termination – Techdirt (original) (raw)

Musk’s Attempt To Get Out Of The Twitter Deal Proceeding Exactly As Predicted; What Happens Next?

from the musk-has-no-poker-face dept

In news that is not surprising at all, and seems to be playing out just as people predicted a month ago, Elon Musk has officially claimed that Twitter is in breach of its merger agreement and says he’s pulling out of the deal. The actual details, of course, are not that simple. There is no actual escape hatch like that here. Musk made a legal agreement to pay $44 billion for the company and can’t just walk away.

As we noted back in June, he appeared to have hired some very expensive lawyers to come up with some sort of pretext for walking away, and it’s playing out exactly in the manner described. Musk had specifically waived his rights to due diligence prior to the deal, but the merger agreement did include a promise to provide Musk with necessary data to conclude the deal.

For much of the month of May, Musk (who must be a terrible fucking poker player) telegraphed his intentions to bail on the deal by whining about how much spam there was. This made no sense at any level. First, when Musk announced the deal, he insisted he was doing it in order to tackle the spam challenge on the platform (a problem that really doesn’t impact most users of the site — but does impact the very most high profile users like Musk). So to then suddenly start whining about spam seems transparently a pretext.

Also, it was a pretext that couldn’t void the deal.

So, his second attempt to come up with an excuse was to claim that Twitter publicly lied to the SEC in its filings regarding how much spam was counted among its monetizable daily active users. This also seemed ridiculous, as Twitter had been publicly reporting those numbers for quite some time, and Musk could have explored those prior to the deal itself but, again, deliberately chose to waive those rights. You can’t do a deal in which you agree not to explore the data, and then complain that you hadn’t seen the data.

Somewhere around this time, it seems clear that Musk’s lawyers explained to him that this wouldn’t get them out of the deal, and (it seems likely) suggested that they could cook up some alternative pretext that at least someone could try to actually argue in court — because it was clear that court is where this would all end up.

And thus, behold the bullshit brilliance of the lawyers at Skadden, Arps, who earned their large paycheck by zeroing in on the part of the deal about needing to supply Musk with the information necessary to close the deal. They just started requesting tons of data, specifically related to the whole spam/mDAU discussion, knowing that they could just keep asking for more data, some of it impossible to actually supply to Musk, and eventually they would be able to say that Twitter wasn’t supplying the data requested, and thus was in breach… and therefore the deal was off.

And, that’s exactly what happened. From the letter to Twitter:

Notwithstanding these repeated requests over the past two months, Twitter has still failed to provide much of the data and information responsive to Mr. Musk’s repeated requests, including, but not limited to:

1. Information related to Twitter’s process for auditing the inclusion of spam and fake accounts in mDAU. Twitter has still not provided much of the information specifically requested by Mr. Musk in Sections 1.01-1.03 of the May 19 diligence request list that is necessary for him to make an assessment of the prevalence of false or spam accounts on its website. As recently as the June 29 Letter, Mr. Musk reiterated this long-standing request for information related to Twitter’s sampling process for detecting fake accounts. The June 29 Letter identified specific data necessary to enable Mr. Musk to independently verify Twitter’s representations regarding the number of mDAU on its platform—including, but not limited to (1) daily global mDAU data since October 1, 2020; (2) information regarding the sampling population for mDAU, including whether the mDAU population used for auditing spam and false accounts is the same mDAU population used for quarterly reporting; (3) outputs of each step of the sampling process for each day during the weeks of January 30, 2022 and June 19, 2022; (4) documentation or other guidance provided to contractor agents used for auditing mDAU samples; (5) information regarding the user interface of Twitter’s ADAP tool and any internal tools used by the contractor agents; and (6) mDAU audit sampling information, including anonymized information identifying the contractor agents and Quality Analyst that reviewed each sampled account, the designation given by each contractor agent and Quality Analyst, and the current status of any accounts labelled “compromised.” A subsequent request along these lines should not have been necessary, as this information should have been provided in response to Mr. Musk’s original diligence request. Yet, to date, Twitter has not provided any of this information. 2. Information related to Twitter’s process for identifying and suspending spam and fake accounts. In addition to information regarding Twitter’s mDAU audits, the June 29 Letter also reiterated requests for data specifically identified in Sections 1.04-1.05 of the May 19 diligence request list regarding Twitter’s methodology and performance data relating to identification and suspension of spam and false accounts, including, but not limited to, information regarding account suspensions, including information sufficient to identify daily numbers of account suspensions since October 2020 and numbers of account suspensions for each of Twitter’s internal reasons for suspension. In addition, during the June 30, 2022 call, Twitter’s representatives indicated for the first time that the workflow and processes for detecting spam and false accounts in the mDAU population is different and separate from the workflow and processes for identifying and suspending accounts in violation of Twitter’s policies. On that call, Twitter indicated that it would not be willing to provide information regarding the methodologies employed to identify and suspend such accounts. 3. Daily measures of mDAU for the past eight (8) quarters. On June 17, 2022 (the “June 17 Letter”) Mr. Musk reiterated his request for “access to the sample set used and calculations performed, as well as any related reports or analysis, to support Twitter’s representation that fewer than 5% of its mDAUs are false or spam account.” To that end, Mr. Musk requested that Twitter provide “daily measures of mDAU for the previous eight quarters, and through the present.” This information is derivative of the information Mr. Musk first sought in Sections 1.01-1.03 of the May 19 diligence request list. Although Twitter has provided certain summary data regarding the mDAU calculations, Twitter has not provided the complete daily measures as requested. 4. Board materials related to Twitter’s mDAU calculations. In the June 17 Letter, Mr. Musk requested a variety of board materials and communications related to Twitter’s mDAU metric, its calculation of the number of spam and false accounts, its disclosure of the mDAU metric, and the company’s disclosure of the number of spam accounts on the platform. Twitter has provided an incomplete data set in response to this request, and has not provided information sufficient to enable Mr. Musk to make an independent assessment of Twitter’s board and management’s understanding of its mDAU metric. 5. Materials related to Twitter’s financial condition. Mr. Musk is entitled, under Section 6.4 of the Merger Agreement to “all information concerning the business … of the Company … for any reasonable business purpose related to the consummation of the transactions” and under Section 6.11 of the Merger Agreement, to information “reasonably requested” in connection with his efforts to secure the debt financing necessary to consummate the transaction. To that end, Mr. Musk requested on June 17 a variety of board materials, including a working, bottoms-up financial model for 2022, a budget for 2022, an updated draft plan or budget, and a working copy of Goldman Sachs’ valuation model underlying its fairness opinion. Twitter has provided only a pdf copy of Goldman Sachs’ final Board presentation.

