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Posts from September 2014.

California Governor Jerry Brown has taken a big step toward bringing film and television production back to California by signing a bill last week that increases the budget of its Film and Television Tax Credit Program from $100 million to $330 million.  In addition to the significant budget increase, the new bill replaces what many considered to be an arbitrary lottery selection process with one that considers eligible productions based on job creation and economic impact on the state, and it also opens up the program to films with budgets over $75 million for the first time.  California, the state most associated with the entertainment industry, has seen a sharp decrease in film and television productions occurring within the state due to an increase in the number of other states offering film and television tax incentive programs ("Incentive Programs"), a number of which offer more competitive incentives than that previously offered by California.  Since 2000, the number of states with such programs has increased from just a handful to a majority of the states, and according to Gov. Brown, the number of productions in California has been cut by half in the last 15 years.

We often hear about Tommy John surgery for baseball players, and it may be becoming more commonplace.  For example, several pitchers for the New York Yankees have undergone the procedure in recent years.  In general, Tommy John surgery is a medical procedure to repair a torn ulnar collateral ligament (UCL) in the medial elbow.  Before the procedure was developed, the injury was considered career-ending. These days, talented pitchers who undergo the surgery often become top flight pitchers once again.

As the surgery has become more commonplace, so too have patents and patent applications referencing the surgery or the injury it was designed to treat.  Various types of businesses have been able to identify opportunities related to UCL tears and surgical repair of the injury, many of which are ancillary to the surgery.

On August 6, 2014, the online gaming community and video platform Twitch announced that copyright protected music and audio would be muted in its Video on Demand content.  In a move that is likely related to its recent acquisition by Amazon, Twitch is collaborating with Audible Magic, the provider of automated audio content identification software, to identify and mute copyright-protected content.  In an explanation provided on Twitch’s blog, it notes that it “respect[s] the rights of copyright owners” and is seeking to “help protect both our broadcasters and copyright owners.”

On August 18, 2014, the Ninth Circuit Court of Appeals issued an opinion that may impact the way website users are bound by Terms of Use.  In Nguyen v. Barnes & Noble, Inc., Plaintiff had purchased two items during a "fire sale" on the Barnes & Noble website, received an order confirmation and then received another e-mail the following day notifying him that the order had been cancelled.  Plaintiff proceeded to file a putative class action lawsuit against Barnes & Noble, alleging deceptive business practices and false advertising.  In response, Barnes & Noble moved to compel arbitration pursuant to the Barnes & Noble website Terms of Use.  Plaintiff argued that he never clicked on the link to the Terms, and he had no notice of the Terms or the arbitration provision.  The district court ruled in favor of the Plaintiff, finding that, even though the site contained a hyperlink to its Terms of Use on every page, including through completion of the purchase process, the Plaintiff did not have actual notice of the Terms, nor did the existence of the hyperlinks provide him with constructive notice (i.e. implied notice) of the Terms, and Plaintiff was therefore not bound by the arbitration provision.

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The Sports, Arts and Entertainment Group at Garvey Schubert Barer provides full service legal representation on sports, entertainment and business matters, including handling transactions related to brand management, licensing, joint ventures, venture capital, private equity, technology, the Internet and new media.
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