An Update on the Robin Thicke / Marvin Gaye “Blurred Lines” Litigation

With the 2015 Grammy’s now behind us, another battle of performers set to take the stage this week…the legal stage that is.  Trial is scheduled to start soon before U.S. District Judge John A Kronstadt in the U.S. District Court for the Central District of California to determine whether Robin Thicke’s 2013 hit, “Blurred Lines,” infringed upon Marvin Gaye’s 1977 “Got To Give It Up.”  Thicke and his producers, Pharrell Williams and Clifford Harris, Jr., have been in a legal dispute with Gaye’s children since filing a lawsuit in August 2013  seeking a declaratory judgement that “Blurred Lines” did not unlawfully infringe “Got To Give It Up.”  In their complaint, the plaintiffs indicated the Gaye defendants had claimed that the songs “Blurred Lines” and “Got To Give It Up” had the same “feel” or “sound.”  However, Thicke’s complaint insisted being “reminiscent of a ‘sound’ is not copyright infringement . . .” and, though “Blurred Lines” was intended to evoke an era of music (read: undeniably Gaye’s era of music), that the Gaye defendants are in essence “claiming ownership to an entire genre” of music.

The Gaye family struck back with a countersuit alleging not only that Thicke blatantly copied a”constellation of distinctive and  significant compositional elements of Marvin Gaye’s classic #1 song, ‘Got to Give it Up,'” but also had a “Marvin Gaye Fixation” which resulted in him copying other Gaye songs including, “After the Dance.”  Accordingly, a second copyright infringement claim was asserted over Thicke’s “Love After War,” claiming this compilation shared a similar chorus and hook melody with Gaye’s “After the Dance.”  Acknowledging in their counterclaim that “Blurred Lines” was an unprecedented commercial hit (after reaching number one in at least 114 countries and going sextuple platinum by selling over six million copies), the Gaye defendants asserted that inclusion of signature elements of “Got To Give It Up” significantly enhanced the “musical and financial value of ‘Blurred Lines.'”  At trial, they are seeking both injunctive and monetary relief for Thicke’s alleged infringement.

However, in a significant victory for the plaintiffs last month, Judge Kronstadt held that the Gaye defendants could not play the original of Gaye’s famous recording of “Got To Give It Up” during trial for jurors, on the basis that they owned only the written composition while Motown (not a party to the suit) owns the hit recording that includes Gaye’s vocals.  Judge Konstadt previously ruled that the dispute was governed by the Copyright Act of 1909, rather than the Copyright Act of 1976, which limited copyright protections to only those musical elements that appeared in the written sheet music deposited with the Copyright Office.  Prior to trial, Thicke/Williams filed a motion to exclude Gaye’s original sound recording on the basis that it would be confusing to the jury and prejudicial because it contained “substantial additional musical elements in which Defendants do not own any copyright.”  Judge Konstadt initially ordered that Gaye’s sound recordings were inadmissible entirely; however, two days later he issued a new order allowing the defendants to present edited recordings (but only those portions of the recording that are protected) at trial as long as the recordings remove all unprotected elements, such as percussion and backup vocals).

In a statement following Judge Kronstadt’s initial ruling, Thicke and Williams’ attorney, Howard E. King, noted that while his clients love Marvin Gaye (who doesn’t?), the issues to be determined in the multi-milion dollar copyright infringement trial do not involve Gaye’s voice, character, or charisma, but rather whether ‘”Blurred Lines” is a copy of what he wrote in the sheet music [which is the only thing protected under the 1909 Copyright Act],” which he obviously denied.  Although the jury will be able to hear some of Gaye’s voice pursuant to the new order, as this article points out it appears that, if anything was copied at all, it was likely the unprotected portions of Gaye’s song, which are not only totally free to be copied under the applicable law, but will also not be played for the jury.

We will be watching as this trial develops in the coming weeks.  Judge Kronstadt’s ruling leaves us wondering whether the Gaye defendants will be able to fully convey their point without the aid of playing Marvin Gaye’s original recording for jurors or will they be left thinking “Ain’t Nothing Like the Real Thing”?  In the meantime, listen to this YouTube compilation of “Blurred Lines” and “Got to Give it Up” for yourself and let us know what you think.

