Tuesday, January 24, 2017

Paul McCartney Sues Sony to Regain Rights to Beatles Songs

Sony/ATV is the defendant and could be primed to make a defense similar to the one being used against Duran Duran.

Paul McCartney has filed suit in New York against Sony/ATV and is looking to get a declaratory judgment that states he will soon regain his copyright ownership share to a treasured catalog of songs created as a member of The Beatles.

In what could become one of the most important legal battles in the music industry this decade, the iconic songwriter is looking to leverage the termination provisions of the Copyright Act.

In 1976, Congress increased the period that works are under copyright protection, and, in recognition of authors who had signed over their rights to publishers and studios without much bargaining power, allowed such authors 35 years hence to reclaim rights in the latter stages of a copyright term. Artists such as Bob Dylan, Tom Petty and Prince have used the mere threat of termination to negotiate new deals and better compensation arrangements.

According to McCartney’s complaint, he transferred rights to songs co-authored by him and John Lennon between 1962 and 1971 to various music publishers.

It’s well known that in the 1980s, after getting advice from McCartney himself that the big money in music was tied to rights in song compositions, Michael Jackson bought songs including “Yesterday,” “Hey Jude” and “Let It Be.” Jackson then entered a joint venture with Sony/ATV, and last year, his estate sold the late pop singer’s remaining interest to Sony.

The lawsuit notes that McCartney has been serving and recording termination notices for nearly a decade. Represented by attorneys at Morrison & Foerster, he now expects to recover copyright interests as soon as Oct. 5, 2018. “For years following service of the first Termination Notices, Defendants gave no indication to Paul McCartney that they contested the efficacy of Paul McCartney’s Termination Notices,” states the complaint. “Defendants’ affiliates did, however, oppose at least one other artist’s terminations of transfers under the terms of the 1976 Copyright Act.”

That refers to Duran Duran’s own attempt to regain rights under the termination protocol outlined by U.S. copyright law. In December, Sony scored a shocking win when an English court ruled that American termination law took a backseat to an interpretation of contracts under English law. The justices determined that Duran Duran’s contractual promise to not transfer its interest in copyrights foreclosed its ability to terminate a grant of rights as a transfer of reversionary interest from the song publisher to themselves.

Apparently, that has given Sony hopes of pulling off the same maneuver with respect to Beatles songs.

Sony, states McCartney’s complaint, has refused to provide confirmation of termination and has “thus attempted to reserve Defendants’ right to assert that once Paul McCartney’s terminations go into effect, Paul McCartney will have breached his contractual obligations to Defendants. Rather than provide clear assurances to Paul McCartney that Defendants will not challenge his exercise of his termination rights, Defendants are clearly reserving their rights pending the final outcome of the Duran Duran litigation in the U.K.”

By filing this suit now, McCartney clearly is looking to have an American court rather than a U.K. one rule in the dispute. By doing so, the complaint hints that he will soon be bringing arguments that in the U.S., the statutory termination right supersedes any contractual right. Whether or not an English court recognizes such a decision will be something for down the road.

In the meantime, conversations between the parties, attached as an exhibit to the lawsuit, reveal that Sony has made arrangements with respect to John Lennon’s share and will retain its worldwide rights in his share of the compositions for the life of the copyright. Sony chairman Martin Bandier has been conversing directly on this issue, and the defendant has retained attorney Donald Zakarin for its legal defense. When the topic of Duran Duran was first addressed in December, it was interpreted as a “threat.” Zakarin later wrote the other side that it had no wish to engage in litigation with McCartney and hoped to reach an agreement with him that would be mutually beneficial. But money can’t buy love. The two sides haven’t been able to come to a deal, and now the dispute has been put before a judge.

In response to the lawsuit, Sony issued this statement: “Sony/ATV has the highest respect for Sir Paul McCartney with whom we have enjoyed a long and mutually rewarding relationship with respect to the treasured Lennon & McCartney song catalog. We have collaborated closely with both Sir Paul and the late John Lennon’s Estate for decades to protect, preserve and promote the catalog’s long-term value. We are disappointed that they have filed this lawsuit which we believe is both unnecessary and premature.”

