As I expected, he’s a thoughtful and well-spoken guy. I won’t quote the letter in full but I will give you this, because it’s important.

i think you should include the REASON why we don’t allow our show to be filmed:  we don’t own the synch rights to the songs we perform, so we do not have the right to be filmed performing them.  if someone films us doing so, we get held responsible and liable.

Don’t think this is a minor point. The music industry has sued a 12 year old girl, an eighty year old woman and a laser-printer in a campus office for downloading music illegally. Cheese has every right to protect his livelihood.

He also adds this:

i didn’t “spit a glass of water” out into the audience.  This implies that a full glass of water was sprayed, which it was not.

Quite so. It was about the same amount of liquid in a typical spit take (see the work of Danny Thomas or John Ritter for reference) which is roughly half a swallow. Point taken, sir.

He also adds that he does the camera confiscating thing at a lot of his shows, whenever someone is watching him through a device instead of just, you know, watching him. He says he’s never broken a camera or damaged a cellphone in the five years he’s been doing the act. And contrary to what I’ve read around the ‘net, he didn’t wreck any hardware the night I was there. I was pretty close, and I’d have heard the crunching.

As a side note, Cheese also pointed out that I left out the word “like” in my previous entry, as in “a voice LIKE Steve Lawrence.” I have corrected this. One other thing I left out because it simply wasn’t apropos: the guy does an eerily accurate impression of Bjork. Seriously, it’s creepy. Check him out live sometime. But for God’s sake, remember that the only round glass thing between you and him should be a highball tumbler.

-daniel k.

In other words: The strike is starting to do what it promised to do– that is, affect everyone, even you.

The labor action seems to have no end in sight, either. The more recent DGA negotiations are proving more ominous than hopeful. So expect television to become worse. Movies can hold out a bit longer, but if this goes on for another eleven weeks the Christmas movie season will start to thin out. If, God forbid, the writers hold out for six months… Let’s just say you’d better develop a taste for Canadian cinema and zero-budget indies.

Almost every Guild member, save those lucky enough to fall under side deals, are gamely sticking it out. Good on ‘em. But have you ever wonder how this affects NON-Guild writers?

I sure have.

See, me and my writing partner John have been toiling away on a screenplay for just about two years. Yeah, that’s right, I said TWO YEARS. Twelve complete drafts. I have a storage box in my office I toss finished drafts and outlines into: It’s full. A rough estimate tells me there are about 4000 printed pages in there. Still, most studio people I told this to didn’t even flinch at the fact we’re on the thirteenth draft. Most spec scripts worth buying are only considered well-honed after ten drafts. And if we were writing it full-time, rather than evenings and weekends, we’d have been at D13 sixteen months ago.

(And to anticipate your next question: NO, I’m not gonna tell you what the script is about. It’s just too darn cool to share right now. I’m not being egotistical: we have LA people who think it’s cool too, and are waiting to read it if we ever finish it. So I’ll describe it as a commercially viable feature-film manuscript that has killed every time we pitched it.)

We’re steadily getting to the point when the thirteenth draft will be final– and the time will be nigh to make this enormous creative investment pay off. But… There’s this Writer’s Guild strike going right now. What to do?

The WGAw Strike Rules are long and exhaustive and cover all aspects of the profession of media writing. But most of the rules specifically apply to Guild MEMBERS. John and I are not WGAw members. We’re the very definition of Hollywood outsiders: Some serious connections, but we both live in the Bay Area and only work peripherally in show business.

How to proceed? The very last section of the strike rules– Directive 13, as it turns out– Addresses schmoes in our position, and then only barely.

13. Rules pertaining to non members

The Guild does not have the authority to discipline non members for strike breaking and/or scab writing. However, the Guild can and will bar that writer from future Guild membership.

This policy has been strictly enforced in the past and has resulted in convincing many would be strike breakers to refrain from seriously harming the Guild and its members during a strike. Therefore, it is important for you to report to the Guild the name of any non member whom you believe has performed any writing services for a struck company and as much information as possible about the non member’s services.

So the threat is: Break the strike, Mr. Nobody, and you’ll never take a lunch meeting in this town again. But doesn’t “strike breaking” or “scab writing” refer to purposefully displacing a striking writer? The Strike Rules are addressed to Guild members, not the public: Directive 13 seems to be in place to bolster the ranks. It also seems to address the protection of higher-profile, writing-staff, weekly paycheck Guild work. I suppose one could interpret the action of trying to sell a spec as vying for an opportunity that a Guild writer is normally entitled to. But if so, that doesn’t also sound like old-fashioned patent entitlement, one that favors membership over literary merit?

