“Survivor” Survives Trademark Infringement Suit Brought by Beach-Themed Product Creator

The company behind Surfvivor, a trademark for beach-themed products, sued the creators of the reality television show “Survivor” for trademark infringement. Despite the confusion reported by Surfvivor that some entities had in the marketplace, the Federal District Court granted summary judgment in favor of “Survivor” and dismissed the case. The Court found that the marks were not similar enough to cause consumer confusion.

Surfvivor appealed immediately, but its action did not survive for long. The Court of Appeals affirmed the District Court’s ruling. The Court of Appeal based its opinion on two strands of thought. First, the Court concluded that no actual confusion existed between the two trademarks. If nearly all of the customers and retailers had no confusion, then “customers were not likely to associate the two products or conclude [they] came from the same source.”

Second, the Court reasoned that Surfvivor did not suffer any damages. For example, no merchants stopped doing business with Surfvivor due to any confusion.

Surfvivor Media, Inc. v. Survivor Productions, 406 F.3d 625, 2005 U.S.App.LEXIS 7688 (9th Cir. 2005).


Right of Publicity Does Not Cover the Same Subject Matter as Copyright

A model, June Toney, signed a contract for her photo to be used by Ultra Sheen Supreme Shampoo. The contract ended in November 2005, but Ultra Sheen continued to use Toney’s photo. Toney brought suit under an Illinois right of publicity statute.

The Federal District Court dismissed her suit based on a section of the Federal Copyright Act that preempts state law claims if the subject matter is covered under the Copyright Act itself. The Court of Appeals affirmed the dismissal.

But Toney was not through. She petitioned the Court of Appeals for a rehearing and the Court reversed its previous ruling. The Court reasoned that the Illinois statute protects a person’s “identity,” while the Copyright Act applies to creative works that are fixed in a tangible medium. The Court wrote, “Toney’s identity is not fixed in a tangible medium of expression.” The subject matter was not the same, and therefore not covered under the Copyright Act.

Furthermore, the Court found another distinction. The Illinois statute protects the right to control the commercial value of a person’s identity. The Copyright Act, in contrast, protects the right to reproduce and perform works.

The case was remanded to the District Court to proceed on the right of publicity claim.

Toney v. L’Oreal USA, Inc., 406 F.3d 905, 2005 U.S.App.LEXIS 7897 (7th Cir. 2005).Any source

Sweeteners lead to sugar deal

In a rare success for the UK presidency, EU farm ministers have agreed to a reformed sugar regime to operate from next July. Sufficient sweeteners had to be offered to the most vociferous opponents to get them to accept a deal, although one had to be reached before too long given the WTO deadline of next May and the fact that the regime itself would expire in the summer.

Ministers agreed to a slight cut in the depth of the price cut, and to an increase in the rate of compensation. The European Commission and ministers compromised on a 36% cut in the price of sugar (a relative marginal reduction in the original figure of 39%), and a 4.2% increase in compensation for farmers. They will thus now receive compensation covering 64.2% of the loss incurred by the price cut. There is a also a more generous compensation scheme for inefficient European sugar producers who will be forced to halt production because of the price drop. Extra compensation will be given to farmers in countries that give up 50 per cent of their production, a move that will principally benefit Italy and Spain.

Finland benefits from a special deal that allows beet farmers in one of the least competitive sugar producer countries in Europe a special aid of €350m so they can continue supplying he one remaining beet producer in the country. Why not import sugar from elsewhere which is what mostly happens anyway.

However, these side payments should not distract attention from a substantial reduction in the guaranteed price. In other words, a deal has been struck that will not bust the budget or fail to curb uneconomic production in the sector.

The new compromise proposal – the second to be tabled at this week's EU farm Council – offers significant sweeteners for various countries, in particular Italy, one of the most vociferous opponents of the reform. Poland, Latvia and Greece still refused to endorse the compromise. The producer price for sugar will be reduced in four stages, with a cumulative reduction over four years of 20%, 25%, 30% and 36%.