(See the complaint here courtesy of The Hollywood Reporter).

“Fifty Shades of Grey” Adult Products Allegedly Not Living Up To The Hype, New Lawsuit Says

image

Moviegoers everywhere took to theaters last weekend to catch the premier of Fifty Shades of Grey, the film based on author E.L. James’ erotic romance novel of the same name.  Over 100 million copies of the popular novel have been sold worldwide, elevating it to the top of numerous best seller lists.  Based on the hoopla and controversy surrounding the story’s sexual themes, we expect the film will share the novel’s success at the box office.  In fact, the “Fifty Shades” brand has become so popular that it has parlayed its success into numerous other products, including a line of adult toys and lubricants.  Unfortunately, like all other over-commercialized things in our culture, some of those spin-off products may not live up to the perceived quality of the source material.  And, guess what happens when products don’t live up to the hype?  We get lawsuits far more controversial than the book itself.

According to an MTV News report, California woman Tania Warchol has filed a proposed class action against Lovehoney, the manufacturer of the official “Fifty Shades” line of adult products, claiming that the “Fifty Shades of Grey” Come Alive Pleasure Gel for Her failed to meet expectations.  The product description contained on Lovehoney’s website website states:

Heighten your pleasure with Come Alive, an intimate arousal gel from the Fifty Shades of Grey Official Sensual Care Collection. Experience enhanced orgasms and stimulation as every tingle, touch and vibration intensifies.

Based on this description, Warchol alleges that she “believed the [gel] has powerful aphrodisiac qualities and would increase her sexual pleasure as advertised.”  However, after a couple of uses, the Come Alive Pleasure Gel allegedly didn’t rise to the occasion.

We are guessing Warchol will face a tough road ahead of her trying to meet her burden.  A quick review of the comments section on the product’s website indicates an overwhelmingly positive customer experience and a 4-star rating. Even though feedback on a product website can be, and often is, fudged by those with a vested interest in such things, the rest of Internet reveals similar results.  As such, even if it is a placebo effect, it looks like the product must be working for somebody.

Maybe Warchol should consider other external variables.

Or, if we are wrong, this lawsuit may just prove that Come Alive Pleasure Gel is as effective as a product as “Fifty Shades of Grey” is as fine literature.

Bud Light Lime-A-Rita: Light Beer or Light Margarita?

image

Since bourbon and vodka have recently found themselves on the wrong side of a lawsuit, beer has decided to join in on the action.  A proposed class action has been filed against Anheuser-Busch (“AB”) alleging that the American brewer deceptively marketed its light beer products.  Specifically, the named plaintiff, Sheila Cruz, alleges that AB claims that the Bud Light Lime-A-Rita (and each of its five flavor varieties) is “light” and low in calories when, in fact, it contains more calories than any other AB beer.  An 8-ounce Lime-A-Rita contains 220 calories whereas 12-ounce cans of Bud Light and Budweiser contain 110 and 145 calories, respectively.  The suit was originally filed in state court in Los Angeles, but as defendants often do, it has been removed to the U.S. District Court for the Central District of California.

On the surface, it appears that this suit could have some teeth with the Lime-A-Rita containing 50 percent more calories in two-thirds the quantity of a Budweiser, its notoriously heavy cousin.  However, is comparing the Lime-A-Rita to Budweiser or Bud Light a proper comparison?  The Lime-A-Rita’s calorie count arguably isn’t “light” by beer standards.  But, is the Lime-A-Rita really a beer?  Is it a margarita? Or, it is some kind of beer-margarita hybrid?  AB claims the following on its website:

Bud Light Lime-A-Rita has the great taste of a lime margarita with a twist of Bud Light Lime for a delightfully refreshing finish. With Bud Light Lime-Ritas, there’s no need to spend time mixing and blending to prepare a lime-flavored beer margarita. Just pop open, pour over ice and enjoy!