At our outsider/spec script level, the prudent moves is to get the story optioned– that is, agree to give a person or company agency to solicit the property for a fixed amount and period of time. The person or entity we’d be optioning to are almost certainly NOT going to be an AMPTP signatory, so this transaction cannot conceivably violate any WGAw strike rule. But optioning just transfers the problem: The option-holder is also prevented by Directive 13 from selling our script to a struck studio. If we are hoping for any decent measure of success, this means we’re effectively stalemated.

Then again, it’s not like we’ve been reduced to sitting on our hands and patiently waiting for the WGA labor action to end. There is still a dizzying amount of work to do to get the thirteenth draft final– more editing and line fixes. And we’re seriously considering a staged reading of the manuscript, so we can listen to real actors deliver the dialog we wrote. It’s a good way to workshop a script: Actors love it, give surprisingly good feedback, and gives us more control than being part of a peer-reading circle.

Hopefully, the end of the writer’s strike and the end of the writing process will coincide. I get the feeling that if goes on much longer than the time we have allocated to the end of the scripting process, we won’t have a WGA to worry about anymore.

–Skot C.

Here in America the 2nd Circuit court (there are two circuits, in case one blows) ruled that a new Federal Communications Commission policy penalizing accidentally aired expletives was invalid, saying it was “arbitrary and capricious” and might not survive First Amendment scrutiny. It stemmed from a couple of incidents of the “f-bomb” being dropped by celebrities on the Billboard Awards show in 2002 and 2003. The FCC decided that the word was inappropriate, citing another appearance of the word when Bono uttered it at the Golden Globes in 2003. Which they didn’t prosecute.

And of course, there were enormous fines involved. From the majority opinion of the ruling:

“We are sympathetic to the networks’ contention that the FCC’s indecency test is undefined, indiscernible, inconsistent and consequently unconstitutionally vague.”

The court said it could understand why the networks argue that the FCC’s indecency policy “fails to provide the clarity required by the Constitution, creates an undue chilling effect on free speech and requires broadcasters to ’steer far wider of the unlawful zone.’”

Meanwhile across the pond, shadowy media watchdog Ofcom has rejected complaints about comedian Russell Brand’s routine in the Brit Awards. Full disclosure: I am American and I have never heard or Russell Brand, don’t know what the Brit Awards are, and only have a vague idea of what Ofcom does. And I’m reporting it to you now.

The host’s risque jokes and drug-related references to singer Robbie Williams and Conservative leader David Cameron were investigated. But Ofcom ruled Brand’s comments were acceptable in the context of an established music awards ceremony. “A certain amount of controversy was likely to be expected by the audience,” the regulator decided.

Ofcom did, however, rule that some of Brand’s comments had been “on the edge of acceptability”. Some 262 viewers complained about the comedian’s remarks about intimate body parts, drugs, the Iraq war, the Queen and Robbie Williams.

I’m down with the body parts and Iraq War jokes, but keep your bloody pie-hooks off Robbie Williams mate!

We all need to learn some lesson from this – to me, clearly, it’s that the V-Chip must always be set to keep children away from awards shows. Indeed, who shouldn’t be?

A Los Angeles jury decided he acted in bad faith by slating the film, arguing over the script and inflating his book sales when dealing with (Crusader Entertainment). But the jury left the judge to decide whether Crusader owned Mr Cussler $8m (£4m) for the rights to a second book.

Both sides left claiming victory and Mr Cussler told reporters he was “relieved it’s over”.

I’m guessing that means no appeals! Everybody wins!

For those of you who aren’t entertainment lawyers, a little history. TV networks used to buy programs from independent producers like Aaron Spelling. The producers would usually produce the show at cost, with hopes that it would run long enough to sell in syndication. The talent would negotiate their profit participation based on the syndication money. Still with me?

In the mid-nineties the networks started forming their own production companies. These companies would partner with producers to make the shows. The idea was, the networks would participate in the profits, and also would be less inclined to play hardball when negotiating because after all, they’d be stickin’ it to themselves.

The talent, however, were getting a pretty good stickin’ to in this scenario. David Duchovney was among the first to notice that the X-FILES was syndicated from FoxTV to the FX network, at low low prices. He sued, which may be a factor in his working so little after the X-FILES. Don’t know what’s up with Gillian Anderson.

Anyway, the WILL AND GRACE trial turned on the same premise. The jury was convinced that NBC Productions had negotiated in bad faith and were about to deliver their favorable verdict when defense lawyers turned up the bombshell that the foreman, Dean Hartwell, had written anti-NBC screeds on his blog several years ago. Hatwell says he hadn’t remembered it, which I’m inclined to believe. I don’t even remember what this ENTRY is about. Do you?