The deal has come under criticism from both third world NGOs and industrial suger users. Some development experts suggested that the EU had been forced to offer more compensation to inefficient European farmers at the expense of their more vulnerable sugar cane rivals. 'Developing countries have been sacrificed in order for Europe to reach a deal', said Luis Morago, head of Oxfam International in Brussels.

The UK Industrial Sugar Users Group deplored last-minute concessions that would still leave the EU price about double that in the rest of the world. 'This deal takes the easy way out by simply dumping increased compensation costs on consumers and industrial users.' In fact the EU internal reference price will be €404 per tonne, about 40 per cent above the current spot price. Moreover, the world price could rise if uneconomic EU production is withdrawn and bioethanol actually takes off in a significant way.

For all the criticism, the deal was probably as good as could be obtained given the opposition and will bolster the EU's position in world trade talks.Any source

“Wife Swap” Producer May Proceed with Copyright Infringement Claim Against “Trading Spouses”

RDF Media produced a reality television show called “Wife Swap” that was aired on ABC in May 2004. Shortly after its airing, Fox Broadcasting ran a similar show called “Trading Spouses.” RDF brought suit based on two claims: copyright and trade dress infringement. Fox filed a motion to dismiss all of RDF’s claims.

In response to Fox’s motion, the Federal District Court Judge dismissed RDF’s trade dress claim because a television show itself could not be a trademark. The Court reasoned, “Trademark is concerned with the protection of symbols or elements; it does not protect the content of a creative work of artistic expression as a trademark for itself.”

RDG’s copyright claim withstood Fox’s motion to dismiss. RDF had filed the complaint before all of its episodes had been registered with the Copyright Office. The Court concluded that because the errant registrations were filed by the time the motion was heard no basis existed for dismissing the copyright claim.

RDF Media Limited v. Fox Broadcasting Company, 372 F. Supp.2d 556, 2005 U.S.Dist.LEXIS 12923 (C.D.Cal. 2005).


San Francisco’s Film Art’s Foundation to offer Self Defense Seminar December 10


Writers, directors, and producers must understand their legal rights and how to defend themselves against exploitation by production and distribution companies. In this intensive seminar, filmmakers learn how to anticipate problems before they arise in negotiations and create incentives that encourage companies to live up to their agreements, including performance incentives, default penalties, and arbitration clauses. In the event of an un-resolvable dispute, participants learn what remedies are available to enforce their rights.

Mark Litwak is a veteran entertainment attorney with offices in Beverly Hills, California. He writes a monthly syndicated column that appears on the Film Arts Web site as "The Litwak Files," and is the author of six books, including Reel Power, The Struggle for Influence and Success in the New Hollywood, Courtroom Crusaders, Dealmaking in the Film and Television Industry (winner of the 1995 Krazna-Krausz Book Award), Contracts for the Film and Television Industry, and Risky Business. He is the author of the popular CD-ROM program Movie Magic Contracts. In addition, Litwak is a producer's rep, assisting filmmakers in the financing, marketing and distribution of their films.

Self-Defense for Independent Filmmakers: Protecting Your Legal Rights
Sat Dec 10th from 9:00 AM to 5:00 PM

$95/Filmmaker-level members; $145/others.
Film Arts Foundation
145 9th Street, #101
San Francisco, CA, 94103

Call (415) 552-8760 to sign up or for questions or email education@filmarts.orgAny source

Changing shape of budget

The CAP budget for agricultural markets and the SFP has been scaled back to a mere €43,280 million in 2006, or €51,051 million when one adds in rural development. However, it is the composition of the budget that is in some ways more interesting. Of course, by far the greater part these days goes on direct aids to farmers (€34,817m).

If one looks at the market support budget, the largest budget line is now for fruit and vegetables at €1,544m, followed by €1,494m for the wine lake and €1376m for sugar. 'Textile plants', effectively cotton subsidies, come fourth at €969m: these are, of course, very controversial in the current WTO talks in terms of their impact on poor West African countries.

