dispute without hesitation when it comes to celebrities and their private matters. Petty released a statement including his shock that the dispute even reached the public. Moreover, these settlements avoid clogging the courts with disputes that are seemingly easily resolved otherwise—an ever-present motivation for the courts. The entertainment industry should look to Smith and Petty for how best to proceed—even if the dispute concerns more than just a chorus melody.

- Samantha Albanese, Staff Editor

Robin Thicke and the “Blurred Lines” Controversy

Robin Thicke’s song “Blurred Lines” became an immediate hit in America. The controversial song, featuring T.I. and Parrell Williams, was so popular that it was named Billboard’s Song of the Summer for 2013. However, “Blurred Lines” was immediately plagued with controversy. The song was bashed for allegedly condoning rape, excessive female nudity, and objectification of women. 

With the popularity of the song also came hints of a copyright infringement and threats of legal action stemming from Marvin Gaye’s family. The family hinted that “Blurred Lines” was ripped off from Marvin Gaye’s songs “Got to Give it Up” and “Sexy Ways.”  So, in hopes of protecting themselves and preempt legal action, Thicke and Pharrell filed suit against Marvin Gaye’s Family and Bridgeport Music, stating that the “Gaye defendants are claiming ownership of an entire gene, as opposed to specific work,” and sought decaratory relief.  Shortly thereafter, Gaye’s family countersued Thicke, alleging that “Blurred Lines” was a blatant rip off and “Got to Give it Up.” While Marvin Gaye’s family settled their claims against Robin Thicke’s label, EMI, which is owned by Song/ATV Music Publishing, the case went on against Thicke and Williams.

            

While the controversy between the Thicke camp and the Gaye family was already making headlines, things became downright shocking when the contents of Thicke’s deposition were uncovered. In his deposition, Thicke stated that he could not have copied “Got to Give It Up” because he was “high on Vicodin and alcohol” when it was written. Even more, Thicke blamed the entire thing on Williams, saying that Williams was the one who actually wrote “Blurred Lines.” This deposition came after Thicke was interviewed by GQ and told the magazine that he and Williams wrote the song together in a half an hour, after telling Williams that “Got to Give It Up” was one of his favorite songs.  In order to explain these apparent discrepancies, Thicke stated he lied from the beginning. “Blurred Lines” was the biggest hit of his career and Thicke wanted the credit for it, so, Thicke explained, he lied out of jealously and told everyone he wrote the song. While Thicke admitted he was present when Williams apparently wrote the song, he states that he was high on Vicodin and drunk. Moreover, in the deposition, Thicke stated that he was a liar, and that because he is a liar, they should believe that he did not tell GQ the truth about who wrote “Blurred Lines.” The attorney conducting the deposition asked Thicke if he considered himself “an honest person” and Thicke responded “[n]o, that’s why I’m separated.”  Essentially, Thicke argued that he could not be sued for copyright infringement because he was too drunk and high to have written the song, and that he is a liar so he should not be believed.

 As of October 30, 2014, a California judge ruled that the Gaye’s made a sufficient showing that “Blurred Lines” might be similar to “Got to Give it Up.” The judge stated that there are genuine issues of material fact regarding elements of the songs such as signature phrases, hooks, and vocal melodies. Now the case will be handed to a jury. It appears that the judge’s ruling limits the Gaye’s ability to sue for copyright infringement to solely the sheet music that has been deposited with the United States Copyright Office. However, Gaye’s family disagrees that the judge limited what the jury could consider in any way.

I, for one, am anxiously for the next jaw dropping development to arise from this controversy. I can’t help but wonder how Thicke’s attorney will handle Thicke’s drunken and high argument with a jury.

Sara Montgomery, Staff Editor 

The NFL Commissioner and his Ability to Punish Players: How far is too far?

It has been a difficult year for the NFL and its Commissioner, Roger Goodell. At the crux of the bad press directed at the NFL, and the Commissioner’s adjustments to the League’s personal conduct and domestic violence polices, stand NFL players Ray Rice and Adrian Peterson. Just this month, the NFL Commissioner announced that Adrian Peterson, who in May of this year disciplined his son by hitting him with a switch, is suspended for the remainder of the NFL season. Earlier this month, Goodell held a hearing regarding Ray Rice’s appeal of his indefinite suspension, which was handed down by Goodell on September 8, the same day TMZ released video footage depicting Rice violently punching his then-fiancé (now wife) in the face, knocking her to the ground of the elevator where the altercation occurred.