This is all just a very expensive way of saying “you promised us to provide us everything we needed, so we kept asking for more and more ridiculous, and impossible-to-actually-deliver information until we could claim you weren’t giving us what we needed, and so now we can claim you’re in breach.”

I mean, they list out five different requests, but the first four are all variations on the same made up nonsense request. And the last one is just thrown in as a Hail Mary in case the court sees through the first four.

Musk’s lawyers try to claim that the information that Twitter did provide Musk — basically access to the full Twitter Firehose API (which was always a kind of middle-finger to Musk’s bogus insincere request in the first place) — wasn’t enough to satisfy the agreement because, in part, it treated Musk like a common every day customer. *shudder*

Twitter only offered to provide Mr. Musk with the same level of access as some of its customers after we explained that throttling the rate limit prevented Mr. Musk and his advisors from performing the analysis that he wished to conduct in any reasonable period of time.

And, if you really want any extra proof that this was all pretextual and planned out back in May, and executed over the last month, Musk is doing this basically on the first day he can. The original merger agreement included a termination clause for contractual breach, with a 30 calendar day notice. It has been exactly 30 days since Musk sent that obviously pretextual complaint about providing data. We hit the deadline, and now Musk says he’s out.

Somewhat hilariously, Musk’s lawyers throw one more Hail Mary in at the end of the letter, claiming that because there were some management changes after the merger agreement was announced — including both some executive firings and some who just chose to get out before Musk became their boss — that this somehow violated another clause of the agreement to “preserve substantially intact the material components of its current business organization.” This is also legally weak sauce.

Not surprisingly, Twitter’s board chair immediately announced this was going to court, which is what everyone expected:

So, the next stage of the fight will happen in Delaware Court of Chancery, and who the hell knows what happens then. Lots of lawyers are going to start eyeing yachts, however.

On the whole, it seems fairly blatantly obvious that all of Musk’s excuses here are pretextual, and plotted out by his lawyers to try to get him out of a deal that didn’t actually have an escape hatch. The question before the court, really, is whether or not it matters that he’s obviously trying to escape a deal that he agreed to.

Perhaps the most likely outcome is that the two sides will come to some sort of agreement — with the most probable outcome being that Musk agrees to pay some amount for Twitter to drop the case and walk away. The question though, is what number will satisfy both parties. While the agreement has a 1billionbreakupfee,that’snotreallycontrollinghere.TherearegoingtobelongdrawnoutdiscussionsregardinghowmuchTwitterandMuskwilleachagreetoinordertojustwalkaway.Itmaycomedowntosomewherearoundthat1 billion breakup fee, that’s not really controlling here. There are going to be long drawn out discussions regarding how much Twitter and Musk will each agree to in order to just walk away. It may come down to somewhere around that 1billionbreakupfee,that’snotreallycontrollinghere.TherearegoingtobelongdrawnoutdiscussionsregardinghowmuchTwitterandMuskwilleachagreetoinordertojustwalkaway.Itmaycomedowntosomewherearoundthat1 billion, but my guess is that if Twitter believes it has a strong case to force Musk to go forward with the full $44 billion, that it may be able to force him to pay substantially more.

Of course, it’s not just Twitter and its Board who are likely to go to court over this. I fully expect multiple shareholder lawsuits to be filed. And quickly. And not necessarily in the Chancery Court in Delaware. And some of those may get… messy for Musk, who basically jerked around the shareholders for months, and (it can be credibly argued) did serious damage to the company’s value in the interim.

All that said, there’s a separate question of what happens to Twitter.

Some — who were opposed to the Musk takeover — may look at this as the best scenario, if Musk walks away but has to hand Twitter a lot of cash, that could be useful to keep Twitter going. However, the way these things usually work is that Twitter is now seen as wounded and vulnerable. And, I can’t see Twitter’s current board (or major institutional investors) being able to leave Twitter alone as an independent company like this. As such, my guess would be that some third party now tries to swoop in and buy up the pieces.

It seems unlikely that either Google or (especially) Facebook would be allowed to do so by the DOJ or the FTC, but you could see some other large companies jumping into the fray — including Microsoft (who once wanted to buy TikTok and Discord, and already owns GitHub and LinkedIn) and Walmart (who also wanted TikTok, and still pretends that it wants to be a digital giant, rather than just a commerce giant). There are some more “out of left field” options as well. A large media company (Comcast? Disney?!?) could make a play for it. I think AT&T and Verizon have been chastened and shamed by their internet service failures, but who knows?

Either way, at some point in this process, it seems likely that Twitter’s ownership is going to change drastically.

Finally, for all the trolls and muck throwers who celebrated Musk “freeing” Twitter, well, they’ll just have to slum it up at Parler, Truth Social, Gettr, Gab, or wherever else they need to go.

Filed Under: delaware chancery court, elon musk, escape clause, merger agreement, termination
Companies: twitter

from the artists'-rights dept

The decision this post discusses, Waite v. Universal Music Group, came out at the end of March, but, as one of the leading cases litigating the termination provision of the copyright statute, it’s still worth the attention. Maybe even especially now, as the Copyright Office overtly goes to bat for rightsholders. Because the termination provision speaks to who the rightsholders actually are. Without it, it’s likely to not actually be the artists behind the creation of the works.

The decision does a good job at least partially explaining why the termination provision is important:

Aspiring singers, musicians, authors and other artists ? sometimes young and inexperienced and often not well known ? tend to have little bargaining power in negotiating financial arrangements with recording companies, publishers, and others who promote and commercialize the artists? work. They often grant copyright in that work as part of the bargain they strike for promotion and commercialization. Accordingly, when an artistic work turns out to be a ?hit,? the lion?s share of the economic returns often goes to those who commercialized the works rather than to the artist who created them. Section 203 of the Copyright Act of 1976 established a limited opportunity for artists to terminate the copyright ownership that they had granted to commercializers decades earlier in order to address this issue. The idea was that termination of these rights would more fairly balance the allocation of the benefits derived from the artists? creativity. [p. 2]

In other words, since no one had a crystal ball, the law purposefully allows for a sort of “undo” button 35 years later to make sure that artists would not have to be forever locked out of the ability to control their own work. People sometimes refer to it as “recovering their masters,” although it isn’t really about recovering the physical media ? termination is just about canceling the copyright assignment artists may have made in their future work when they first signed their record contracts so they can choose what to do with this work from here on out. But it is only in recent years that enough time had passed for artists to try to assert this provision in the copyright statute. And, particularly for musical artists, it has often been difficult to win back their copyrights from record labels reluctant to part with them, which has led to litigation ? such as this case.