Posted by Admin on 01/24 at 02:21 PM
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Friday, December 02, 2016

Hollywood Docket: Radar Online Beats Suit from ‘American Idol’ Alum on Appeal

Plus, Viacom beats a lawsuit over ‘Love & Hip Hop’ and sanctions are threatened in a suit over Bob Marley hits.

Corey Clark’s “fall from American Idol stardom” is an issue of public interest and Radar Online should have prevailed in its efforts to beat a defamation suit the singer filed in response to a story about his battery arrest, the 2nd District Court of Appeal ruled Wednesday.

The decision overturns an L.A. Superior Court ruling that denied Radar protection under the state’s anti-SLAPP statute, which bars lawsuits arising from the exercise of free speech. The lower court had found that the statute did apply, but also that Clark showed a probability of success on his claim — and it’s the second part that the appellate court disagreed with.

By way of background, Clark was a contestant on American Idol in 2003 and was kicked off the show after news surfaced that he had been arrested on suspicion of battering his younger sister. The charges were dismissed, but Fox removed him from the competition anyway for failing to disclose the arrest.

The fight with Radar began in 2013, after Clark approached the site offering an exclusive interview to disprove the battery allegations against him and the reason he was booted from the show. After several days of interviews and document reviews, Radar didn’t finalize the deal and Clark gave his exclusive to Rumor Fix. Later, Radar included Clark’s battery arrest in a roundup of the “35 Biggest Idol Controversies.”

Clark sued for libel and invasion of privacy and Radar responded with a special motion to strike the complaint under California’s anti-SLAPP statute, arguing that the singer couldn’t prove the statements were false, the article was privileged and, as a public figure, he would have to prove Radar acted with actual malice.

The court denied the motion, finding Clark had proven a probability of success on his claims relating to one statement: a header that read “Corey Clark Disqualified After Beating Up Sister.”

In overturning the ruling, the appellate court found that Clark failed to make any argument regarding his ability to succeed on the merits of his case. “Clark therefore utterly failed to satisfy his burden to state and substantiate a legally sufficient claim,” states the opinion. “On this basis alone, the anti-SLAPP special motion to strike should have been granted.”

The opinion doesn’t stop there, though. The appellate panel also found that the article at issue was not defamatory.

“The trial court erred in analyzing the publication in fragments and focusing solely on one phrase,” states the opinion. “Irrespective of the slight miswording of the initial phrase, the substance of the article is accurate and true.”

— Viacom has won summary judgment in a copyright lawsuit that alleges Love & Hip Hop is a rip-off of a proposed show called Hip Hop Wives, which was filed by the ex-wife of rapper DMX, Tashera Simmons. She, Trisha Lum and Nickie Davis claim they pitched the show to VH1 executives and their project was canned during development only to be copied without them later. While access to the work was conceded, U.S. District Judge Dean Pregerson found that their one-page treatment for the show was largely made of unprotectable elements. “[M]any of the concepts described in the treatment are general tropes from the saturated market of reality television programming,” writes Pregerson. “In addition to the general scènes à faire utilized in reality television shows focusing either on groups of wives or the lives of artists in the hip hop industry, the factual biographies of the cast members selected for the Treatment are not entitled to copyright protection.” Further, Pregerson found that even if the treatment contained protectable elements “no reasonable jury could conclude that the two works are substantially similar.” (Read Pregerson’s full order here.)

— UMG Recordings is asking the court to hold a conference to address its motion to dismiss a lawsuit involving two of Bob Marley’s hits. Allan Cole sued in September, claiming that he only recently discovered he doesn’t own the copyright to “War” and “Natty Dread,” which he co-wrote in the ‘70s. Cole says he only found out in May when he retained a lawyer to transfer half of his rights to the family of former Ethiopian Emperor Haile Selassie. UMG says not only are the claims barred by the statute of limitations because the works have been registered in the name of Tuff Gong Music since the mid 1970s, but also that UMG doesn’t have any interest in the underlying composition of the works. UMG attorney Andrew Bart also asked U.S. District Judge Vernon Broderick for leave to file a motion for Rule 11 sanctions against Cole’s attorney. (Read the letter in full here.)