Yes, the actions of Rice and Peterson are despicable and deserving of punishment. Yes, Roger Goodell is in a position to issue punishment as the player-employer relationship in the NFL is one based on consent and defined by agreement as stipulated in the standard player’s contract.[1] And yes, the NFL through its policies and advertisements can be a powerful force in attempting to eradication domestic violence through programs designed to educate, train, and assist the many people who have felt the effects of domestic violence. However, the disconnect between the NFL’s conduct polices and the rights afforded to the criminally accused, and the seemingly arbitrary standards and endless discretion afforded to the Commissioner throughout the NFL’s investigative and disciplining processes, greatly disfavor NFL players who (allegedly) commit acts that are “detrimental to the integrity of and public confidence in the NFL.”[2]

A brief background of the events that led to the Rice and Peterson suspensions will shed light on the many flaws that are prevalent when the NFL investigates and disciplines its players. Ray Rice was arrested on February 15 for assaulting his then-fiancé, Janay. Four days later, a partial video was released that showed Rice dragging Janay’s body from an elevator. Rice was indicted on March 27, and then suspended by Goodell for two games on July 24. On August 28, the NFL and Goodell issued a new domestic violence policy, in which first-time perpetrators of domestic violence receive a six-game suspension, and a second offense results in a lifetime ban from the NFL. On September 8, the previously unseen first half of the video surfaced.  This clip showed Rice violently punching Janay in the face in the elevator prior to Rice dragging her body out of the elevator. That same day, Goodell suspended Rice indefinitely.

Adrian Peterson was indicted on September 12 for allegedly hitting his son with a switch, or a flexible tree branch. On September 19, Goodell publicized his plan to further adjust the NFL's personal conduct policy. On November 4, Peterson accepted a plea bargain, reducing his felony child-abuse charges to a single charge of reckless assault. Then, Goodell suspended Peterson indefinitely on November 18.

The flaws in the NFL’s disciplinary procedures can be broken into two categories: Goodell’s endless discretion under the NFL’s Personal Conduct Policy, and the higher standard of conduct the NFL is placing upon its players.

The NFL Conduct Policy authorizes the Commissioner to “impose discipline as warranted.”[3] NFL players are judged at the Commissioner's discretion and cannot appeal punishments to an independent body.[4] The Commissioner is the only person authorized to review the reasonableness of his decision under the Policy. This appeal process, or lack thereof, gives Goodell unchecked authority to make disciplinary determinations, and it leaves the players with no avenue to appeal a decision that may have constituted a gross abuse of discretion.

The Commissioner’s discretion allows him to issue a decision at anytime he sees fit. As seen in the Rice case, the Commissioner may issue a ruling on a player before the player’s judicial proceedings are completed. The Commissioner’s ability to act before the judicial process is complete can be seen as a violation of the players’ due process rights. Simply put, due process is the requirement that the government must respect the legal rights afforded to all persons. Although an individual’s due process rights are intended to protect him or her from federal (Fifth Amendment) or state (Fourteenth Amendment) government intrusion, the concepts are applicable to the conduct policies of the NFL.

Through fines, suspensions, and other means, the Commissioner has the ability, arguably even more so than the government, to deprive NFL players “of life, liberty, or property without due process of the law.”[5]  The requirement of due process is the only command the Constitution states twice. Why should we allow the Commissioner such broad discretion to violate the principles of due process, when those who drafted the Constitution deemed it to be the most important protection afforded to all persons? Regardless of the fact that NFL players consented to the Commissioner’s discretion to issue punishment, that discretion must be limited in significant ways so as to increase the legitimacy of the office of the Commissioner and decrease the likelihood that players are unjustly punished.

