By Duncan Calow
It is only March, but 2012 has already seen a series of contract disputes over digital media and technology hit the headlines.
First, rock star Peter Frampton announced he had filed a lawsuit against his record label for half a million pounds worth of unpaid music royalties and other damages. Frampton claimed he was contracted with A&M Records to receive a 50% royalty for the use of “licensed” music but had not received payment on any digital sales.
Then there was news that book publisher HarperCollins had filed a lawsuit against digital publisher Open Road for copyright infringement in relation to e-versions of the children’s book, “Julie of the Wolves”. HarperCollins claims its author contract gave it the exclusive ability to publish the work in any format but Open Road claims to have been granted the e-book rights.
And even ‘new media’ companies have their problems too. PhoneDog.com, an interactive mobile news and review website, was reported to have sued a former employee for £217,000 after he converted a Twitter account, which it was claimed was originally set up on behalf of the employer, for his own use after leaving the company.
Each of the cases involve very different parties with very different facts and very different contracts.
The first is just one of many cases over how revenue in sales of digital music should be split between artists and labels, often with a focus on how physical distribution terms can apply to digital delivery. The second case raises, once again, the crucial question over how far fundamental expectations within a contract about how a work can be exploited can change as technology develops. The final dispute highlights the need for all businesses to keep employment contract and policies up to date to reflect the way in which social media and other technology is adopted in the workplace.
It remains to be seen how successful any of the claims will be as the full circumstances of these cases emerge over time or as the parties reach settlements.
What is clear, however, is that keeping contractual arrangements up-to-date with an ever evolving media and technology landscape continues to be a challenge. It is also a form of challenge that existed well before digital. Legal text books recount the disputes that arose as theatre plays were first filmed for cinema – or when cinema films were first shown on television and released on video.
The pace of change is of course faster now and the inherent nature of digital technology allows greater opportunities for re-use. Accordingly, it is commonly suggested that the best solution is to work with technology-neutral contracts that reflect a ‘converged’ digital media. Yet in practice there is often still a need to main sector specifics and capture particular technical details.
In fact, dealing with digital successfully in a contract is often a balancing act between maintaining familiar structures and form alongside sufficient further foresight and flexibility. Future developments may not always be predictable but contracts can still try to provide for that uncertainty.
Meanwhile, it’s a pretty s
By Andrew Trask
The non-fiction author has all kinds of worries. He may get his facts seriously wrong, in a very public forum. His books may not sell. Even if his books do sell, he may be sued for libel (the print version of slander), especially in Europe. And, in the past few years, a new threat
Erica says it better than I can — regarding the discrimination lawsuit the Library of Congress lost because it rescinded a job offer from a hired applicant who disclosed that he was transitioning into becoming a woman — “Hey, Library of Congress. Cut that shit out.” Thanks to the wonders of YouTube you can hear Diane Schroer herself talking about transgender discrimination.
Normally I’m not much of a joiner, but… “EFF is gathering a group of authors (or their heirs or assigns) who are concerned about the Google Book Search settlement and its effect on the privacy and anonymity of readers. This page provides basic information for authors and publishers who are considering whether to join our group.”
You can join too, if you’d like.
Observers of the ongoing Kirby family v Marvel case have long wondered what Stan Lee would have to say on the subject. Now, finally, we get to find out. Last year, he and several others were called to give depositions in the case which involves the Kirby family’s quest to terminate Marvel’s copyrights on 45 characters Kirby helped create. Transcripts of these depositions have recently become public. It’s 4:00 AM at BC USA headquarters and I was about to call it a night when I noticed that this material had become public. […] this material is sure to be dissected at the atomic level for years to come.
Bold text is mine, because I thought it was pretty funny and perfectly astute. Still, from the point of view not only of comic book fans and Kirby fans, this is especially fascinating for all of us who “draw for a living” and a good reminder to read those contracts when they come across your desk. And when they don’t.
By Andrew Trask
A decade ago, Betty Dukes, a Wal-Mart greeter (one of the folks in blue vests who welcome you to the store), filed a lawsuit against her employer. She alleged that her supervisors had treated her harshly and, once she complained, had retaliated by demoting her. Rather than sue Wal-Mart on her own, she joined with six other women who also (allegedly) suffered discrimination at the company. These women included one who had been passed over for promotion, one who could not transfer to day shifts, and one who had been sexually harassed by coworkers. Together, these women claimed to represent all women at Wal-Mart, and asked for damages on all their behalf.
Last week, the Supreme Court heard oral argument on the case. The media has covered Wal-Mart v. Dukes as a gender discrimination case. And it’s true that the underlying cause of action is a violation of Title VII, the United States’s antidiscrimination statute. But the issue the Court heard is a procedural one: can the women who sued Wal-Mart bring their case as a class action? If they can, the huge damages at stake will likely induce Wal-Mart to settle on generous terms. (No company, even one as big as Wal-Mart, wants to risk a billion-dollar verdict.) If they can’t, then each woman must bring her case on her own. And while some women’s discrimination claims may be worth enough to interest a lawyer, others will not. Since the procedural question could make or break this case, it has taken on the same significance as if the Court were ruling on whether companies are allowed to discriminate against women.
So what is a class action? It’s a method of aggregating a large number of claims into a single lawsuit. Under Federal Rule of Civil Procedure 23 — the rule that authorizes class actions — the lawsuit begins with an individual plaintiff. If she can convince the court her claim is enough like those of the people she seeks to represent, the court certifies the case as a class action. Once the class is certified, the plaintiff offers proof of her individual claim at trial. If she wins, the whole class wins; but if she loses, then the whole class loses with her.
The Supreme Court heard arguments about whether the women suing Wal-Mart had demonstrated they met two of the requirements of Rule 23.
First, it considered whether the women met the “commonality” requirement. Commonality calls for every class action to have a common question of law or fact that, if answered, moves the case forward. The requirement seems simple, but can be hard to meet for a diverse group of 1.6 million women. (Hence the references to the Dukes class being “too big to certify.”) The women argued that their common question was whether Wal-Mart’s corporate culture was “vulnerable” to sex discrimination, and whether allowing managers “excessive subjectivity” in personnel decisions ended up discriminating against women.
Library Journal put up a quick article about the Topeka Library Board’s decision from yesterday to restrict access to four books with sexual themes. I was following most of the meeting, in realtime with photos by keeping an eye on David Lee King’s twitter feed (starting about here) as I was in my all day meeting. Here’s the brief story from the AP Wire. I don’t think we’ve heard the last of this story.
One lawyer at the meeting told the newspaper he had already been approached by potential plaintiffs. “Because it would take these books off the shelves and place them out of reach of patrons browsing the shelves, the proposed policy is unconstitutional,” warned the American Civil Liberties Union of Kansas and Western Missouri in a letter to the board.