— The daughter of legendary late radio host Casey Kasem says an elder abuse documentary she co-produced is being held ransom by her counterpart. Kerri Kasem is suing Cameron Glenar and Rose Street Productions for breaching their deal to produce and sell a low budget documentary about the elder abuse epidemic that, in part, tells the story of her experience with her father’s widow. She says the original goal of the film was to raise awareness of the issue and funds for her non-profit Kasem Cares — but Glenar got greedy. “In no uncertain terms, Glenar told Kasem Cares that if it wanted the Documentary ‘bad enough,’ Kasem Cares would have to pay Glenar $100,000,” states the complaint. “Upon information and belief, Glenar and Rose Street have shelved the Documentary, hoping that the mere passage of time will force Kasem Cares to pay Glenar a ransom for the Documentary footage.” She’s seeking a declaration that she owns the footage, an injunction to keep Rose Street from shutting her out of the project and damages.

— Latham & Watkins, a firm involved in several of Hollywood’s biggest cross-border deals, is expanding its presence in Asia. The firm announced on Monday it has hired Lex Kuo as counsel in the its Hong Kong office. Kuo, a Berkeley law school alum who is fluent in both Mandarin and English, will advise international clients on cross-border financing, development, production and distribution deals. “At a time when Chinese entities are making unprecedented investments in media and entertainment ventures, Lex adds notable experience and astute industry insights to our global entertainment, sports and media team,” says Joe Calabrese, global chair of Latham’s entertainment group. “He has worked in the industry in Greater China both as an in-house executive and an outside advisor, which brings valuable perspective and on-the-ground capabilities for clients in the region.”

Posted by Admin on 12/02 at 11:05 AM
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Friday, October 21, 2016

James Woods Cheers Dropped Appeal from Dead Defendant in $10M Defamation Suit

The actor tweeted that he hoped the man died “screaming my name.”

Forget civility. Just hours after an appeal was dropped on Thursday in James Woods’ $10 million defamation lawsuit against an anonymous individual who tweeted the actor was a “cocaine addict,” Woods expressed joy about what had occurred.

“The slime who libeled me just dropped his appeal contesting my victorious SLAPP motion,” tweeted Woods. “Perennial loser @LisaBloom isn’t yapping so much now.”

That caused Lisa Bloom, the defendant’s attorney, to publicly reveal what had led to the voluntary withdrawal of an appeal that came after a L.A. Superior Court judge in February allowed the case to move forward over a First Amendment-based objection.

“Hi James,” Bloom replied to Woods. “As you surely know, my client died. Have a nice day and stay classy!”

It didn’t stop there. After others expressed outrage at Woods, the Once Upon a Time in America actor wrote that he hoped the defendant died “screaming my name,” adding, “Learn this. Libel me, I’ll sue you. If you die, I’ll follow you to the bowels of Hell. Get it?”

Woods later deleted the tweet.

This all could be chalked up to the trolling nature of social media these days except for the fact that it comes in the midst of litigation that explores the very topic.

Woods filed his complaint on July 30, 2015, targeting the Twitter user “Abe List,” whose social media profile suggested the defendant was a Los Angeles-based, Harvard-educated partner in a private equity firm. Through the lawsuit, the actor aimed to send a message.

“AL, and anyone else using social media to propagate lies and do harm, should take note,” stated the complaint. “They are not impervious to the law.”

Woods didn’t know the true identity of “Abe List,” and he attempted to push Twitter to produce records. The social service rejected the efforts in a letter, writing, “Attempts to unmask anonymous online speakers in the absence of a prima facie defamation claim are improper and would chill the First Amendment rights of speakers who use Twitter’s platform to express their thoughts and ideas instantly and publicly, without barriers.”

Then came the defendant’s motion to strike premised on California’s anti-SLAPP statute, meant to deter injuries to one’s First Amendment rights at an early stage of litigation. The defendant argued that his “cocaine addict” tweet was “a constitutionally protected political insult,” the type made routinely by Woods as “a well-known part of Twitter’s culture of political hyperbole.”