Anyway, this led to the mistrial, and from there the out-of-court settlement, which both parties are agreeing to keep mum about. Will, who was a lawyer, would appreciate this outcome; Grace, who was a loquacious interior designer, would have preferred the earlier one. Strictly speaking no one would have cared about their opinion anyway because everybody watched to see what Jack and Karen would think. For the record I bet that Mutchnick and Kohan are walking away with more than the original award but less than they would have gotten after putative damages. NBC will make it up by suing people who illegally downloaded the show.

(Hear this read on the Box Office Weekly podcast here) 

Dateline AP — Warner Music Group, said on Tuesday it will receive $110 million from Bertelsmann AG, after agreeing to settle claims related to Bertelsmann’s relationship with the original Napster in 2000/2001.

The companies said the settlement covers the resolution of the legal claims of Warner Music’s recorded music and music publishing businesses.

Bertelsmann, the German media conglomerate, said it admits no liability in settling

The original Napster, founded in 1999, was a pioneering file-sharing Web service which allowed users to download digital songs for free. The company was sued by the major music companies including Vivendi SA.’s Universal Music Group, Sony Music, Bertelsmann’s BMG Entertainment, EMI Group and Warner Music.

Bertelsmann made an investment in Napster, even while its BMG unit and other music companies were involved in legal action against the start-up company.

Napster was eventually shuttered by U.S. courts in 2002 over copyright violations.

Earlier this year, Bertelsmann settled with Universal Music for $60 million and EMI Group for an undisclosed amount.

Napster’s brand assets were bought by Roxio Inc. in 2002 to create the current Napster Inc., a legal online music service.

It seems that the record companies have stopped looking outside for their revenue sources.

McKee (and his arch-rival Syd Field) preaches story structure thru seminars and how-to books. I’ve taken the seminar and now I have an annoying habit of pinpointing the first-act story pivot during every movie I see nowadays. I know more about CASABLANCA and CHINATOWN then I ever would have thought necessary. Even those who haven’t been in the same room with the man are familar with him through ADAPTATION, Charlie Kaufman’s movie about the very story-structure principals that he advances. Just as McKee often bellows “character IS story!”, McKee IS screenplays.

And he’s also a $500-an-hour expert witness, so when he says stuff like:

“The writing is very bad. How bad? I have thought of phrases like ’seriously flawed’ [or] ‘fatally flawed.’ But it is beyond all of that, because when something is flawed there is an implication that something else about it is good… On average, there is something unbelievable happening every two minutes.”

…it carries authority. This isn’t just a drunken Joe Ezsterhas ranting in some bar in Marin County. This is PROOF, dammit.

At the cross, attorneys sought to discredit the witness:

McKee acknowledged that he felt “Titanic” was “poorly written,” “The Da Vinci Code” was a “flawed” work, and the classic “Citizen Kane” was “heartless,” “emotionally empty” and “cold.” (Cussler attorney Bertram) Fields zeroed in on McKee’s own screenwriting career. “Mr. McKee has been trying for 20 years to get a dozen screenplays made into a motion picture and he has never been successful,” Fields said in an interview.

That last one isn’t strictly true – McKee’s ABRAHAM was made into a TNT TV movie starring Richard Harris, and probably showed theatrically overseas. But it was poorly paced and the third act started 10 pages too late.

I still say this is all an interesting sideshow, because if the contract says you have creative control, you either grant creative control or buy out the clause. But if it gets McKee out in public to bitch about Cussler, (plus trash the Da Vinci Code!) then let the games begin!

One of my most treasured memories as an editor was the occasional gig I had putting together a segment for a local Japanese-language entertainment news show. We’d do a segment on a movie, using the “electronic press kit” provided by the studios, excerpting whatever interview footage and clips we could and sub-titling them in Japanese. One week we were doing FREDDIE GOT FINGERED, and I found it more and more hilarious to see Rip Torn struggling to say positive things about his role in what is, arguably, the worst comedy ever made.

So Tom Green, the auteur and wunderkind behind that movie and MTV’s THE TOM GREEN SHOW is now web based, and his radio-talk-show-with-a-webcam has been on for 112 episodes.

“TV is dead,” Green proclaimed after the scatterbrained episode Thursday. “You can’t do what we’re doing on television.”

…which is using your living room to do a daily show. Otherwise you can, and it’s called IMUS IN THE MORNING on MSNBC. So I’ve thought about it, and both Tom and I owe television an apology. Tom’s career is dead – TV merely has a nasty cough.