In this case several musicians, acting as a class, sued UMG. Their claims varied somewhat because the plaintiffs were not all in quite the same position, but they basically were all designed to get judicial acknowledgement that the artists either already had, or soon would, recover the copyrights they had long ago assigned to the record label. UMG filed a motion to dismiss all the claims, and this decision was a ruling on that motion. By and large the decision was a good one for artists desiring to recover their copyrights, but it wasn’t an unequivocal win. While some of the artists’ claims survived, some of the others’ were dismissed, and sometimes for reasons that may fairly cause concern.

But first, the good news.

When an artist wants to terminate a copyright assignment, there are a bunch of procedural hoops to jump through, with specific time windows and other required formalities. But if the artist manages to check off all the boxes correctly, the copyright will then automatically revert back to them. Which means that if the record company continues to use the work without their permission, those uses are copyright infringement. And that’s what Waite and many of the other artists in this case sued UMG for.

In its attempt to dismiss the lawsuit, UMG argued that the statute of limitations barred these infringement claims. The general rule for any sort of lawsuit is that there’s a ticking clock on how long you have to sue, and that the clock starts when “a plaintiff ‘knows or has reason to know of the injury upon which the claim is premised.'” [p. 8-9]. To sue for an infringement injury you need to show two things: that you have the ownership of a copyright in a work, and that someone did one of the things that only the copyright owner is allowed to do (such as copy the work) without permission. Most infringement lawsuits focus on the latter part, and the statute of limitations will start once the plaintiff has discovered the infringing activity. But in this case, where ownership of the copyright was the bigger issue, UMG argued that the statute of limitations had started to run when the plaintiff discovered that the question of ownership was in contention. The question for the court, then, was when that moment had occurred. [p. 9-10].

UMG tried to argue that this moment happened in the 1970s or 80s when the original contracts were signed because that was the moment when the ability to terminate the assignment in the future became a question. Why was that? Because many of these contracts stylized the resulting music as “works for hire,” and, per the statute, works for hire are not eligible for termination. As the court explained:

The legal author (creator of the work) and owner of a ?work made for hire? is the employer or person who specially ordered it, rather than the artist. Section 203 excludes these works from the termination right precisely for this reason: ?The hired [or commissioned] party, although the ?author? in the colloquial sense . . . never owned the copyrights to assign. It stands to reason, then, that there are no rights the assignment of which [the artist or] his or her heirs may now terminate.? [p. 7]

It is important to note that the court did not actually decide here whether the works at issue in this case were works-for-hire or not. It saved that question for another day but did acknowledge that there was at least some reason to believe they were not works for hire, in which case the attempts to terminate the copyright assignments could still be successful. But the court rejected UMG’s contention that the question of ownership should have been “discovered” almost as soon as the contracts were signed. Instead, it found that the question about ownership was only raised once the termination was attempted and the record labels continued to make what were now potentially infringing uses of the works.

In this way the court differentiated the case from an earlier one involving Meatloaf, who had tried to sue thirty years after signing his contract for a declaratory judgment that his music had never been a work-for-hire and thus was subject to the termination provision. In that case the court there had rejected his case for being filed too late. Since his case only involved the question of whether he owned his original copyright, and that question had been raised upon signing his contract back in 1977, the court in his case decided that he’d only had until 1980 to be able to sue to get clarification. [p. 11]. But in this case the lawsuit was seeking to pursue an infringement claim, and the infringement did not become an issue until after the moment termination had theoretically occurred and the record company continued to make copies of the work. Per the court in this case, that was the moment when the clock on the statute of limitations started running, and this lawsuit was filed in time.

And so this case continues for at least for some of the musicians in the plaintiffs’ class. But not for all of them. Three sorts of claims were dismissed. One sort involved the musicians who had begun the termination process but for whom the process had not yet completed. The process requires giving notice in advance of the date when termination is to occur, and then waiting for that date to pass. For these artists that date was still in the future, which meant that the record label’s continued use was not actually infringing, since the copyright assignment they had enjoyed thus far would still be valid. These plaintiff artists had sued for declaratory judgment, which basically amounted to asking the court to declare now that their copyright assignments would indeed be terminated once the relevant dates had passed. But the court declined to do what they asked, largely on the grounds that it wouldn’t really lend them the clarity they sought. A declaratory judgment now would address the reasons UMG has so far protested that the termination provision wouldn’t apply, but it wouldn’t actually cause them to be terminated on the spot. The plaintiffs would still have to wait for the process to complete, at which point an infringement lawsuit would be appropriate if UMG came up with some other reason for why it did not think the termination was valid.

It is not clear how either objective would be achieved by the declaratory relief sought. The uncertainty here is whether UMG will continue to distribute plaintiffs? sound recordings after the effective date of termination claimed by a plaintiff has passed. This uncertainty is eliminated if prior to the effective date of termination, the termination notices were declared valid and there were no grounds on which defendant could argue that the grants are not otherwise terminable. Plaintiffs suggest that the declaratory relief they seek, if granted, would achieve this outcome because it would address the various grounds defendant has cited when rejecting the termination notices. This would be so, however, only insofar as defendant never proffers new arguments as to why the termination notices are invalid or why the grants could not be terminated. The declaratory judgment plaintiffs seek now therefore could not guarantee that UMG would accept the termination notices and cease exploitation of the sound recordings after the effective date of termination. In other words, the cloud of uncertainty would not necessarily be lifted fully. [p. 16]

So these artists’ claims were dismissed, although once the termination dates have passed there does not seem to be any legal reason why they could not sue again if they needed, since their claims would now be like the claims in this case that were permitted to go forward. (There may, of course, be practical reasons why it would be hard to sue again though ? it’s a huge, time consuming, expensive ordeal that people are rarely eager to go through.)

