In 2015 and 2016, Weil obtained significant victories for CBS and its affiliates that will redefine the contours of publicity and privacy law in the United States involving the use of student-athlete names, images, and likenesses in the media.
In June 2015, Weil persuaded a Tennessee federal court to dismiss with prejudice a putative nationwide class action (Marshall) brought by NCAA Division I student-athletes alleging that CBS, other networks, college athletic conferences, and licensors, profited from the broadcast and use of student-athletes’ names, images, and likenesses without permission, violating Tennessee’s right of publicity statute and federal antitrust laws. In a landmark decision and judgment on the defendants’ motions to dismiss, the court dismissed Plaintiffs’ complaint in its entirety. Among other things, the court ruled that there was no right of publicity for participants in sporting events, and with respect to Plaintiffs’ antitrust claims, the court rejected Plaintiffs’ claim that the broadcast contracts that purportedly transfer student-athletes’ names, images, and likenesses are an unreasonable restraint of trade, and rejected Plaintiffs’ allegations of antitrust injury or reduced competition. The Sixth Circuit affirmed in August 2016.
In August 2015, a California federal court granted Weil’s motion for summary judgment on behalf of CBS Interactive Inc. (CBSI) in another landmark right of publicity case (Lightbourne) that dismissed all of plaintiff’s claims. The plaintiff in this action alleged that CBSI had used student-athletes’ names, images, and likenesses, without their consent, in connection with its provision of services to NCAA member institutions’ sale of photographs of student-athletes through the schools’ official athletic websites. The plaintiff had asked for a nationwide class of potentially over a million current and former student-athletes and was seeking hundreds of millions of dollars in minimum statutory damages under California’s right of publicity statute. The summary judgment ruling followed the court’s July 30, 2015 denial of the plaintiff’s motion for class certification, in which the court, among other things, rejected Plaintiff’s attempt to apply California law to a nationwide class in this case, concluding that there were material differences in states’ right of publicity laws, and that other states’ interests in applying their own right of publicity laws outweighed California’s.
Weil also successfully obtained the dismissal of CBS from a multi-district antitrust class action consolidated in California federal court relating to the use of CBS’s NFL broadcasts in the “Sunday Ticket” subscription package.
Weil secured a complete victory for Discovery Communications and Animal Planet following a multi-week bench trial in the District of Maryland that took place in November 2015. Plaintiff Sky Angel U.S. LLC – a former satellite distributor – had alleged that Discovery breached the parties’ Affiliation Agreement when it terminated the Agreement in 2010 after becoming aware that Sky Angel was utilizing the public Internet to distribute Discovery’s programming. Sky Angel sought tens of millions in damages, and had initially sought specific performance of the Agreement as well. Weil took over the case from another major law firm after an adverse ruling on a motion to dismiss. Weil quickly developed and pressed several arguments as to why, in light of Sky Angel’s improper distribution methodology (i.e., its use of the public Internet), Discovery’s termination was authorized under the Agreement, objectively and subjectively reasonable under governing Maryland law, and thus entirely lawful. In August 2016, in a decision that is currently under seal, the court fully weighed the evidence, made credibility determinations regarding the parties’ witnesses, and found for Discovery on all counts, completely vindicating its contract position. Weil is currently representing Discovery in Sky Angel’s appeal.Weil also represents Discovery Communications in a lawsuit filed in federal court in Los Angeles asserting breach of contract, copyright, and trademark infringement where the plaintiff seeks compensatory and consequential damages of at least $7 million.
Weil also successfully represented ESPN in a second and different matter obtaining a near-complete defense jury verdict following trial of more than $150 million in claims brought by Dish Network challenging certain provisions of distribution agreements ESPN had negotiated with Dish and several of Dish’s competitors.
Weil serves as Facebook’s lead U.S. IP counsel, counseling Facebook and Instagram on all non-patent IP-related issues on a daily basis, including complex and cutting-edge copyright and trademark issues, product development, global DMCA notice-and-takedown issues, and music licensing issues. In addition, we help coordinate global IP advice for Facebook and craft their constantly-evolving trademark and copyright policies and notifications.
Weil represents Pandora Media, the largest single webcaster in the United States, in a number of high-profile disputes with parties in the recorded music and music publishing industries.