Judge Mel Recana denied the anti-SLAPP motion, writing that “it is clear that any reader of the AL False Statement could and indeed must view it as a statement of fact…. AL’s use of a prenomial characterization (i.e. ‘cocaine addict’) followed by a proper noun (i.e., ‘James Woods’) is a well-established linguistic structure widely used to characterize people with shorthand factual information.”

This led to an appeal, but before a California appeals court got the opportunity to address whether insults on a frequently hyperbolic platform could be capable of defamatory meaning, Woods’ attorney Michael Weinsten was informed that the anonymous defendant had died.

The $10 million defamation case will now continue nevertheless. Woods intends to proceed and hopes the dropped appeal means he’ll finally learn defendant’s identity, a source in his camp tells THR. The case eventually could explore whether the deceased defendant has already admitted malice through previous statements and arguments.

However, according to Kenneth White, the defendant’s other attorney, there’s no intention to immediately reveal defendant. He hints that the case could be headed to some kind of default that could be governed by probate code.

White adds his client “died of natural causes. He was brilliant and combative. We’re trying to protect his identity. We’re concerned about his family being harassed and [there’s good reason] based on how much they are gloating over his death.”


Posted by Admin on 10/21 at 09:38 PM
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Tuesday, September 27, 2016

Frank Darabont to Seek More Than $280 Million From AMC at ‘Walking Dead’ Profits Trial

The two sides have now finished the discovery process in a major showdown.

The Walking Dead co-creator Frank Darabont and his CAA agents have hit the homestretch in their lawsuit against AMC over the hit zombie show’s profits. In a certificate of trial readiness filed on Monday, the plaintiffs reveal that they will be seeking a whopping damages verdict in excess of $280 million.

“Plaintiffs’ damages claim has no basis in reality and we will continue to vigorously defend against this lawsuit,” said AMC in a statement provided to The Hollywood Reporter.

Darabont was fired in the middle of the second season and his lawsuit contends that AMC has robbed him of contingent profits by producing the series and then licensing it to its cable network affiliate for not enough money. The lawsuit is a good example of a “vertical integration” case where AMC is arguing it negotiated the right to set an imputed license fee. Considering that Darabont was contractually entitled to as much as 10 percent of certain Walking Dead profits after deductions, the damages figure suggests the series has made billions. The lawsuit asserts, however, that a low license fee formula has been designed to ensure that the show would never be in the black for profit participants.

A trial will also feature the circumstances of Darabont’s departure from Walking Dead, which will enter its seventh season in October. That’s because Darabont is also alleging that AMC improperly reduced his profit share by not counting him as fully vested in the second season. He says he worked on all of the episodes of the second season while AMC asserts he had to be working full-time on the show at the end of the second cycle. A judge allowed the claim after an explosive deposition from Darabont was revealed detailing the “crisis-level problems” on the show.

Last week, discovery in the dispute formally ended.

On Tuesday, Justice Eileen Bransten held a status conference.

The next step in the dispute is summary judgment motions that will provide an even fuller picture of AMC’s hit show and Darabont’s negotiations.

If the judge allows the case to move forward, it will go to trial, though don’t expect it anytime soon. At the hearing, Bransten said her 2017 schedule was completely booked and that the parties would need to wait until 2018 at the earliest. If and when that does occur, the trial will mark one of the biggest profit cases in television history with a potential outcome that surpasses the $319 million verdict that Disney suffered in the Who Wants to Be a Millionaire lawsuit.



Eriq Gardner

Posted by Admin on 09/27 at 02:09 PM
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Friday, August 26, 2016

Weinstein Co. Fighting Director’s $4.8M Fraud Lawsuit Over ‘One Chance’

Director David Frankel is ramping up his claims against The Weinstein Company for burying his 2014 film One Chance after allegedly agreeing to a wide release.

A California judge on Wednesday allowed the filmmaker to pursue a fraud claim against the independent distributor and argue that TWC never intended to release the James Corden-led film on 800 U.S. screens as promised. The film, based on the story of Britain’s Got Talent sensation Paul Potts, was released on just 43 screens in October 2014 and grossed a paltry $100,000 at the domestic box office.