Milk products and cereals, once the biggest items, now come 5th and 6th respectively, although it should be remembered that payments now largely take the form of direct aids.Any source

DG Agri has a French head again

For a long time, DG-Agri was known as a French fiefdom with a French head of the bureaucracy, many French and Francophone staff and even a canteen that was supposed to serve the best food in the Commission! For some time now DG Agri has had a Spanish head, but on 1 January he will be replaced one of his deputies, French national Jean-Luc Demarty.

However, this may not be a sign of a return to old style agricultural politics. An alternative view is that it reflects the decreased significance of DG Agri with the real power over the future of Europe's farmers now in the hands of DG Trade. Indeed, Le Figaro has claimed that Paris lobbied without success to get a French head of trade - the job has gone to Irishman David O'Sullivan.Any source

JOHN SEED'S PICTURES FROM MAYHEW (Shearsman 2005)

Drawn directly from Henry Mayhew’s investigations into working class life in mid-nineteenth century London, Seed’s poems are extracted from the testimonies of working men & women as mediated by Henry Mayhew’s journalistic accounts. Every word, according to Seed, is drawn from “the thousands of printed pages of Mayhew’s investigations” which were published first in the Morning Chronicle between 1849 & 1850 and then in Mayhew’s own weekly, London Labour and the London Poor.

The transnational, transhistorical contemporaneity of these testimonies—presently evident in the riots in France & very recently in the visibility of American poverty in the aftermath of Hurricane Katrina—is uncanny. Despite the substantial spatial & temporal remove from Mayhew’s investigations, the words of the London poor are exceedingly present. The collection begins with a preface which is at once encouragement & admonishment. The preface is an appeal to the privileged reader to enter into the world of London’s working poor, but the appeal is wrapped round a warning:

If you was to go to
the raffle tonight sir they’d say
directly you come in who’s this
here swell what’s he want they’d
think you were a cad or
spy come from the police but
they’d treat you civilly some would
fancy you was a fast kind
of a gentleman come there for
a lark but you need have
no fear though the pint pots
does fly about sometimes

From the get go the narrator, whose sex is difficult to determine, addresses whomever s/he is speaking to as a person of privilege. If the narrator is in fact addressing the reader, Seed is clearly aware that anyone reading these poems will be, by default, not a member of the working poor. Exceptions would do nothing more than prove the rule. Contemporary poetry, published independently by small presses, does not sell well in working class neighborhoods. In fact, contemporary poetry, in limited press runs, can scarcely ever be found in working class neighborhoods. Thus the reader enters into the world of the working poor from an external, privileged position much like Mayhew himself did.

This is very much the case with the riots currently raging in France. Unless we are immediately involved in the riots, they come to us only through mediated images & text, through journalistic accounts which have passed through various written stages & then various editors. We enter into the tumult externally, through an unbridgeable remove. & aside from a handful of reports, very little attention has been given to the riots in mainstream American media. The visibility of these riots is exceedingly limited.

Reports in the NY Times maintain that dozens of buildings, many host to privately owned businesses, and more than 3,300 vehicles have been destroyed in the largest upheaval in France since 1968. Unlike the student riots of 1968, the current unrest appears to bear a much closer kinship to the LA Riots, a situation similarly precipitated by a seemingly isolated incident & then fueled by a deeply-seated frustration & rage. The rage expressed in the current riots in France far exceeds the precipitating incident & is clearly symptomatic of more firmly entrenched, systemic social inequalities.

Participants in the rioting are largely second & third generation immigrants from North & West Africa, many of whom are Arab Muslims. The rioting began nearly two weeks ago in Clichy-sous-Bois, a working class suburb on the outskirts of Paris, when two boys of Maritanian & Tunisian descent running from police hid in an electrical substation & were subsequently electrocuted. The rioting has since spread not only to the center of Paris but also Toulouse, Nice, Marseille, Lille & Strasbourg. The unemployment rate in many of the areas where rioting is most fierce is double & even triple the national ten percent. To peer through a highly mediated window & catch a glimpse of working class life in France now is undoubtedly to bear witness to a world where the pint pots are flying about wildly, with much greater ferocity than usual.

