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RIGHT OF PUBLICITY/CABLE TELEVISION. A professional dancer could proceed in state court with a misappropriation claim against Comcast Cable for distributing a segment of the HBO show “G-String Divas: First Time Divas” that included footage of the plaintiff’s stripping performance without her permission, the U.S. District Court for the Eastern District of Pennsylvania decided. Vogt v. Time Warner Entertainment Co., 01-905 (April 3). Comcast Cable claimed that Vogt had fraudulently joined the Pennsylvania-based company in the action to defeat federal diversity jurisdiction. But the district noted, “Plaintiff alleges that Comcast broadcast the program, and thus that Comcast took part in the tortious conduct. It is not clear that Plaintiff’s pleading would be sufficient to sustain the claim against Comcast under [federal] Rule 12(b)(6); however, the only question properly before the Court at this juncture is whether Plaintiff has a colorable claim in state court. Though Comcast may indeed be able to assert a valid ‘passive conduit’ and/or First Amendment defense to the claims against it, this Court cannot, in examining defendant’s fraudulent joinder allegation, make a determination on the merits of such a defense in order to determine that the joinder of Comcast in this litigation is improper.” RECORD ROYALTIES/DECLARATORY RELIEF. A record royalties claimant had an adequate remedy under his breach-of-contract claim so as to bar his request for a declaratory judgment against his record label, the New York Appellate Division, First Department, has decided. Watson v. Sony Music Entertainment Inc., 3727 (April 5). The plaintiff alleged that for purposes of calculating royalties from foreign sales, Sony Music used a formula that improperly deducted 150 percent of the foreign value added tax, rather than the 100 percent allowed under the parties’ recording contract. The plaintiff sought a declaratory judgment to determine the correct method for calculating the foreign royalties. Affirming the lower court’s dismissal of the declaratory judgment request, the appellate court noted, “Although the cause of action for breach of contract seeks to recover only past royalties, should plaintiff prevail on that cause of action, defendant will be bound by stare decisis to calculate future royalties in the same way it was directed to calculate past royalties.” BAND NAMES/UNFAIR COMPETITION. A band that had no right to register its name as a trademark couldn’t pursue an unfair competition claim against former members of the group, the U.S. District Court for the Eastern District of New York has decided. Champagne v. DiBlasi, 99-5786 (March 19). The music group Champagne formed in New York state in 1995, but was unable to obtain a federal trademark because the name had previously been registered by the Lawrence Welk Group for music, recordings and movies. In 1999, several members left Champagne and secured bookings using the Champagne name. When the remaining members of the original Champagne filed suit, the leaving members agreed to an injunction prohibiting them from using the band name but admitted no liability. Still, the plaintiffs sought damages for the defendants’ actions prior to entry of the injunction. Granting summary judgment for the defendants, the district court noted that because “a Lanham Act claim for unfair competition under 15 U.S.C. Sec. 1125(a) does not require that the mark sought to be protected be a registered trademark, it might be argued that the Plaintiff partnership can pursue this matter as a claim of unfair competition. …[But h]aving been unable to secure that right (because the trademark was owned by another), Plaintiff here ought not be allowed to pursue what amounts to the same claim, dressed up as a claim for unfair competition.” COPYRIGHT/ATTORNEY FEES. The district court has exceeded its discretion in awarding attorney fees to a copyright infringement defendant without affording both parties an opportunity to present evidence on the propriety and the amount, if any, of the fee award, the 2nd U.S. Circuit Court of Appeals decided. Crescent Publishing Group Inc. v. Playboy Enterprises Inc., 00-810 (March 2). The district court had dismissed with prejudice a publisher’s suit over use of a photo by Playboy Enterprises, but there were indications of material disputes of fact in the record. The appeals court also said that evidence of the actual billing arrangement between a prevailing party and its private counsel is a significant, though not necessarily controlling, factor in determining what fee is reasonable using the lodestar method.

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