Chilis could struggle in "Californication" lawsuit

LA rockers Red Hot Chili Peppers are suing the network behind TV hit Californication, alleging that the title is stolen from their 1999 single and album. But the group may struggle because it failed to protect its brand, according to a legal expert.

Anthony Kiedis, Chad Smith, John Frusciante, and Michael "Flea" Balzary, doing business as Red Hot Chili Peppers, are suing Showtime Networks and others. They argue that the creation and marketing of the TV series "constitutes a false designation of origin, and has caused and continues to cause a likelihood of confusion, mistake, and deception as to source, sponsorship, affiliation, and/or connection in the minds of the public".

The album Californication sold 14 million copies and was listed among Rolling Stone magazine's Top 500 Albums of All Time. The group says the US series, starring David Duchovny, dilutes the quality of their brand. They are seeking unspecified damages and a new name for the TV show.

The lawsuit notes that a recurring character in the TV show is called "Dani California". That is also the name of a character who is the subject of or mentioned in three songs by the Chili Peppers, including the song Californication. The band also wrote a hit single called Dani California.

The lawsuit does not mention it, but according to Wikipedia, a character in one episode narrates the line, "It's the edge of the world and all of western civilisation," a lyric from the song Californication.

Further, the lawsuit notes that a search on "Californication" in Apple's iTunes Music Store retrieves the band's works and the TV show's compilation albums. The band says that causes confusion.

However, Showtime Networks is expected to argue that the band did not coin the word, a portmanteau of California and fornication. It first appeared in print in Time Magazine in 1972, in an article called The Great Wild Californicated West.

Time reporter Sandra Burton wrote: "Legislators, scientists and citizens are now openly concerned about the threat of 'Californication' - the haphazard, mindless development that has already gobbled up most of Southern California."

Kim Walker, head of intellectual property at Pinsent Masons, the law firm behind OUT-LAW.COM, said the band should have registered Californication as a trademark. Instead, the only trademark application was filed in April in the US, by Showtime Networks. The mark has not yet been registered.

"Successful songs, albums and movies can become brands in themselves. What's really surprising is how few songs and albums are properly protected," said Walker. "The Chili Peppers could almost certainly have registered a trademark for 'Californication', notwithstanding Time's article. They made the word famous, but it doesn't automatically follow that they can stop its use in a TV show.

"If they had registered the title as a trademark covering entertainment services, I very much doubt we'd have seen a lawsuit. The TV show would have been called something else," he said. "As it is, the band faces an uphill struggle."

A quick search on Rolling Stone's Top 10 Greatest Albums of All Time at the trademark registries of the US and UK shows that none of the album titles are protected by the artists or their record companies.

An individual applied to register Highway 61 Revisited, the Bob Dylan album that appears at number four in Rolling Stone's list; but that application was abandoned. Rubber Soul, ranked number five, is registered as a mark, but not to The Beatles. And Sgt Pepper's, the top-ranked album, is registered as a footwear brand by a company in Spain and as a pepper spray brand in the US.

David Bowie appears to be more savvy than most of his counterparts, though: he has registered Ziggy Stardust as a trademark for music and entertainment services. The Rise and Fall of Ziggy Stardust and the Spiders From Mars is ranked at number 35 in Rolling Stone's list.

New Line Cinema sues video company over "The Golden Compass"

Film studio New Line Cinema has filed a multi-million dollar copyright infringement lawsuit against a video company over a documentary about The Golden Compass author Philip Pullman. The movie studio claims the 70-minute DVD film, Beyond The Golden Compass: The Magic of Philip Pullman, is an attempt by company Koch Entertainment to cash in on the publicity surrounding the new $180 million big-screen adaptation of the writer's fantasy novel, which stars Nicole Kidman and Daniel Craig. The movie is due to hit cinemas in December - while the DVD was released on November 19, and by Koch's own admission, is to "coincide with the big-budget film adaptation." And New Line Cinema has also called into question the similarity of the DVD's cover sleeve to the film's publicity posters - the documentary cover features an unarmored Polar Bear and a compass-like device; the same as the movie's promotional material, which also depicts Kidman and Craig. But Koch Entertainment has denied the copyright claim. The two parties met for a hearing in a New York court on Monday, but a ruling has yet to be made.

Sony ordered to pay $5M in logo dispute

Sony Music must pay the founder of a small record company $5 million for failing to put his company's logo on reissues of Meat Loaf's "Bat Out of Hell" album, a federal appeals court ruled. Steve Popovich, 65, who started Cleveland International Records in 1977 and soon afterward signed the chubby singer named Marvin Lee Aday, persuaded Epic Records to release the wildly successful album. Epic was owned at the time by CBS. Sony, which bought out CBS Records, paid $6.7 million to Popovich and his former partners in 1998 to settle a lawsuit over royalties from the album.

The settlement required Sony to place the Cleveland International logo on future Meat Loaf albums but Sony did not add the logo to "Bat Out of Hell" for more than a year. In a 2-1 decision Wednesday, a panel of the 6th U.S. Circuit Court of Appeals in Cincinnati upheld a federal jury's decision in 2005 awarding Popovich an extra $5 million in damages.

Sony has claimed that the logo omission was a mistake that later was corrected. In court documents, Sony also accused Popovich of trying to get money out of the company by trumping up the logo agreement.

"Bat Out of Hell" has sold more than 30 million copies worldwide, according to court records.

REMINDER: David Schwartz TODAY in the Lounge

UM Law alumnus David Schawartz will be speaking today, 11/6/07, in the Student Lounge. Below is his bio.

DAVID B. SCHWARTZ is Vice President of Business Affairs for The Walt Disney Company's Buena Vista Television division, where he works on the cutting edge of new technological distribution platforms for movies and TV shows. David came to Disney after stints at indie film houses Gold Circle Films ("My Big Fat Greek Wedding") and Alpine Pictures ("The Convent"), where he handled business and legal affairs work for the production and distribution of numerous feature films.

David's also a creative force in his own right. He co-wrote and co-produced the award-winning feature film "Fighting Gravity"; served as a comedy writer on several syndicated television shows, including the nationally-syndicated sketch-comedy series "The Newz"; and his graphic novel "MELTDOWN", published by Image Comics, was one of the most critically-acclaimed books of 2006.

David earned his Juris Doctorate degree cum laude from the University of Miami School of Law in 1996, where he studied entertainment law on a full-tuition merit scholarship as a Dean's Honor Scholar. As an undergraduate, Mr. Schwartz studied film production and direction at New York University. While a student at NYU, David interned at both Marvel Comics and NBC-TV's "Late Night with David Letterman". David has studied theater at the New World School of the Arts, the Performing and Visual Arts Center, and the South Center for the Arts.