======================================

CLASSIC-ROCK WEBSITE COUNTER-SUES MAJOR LABELS

I believe that the major labels are enforcing copyright laws in a draconian and self-destructive way, protecting their distribution in a way that does many times more harm than good. However, it is their product. They signed unfair contracts to ensure that.

Superstar show promoter Bill Graham was at the vangard, the apex of the San Francisco sound, the one that brought you Jefferson Airplane, Santana, Boz Scaggs and others that you kids probably won’t remember. His concert venues hosted everyone, and he recorded EVERYTHING. And when he died, to quote the Temptations, all he left us was alone. And an archive.

The archive was bought by Bill Sagan, who now brings us WOLFGANG’S VAULT, a website which streams concerts and sells memorabilia. Predictably, the major labels are trying to shut it down, pointing out that Sagan has no actual agreement to make money off this stuff.

Wolfgang’s Vault seeks a declaratory judgment that it legally acquired the footage, and is also suing for libel, fraudulent deceit, breach of contract, tortious interference, and civil conspiracy.

All well and good, but they still don’t own the rights to distribute the music.

If the labels were smart they’d leave Wolfgang alone, or if they’d simply buy the site, which is a great marketing tool for inventory they’ve long since amortized. In fact this is surely what will go down eventually. The honorable thing to do would be to start negotiating now and leave the courts to more important work, like determining where to put Anna Nichole Smith.

You may recall that at the MacWorld convention earlier this year, Steve Jobs packed his keynote address with a suspicious amount of Beatles titles. The Beatles were all over the iPhone. He didn’t say anything about it at the time (crafty Steve!) but perhaps he was looking forward to saying this:

“It feels great to resolve this in a positive manner, and in a way that should remove the potential of further disagreements in the future.”

Further disagreements is thought by many (nearly everybody) (everybody) to include offering Beatles tunes at the iTunes music store. That announcement has not been made so far today. So far.

By the way, the BBC source I am using helpfully notes that the dispute over the name started in 1980 when the late George Harrison saw it an a computer ad. It’s been a fun legal roller coaster ever since.

Such is the case of SAHARA, the Matthew McConaughey/Penelope Cruz adventure of a couple years back. Didn’t it seem like they were setting up a franchise there? That you were going to be seeing Dirk Pitt movies every two years for a long, long time? They were, and you would have, but the producer and the writer got into a fight.

The writer is novelist Clive (RAISE THE TITANIC) Cussler. The producer is Philip (CHRONICLES OF NARNIA) Anschutz, who also runs Regal Entertainment Group and a few other concerns, such as Home Depot and the Staples Center sports arena. They had an unusual deal, according to the AP:

Anschutz gave Cussler creative control — a rarity in Hollywood — over films based on his books featuring his fictional alter ego, Dirk Pitt. In return, the writer would be paid $10 million for each book that became a movie and receive consultation and approval rights.

The first spawn of this unholy alliance was SAHARA. It looks like that creative control thing was a little rash.

The lawsuit portrays Cussler as an obstructive presence, rejecting numerous revisions of the screenplay and bashing the film in the media before it was released. “He delayed production of `Sahara,’ markedly increased its costs and harmed its commercial prospects,” the lawsuit said.

Cussler told the Denver Post in December 2003 that the “Sahara” scripts were “garbage,” and all seven he had received were thrown in the trash, according to the countersuit. Anschutz also claimed that Cussler made racist comments about Jews and blacks before the film was made. Cussler denied the accusations.

Okay, the racism thing is ugly but beside the point. I’m no lawyer but I think Cussler has a case. It seems to me he was told he could approve stuff and then that he had to cooperate if people disagreed with him. As a novelist he probably didn’t think cinematically (you have to simplify books to make them into movies) but then that’s why you don’t give the novelists creative control.

Wow, though – seven screenplays! They could have saved a lot of time by having Cussler write a crappy version of his own.

Don’t expect sequels this summer. If you’re desperate for entertainment, I recommend court transcripts.

“Due to the alliance between the motion picture company and the District Attorney’s Office, it is our belief the movie should not be released because in essence it destroys the presumption of innocence and the defendant’s right to obtain a fair trail,” said James Blatt, who is representing Hollywood both in the legal action against Universal and in his upcoming murder trial.

“It is the first time ever that a deputy district attorney has released the contents of an entire criminal file to a motion picture company while a case is pending,” Blatt said. “(Santa Barbara) Deputy District Attorney Ron Zonen also acted as a consultant and participated in the creative process of developing the screenplay. It’s also the first time a major motion picture about a crime is being released prior to trial. There have been documentaries and TV movies but never a motion picture with significant stars.”