Beer is not something enjoyed over ice. This product sounds like a margarita-in-a-can with the joys of a Bud Light lime twist only AB could create.  While the drink may not be an actual margarita, comparing the Lime-A-Rita’s calorie count to its purebred brethren lends more credence to the “light” label than with beer comparisons.  When a standard margarita on the rocks boasts 455 calories, the Lime-A-Rita’s 220 definitely feels light by comparison.

Of course, once AB takes the position that the Lime-A-Rita is actually a margarita, it will probably face false advertisement claims from another front.

Another California Court of Appeal Holds That Premises Owners Owe No Duty To Take-Home Asbestos Plaintiffs

A California Court of Appeal has added to the list of recent opinions dealing with the duty owed to take-home asbestos plaintiffs.  As we previously blogged, the California Supreme Court is set to decide two somewhat conflicting, but potentially reconcilable, California Court of Appeals decisions in take-home asbestos cases.  In Kesner, the appellate court imposed liability on manufacturers in take-home asbestos cases, and in Haver, the court held that premises owners have no duty to take-home asbestos plaintiffs.  The November 21, 2014 opinion in Beckering v. Shell Oil Companyavailable here, follows Haver’s lead and holds that the premises owner defendant, Shell Oil Company, owed no duty to the take-home plaintiff. 

Like the Haver Court, the Beckering court relied on Campbell v. Ford Motor Company in reaching its decision.  The Plaintiff in Beckering attempted to distinguish Campbell, arguing that Campbell applies only to the narrow situation in which the relative who brought home the asbestos was an independent contractor of the premises owner.  The Beckering court rejected this argument, noting that the Campbell Court specifically stated in a footnote that the independent contractor status of the relative was not the basis for the decision.

This is positive for premises owner defendants in take-home asbestos cases in the sense that Justice Aldrich did not create a Court of Appeals split on the issue of the duty owed by premises owners to take-home plaintiffs, but as the Beckering Court noted, the issue will not be resolved with any certainty until the California Supreme Court makes its decision.

(Hat Tips:  Legal Newsline and Torts Prof Blog).

Manufacturer’s “Handmade” Bourbon Made by Robots, Suit Alleges

_makers-mark-4_3

When it comes to beer, wine, and liquor, many consumers are purists.  For such people, drinking beer not brewed by a craft brewer or wine not originating from a French grape is sacrilegious. Recently, a proposed class of bourbon drinkers took to the courtroom to test this principle.  Named plaintiffs Safora Nawrouzi and Travis Williams have filed suit against Maker’s Mark in federal court in San Diego alleging that the Kentucky bourbon’s claims to be “handmade” are false and misleading to the tune of $5 million in damages.  In other words, put an allegedly false label on spirits and be prepared to award the plaintiffs a pond full of liquor. The problem apparently lies with the Maker’s Mark bottle, which contains a label that reads, “Maker’s Mark Kentucky Straight Bourbon Whisky Handmade.”  Plaintiffs find this label inaccurate.  According to the Complaint, Maker’s Mark

promotes its whiskey as being ‘handmade’ when in fact defendant’s whiskey is manufactured using mechanized and-or automated processes, which involves little to no human supervision, assistance or involvement, as demonstrated by photos and video footage of defendant’s manufacturing process.

Specifically, Plaintiffs allege that the automated process includes grinding and breaking up the grains, mixing grains with yeast and water, transferring to fermenting vats, and bottling.

We here at Abnormal Use do not know what effect, if any, the alleged mechanized processes may have on the taste of the bourbon.  According to Plaintiffs, however, it has enough of any effect that they wouldn’t have purchased the bourbon had they known it wasn’t “handmade.”  Of course, the bigger question is what Plaintiffs (and Maker’s Mark for that matter) mean by “handmade.”  For a company that sells more than 9 million bottles of bourbon a year, we would think it reasonable for Plaintiffs to expect some amount of automation.  Maker’s Mark, however, will have to prove that there remains a “hand” other than a robotic one involved in the process. As bourbon drinkers, this will be a suit we will follow closely.