Another type of claim that the court dismissed involved the plaintiff Joe Ely. In most instances the court found that the termination notices submitted by the artists had generally met the formality standards the statute required. In fact, the court tended to have a generous read of the notices, generally finding that what errors there were had been made in good faith and did not prejudice the record label, and thus were still valid.

Despite the incorrect dates and omissions, defendant has sufficient notice as to which grants and works plaintiffs seek to terminate. While perhaps in other circumstances an omitted execution date could be fatal to the validity of a termination notice, defendant possesses the relevant agreements and can discern the relevant dates. Defendant cannot use the parties? agreements to claim that the statue of limitation bars plaintiffs claims and then feign ignorance of which grants plaintiffs purport to terminate. […] Nor is there any sufficient basis for claiming that the errors were not made in good faith. […] Indeed, as the Copyright Office noted when promulgating 37 C.F.R. ? 201.10, ?we . . . must recognize that entirely legitimate reasons may exist for gaps in [grantor?s] knowledge and certainty? of required termination notice contents. Because the notices? defects were harmless and not made with an intent to deceive, mislead, or conceal information, defendant?s motion is denied as to its claim that plaintiffs? termination notices are facially invalid. [p. 18-20]

But with Ely it was more complicated. When we switched our copyright law from the 1909 Copyright Act to the 1976 Copyright Act, which then didn’t go into effect until 1978, there were certain issues with that statutory handshake. Ely produced music that fell in that gap. Arguably his copyright assignments were still terminable, under a different provision of the copyright statute, but with the governing regulations more complicated, the court found that the need for getting the formalities right was heightened and that the deficiencies in his termination notices had rendered them invalid.

Instead of the grant date?s execution, under the 2011 Copyright Office regulation, Section 203 termination notices for gap grants must contain ?the date on which the work was created.? ?Sound recordings are created for purposes of the Copyright Act on the date they are ?fixed,? or recorded.? Ely?s termination notice includes only the publication date and the FAC alleges the release? date. ?Publication? refers to the distribution or transfer of ownership, not to the creation of a work. Nor does ?release? indicate when the work was ?created.? Ely?s termination notice is thus insufficient. [p. 23]

The court otherwise had no further comment on where that left him in his ability to recover his copyrights.

Meanwhile, although much of this decision portends good news for artists who wish to recover their copyrights, the third sort of dismissed claim is alarming, and out-of-step with the rest of the decision. The issue relates to “loan out” artists. Per the court, these artists cannot recover their copyrights:

Only grants ?executed by the author? (or the statutorily designated successor) maybe terminated. Therefore, third parties to a contract and loan-out companies, which ?loan? out an artist?s services to employers and enter into contracts on behalf of the artist, do not have a termination right under the statute. It is undisputed that loan-out companies executed the Waite grants and that a third party company, South Coast, executed the grant for Ely?s recordings made under his 1979 agreement. In these instancesg [sic], neither Waite nor Ely was the grantor. The plain language of the statue [sic] precludes either of these plaintiffs from effectuating termination.” [p. 20]

This portion of the decision reads uncharacteristically hostile to the interests of artists, which the court otherwise had been favorable to. Earlier in the decision the court had commented on why it was so important to have the termination provision on the books in the first place:

Defendant?s argument is weakened further by the music industry?s practice of frequently inserting ?work made for hire? language into recording contracts. Its position requires that many artists, often early in their careers, would confront a choice when presented with a ?works made for hire? provision. They could refuse to sign the contract and jeopardize their chance for the record company to record or distribute the artist?s music. Or the artist could sign the contract and then bring a claim within three years to dispute the effect of the ?work made for hire? provision in order to protect the copyright. Either outcome would be inconsistent with Section 203. The first would exemplify the unequal bargaining power Section203 sought to correct. The second would render Section 203 meaningless, as its very purpose is to provide a mechanism by which artists can reclaim their copyright after the work has had time to become more valuable. Defendant?s argument simply does withstand scrutiny in light of the unequivocal purpose of the termination provision. [p. 14]

But in that rushed passage on page 20, the court took a suddenly hostile, shallowly-analyzed view towards the artists’ position. And that hostility continued:

Plaintiffs argue also that the loan-out company is only a tax-planning device. Even so, people cannot use a corporate structure for some purposes ? e.g. taking advantage of tax benefits? and then disavow it for others. While Waite and his loan-out companies, like Heavy Waite, Inc., perhaps are distinct entities only in a formal legal sense, the statutory text is clear: termination rights exist only if the author executed the grant. The Supreme Court recently reaffirmed that courts must adhere to the text the Copyright Act, even if the Act ?has not worked as Congress likely envisioned.? The unambiguous text precludes Waite and Ely from terminating the copyrights granted by third parties. [p. 20-21]

This portion of the decision seems unduly harsh and unthoughtful. It presumes facts and betrays the purpose of the termination provision. It also more heavily favors the position of the record labels than the statute itself supports. A “you should have known what you were doing” attitude fails because no one could have known what they were doing at the time these agreements were made (not even the record labels).

At the time these agreements were made, there was no Internet and no digital rights to exploit. At the time these agreements were made, copyright terms lasted for many fewer years. At the time these agreements were made, the US wasn’t even a party to the Berne Convention, and TRIPS and its progeny were just a glimmer in the WTO’s eye. There is no way that artists could have foreseen the full dimensions of the deal they were striking and how it would affect their rights decades into the future. Had they known, they might have struck a different deal.

The termination provision exists because no one can see the future. But if certain artists can be automatically penalized for their choice of corporate form (and a worry is that many of these artists might be bands, for whom choosing a corporate form is more than just a “tax strategy” but a potentially existential decision necessary to successfully wrangle a diverse group of talented individuals into a coherent creative entity), and with so little effort to fully parse what the statute meant by authorship, it turns the provision into a nullity and awards the record labels a windfall Congress never intended to grant them.

The court did, however, suggest that loan-out artists such as Waite might be able to plead their authorship more successfully, and, if they do, then their terminations may valid. Given the number of artists who would otherwise arbitrarily be denied the benefit of this important balancing provision in copyright law, hopefully doing so will turn out to be a needle that this and other courts will allow them to thread.

Filed Under: contracts, copyright, termination, work for hire
Companies: umg, universal music group

from the Betteridgian-answers-may-be-deposited-in-the-comment-thread-below dept

We’ve seen the beginnings of a battle at major labels as artists are filing to reclaim the copyright to their recorded works. The magical 35-year mark triggered by Section 203 of the US Copyright Act arrived in 2013 for works created in 1978. Each passing year will bring with it another batch of recordings that artists can reclaim from their current and former labels.