- Weil is representing Pandora in Phonorecords III, an upcoming CRB proceeding, adverse to the National Music Publishers Association (NMPA) and the Nashville Songwriters Association International (NSAI), which will determine royalty rates for the on-demand streaming of musical works for the years 2018-2022.
- Weil is also defending Pandora in connection with two copyright class actions filed in the S.D.N.Y. arising out of Pandora’s alleged unlicensed streaming of sound recordings created prior to February 15, 1972, as well as in connection with amicus submissions on this issue in various appellate courts around the country.
- In April 2015, Weil represented Pandora in CRB trial proceedings against SoundExchange that established rates for the use of recorded music by webcasters over a five-year period starting January 1, 2016. In December 2015, the CRB issued a favorable ruling that modestly increased current royalty rates – aligning closely with Pandora’s proposed rates – instead of awarding plaintiffs’ sought after fees that would have increased Pandora’s royalty rate by nearly 80% in the first year and escalated it even further thereafter, implicating billions of dollars in royalties. We are also representing Pandora in a D.C. Circuit appeal by the record industry as a result of this ruling.
Weil successfully represented Showtime Networks Inc. (SNI) in multi-district class action litigation consolidated in the C.D. Cal. relating to the 2015 Manny Pacquiao-Floyd Mayweather boxing match, which was billed as the “Fight of the Century.” In February 2016, Weil secured a strategic early dismissal on behalf of SNI during the MDL consolidation process, avoiding costly additional phases of litigation. Plaintiffs in these cases, including 13 class actions involving SNI, alleged that SNI, along with other media networks, the boxers, and their respective promotion companies, deceptively and fraudulently promoted the match as one between two healthy fighters, while allegedly knowing that one of the fighters was injured prior to the start of the fight. Weil obtained the early resolution of all 13 cases by negotiating with plaintiffs a stipulated dismissal of all claims against SNI without prejudice, based in part upon factual representations by SNI regarding its knowledge of the fighter’s injury. The cases remain pending against other defendants.
- Copyright Royalty Board Trial: Weil represents Sirius XM in a music royalty rate-setting proceeding before the Copyright Royalty Board (CRB) adverse to SoundExchange (representing a consortium of record companies), Warner Music Group, Universal Music Group, Sony Music Entertainment, the Recording Industry Association of America, and several other music industry trade associations. The CRB will determine the rates and terms for royalty payments due from Sirius XM to the recorded music industry between 2018 and 2022 for the digital transmission of sound recordings via Sirius XM’s satellite radio service. In 2008 and 2012, Weil obtained trial victories for Sirius XM before the Copyright Royalty Board in connection with similar proceedings affecting the 2007-2012 and 2013-2017 license periods, and defended those victories successfully before the Court of Appeals for the D.C. Circuit.
- Antitrust Litigation: We represent Sirius XM in an antitrust action filed against SoundExchange and other recording industry organizations, alleging an industry-wide conspiracy to interfere with Sirius XM's attempts to license directly with record companies.
Univision and Showtime Networks: Disputes with Charter Communications
Following the announcement of Charter Communication’s $65 billion acquisition of Time Warner Cable, a number of media networks retained Weil to analyze their carriage agreements with Charter Communications and Time Warner Cable governing the rates paid to the networks. Following our analysis, and subsequent to discussions between our clients and Charter, we have filed suits on behalf of Hispanic television company Univision and CBS affiliate Showtime Networks against Charter in New York Supreme Court. These are some of the highest profile disputes pending in the media sector today.
Weil secured a unanimous decision from the Second Circuit Court of Appeals affirming a lower court’s summary judgment ruling for Marvel and parent Walt Disney Co. in a widely-followed copyright ownership suit between Marvel and the heirs of Jack Kirby, a noted comic book artist who worked for Marvel for decades, including during the late 1950s and early 1960s. Marvel created many of its iconic comic book superheroes during this period, including The Fantastic Four, Iron Man, Thor, The Incredible Hulk, and The X-Men. On appeal, the Second Circuit issued a precedential decision unanimously upholding the summary judgment ruling, and rejected all of the Kirby heirs’ arguments concerning copyright ownership, finding that the undisputed evidence established that the works at issue were created for Marvel as works made for hire as a matter of law.