“Significant” meaning, in this case, Bruce Willis, Sharon Stone and Justin Timberlake. Ehhhhhh.

I don’t know who to side with on this one. Hollywood was active around my suburban neighborhood a few years back (he’s alleged to have taken shots at a woman who used to live in my house!) so he’s got a lot to answer for; on the other hand, what right has Universal to cross that docudrama line? Actually forget about that – I’m still angry at them for releasing CLICK.

Blatt may have nothing to worry about, by the way. ALPHA DOG is slated for release in mid-January. A serious movie (it premiered at Sundance) with big stars, and yet they’re holding it until it’s out of the running for Oscar consideration. Universal isn’t releasing this movie, they’re dumping its body at the edge of town. Rule of thumb – consider all major studio releases in January to be doomed.

The scene, between Bollywood stars Aishwarya Rai and Hrithik Roshan, was deemed outrageous by some viewers; and despite the absence of bad language, nudity and Madonna (NSFW), considered obscene.

Dwivedi said the scene … lowered the dignity of Indian women and gave an obscene message to youth. “Bollywood actors are conveying vulgarity in the society,” Dwivedi told Reuters. “These films cannot be watched with our families, they are so vulgar at times.”

Youth could not be reached for comment, as they were busy playing GRAND THEFT AUTO and listening to pirated Eminem CDs.

The film had already been certified by the Indian Censor Board with a “parental discretion” certificate. Perhaps Mr. Dwivedi is running for public office? In any event, look for a spike in DHOOM 2 ticket sales. By the way, why isn’t ID Entertainment suing for the obvious similarity between that title and their first-person shoot-em-up, which was made into a sad little action picture that came out this summer? You don’t remember it? Sue me.

News Corp. CEO Rupert Murdoch squashed the O.J. Simpson book and television special, apologizing for the pain it may have caused the families of the victims of the 1994 slaying. “I and senior management agree with the American public that this was an ill-considered project,” Murdoch said in a statement released Monday afternoon by News Corp. “We are sorry for any pain this has caused the families of Ron Goldman and Nicole Brown-Simpson.” (courtesy Hollywood Reporter)

So I was wrong about Rupe; he’s not hell-bent on destroying civilization. I’ll have to revert to my fallback position that he doesn’t mind destroying civilization as long as the lawsuits are at manageable levels.

Lawsuits were announced this week from various participants in the film, who were told they would be interviewing with a real Kazakh journalist for a documentary that would never be shown in the US. Pat Haggerty, the humor coach who tries to teach Borat the “not!” joke early in the film, says he was paid $400 for his trouble. He also says that he knew something was up but just played along. By the end of the interview he was totally in on the joke.
Not!

A couple of fraternity boys who appear in the movie are suing 20th Century Fox because they claim that the producers took them to a bar, bought them drinks and once they were liquored up, gave them the release forms. I have heard, but cannot confirm, that a certain armless Romanian is also pursuing legal action because he was not told of the nature of the generous replacement arm given to him by the producers. I’m doing everything I can to not give that one away, but it’s f***ing hilarious. You have to see it.

Dharma Arthur, who produced the local morning news show that Borat made a shambles of, blames the incident for the “downward spiral” that eventually got her fired. Though not suing, she is demanding an apology.

Ironic, isn’t it; the very success of the Borat movie, and the attendant publicity, practically guarantees that that there cannot be a sequel.

1. No scripted shows in the 8:00pm slot – people don’t want scripts before 9:00pm? Weird.
2. Universal Music Group’s policy of suing everybody everywhere IS a revenue stream gambit!
3. Bob Wright claims that staying ahead of the curve is the key to surviving in the 21st century, but his first serious move about it comes 6 years into said century.
4. It sounds like the news consolidation strategy will have the effect of making COUNTDOWN, SCARBOROUGH COUNTRY and THE TODAY SHOW as similar as possible. That’s the opposite of long-tail thinking.

In a press release jointly released by UMG and YouTube, they are announcing “an agreement offering YouTube and its users access to thousands of videos on YouTube from UMG’s extensive roster of artists covering every genre of music.”

In addition, under this agreement, UMG broadly embraces the power and creativity of user-generated content, allowing users to incorporate music from UMG’s recorded music catalog into the videos they create and upload onto YouTube. UMG and its artists will be compensated not just for UMG produced videos but also for the unique, user-created content that incorporates UMG music.

That’s interesting, considering that YouTube has only recently acquired a revenue stream. They made a similar deal with Warner Brothers and are taking some advertising money to put WB ads on some clips. So now every time someone makes a fan video for a Universal Music Group Artists, Warner Brothers will pay for it.