Frankel, whose credits include The Devil Wears Prada and Marley and Me, originally filed suit last year claiming TWC agreed to release One Chance wide or pay $5 million in damages to be split between Frankel and the film’s producers. When Weinstein did neither, Frankel sued for breach of contract and quantum meruit, a claim which essentially seeks to recover the reasonable value of a service.

During discovery, Frankel’s attorneys, Marty Singer and Allison Hart, found evidence they say shows TWC never intended to pay the damages if the film didn’t meet the minimum screen requirement. So in the amended complaint filed Wednesday, Frankel has added fraud and negligent representation claims to the mix.

Frankel claims his directing fee was $6 million per film at the time he was hired for One Chance, and he only agreed to take a lower fixed fee of $1.5 million (later reduced to $1.2 million) because the theatrical release guarantee would boost his contingent compensation, which was comprised of a percentage of first-dollar gross and adjusted defined proceeds.

A 2010 written agreement between Frankel and TWC stipulated that if the film didn’t hit 800 screens, the director would receive $2.5 million and the producers would get the other half. The next month, Frankel claims TWC’s attorney sent him a longform agreement that would have superseded the original deal if it was signed, but that deal not only didn’t contain a so-called “liquidated damages” provision but actually specified TWC would have no obligation to produce, distribute or exploit the film. But Frankel says he never signed the longform deal and therefore it isn’t binding.

Frankel claims his experience is part of a pattern of behavior by The Weinstein Company. “TWC rarely if ever pays liquidated damages when it breaches agreements with theatrical release commitments,” the court papers allege. Instead, TWC is said to respond to complaints with threats and intimidation.

The director alleges when COO David Glasser learned of this lawsuit, he warned Frankel that TWC had the resources to “bury” Frankel in costly litigation. This allegedly came after Glasser boasted to a producer who complained about the breach that TWC “has the most money and the best attorneys in the [f—ing] business,” according to court documents. Weinstein is being represented in the case by a trio of top lawyers: Bert Fields, David Boies and Alan Friedman.

In a statement to The Hollywood Reporter, Boies says “the court’s decision does not rule that Mr. Frankel’s claims have any merit. It is purely procedural. The Weinstein Company has made clear to the judge that neither the facts nor the law support the claims.”

Boies continues: TWC “looks forward to the opportunity to present its evidence and fully refute them as the case moves forward.”

Because Frankel’s directing quote was $6 million at the time of the deal and he only received $1.2 million from TWC, he is suing for the difference: $4.8 million. He’s also tacking on punitive damages “in an amount sufficient to punish and deter TWC.”

Ashley Cullins THR

Posted by Admin on 08/26 at 08:42 AM
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Friday, August 12, 2016

Appeals Court Upholds U.S. Government’s Seizure of Megaupload’s Mega-Millions

The 4th Circuit rejects the contention that a federal statute disentitling fugitives from defending property claims against government forfeiture actions is a violation of due process rights.

Megaupload’s Kim Dotcom is indeed a fugitive — and his failure to surrender himself to U.S. authorities on charges of racketeering and criminal copyright infringement will cost him an estimated $67 million.

On Friday, in the most significant legal development in the case since the U.S. government decided in 2012 to crack down on Megaupload, then one of the world’s biggest internet sites, the 4th Circuit Court of Appeals affirmed a lower court’s decision to allow the feds to seize assets tied to what’s been deemed a “Mega Conspiracy.” The opinion today rejects Dotcom’s jurisdictional challenges to how the court made an order on property outside its reach and rejects the contention that a federal statute disentitling fugitives from defending property claims against government forfeiture actions is a violation of due process rights.

The decision marks a huge victory for the U.S. Justice Department as it eyes assets tied to foreign corruption — and represents a massive blow to Dotcom, who while still in New Zealand fighting extradition in a case now four years old, could find purse strings a big tighter.