The labels aren’t too happy with this arrangement (although they seem to be generally chill with the rest of copyright law as it stands) and have made a lot of noise about artists’ works being nothing more than works-for-hire, something not eligible for copyright termination.

Dan Rogers at Gamasutra points out that the next few years might see the same sort of defensive activity from video game companies as the termination date rolls up on some old classics. Here’s an illustrated list Rogers created showing some of titles due for termination within the next five years.

Rogers also points out that this battle may be short-lived and involve very few combatants, at least much fewer than the recording industry is facing.

This isn’t to suggest that the rights to these specific games can be terminated, and my guess is that many were created by in-house teams—thus work created by employees within the scope of their employment. But other games created during these years were no doubt created by outside, independent developers, and these rights could very well be subject to Section 203.

It’s probably a safe bet that most games created for large companies like Nintendo and Atari were work-for-hire, if for no other reason than these games were created by teams of developers, rather than resulting from the effort of two or three individuals. Not only that, but developers working for game companies are usually referred to as “employees.” Artists recording for labels aren’t usually considered to be part of the staff. Even thirty-plus years down the road, it’s next to impossible for a set of developers to jump ship and retain their IP.

And if developers aren’t locked out by contracts specifying their efforts are “works-for-hire,” the expansive definition of non-specific exclusions will likely exclude several more game creators.

A “work made for hire” is–

(1) a work prepared by an employee within the scope of his or her employment; or

(2) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. For the purpose of the foregoing sentence, a “supplementary work” is a work prepared for publication as a secondary adjunct to a work by another author for the purpose of introducing, concluding, illustrating, explaining, revising, commenting upon, or assisting in the use of the other work, such as forewords, afterwords, pictorial illustrations, maps, charts, tables, editorial notes, musical arrangements, answer material for tests, bibliographies, appendixes, and indexes, and an “instructional text” is a literary, pictorial, or graphic work prepared for publication and with the purpose of use in systematic instructional activities.

Still, there could be few outliers with valid claims for copyright termination, and if there’s enough of those, things could get interesting. Chances are that most of these creations are locked up eternally, which works out well for game companies if not so much for the original developers. Unlike other media forms, video game IP can be almost endlessly exploitable, what with new platforms being developed constantly and the easily-triggered nostalgia of lifelong gamers. Companies aren’t done milking various 20+ year-old titles to death so they’d likely be unwilling to cough up what’s left of the cash cow without a fight.

[Speaking of all of the above (large game companies, development teams, nostalgia), if you’ve got some time to kill, this collection of 10 years of Atari’s internal VAXmail is extremely fascinating, detailing internal bickering and development twists and turns, along with some postmortems of new IP ‘field trials’ at local California arcades.]

Filed Under: copyright, copyright termination, termination, video games

EMI Sneakily Trying To Pretend Many Of Its Artists Can't Reclaim Their Copyrights

from the but-of-course dept

We’ve talked plenty about the coming legal battles over “termination rights” in various works. If you’re not familiar with it, under the 1976 Copyright Act, content creators have a guaranteed right to terminate any copyright assignments after 35 years. That is, if a musician assigned the copyright to a label, as is standard, they can take that copyright back after 35 years. This is not a right that an artist can give up. Even if they sign a contract saying they give up their termination rights, it doesn’t matter. Those rights cannot be taken away from the artist under the law. The exception to termination rights, however, is if a work is classified as a “work made for hire.” However, the definition of what qualifies as a work made for hire is very, very narrow:

A “work made for hire” is–

(1) a work prepared by an employee within the scope of his or her employment; or

(2) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. For the purpose of the foregoing sentence, a “supplementary work” is a work prepared for publication as a secondary adjunct to a work by another author for the purpose of introducing, concluding, illustrating, explaining, revising, commenting upon, or assisting in the use of the other work, such as forewords, afterwords, pictorial illustrations, maps, charts, tables, editorial notes, musical arrangements, answer material for tests, bibliographies, appendixes, and indexes, and an “instructional text” is a literary, pictorial, or graphic work prepared for publication and with the purpose of use in systematic instructional activities.

There are a lot of specific conditions there. If you’re wondering how such an odd list was put together, some have suggested it was basically just who was in the room. Somewhat surprisingly, one of the main parties who apparently wasn’t in the room were the major record labels. Notice that sound recordings aren’t there, and you’d have to stretch the definition mightily to cover sound recordings. Of course, the labels have been freaking out about this for decades. Famously, back in 1999, Mitch Glazier, a Congressional staffer, snuck some language into a totally unrelated law about satellites to make sound recordings count as work for hire too. He allegedly did this in the middle of the night such that no one — even the “authors” of the bill — knew it was there until after the bill passed. This one time, the outcry (especially from musicians) was so loud, that Congress had to go back and repeal that section. Of course, by then, Glazier had jumped ship to a job at the RIAA making about half a million dollars. He’s still at the RIAA where he’s now the second in command. Remember that the next time anyone pretends the RIAA is about helping artists. Their number two guy tried to screw artists out of their copyrights.

Of course, that hasn’t stopped the efforts by the record labels to still pretend that the copyrights they hold are “works made for hire.” They’ve been testing out a few legal theories, none of which seem very strong, but many of which will soon be tested in court. Why now? While there have been a few lawsuits over this (especially in the comic book space), the key aspect of termination rights came into effect in 1978, with that 35 year window. 35 years after 1978 is… 2013. So, a battle is shaping up.

Michael Robertson, who has been involved in a long term legal fight with EMI, is calling attention to the fact that EMI seems to be trying to just declare that music made by bands signed to its labels are works made for hire. How are they doing this? Well, just by declaring that the songs are “made for hire” on the copyright registration. You can see one example of that on a Billy Idol copyright registration embedded below. But, simply declaring it as a work made for hire on the copyright registration is totally meaningless. It doesn’t mean the work hits any of the qualifications under the law.

The RIAA has been trying to claim that any albums are really a “compilation” so they qualify as a “collective work” under the law, which does create a work-for-hire situation. But there are other conditions that need to be met, and it’s unclear if those have been. Plus, the claim that an album is a “collective work” is a pretty weak one all around.