Federal Court Finds That Starbucks Prominently Featured in Zoolander (And More)

We here at Abnormal Use love coffee. Not just commenting upon the products liability implications of it, but drinking it, as well. Well, we couldn’t resist sharing these findings of fact from a recent federal trademark case in California, that being Starbucks Corp. v. Heller, No. CV 14–01383 (C.D. Cal. Nov. 26, 2014). Behold, as there is now federal authority on the following:

4. Starbucks is a leading purveyor of fine Arabica coffee. The company, which began in 1971 as a single, Seattle-based dry goods store, has grown to approximately 12,000 retail locations in the United States, and more than 8,000 retail locations in over 60 foreign countries.

5. Starbucks owes its worldwide success to its strong reputation for fresh-roasted specialty coffees, brewed coffees, espresso beverages and other products and services it provides. Starbucks is also widely recognized for its knowledgeable staff and superior service.

11. The Starbucks Facebook page has more than 37 million likes and more than 20 million visits. The Starbucks Twitter account has more than 6 million followers. Both platforms prominently feature the Starbucks Marks.

 

12. Numerous television programs and movies have prominently featured the Starbucks Marks, including Parks & Rec, The Voice, Ellen, Real Time, The Devil Wears Prada, Zoolander, License to Wed, The Proposal, Clueless, 127 Hours, and You’ve Got Mail.

(footnotes and citations omitted).

Accordingly, if you need a citation for the proposition that Starbucks was prominently featured in Zoolander, this is your case.

“You Drawin’ Me?” ‘Goodfella’ Sues ‘The Simpsons’

Actor Frank Sivero, who played Goodfellas character Frankie Carbone, is suing Fox TV Studios, 21st Century Fox America, and “The Simpsons” creator Matt Groening for $250 million.  He claims that the show’s creators based one of the mob characters from “The Simpsons” on his likeness without his permission.  The character, Louie, is a part of Springfield’s Mafia that originally appeared on the show more than two decades ago. Sivero alleges that he had contact with some of the writers for “The Simpsons” in 1989 when they all lived in the same apartment complex in Sherman Oaks, California. According to the complaint:

During this time, both writers knew who Sivero was, and they saw each other almost every day. They knew he was developing the character he was to play in the movie Goodfellas, a movie Sivero did in 1989. In fact, they were aware the entire character of ‘Frankie Carbone’ was created and developed by Sivero, who based this character on his own personality…. Just one year later The Simpsons went on to base one of their “Wise Guy” characters on the character ‘Frankie Carbone’…

Sivero’s suit alleges that the defendants violated California laws regarding publicity rights, misappropriation of ideas, and misappropriation of likeness.  He claims that as a result of these wrongful acts, the value of the character he created was diluted and that it contributed to his own “type-casting” as an actor.

This will likely be Plaintiff’s Exhibit A:

Judge Orders Cease Fire in Battle of the Dukes

John Wayne

The legal dispute between Duke University and the estate of John Wayne, upon which we previously reported, has ended – for now.  The two sides have argued for years over the naming of certain goods and services. Most recently, John Wayne’s estate sued Duke University in federal Court in California seeking a judgment declaring that it could use The Duke name to market its own brand of whiskey. The trial court dismissed the action for want of jurisdiction after examining the “effects test” factors, which turn on whether a defendant aimed its wrongful conduct at California, whether the harm was likely to be suffered in the state, et cetera.  Judge Carter found that Duke University was aware of the Duke’s family’s presence in the state of California, but the Duke’s family was unable to show that Duke University intentionally directed its conduct at the state of California by filing oppositions to trademarks in the state of Virginia.

We doubt that we’ve seen the end of this dispute.  As John Wayne himself once said, “[a]ll battles are fought by scared men who’d rather be someplace else.”  This battle was no different.

(Hat Tip: Hollywood Reporter).