Coupled with the Commissioner’s endless discretion to impose discipline is the high standard imposed on NFL players. The NFL Conduct Policy states that criminal activity is clearly not permitted, but it continues, stating, “…the standard of conduct for persons employed in the NFL is considerably higher. It is not enough simply to avoid being found guilty of a crime.”[6]

Is this “not guilty is not enough” standard fair? Obviously it directly contradicts basic due process rights and the commonly held notion of “innocent until proven guilty.” This standard also directly contradicts Goodell’s new domestic violence policy, which states that the NFL will address issues of domestic violence “fairly and thoughtfully, respecting the rights of all involved and giving proper deference to law enforcement and the courts.” How is Goodell “giving proper deference to…the courts” by issuing fines and suspensions prior to the resolution of a given player’s legal proceedings? The determinations from judicial proceedings must be given greater weight when the Commissioner is a disciplining player, and this can only happen if the Commissioner is required to wait until the judicial process is completed before he is allowed to issue punishment. 

Moving forward, the NFL and Roger Goodell have an uphill battle in their efforts to restore the respect and support fans once had for the NFL. One step taken thus far is the NFL’s No More Campaign, in which players are saying “ no more” to domestic violence and sexual assault. Goodell’s decision to not hear Adrian Peterson's appeal is another step in the right direction. However, comprehensive modification to the NFL’s conduct and disciplinary proceedings must occur. Until that time comes, players will continue to be subjected to the Commissioner’s endless discretion to determine guilt and issue punishment, all of which occurs outsides the due process safeguards afforded to all persons under the Constitution of the United States.

Max Montag, Staff Editor 

26 November 2014

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[1] Walter T. Champion, Fundamentals of Sports Law (Part II Constitutional Implications, § 14:4 Professional Sports), (2nd ed. 2013) available at https://a.next.westlaw.com/Document/If65c11555b6e11da914cdc8cb459040e/View/FullText.html?originationContext=documenttoc&transitionType=CategoryPageItem&contextData=(sc.Default)

[2] See Personal Conduct Policy, National Football League (2014), available at http://nfllabor.files.wordpress.com/2013/06/personal-conduct-policy.pdf

[3] See supra note 2.

[4] Id. All appellate hearings are held “pursuant to Article XI of the [NFL] Collective Bargaining Agreement.” Id. 

[5] U.S. Const. amend. V and XIV

[6] See supra note 2.

Superbowl XLIX. What are we really looking forward to? Is it who wins? Is it the over-the-top commercials? Is it Katy Perry's halftime performance?

If you chose who wins, or are most interested in watching the game regardless of who wins, you might be surprised to know that only 11 minutes of the 4 hour program is actual playtime of the Superbowl.

What consists of the other 3 hours and 49 minutes? 75 minutes consist of scrimmaging or players just standing around while referees are on the field deciding a call. Commercials consist of about 40 minutes, while replays consist of about 25% of the game.

Regardless, the Superbowl is always a perfect excuse to get together with friends and family, and eat exceedingly bad food.

The most popular food for Superbowl 2015: Guacamole

Due to my connection with the West coast- go Seahawks! 

Nadin Said~ EIC

The Pro Bono In-House Counsel of Tomorrow

Over the last decade, in-house pro bono has been a growing trend among corporations, including Fortune 100 companies, and for good reason.  Pro bono legal work has proven to be, not only an essential form of public service, but an investment in the future of innovation and professional development. By committing a fraction of their time and resources, corporate employees have inspired youth in technology-oriented fields, helped young women acquire the skills they need to become professionals, and aided veterans in transitioning to the civilian workforce.

This past year, The Walt Disney Company set the bar for the entertainment industry. The Association for Corporate Counsel recognized Disney with the 2014 Pro Bono award for assisting low-income clients, children in need of families, and the development of teen courts. Disney Senior Executive Vice President, General Counsel and Secretary Alan Braverman said, “We are determined to do our part to ensure people have the opportunity to pursue their rights, and that our system of justice is truly available to all.” The company utilized Public Counsel, the United States’ largest pro-bono law firm, to coach Disney lawyers on the adoption process. The collective group helped guide several adoptions through the L.A. county court system. Disney Legal’s mission is to help “more than 30,000 children, youth, families and community organizations every year.”

Disney, and other corporations, have proven that the terms “corporate profit” and “public service” can be interchangeable. Corporate counsels have the resources, but are they devoting them? Many companies are allocating resources, and corporate giving has increased 64% in the last few years. This is encouraging. Of course, the ultimate payout from pro bono legal work is much harder to pinpoint. Corporations that do not already do so should be encouraged to follow Disney’s lead.

Riley Coltrin (Staff Editor, Denver SELJ)