Indecency, antipiracy, copyright decisions may shape biz

At the start of the new year the expectations among entertainment law mavens are that the next 12 months will turn out momentous, precendential decisions that will dramatically change the way Hollywood does business. Then the biz gets mired in less lofty spectacles — a tattoo artist’s bid to hold up the release of “Hangover II” on copyright infringement grounds or Charlie Sheen’s very public confrontation with a studio and a showrunner.

Hollywood will surely see plenty of high-profile legal tangles next year, but there are cases that stand to have real impact, some drama and even a few oddities.

Here’s what to watch for:

FCC vs. Fox Television Stations: It seems like eons since Cher swore on the Billboard Music Awards and Janet Jackson’s wardrobe malfunctioned at the 2004 Super Bowl, but in the protracted battle over the FCC’s crackdown on indecent content on TV, the final showdown may well be here. On Jan. 10, the Supreme Court will hear oral arguments on whether the FCC’s indecency policy over “fleeting expletives,” unleashed a decade ago, is constitutional. Broadcasters think the rules are arbitrary and vague, and some networks are calling for the court to overturn its landmark 1978 Pacifica decision, which would significantly roll back the FCC’s authority over content on the airwaves. The high court ruled in favor of the FCC in the first go-round, but the questions at issue were largely procedural rather than constitutional. This time, the government is hoping that the decision rendered will be a narrow one that does not curb too much its authority to police the airwaves.

HFPA vs. Dick Clark Prods.: A little more than a week after the Hollywood Foreign Press Assn. and Dick Clark Prods. unite to pull off another Golden Globe ceremony, they will square off before a federal judge over the rights to the annual kudocast. A settlement is, of course, still possible before trial begins on Jan. 24 — an NBCUniversal attorney recently urged as much — but both sides have been far apart in their interpretation of what was meant by a clause in a 1993 agreement. The decision by Judge Howard Matz will affect where the show lands in 2013 and beyond. The trial itself may dredge up embarrassing details of HFPA politics as well as internal mechanics of DCP’s business operations. Still ongoing is the suit filed by the HFPA’s former publicist charging the org’s members with a kind of payola, as well as a countersuit that claims the publicist engaged in unethical activity.

Viacom vs. Google/YouTube: A federal appellate ruling is expected soon in Viacom’s $1 billion suit against Google and YouTube, a case that centers on the “safe harbor” provision of the Digital Millennium Copyright Act. A district court judge already ruled that YouTube was not liable for the tens of thousands of copyright-infringing clips of “South Park,” “The Colbert Report” and other Viacom properties on its site because it removed them when the company issued takedown notices. But Viacom says YouTube built a business on the content that Viacom owns and that it knew users were routinely uploading pirated clips. The decision could determine when the liability of user-generated sites and social media for copyright infringement kicks in and when it does not.

Disney et al. vs. Hotfile: The studios see cyberlockers as the latest front in the battle against piracy. These digital storage sites are easier to use than BitTorrent sites and therefore prone to facilitating copyright infringement of movies, TV shows and music. Hotfile has claimed that the studios, and Warner Bros. in particular, are engaged in overzealous antipiracy practices, something certainly at the center of D.C. policy debates, but the litigation marks a new front in Hollywood’s efforts to stay apace with what has been technology’s whack-a-mole. In 2012, the biggest test of studio antipiracy efforts will not be in the courts or Congress but when major Internet service providers begin rolling out a system of Copyright Alerts, or warnings given to consumers when they download or upload pirated content. Those who repeatedly violate the rule — i.e., five or more times — face a series of “mitigation measures” that could include reduction of Internet speeds. It will be telling whether this reduces piracy, creates consumer outcry or both.

Scorpio Music vs. Victor Willis: Copyright termination is a nuanced, complex process in which authors are able to reclaim the rights to their works, except in cases where they were made “for hire.” A provision of the 1976 Copyright Act allows artists to reclaim their songs 35 years after release, starting in 1978 — meaning that in 2013 the ownership of some of the most famous songs of the disco era will be in doubt. While the impact of the rights termination provision is widespread, it only recently came to the fore when Victor Willis, the cop in the Village People, sought to reclaim ownership of dozens of songs, including the hit “YMCA.” But the publishers are fighting back, claiming that Willis was an at-hire employee and that he is not the sole author of the songs, as other members of the group were involved. The case may shed light on the interpretation of copyright law — as well as a sign of the litigation that is to come as a flood of artists seek to reclaim some of the most popular music of that era.

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