It Has Come To This: McDonald’s Customer Allegedly Fabricates Hot Coffee Injury

As you of course already know, we here at Abnormal Use have devoted much time to the discussion of hot coffee lawsuits.  As we have often suggested, supporters of cases like the infamous Stella Liebeck v. McDonald’s case focus too much on the damages and not enough on the liability issues, such as whether coffee is an “unreasonably dangerous” product.  After all, in a tort action, a plaintiff doesn’t get to damages without first proving liability.

Now, a new report has us questioning our position.

According to a news report from CBS-Los Angeles,  a California woman is facing two dozen counts of felony insurance and workers compensation fraud for allegedly submitting false damages materials pertaining to a hot coffee claim.  The criminal complaint filed in the San Bernardino County Superior Court states that the woman claimed that hot coffee was spilled on her hand when she was handed a cup with an unsecured lid at a McDonalds drive-thru.  Thereafter, she submitted photos of second-degree burns she allegedly lifted from the Internet.  Couple that with medical records she allegedly doctored, and you have serious fraud, if true.  And, to think, after all this time, after writing about all of these cases, we just assumed the burns were legit.

In all seriousness, we know that hot coffee can cause burns, and this incident is an outlier.  That said, we have to wonder how much influence the Liebeck verdict and its legacy had on this woman’s plan.  Or, maybe she consulted with Jackie Chiles.  Either way, we have to give her some credit.  At least she knew to attribute some independent act of negligence to McDonalds (i.e. spilling the coffee) rather than complain about the temperature of the coffee itself.

Four Loko Manufacturer Not Immune From Suit As Manufacturer of Alcohol

The father of a Four Loko drinker who was shot and killed by the police has been granted a second chance to pursue his claims against the drink manufacturer.  After the death of Ron Fiorini, a 23-year old college student, Fiorini’s father, Brett Fiorini, filed suit against City Brewing Company, LLC in the Superior Court of Fresno County (CA) and asserted negligence and strict liability claims.  Specifically, Fiorini alleged that Four Loko’s combination of alcohol and caffeine, as well as other stimulants, was unreasonably dangerous and increased the risk of violent and other high-risk behavior.  The circuit court granted City Brewing’s motion for summary judgment on the grounds that the company was protected by the civil immunity in California’s dram shop statutes.  Last week, a California appellate court reversed the judgment in favor of City Brewing.  The case is Fiorini v. City Brewing Co., LLC, No. F067045 (Cal. App. 5th Nov. 7, 2014).

We have written before on Four Loko lawsuits, but factually, this one offers a few new twists.  On the day of Fiorini’s death, he and some friends purchased two cans of Four Loko and a quantity of beer from a convenience store.  Thereafter, Fiorini drank the Four Loko and some beer and began acting agitated and disoriented.  Fiorini became delusional, grabbed a shotgun, and started shooting at a fence, exclaiming that “they” were coming for him.  When police arrived, Fiorini wielded the gun on the front porch and police opened fire.  The crux of the lawsuit is that had the Four Loko not contained caffeine and other stimulants, Fiorini would have lost consciousness due to his level of alcohol consumption.  Instead, he remained awake in his disoriented state.

On appeal, City Brewing argued that the trial court correctly granted its motion for summary judgment based on a California statute which protects the manufacturers of alcohol from liabilty for common consumer products, i.e. alcohol.  The Court, however, held that an alcoholic energy drink, which combines alcohol and caffeine, is not a common consumer product for the purpose of statutory immunity.

While we here at Abnormal Use recognize that the alcoholic energy drink is a fairly new phenomenon, we question whether the risks are not common knowledge.  People know the risks of alcohol.  They know the risks of caffeine.  It doesn’t take a chemist to presume what the risks may be of combining those two items.  After all, it is what probably drives most people to purchase Four Loko in the first place.  The Court rejected this so-called “deconstruction” approach, but it is certainly an approach we would have considered taking.

Now that the case has been remanded back to the trial court, we are interested to see what a jury may do with these claims.  Four Loko has had its share of bad press over the last few years.  It is now time to see whether that negative reputation holds up to a legal analysis.