Our access to the upheaval in France is much like our access to the London poor of the mid nineteenth century: it is purely textual, mediated through carefully selected images & journalistic accounts. As Guy Debord declared over thirty years ago, “the spectacle is not a collection of images, but a social relation among persons, mediated by images.” In culling from & restructuring the past--inasmuch as the past is represented in & by various texts, each text nothing more than an incomplete fragment--Seed’s work appears to be an attempt to restructure the social relation among persons, a relation otherwise constructed by institutional power. Seed appropriates Mayhew’s investigations &, rather than adding to them & commenting on them, he rearranges them, edits them, drawing from them that which is contemporary, that which transcends the temporal & spatial remove. The appropriation & arrangement of text is, itself, Seed’s commentary. In this Seed seems to be in accordance with Debord’s well-known claim: “Plagiarism is necessary. Progress implies it. It clings to an author’s phrase, makes use of his expressions, erases a false idea, replaces it with the right idea.” The distinction made by Debord between right & wrong here is undoubtedly understood by Seed.

Having extracted a modest handful of passages from thousands of pages of Mayhew’s investigations, Seed is foregrounding those few moments contained in images & bits of text that speak most clearly to that zeitgeist of a civilization which is most often concealed. The fragments selected by Seed are much like Pound’s luminous details, details universal & static in their contemporaneity. While Pound found these details in the Pre-Raphaelite Brotherhood & the Troubadours of Southern France (among dozens of other places but never in poverty) Seed finds these details in the working poor of nineteenth century London. & just as Pound offered us a Homer mediated by Andreas Divas, a Li Po mediated by the Japanese, Seed offers us the working poor via Henry Mayhew. Like Pound, Seed has carefully selected the intermediary source through which he procures his luminous detail & his source is no less saturated with ideology.

Among the many voices which emerge in these poems, one man comments on the game of chess. The dialect is clearly a working class dialect & the narrator confesses he knows nothing about the game:

I’ve seen chess played & I should
say it’s a rum game but I
know nothing about it I once had
a old gent for a customer &
he was as nice & quiet as a
old gent as could be & I
always called on him when I thought
I had a curus or old teacaddy or
knifebox or anything that way he didn’t
buy once in twenty calls but he
always gave me something for my trouble
he used to play at chess with
another old gent & if after his
servant had told him I’d come I
waited ’til I could wait no longer
& then knocked at his room door
he swore like a trooper

It is difficult for me to think of anything here but Pound’s “Dogmatic Statement on the Game and Play of Chess.” It is through the game of chess that Pound hopes to illustrate the Vorticist approach to painting, yet Pound moves from the assumption that the reader is familiar with the game. Of course, he’s right. If you’re reading Pound you’re probably familiar with chess, especially if you were reading Pound in 1915 when the poem was first published. Seed’s poem, however, underscores that divide between those who are & aren’t familiar with chess, indicating that chess, as a game not allegory, is something bound to a particular social class as well as a game foreign to a social class.

Strongly informed by the Objectivist tradition, Seed is acutely aware of the way in which the passages appropriated from Mayhew come together to form the colloquial, idiomatic rhythms specific to a particular group of people at a particular moment in time. But it is within these rhythms that we are able to extrapolate those details which are forever present, forever contemporary. The “costermongers, coalheavers, sewermen, seamstresses, soldiers, shopkeepers, domestic servants, old-clothes dealers, rag-and-bone men, petty thieves, prostitutes, street people and casual workers of all kinds, old an young, male and female, thousands of unnamed and unremembered people of mid-nineteenth-century London” which populate the poems are very much here & very much now, despite a superficial otherness. Undoubtedly, the working poor that people Seeds poems bear a peculiar kinship with the men & women currently rioting in France, with the men & women herded into stadiums as a result of Hurricane Katrina, indeed with anyone living on the outskirts of highly mediated texts & images in abject poverty.