It looks like YouTube is getting spanked here, but we don’t know some things, like how much UMG is being compensated. Maybe it’s just a little itty bitty token amount. I believe that YouTube had the better bargaining chip here, and therefore maybe got more out of this deal. YouTube potentially could have killed a lot of free exposure for UMG artists, and I certain hope they used that potential to pick up a little scratch.

The show brought back Grace, Lea, Mikey and Nikki had been evicted from the house (lucky bastards) over the course of the last series, but the producers brought them back, putting them in an adjacent house. Eventually Nikki was chosen to return to the main house.

Thing is, the public gets to vote on who gets kicked out of the house. And like on American Idol, each vote costs. It’s an extra revenue stream for the show. More than 2600 voters complained to Icstis, a British phone company watchdog, that they had essentially been promised that they could pay money to vote these people out permanently. They bought a service, and it wasn’t provided. Channel 4, the broadcaster, admitted liability, and while they were able to avoid a fine they did have to pay legal costs of almost $100,000. I’d give you the amount in pounds but it’s an American keyboard.

Every CEO of a company that has gone public admits that on some level, they wish they didn’t have to answer to the stockholders because it limits their ability to work creatively. You see where I’m going with that analogy, I trust.

The Associated Press deftly reports that Costner is disputing the price with his former business partners in the Midnight Star, a South Dakota casino which sports Costner memorabilia on the walls. I wish I could summarize the situation as well as the AP’s Carson Walker:

Costner owns 93.5 percent of the casino. He hired Francis and Carla Caneva to manage the operation and gave them ownership of 6.5 percent. He fired them in July 2004, asking them to part ways as partners, too. When they declined, he chose to dissolve the partnership.

In order for that to happen, the casino’s fair market value had to be determined. Costner hired an accountant who put the value of the Midnight Star at $3.1 million. The Canevas got another Deadwood casino owner to testify that he would pay twice that — $6.2 million.

A judge went along with that figure and ordered Costner, as the majority property owner, to buy the business for $6.2 million, or it was to be sold on the open market.

Costner appealed, arguing the value wasn’t derived from a hypothetical buyer and seller, as is required by the IRS, and the value was set without viewing any financial documents. His lawyer said the Canevas want a fixed value of over $4.9 million because only then would they receive any money. That’s the amount of money Costner has in the project and he’s entitled to be paid first.

Bravo, Carson! I can’t imagine making sense of this story without you. They should hire you to their legal team: otherwise, this may be Costner’s last stand.

The Supreme Court has heard and rejected an appeal by Vinnie Vincent, former Ace Frehley replacement, for back royalties on songs he wrote for them in the early eighties. At issue was Vincent’s status at the time; the band had apparently taken him on as a work-for-hire employee. And then they fired him. And then they rehired and fired him again. And then in the early nineties, they hired him again. And fired him. Though even Wikipedia won’t print the rumors, they do quote Gene Simmons as saying Vincent’s behavior was “unethical.” Too unethical for Gene Simmons.

The suit, for $6 million, was originally filed in 1992 and lost on the basis that the amount was excessive, and that he was a salaried employee. Please don’t confuse this with the first time Vincent sued KISS for $6 million in the mid-eighties. He lost that one too but let it go. I guess. Since then Vincent has been pursuing his solo career with the Vinnie Vincent Invasion, pushing the suit up to the supreme court, and giving interviews in which he refers to KISS as “that white-face band” because he is under a gag order to not use them in any publicity.

I’m just saying: isn’t it possible, between this guy and Anna Nicole Smith, that the Supreme Court simply has too much time on its hands? Can’t we put them on designing new robes or something?

The letter arrived a day before Podcast Ready introduced a new version of its software, which will work with iPods.

Creative held a patent on a hierarchal user interface in which you navigate to a folder, click on it, click on a folder inside it, then click a third time to your item. As Steve Jobs said at the settlement announcment yesterday, “Creative is very fortunate to have been granted this early patent.” No kiddin’ Steve.

The settlement will add 85 cents per share to Creative’s stock price when the period closes, and also grants them the right to produce official iPod accessories. In addition to that, there’s always their signature line of sound cards for PCs, the Soundblaster.

The iPod is now free to innovate without the distraction of legal action hanging over its easily-scratched plastic head. First up – how to make it so it isn’t always playing FEEL GOOD INC. by Gorillaz.

