Deception in Negotiations Misrepresentation, Fraud; Tort Law: Damages & Other remedies for intentional or negligent misrepresentations for purpose of inducing action or inaction in reliance; Contract Law: Avoidance or reformation of the contract for even an innocent misrepresentation of a material fact that induces assent; Loose categories of conventionalized lies upon which no one should rely (puffing): Exaggeration of value, Future facts, Opinions; - Subject to Special Regulation: Complicated by duties to client (confidentiality & zealousness); MR 4.1 In course of representing a client, lawyer shall not knowingly: Make a false statement of material fact/law to a 3rd person; Fail to disclose material fact to 3rd person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client unless disclosure is prohibited; Rule 1.6 All info relating to representation confidential; Depends on circumstances – Under generally accepted conventions in negotiation, certain types of statements of material fact, estimates of price, or value placed on the subject of a transaction; B&P §6106 Commission of an act involving dishonesty constitutes a cause for disbarment or suspension; GUILDS AND LABOR RELATIONS IN ENTERTAINMENT Film/TV fairly unionized Above the line (SAG-AFTRA, DGA, WGA); Below the Line (LATSE, Locals, Craft Guilds); Collective Bargaining Agreements Collectively bargained between guild and AMPTP; Every 3 Years; Govern relationships in addition to the individual contract; Individuals cannot agree to less, but are allowed to negotiate for better terms; Some important provisions: Job categories; Geographic jurisdiction; Agency shop; Minimum pay; Working conditions; Pension Health & Welfare Payments; Residuals for supplemental markets; Screen/Paid ad credits; Creative rights;
Ad Hoc Balancing - CA statute grants right of publicity to specified successors in interest of deceased celebrities, prohibiting any other person from using a celebrity’s persona; Cannot abridge free speech; Balancing test between 1st amendment & RoP based on whether the work in question adds significant creative elements so as to be transformed into something more than a celebrity likeness or imitation; No creative elements here; When artistic expression takes the form of a literal depiction or imitation of a celebrity for commercial gain, directly trespassing on the right of publicity without adding significant expression beyond that trespass, the state law interest in protecting the fruits of artistic labor outweighs the expressive interests of the imitative artist; When artist is faced with a right of publicity challenge to his work, he may raise an affirmative 1st amendment defense if it contains transformative elements or if the value did not derive from the celebrity’s fame; Granted statutory right to heirs of celebrities the property right to exploit the celebrities’ images; The certain forms of expressive activity protected by the 1st amendment fall outside the boundaries of that right; Keller et. al v. Electronic Arts Transformativeness Test - Game is not transformative; Portrays P doing same activity by which they achieved fame; Hart achieved same result; Rejects Rogers Test for right of publicity; Rejects matter in the public interest (CL) & News and Public affairs (statutory) exclusions; (Game not a reference source; Portrays P doing same activity by which they achieved fame; (like No Doubt); Use 5 factors For Transformativeness test: Raw material vs. Sum & substance; Primarily Ds own expression, not just likeness; Quantitative; Do imitative or creative elements predominate; Marketability/Economic value: fame/celebrity or artistic expression; Conventional portrait or artists skill/talent; Strong dissent: Should view game as a whole – interactive Historical fiction; Applying same test and cases would find game to be protected speech; Transformative; Doe v. McFarlane Predominant Purpose Test - Is the predominate purpose to exploit the commercial value of the persona or to make expressive comment about the celebrity? Very favorable to name/likeness claimants;