Any source

NALIP AND SAN JUAN CINEMAFEST SPONSOR FREE PANELS ON PITCHING, FINANCING AND DISTRIBUTING FILMS

The Puerto Rico chapter of the National Association of Latino Independent Producers Association (NALIP), in conjunction with the San Juan Cinemafest and the Puerto Rico Film Corporation, will sponsor a full day of free panels on feature film pitching, finance, and distribution for indie filmmakers, beginning at 10 a.m. on Thursday, November 10, at the Normandie Hotel in San Juan, according to Frances Lausell, president of NALIP-PR.

Participants will include NALIP Executive Director and independent producer Kathryn Galán, veteran entertainment attorney and producers’ representative Mark Litwak, long-time personal manager and award-winning producer Marilyn Atlas, financing executive Pamela Peak, and Venevisión International Film and Theater Division Manager Julio Noriega.

Kathryn Galán has established NALIP as the preeminent national Latino media organization in the U.S., dedicated to increasing the quality and quantity of Latino/a film, television and documentary projects by supporting Latino/a writers, producers, directors and creative talent and advocating on their behalf. NALIP runs regional programs plus four national Signature programs: the Latino Writers Lab™ held in New York each spring and Santa Monica, California each fall; the intensive 10-day Latino Producers Academy™ held in Tucson, Arizona each summer; a national Conference that welcomes over 600 makers and funders each spring, and the Latino Media Resource Guide™, the go-to source for information on Latino directors, writers, producers, craftspersons, funders, diversity opportunities, distributors, and film programs.

Mark Litwak’s entertainment law practice includes work in the areas of copyright, trademark, contract, multimedia law, intellectual property, and book publishing (“Dealmaking in the Film and Television Industry,” “Risky Business: Financing and Distribution of Independent Film”). As a producers’ rep, Litwak assists filmmakers in the marketing and distribution of their films through such renowned film festivals as Cannes, Toronto, Telluride, and others. At this year’s Sundance Film Festival, three of his clients had films acquired for distribution: HUSTLE & FLOW, which won the Audience Award (Paramount), THE MATADOR (Miramax), and MARILYN HOTCHKISS BALLROOM DANCING AND CHARM SCHOOL (Goldwyn).

Equally at home in the worlds of film, television, and live theater, Marilyn Atlas is a founding member of Women in Film’s Luminas Committee, which supports the portrayal of women in non-stereotypical roles in film and television, and is committed to finding projects that reflect diversity and non-stereotypical characters. Among her credits as a film producer are REAL WOMEN HAVE CURVES for HBO, which won the Audience Award at the Sundance Film Festival, A CERTAIN DESIRE, starring Sam Waterston, and ECHOES, which won the Gold Award at the Texas International Film Festival.

Julio Noriega heads up the film and theatrical division for Venevisión International, which over the past 30 years has been one of the most important providers of Spanish language programming for Latin America and the world, positioning its productions in more than 20 languages and currently reaching 97% of the entire U.S. Latino population, thanks to its association with Univisión Communications.

“NALIP-PR’s mission is to help develop and expand Puerto Rico’s film industry and film community,” said Lausell. “By organizing activities such as this one, we hope to provide an opportunity for local filmmakers to obtain practical information directly from working professionals in the industry, as well as a giving them a chance to network and establish contacts which could prove of great value in the future.”

Contact: Frances Lausell
Phone: 787-268-0063
Cell Phone: 787-640-5290
E-mail: isladigital@aol.com

DEAL MAKING PUBLISHED IN KOREAN LANGUAGE
Mark Litwak's book "Dealmaking in the Film and Television Industry, 2nd Edition" has been republished in Korea by Easy Books. We have a limited number of these books for sale at $25 plus shipping. Call (310) 859 9595 if you would like to purchase one.

Dealmaking is the first self-defense book for everyone working in the film and television industry, addressing a general, non-attorney readership, it is a fascinating, highly accessible and practical guide to current entertainment law peculiarities and "creative" practices. Armed with this book, filmmakers can save themselves thousands of dollars in legal fees as they navigate the entertainment business's shark-infested waters. Whether you are a professional or wannabe producer, writer, director, or actor, this book can help you make the most of your business dealings while steering you clear of contractual traps. The second edition of this popular book contains hundreds of updates and revisions of the first edition and includes two new chapters: Legal Remedies and Retaining Attorneys, Agents, and Managers.Any source

Where does the CAP cash go?