Either way, many artists probably don’t even recognize that their works have been designated this way (or even what it means), so Robertson has been putting together a big list, and seeking artists on that list to proactively challenge the claims, rather than waiting until the 35-year window hits. There are some pretty big names on the list he’s dug up already — including the Beatles, the Beastie Boys, the Beach Boys, The Rolling Stones, Billy Idol, Coldplay, David Bowie, Duran Duran, Frank Sinatra, Iggy Pop, Janet Jackson, John Lennon, Katy Perry, Pink Floyd, Radiohead, Smashing Pumpkins and many, many more. Robertson is hoping at least someone on the list will go legal and claim their own works:

What I’m looking for is an artist who has the courage to stand up on this issue and claim their works, laying the groundwork for them and ALL artists who share their plight to take ownership in the near future and escape this slavery. (Rather like Curt Flood did battling to get free agency for baseball players: See The Curious Case of Curt Flood which should have been called the Courage Case of Curt Flood.)

Of course, some of this may get sorted out by the long list of coming lawsuits for those artists who have actually begun the process of trying to terminate the copyright assignment, starting with The Village People (though that’s a weaker case, since the band itself was put together by the label). Either way, it’s pretty ridiculous to see how far the labels are going to try to deny artists the ability to take back their copyrights, despite the law being pretty clear that they have that right.

Filed Under: artists, copyright, michael robertson, music, sound recordings, termination, termination rights
Companies: emi

Dear Musicians: The RIAA Is About To Totally Screw You Over (Again!)

from the watch-for-it... dept

It’s been two years since we first warned of the pending fight concerning musicians asserting their copyright termination rights. As you hopefully know by now, copyright law includes a “termination right,” which cannot be contractually given up, which allows the original content creator to “reclaim” the copyright on their works 35 years after it was created. The only real exception is in cases where the work qualifies as “work for hire.” I’m actually not a huge fan of termination rights in the first place for a variety of reasons, but the fact is that they’re there… and they scare the entertainment industry silly.

The big legal fights so far have mostly been about the comic book industry, with the heirs of Superman’s creators having won back some rights to Superman — while Jack Kirby’s heirs failed to win back the rights to The Incredible Hulk and X-Men. Kirby’s family just appealed and there are still additional disputes around the Superman stuff.

However, the real showdown is about the music industry. The NY Times has an article about the impending battle, which has a variety of interesting tidbits, but none more ridiculous than the RIAA officially making it clear that it intends to totally screw over musicians. As we made clear two years ago when we wrote about this, the RIAA was going to come out fighting to try to block what the law clearly allows, and will do everything it can to screw over artists and keep them from regaining their own copyrights.

?We believe the termination right doesn?t apply to most sound recordings,? said Steven Marks, general counsel for the Recording Industry Association of America, a lobbying group in Washington that represents the interests of record labels. As the record companies see it, the master recordings belong to them in perpetuity, rather than to the artists who wrote and recorded the songs, because, the labels argue, the records are ?works for hire,? compilations created not by independent performers but by musicians who are, in essence, their employees.

First, this may be the first time the mainstream media has accurately pointed out that the RIAA represents the “interests of the record labels” rather than the interests of the music industry or musicians. As is clear in this case, the RIAA’s interests are diametrically opposed to the interests of artists, and the fact that Marks has the gall to flat out say that termination rights don’t apply to most sound recordings is so intellectually dishonest.

The RIAA knows full well that termination rights absolutely do apply to most sound recordings. To be fair, this is mostly an accident of history. As was detailed in an excellent IP Colloquium episode last summer all about termination rights, what got covered and what didn’t basically depended on who was in the room and who was more aggressive in their lobbying. Nine “work-for-hire” exceptions were put into the law. It doesn’t make much sense which ones made it and which didn’t, but that’s lobbying for you.

However, the reason we know that the RIAA is fully aware of the fact that copyright termination does apply to most sound recordings is because a dozen years ago, recognizing that this was going to become an issue, the RIAA famously had a small time Congressional staffer by the name of Mitch Glazier sneak four innocuous looking words in the middle of a totally unrelated bill to quietly and retroactively have sound recordings declared “works for hire.” This literally happened overnight with no elected officials who were voting on the bill being made aware of it.

Once that became public, artists (quite reasonably) freaked out and went very, very public about how the RIAA was totally screwing them over. It’s one of the few times in history when Congress actually went against the RIAA, removing the language soon after it was approved. Of course, the guy who slipped the language in, Mitch Glazier, came out of this fine. Just three months after putting in that language, he was hired by the RIAA at a $500,000 per year salary, and he’s just been promoted to the number two spot at the RIAA.

If you ever needed any more evidence that the RIAA is entirely anti-artist, this is it. It’s put the guy who tried to take away their right to regain copyrights in the number 2 spot just weeks before out and out declaring that the organization simply doesn’t believe sound recordings qualify for termination rights.

So, since they know damn well that sound recordings do qualify for termination rights, how are they going to claim otherwise? They may (as the NY Times article suggests) try to rely on last year’s ruling concerning Bob Marley’s recordings, in which they were declared “work for hire” and his family was unable to reclaim the copyright. But that’s a different story, as those recordings happened prior to the rules of the 1976 Copyright Act, so the ruling really doesn’t apply.

Instead, my bet is they’re going to lean heavily on a Second Circuit Appeals Court ruling from last year, which claimed that an album is a single compilation for the purposes of copyright law. That matters, because while “sound recordings” are not covered as a “work for hire,” “compilations” are. Of course, the obvious intent of including “compilations” was based on the realization that if multiple people contribute pieces to a larger whole compilation, separating out those rights later under termination laws would be freakishly impossible. Thus it was just easier to label the entire compilation as held by the producer. But a single album by a single artist clearly is not a compilation in that sense, despite the RIAA’s claim above.

Other than that, the only way the RIAA can make a work for hire claim stick is to say that musicians were employees who created the music “within the scope of his or her employment.” That, obviously, is completely laughable, since the labels don’t hire musicians, nor do they pay them salaries. In fact, while they give them “advances,” those are merely a form of loan that the artists have to pay back out of their own earnings. So the labels aren’t even paying for the music creation.

Either way, it’s pretty stunning that the RIAA has so blatantly declared war on artists. I’m somewhat surprised that more musicians aren’t speaking out about this, but it’s going to happen. No wonder the RIAA is so desperate to get things like PROTECT IP passed now, before this next battle comes to fruition. Once you have a bunch of big name musicians going very public about how the RIAA is screwing them over, it’s going to be increasingly difficult for the RIAA to keep up the facade about how it’s representing the interests of musicians while it’s actively and vocally trying to totally screw them over.