Kazaa, like Napster, had the unfortunate feature of running some of the operation on company servers, making it a target of lawyers. Gnutella and Bittorrent and other services currently still operating offer free software which distributes the files among the thousands of participants. The software itself does not violate the copywrites in the same way that guns don’t kill people. Addtionally, since the software is free, there is little point in suing for profits. Gnutella is open-source and some Gnutella clients are rewritten to include ads and/or spyware, so someone can make money off of it, but the user can always choose another client which doen’t have these features.

I think I’ll forgo my usual rant about why the entertainment industry is shooting itself in the foot with these lawsuits. Suffice it to say that Disney loses money, Disney’s lawyers are making out like… well, like pirates. By the way, there’s something like 10 copies of a certain blockbuster right now floating around out there. Recommended viewing! But remember, everything is better on the big screen.

So burn it to DVD and watch in your living room.

According to an article in TV week, Cablevision filed a response in the U.S. District Court in the Southern District of New York, claiming its planned network DVR does not infringe copyrights. “Instead, it is simply an evolution of a practice that dates back more than two decades and is protected under a 1984 Supreme Court ruling that made it OK for consumers to record their favorite television shows.”

Cablevision says that one of the advantages of the system would be cheaper set-top boxes. I’m not sure I buy that argument. They’ll spend less on hard drives (if 10,000 people want to watch DANCIN’ WITH THE STARS they won’t have to store 10,000 copies on the server) but that savings would be mostly offset with network infrastructure upgrades, right? The bottom line would be increased by subscriptions from absent-minded viewers who meant so set the machine to record OPRAH before they left for work.

But this lawsuit is ridiculous. If the court has upheld that home recording of television is fair use, this is in no way different. I suppose they’re suing over ramifications – somewhere down the line Cablevision can offer a “video on your work computer” service or God forbid, “free video on your iPod” service, which would cut into distributors’ brand new source of income. A sensible judge would point out that when that happens, THEN sue. And even then, it’s a legal decision that could go either way. Just because you started charging for drinks from a public fountain, doesn’t mean the court has to protect your sales.

I think I’m going to write more about fair use this weekend – rabid protection of copywrites increasingly seems to be a solely American phenomenon.

You can find a pdf of the judgement here. In it are random italicized letters. Take them all together and they spell…

(smithycode) j a e i e x t o s t g p s a c g r e a m q w f k a d p m q z v

… with the part in brackets apparently uncoded. What does the rest mean? If it were easy, who’d bother to read a 71-page court document?

I don’t blame hizzoner. He had to sit through months of testimony and actually LISTEN to it. It’s no wonder his brain became saturated. I just hope he didn’t change the decision because he needed that “qz” in there.

Gee, this story would make an interesting novel.

However, the judges also noted that writers meetings for FRIENDS were a place where she should have expected to hear that kind of talk. Furthermore they believed she did not make a case that she was singled out for harassment – “The record discloses that most of the sexually coarse and vulgar language at issue did not involve and was not aimed at plaintiff or other women in the workplace,” Justice Marvin Baxter wrote. They noted that she had been warned beforehand that the writers meetings were going to be like that.

Lyle had been fired after four months, allegedly because she could not keep up with the bad language as she transcribed, and for failing to capture the flavor of the meetings.

I gotta side with the writers on this one. This is like taking a job at Dole when you’re allergic to bananas. You don’t sue because you came home all swollen up and yellow, you quit or try to get transferred to the pinapple division.

Pellicano is fighting a 112-count indictment of conspiracy to wiretap people for his clients. The Reporter: “According to prosecutors, Sylvester Stallone and Keith Carradine were among those wiretapped, while Garry Shandling and Kevin Nealon were subjected to unauthorized background checks by police officers who had been bribed by Pellicano.”

I recall that I was bemoaning Hollywood accounting practices a few months back, how most of showbiz operates outside the rules the rest of us have to follow. This case illustrates that contract negotiation walks a similar twisted path.

Lisa Bonder Kerkorian, ex-wife of Kirk Kerkorian and alleged wiretap victim, is suing Pellicano in civil court. Conversations between her and her lawyer were said to have been spied on. The man alleged to have instigated the wiretap, super lawyer Terry Christianson, maintains that he had nothing to do with it. Just like McTiernan did.

Meanwhile Tony the Pellican just looks more and more guilty. Allegedly.

They’re both ALL-DWARF Kiss tribute bands.

Show Host Jeff Beacher told the LA TIMES that Fatale was attempting to confront “Little” Tim Loomis onstage at the Hard Rock in Las Vegas, because Fatale allegedly believes that Loomis stole the idea for an all-little-person Kiss band. Loomis, a former drummer for MiniKiss who now fronts Tiny Kiss, was performing on… St. Patrick’s Day. Previously Fatale had sent a cease-and-desist letter which apparently had been ignored.