In a letter to European Voice CAP campaigner Terry Wynn MEP points out that little information is made available on who gets the large sums of money spent on CAP. Only Denmark, the UK, Estonia, Sweden and Slovenia (now joined by Belgium) make the information available.

When it is made available, it is quite revealing. Wynn points out that UK figures show that Lincolnshire receives three times more in agricultural subsidies than the north-west of England combined and has only a third of the number of farms. He points out that there is no disclosure of where the money goes in France despite the fact that it receives a quarter of CAP expenditure.

The Belgian payment agency, BIRB, has now posted details of the recepients of CAP money. At the top of the list is the sugar refinery in Tienen which received €91.9 million in 2004. At the bottom is the Sacred Heart pyschiatric hospital in Ypres which received €148.70.

There was considerable political resistance to the publication of the information. The agriculture minister in the federal government is Sabine Laruelle, a Walloon Liberal, who happens to be a former president of the Walloon farmers' union. She said she would not release names and amounts and that what was happening 'leads only to a witch hunt', pointing out that 'People focus on examples such as the Queen of England.'

Meanwhile, Yves Leterme, the Christian Democrat head of the Flemish regional government complained about efforts by commissioners Fischer Boel and Slim Kallas (audit and anti-fraud) to get national governments to disclose who gets what from the CAP regime. Leterme said that if the Commissioners were minded to make statements 'which intrude against our constitutional rights to the protection of privacy, then they had better keep their mouths shut.' However, Belgian prime minister Guy Verhofstadt decided in favour of disclosure.

This is public money and EU citizens are entitled to know where it is going. Publication may also serve as a deterrent to fraud which remains a persistent problem in the CAP.Any source

Group opposed to sugar reform grows

Poland has joined the eleven countries led by Spain who are opposed to the Commission's proposals for reform of the sugar regime. Just four of the opposing countries - Greece, Italy, Poland and Spain - would be enough to block reform under the qualified majority system.

This latest development is causing concern in the Commission and the UK presidency. The WTO has declared the current regime illegal and the current regulation expires next June which would lead to chaos if nothing is put in its place.

The Commission has to think of some way of buying off opposition without rendering the whole reform pointless. The opposing states are calling for smaller price cuts over a longer period with more compensation and it is difficult to see how this can be squared with the WTO judgement or the EU budget.

It might be possible to include the option of partial decoupling for states such as Italy who feel they are worst hit by the price reduction, although it is questionable whether keeping small Italian sugar producers in business is compatible with the spirit of the reform. Certainly national compensation envelopes for sugar producers are still under consideration, but the sweetener would have to be significant.

A further complicating factor is that the opposition countries are suggesting that cuts should be applied initially just to regions with a surplus of production. If one interprets that as countries with B quotas, leading sugar producers would be hit, notably France and Germany where up to 20 per cent of overall production quotas are B quotas.

So this is all about winners and losers rather than a rational reform strategy that would be helpful for the EU as a whole. As June approaches, no doubt some sort of reform, with more side payments, will be devised.Any source

Bulgaria, Romania accession in trouble

Preparations for integration into the CAP remain 'areas of serious concern' for both Bulgaria and Romania just fourteen months away from their planned accession to the EU. To those who say cynically 'we have been here before', noting that outstanding problems when ten member states joined were glossed over, two points need to be borne in mind:

1. The EU is a much less confident and ferbile state following the effective failure of the Constitution
2. The problems with Bulgaria and Romania are more serious than those in the earlier wave of East European entrants.

Food safety is a major area of concern, with the Commission noting deficiencies in both countries in terms of animal disease control and regulations relating to BSE. Romania has made a little more progress in some areas, but both countries have failed to make progress in setting up an Integrated Administration and Control System.

The tone of the Commission report suggests that the warnings issued may be more than the usual routine pleas to get a move on. The situation is to be reviewed in April/May of next year when the postponement of accession by one year may be recommended.Any source