Filed Under: copyright, copyright termination, mitch glazier, music, termination, termination rights
Companies: riaa

Jack Kirby Declared A Mere Marvel Workerbee… Heirs Can't Reclaim Copyrights On Hulk Or X-Men

from the termination-battles dept

We’ve been covering the looming boatload of copyright termination cases because it’s going to make for an interesting spectacle in the copyright realm. As you may or may not know, current copyright law in the US allows the original creator of a work the right to reclaim the copyright at a certain point — a right that cannot be waived. There was, however, one exception put into copyright law at the urging of certain industries: if a work was declared a “work for hire,” then it would not be subject to termination rights. We’ve already seen one big battle over termination rights with Superman and a second battle has been focused on the heirs of famed comicbook artist Jack Kriby, who sent out a flurry of copyright termination notices back in 2009.

However, in the first lawsuit concerning the Kirby family’s attempt to reclaim the rights to the Incredible Hulk and the X-Men, Marvel has prevailed. As Marvel (now owned by Disney) had argued, the judge found that Kirby was merely a Marvel workerbee and, thus, the characters he created were done under a work-for-hire basis. Of course, this case is far from over and Kirby’s heirs intend to appeal. No matter what, this case will be watched closely, because an awful lot of artists can reclaim their works in 2013… and these legal disputes will determine what’s really allowed.

Filed Under: copyright, incredible hulk, jack kirby, marc toberoff, termination, x-men
Companies: disney, marvel

Supreme Court Not Interested In Dispute Over Steinbeck Heirs Trying To Reclaim Copyrights

from the shouldn't-these-works-all-be-in-the-public-domain? dept

A few years back, we noted the ongoing legal fight from some of John Steinbeck’s heirs seeking to regain control over the rights to some of his works via the termination provisions in US copyright law that we’ve talked about a lot recently, and which are going to get even more attention in the near future, as lots of classic works get close to hitting the point where they can be “terminated” and taken back by the artist (or their estate) from whomever the rights were assigned to.

It appears that the case is now over, with the Supreme Court refusing to hear the case, meaning the heirs are unable to recover the works. The issue was that Steinbeck’s third wife apparently had worked out an agreement not to terminate, but Steinbeck’s son and grandson sought to get around that… and lost.

Of course, the whole thing really demonstrates the ridiculousness of such long copyrights. By any traditional measure, the works being fought over would be in the public domain by now (for a long, long time already), such that anyone could build off of them. It’s a sad state of affairs that people are still in court today arguing over a book from 1938, when the author himself is long dead. Ah, the “legacy” of copyright.

Filed Under: copyright, john steinbeck, surpreme court, termination

from the keep-the-public-domain-away! dept

Last year, we were among those who noted a significant problem for sound recordings from about a century ago. While under federal copyright law, works published before 1923 are in the public domain, when it comes to sound recordings, it’s a different story. That’s because, for quite some time, Congress did not even believe copyright law could apply to sound recordings (which is kind of funny when you realize how many in the recording industry now seem to assume that copyrights on recordings are some sort of birthright). Instead, however, various state laws covered the gap… and did so by creating copyright laws that were even more ridiculous than the federal one. Because of that, many old sound recordings may never enter the public domain, or if they do it won’t be for another 50 or 60 years. And, in the meantime, many of those recordings will disappear.

This is of big concern to those who wish to preserve and share the culture from a century ago. After this issue started to get some attention, the Copyright Office agreed to look into things and just held some hearings on the issue. Copycense attended the event and shared copious tweets on the events. As an experiment, I’m going to try to collate some of the more interesting tweets, embedded below, but provide commentary here. There are a few key statements that were made that I’ll address in separate posts, but this one will cover the general discussions held during the day.

What becomes clear is that there’s a big divide between the legacy industry (record labels & publishers) and librarians and cultural researchers who fear that these works are dying. The people actually concerned about preserving the works are horrified at what’s happening, noting that culture is disappearing — and predominantly impacting “people of color,” whose work would be freely available for all to hear if their recordings had been covered by traditional copyright, or done in any other country. Others point out that if librarians can’t preserve these works, they may disappear forever.

The response from the music business guys is ridiculous — but expected. They insist that covering these works under traditional copyright would harm artists (seriously). Rich Bengloff, the head of A2IM (mini-RIAA), insisted that covering these works under federal copyright law would “bring less investment to roots music.” Huh? How does that make any sense? The RIAA also worried that there would be “costs” associated with covering these works by copyright, and that it would “raise ownership questions.” This is laughable. There are already “ownership” questions, which is why we’re stuck in this quagmire in the first place. The RIAA pointed out that “we have concerns that federalization would negatively affect economic value.”

That, of course, is ridiculous. First, the vast majority of the works we’re talking about no longer are being marketed in any way shape or form. They’re disappearing. The few works that are still an issue would still have federal copyright law, which is already pretty strict. The only works that would really have a change are those from before 1923, and that’s fine. It’s what’s good about the public domain. Thankfully, one of the representatives from library groups pointed out that work that goes into the public domain “increases value to the public,” which is what copyright is supposed to be about. Furthermore, as others quite reasonably pointed out, just because something is in the public domain, it doesn’t mean you can’t make money off of it. Just look how many publishers make money selling public domain works.

The RIAA then tried a different tack, insisting that the libraries concerned about all this are being silly, because “according to our research,” no library has been sued over this issue. Isn’t that comforting? Of course, you never know when a lawsuit might be filed, and the law clearly allows one to be filed. Most libraries wouldn’t take that risk. Thankfully, the brand new Registrar of Copyrights, Maria Pallante, was quick to point out that simply wishing libraries become less risk averse is not a reasonable answer here.

Hilariously, the National Music Publishers Association people (NMPA) responded to a question about how taking away 50 different state laws, and moving these works under the single, well-known, standard of federal copyright law would make things “more confusing” by claiming that it would create “uncertainty.” Huh?!? On the one hand, we have 50 different, confusing and rarely tested laws. On the other, we have federal copyright law and loads of caselaw. And the NMPA is actually claiming that federal copyright law would be more confusing? Even more ridiculous is Bengloff’s claim that because under those state laws most works will go into the public domain in 2067, it “makes it easy to know what we’re working with.” Except we also know what we’re working with under federal copyright law.