Beacher says that Fatale had to be escorted from the premises by security, a charge which Fatale disputes. “What happened was, I went there because somebody told me [Tiny Kiss was] doing the show that night…. Nobody escorted me out of there. I went there by myself to approach them as a gentleman.” He adds that “This is all a big publicity act for the guy at Beacher’s.”

Score!

 

 

As I advocated in my previous blog, a London court has decided that the breach of copywrite suit against Dan Brown’s THE DA VINCI CODE is without merit. “Utterly without merit,” Dan Brown says. Did he steal that phrase? No. It was fair use.

Michael Baigent and Richard Leigh had asserted that Brown stole “the central theme” of their nonfiction book HOLY BLOOD, HOLY GRAIL. Since it was non-fiction, Brown could take any of the research and use it in his novel, so that “central theme” argument is what the case hinged on. However, Judge Peter Smith ultimately decided that their book had no central theme, not in the way they were asserting. In his ruling he said, ”It was an artificial creation for the purposes of the litigation working back from the Da Vinci Code.”

I have believed from the start that this is a simple extortion racket – settle out of court now or pay the consequences later. In this case 85% of Random House’s court consequences must be paid by the plaintiffs. In American money it will be almost 2 million dollars.

The suit has also generated some free publicity, which means less money spent on real ads.

You may get blood from a grail, but don’t try to tap into Random House.

Big Idea distributed independently for years but decided to use another company when they outgrew themselves. Enter Lyrick. Verbal agreements often hold in showbiz, but in this case the 1997 Lyrick proposal contained the following language: “for both our protection, no contract will exist until both parties have executed a formal agreement.”

And they never did. Various drafts of a contract were proposed and faxed back and forth, but none were ever agreed to. Meanwhile Lyric distributed Veggie Tales and everyone profited. The vegatables were steaming.

Around 2001 business died down and Big Idea announced they were going with Warner Music for distribution.  Lyrick, which had been acquired by HIT Entertainment in London, sued for breach of verbal contract and won $11 million, forcing Big Idea into bankruptcy.

Big Idea appealed and got the decision reversed in the 5th Circuit court. Lyrick’s appeal to the Supreme Court was rejected Monday.

It looks to me like Big Idea’s biggest idea was to break loose from Lyrick in the fog of aquisition, which would make them decidedly Un-Christian opportunists. What kind of a business is this when even vegatables aren’t good for you?

The nurse Charlene Richards tended to Spelling for six months and charges sexual harassment; attorneys for Spelling are counter-suing charging defamation and breach of contract because Richards signed an agreement to not talk about her job. The defamation charge stems from a questionnaire her lawyers sent to over 200 actresses who have worked with Spelling, asking how he harassed them.

Spelling is already smarting from exposure in his daughter Tori’s reality series, in which she talks about her mom’s eBay room.

I love stories like this, because they’re sheer film noir. Who do you root for? The calculating nurse who exploits a feeble old man after breaking all her promises to him, or the ruthless, bitter, frustrated old man who wrecks the lives of all who dare to oppose him? If we’re lucky, there is also a dissolute private detective who’s playing both sides against each other.

Casting suggestions, anyone?

Apple Corps is the company founded by the Beatles in the late sixties to handle their side projects, a noble effort that nearly collapsed in a flurry of lawsuits as the fab four broke up. The company that remained noticed Apple Computer in the early eighties and sued for trademark infringement; they won $80,000 and and agreement that the computers would not be involved in music-related activities.

In the late eighties the record company sued again, pointing out that the computers had a prominent prescence in the recording field. They won again, with the computer company forking over $26 million. Everyone’s favorite system beep, “Sosumi,” was named as a result of this action.

The latest round comes as the iTunes music store announces a billion downloads. iTunes is arguing that the agreement they have with Apple Corps doesn’t allow them to sell recordings on physical media; and of course that’s true, they’re just downloads. And it’s also true that at this late date, most iTunes users think that the Beatles stole the idea from Steve Jobs.

I gotta admit, it takes considerable chutzpah to go into the music business in such a big way, given this agreement hanging over your head. If we could get Poverty or a Cure For Cancer to sue Apple Computer, we’d all wind up doing pretty well.

Some agreement should be hammered out here, obviously. Why not give Apple Corps 100% of their own iTunes sales? That would finally get legal Beatles downloads online, plus give a new generation a chance to watch Magical Mystery Tour on a tiny portable screen. Of course Apple Corps business model, which is apparently 25% sales and 75% litigation, may not allow for it.