Later, Bengloff claims that there’s a risk because labels have “invested millions of dollars” in these works. Again, this is misleading and ridiculous. The works still covered by federal copyright would remain in the control of the copyright holders. Furthermore, someone from the Library of Congress properly pointed out that the LOC (and other libraries) have also invested millions in trying to preserve these works. A representative from libraries reminded people that the public is a stakeholder here as well (though apparently not directly represented at the hearing).

Finally, at the end of the day, the real issue makes itself known. The labels and publishers want to avoid “federalization” because they know that this would bring back “termination rights” for the musicians themselves. As you hopefully know, the labels have been vigorously fighting the fact that the musicians themselves can reclaim their own copyrights by “terminating” the copyright assignment. A decade ago, the RIAA was able to sneak a law through Congress (literally by adding a line in the middle of the night that no one noticed until after the bill passed) that turned all such recordings into “works made for hire,” which removed termination rights. An outcry from artists (for once) resulted in Congress fixing that “mistake” quickly, but the labels are still infatuated with this, and are gearing up for legal fights over termination rights soon.

It appears the real issue here is that under these state laws, there are no termination rights, meaning the artists themselves can’t reclaim the copyrights, and the labels and publishers get to hang onto them for a few more decades. Putting things under federal copyright law would open up an opportunity for artists to get their copyrights back. And, we can’t have that.

What’s really appalling here is that the label/publisher representatives still pretend to represent artists here — and one even declares that the labels interests really are aligned with artists’ interests, when the subtext of this debate shows that’s not true at all.

If you want to see many of the key tweets this is based on, and are reading this via RSS or on the front page, click “read more” below to see a sampling of the key tweets.

Filed Under: copyright, public domain, sound recordings, termination

Heirs Of Superman Creators Appeal To Try To Get The Half Of The Baby The Judge Didn't Give Them

from the how-super-is-that dept

We’ve been following the various legal battles over copyright termination rights with great interest, as it’s a pretty big meteor heading towards various content companies — especially record labels (why do you think Bronfman wants to sell Warner Music?) and movie studios. If you’re unfamiliar with the deal, it’s a bit complex and down in the weeds, but a (greatly) simplified version is that current copyright law lets the original creators of works have a termination right in those works, meaning that after a certain period of time, they can “reclaim” those works, and basically take back the copyright if they originally had assigned it to someone else (such as a big company). This right cannot be negotiated away. There is a big exception, however, which is that it doesn’t apply to “works for hire” (and a few other exceptions which we won’t get into). Of course, the exceptions were decided somewhat randomly, basically by whose lobbyists were the loudest at the time.

For years, the record labels regretted not having label musicians included as “works-for-hire,” eventually leading to the famous case of a staffer sneaking language into an unrelated bill in the middle of the night, which extended such rules to musicians. That plan almost worked until musicians found out about it, freaked out, and had the law very quickly rolled back. I tend to think that termination rights are silly and really don’t make that much sense to me. However, they’re a symptom of the real problem: which is that copyright law is too damn long. Thus given the existing length of copyright, then I can see that termination rights are better than no such rights, because at least it gets the copyright back to the artist (or the artist’s heirs), and if someone has to have such unnecessary monopoly protections, it might as well be the artist.

The issue is that an awful lot of these terminations are about to come due, and the entertainment industry is, to put it mildly, freaking out. The big case to follow has been the one trying to terminate the rights to Superman by the heirs of Superman’s creators Jerry Siegel and Joe Shuster. In 2009, the court sided with the estate of Jerry Siegel, deciding that Superman wasn’t a work for hire, and thus the termination rights existed. However, the court did a bit of Solomonic baby-splicing, in that it made it clear that the terminations could only cover certain parts of Superman. However, that’s apparently presenting something of a problem for the heirs (and the lawyer, Marc Toberoff, who many consider to be the main driving force behind these terminations, and who had set up a business to exploit such “reclaimed” rights). So, they’re appealing, to try to get even more rights. As THREsq explains:

Throughout years of legal maneuvers (including Warners’ still-pending lawsuit against the heirs’ lawyer Marc Toberoff for allegedly interfering with contracts), it has never been determined whether the Shusters and Siegels can take back other key elements of the Superman mythology, such as Lex Luthor and Kryptonite.

That makes it difficult for Toberoff and his clients to peddle Superman rights to another studio (and pressure Warners into a settlement). So he’s now appealing the limited grant of rights to the 9th Circuit, hoping that the appeals court will finally determine who owns what.

“It’s cutting to the chase,” Toberoff us, adding “it is widely recognized that Judge Larson’s rulings on summary judgment largely favored the Siegels in upholding the validity of their termination as to Action Comics No.1, containing the core Superman format and characters.”

Of course, the better question is why Superman isn’t in the public domain by now.

Filed Under: copyright, marc toberoff, superman, termination
Companies: warner bros.

Superman Lawyer Claims Warner Bros. Lawsuit Is A SLAPP

from the slapp-back dept

Earlier this year, we wrote about the odd decision of Warner Bros. studio to personally sue Marc Toberoff, the lawyer who successfully represented the heirs of the creators of Superman to win back some of their copyright, by using copyright’s termination rules. Toberoff is making a career of this, and has been helping numerous other content creators start the process of reclaiming rights using the termination process — which makes him somewhat… disliked in the entertainment industry. Still, to sue him personally seemed quite extreme. As we noted at the time, the lawsuit seemed to be based on the idea that Toberoff is a jerk and a savvy business person. As we noted at the time, that doesn’t appear to be illegal.

Not surprisingly, Toberoff agrees, and he’s filed to dismiss the lawsuit under California’s anti-SLAPP law (one of the most comprehensive anti-SLAPP state laws), claiming that the entire lawsuit is just an attempt to shut him up. Matthew Belloni, at the link above, isn’t convinced this is a real SLAPP situation, but notes that it could make the case a lot more interesting, as Warner Bros., will likely have to prove its case much faster than planned. And, if Toberoff wins, he could also win legal fees and open up a stronger case for Toberoff to file a countersuit for “malicious prosecution.” If this goes according to Toberoff’s plan, Warner Bros. might regret this particular lawsuit even more than they regret losing some of the rights to Superman…

Filed Under: copyright, marc toberoff, slapp, superman, termination
Companies: warner bros.