In 2012, the feds indicted Dotcom and alleged co-conspirators, causing the shutdown of Megaupload. However, the government found getting them to a Virginia federal court to answer charges more difficult than it imagined. Getting antsy and under time sensitivities, the government in 2014 brought a civil complaint for forfeiture in rem, a maneuver to firmly establish hold over money from bank accounts, luxury cars, big televisions, watches, artwork and other property allegedly gained by Megaupload in the course of crimes. The following year, a judge let the government seize the assets.
On appeal, Dotcom’s lawyers made several challenges.

One was jurisdiction. The defendant pointed to the federal fugitive disentitlement statute to make the case that statutory language on jurisdiction spoke merely to venue, and that a court could only exert its will if it had sufficient control over the assets to do more than render an advisory opinion over ownership. An argument also came that the Virginia federal court didn’t have sufficient minimum contacts with the property at issue.

Writing for the majority (here’s the full opinion), 4th Circuit chief judge Roger Gregory rejects those arguments. He notes that there’s a circuit split throughout the nation’s appellate courts on the question of how to read the jurisdictional issue here, but says that legislative history and the plain meaning of the statutory text supports an interpretation that a Virginia federal court had authority to rule.

As to the question of whether a seizure order really amounts to a nonbinding advisory opinion because other foreign courts are free to do as they will, Gregory writes that “the cooperation (or lack thereof) of foreign nations in enforcing any of the district court’s orders ‘determines only the effectiveness of the forfeiture orders of the district courts, not their jurisdiction to issue those orders’” and further, with reference to how the assets have already been placed in custody in New Zealand and Hong Kong, “the government has demonstrated that it is likely, rather than speculative, that these courts will honor a forfeiture order from the United States.”

Gregory also believes Virginia has sufficient contacts with the property. The digital nature of the alleged crime helps him get to this conclusion.

“The alleged Mega Conspiracy was a file-sharing scheme in which copyrighted files were illegally transferred to users around the world through the servers located in Ashburn, Virginia,” he writes.

Next, the 4th Circuit turns to the issue of fugitive disentitlement, which he notes began as a doctrine that allowed appeals courts to dismiss appeals from criminal fugitives who failed to surrender to authorities. In 1996, the Supreme Court struck down a use of disentitlement in a civil forfeiture action. Four years later, Congress passed the Civil Asset Forfeiture Reform Act, giving federal courts this authority again. Dotcom’s lawyers asserted that seizures under CAFRA violated due process rights by stripping him of a right to be heard.

Gregory rejects such an argument. He writes that the guarantees of due process don’t mean that defendants must get a hearing on the merits of a claim, only an opportunity to be heard before the government deprives them of property. “A party’s failure to take advantage of that opportunity waives the right it secures,” he adds.

Applying the principle to the case in question, Gregory says the district court could factor Dotcom’s resistance to extradition to support its finding that the defendant had specific intent to evade prosecution and thus waived his right.

“Moreover, the district court did not rely solely on the claimants’ resistance to extradition. Instead, it reviewed each claimant and noted additional evidence of an intent to avoid prosecution,” he adds. ” For example, Kim Dotcom posted a message to Twitter stating ‘HEY DOJ, we will go to the U.S. No need for extradition. We want bail, funds unfrozen for lawyers & living expenses.’ The court rightly found this and other public statements to strongly suggest Dotcom was resisting extradition to posture for criminal proceedings, using the ability to avoid prosecution as leverage.”

Not all of the judges on the 4th Circuit agreed with today’s conclusion.

Circuit Judge Henry Floyd wrote in dissent that he thought the jurisdictional analysis was in error. Yes, a Virginia court may theoretically have Congressionally - authorized jurisdiction, but there are still limits — like those limiting courts to proceed on cases that have actual adversarial issues (“justiciability”). Important in that consideration, he adds, is the topic of “bindingness.”

“The defendant in this action—the res [a legal term referring to the property]—is outside of the United States and beyond the control of the district court,” he writes. “Absent control, no order of the district court can be binding on the res because the fate of the res is ultimately not in the hands of the district court. Instead, the res in this case is subject to the control of the courts of New Zealand and Hong Kong…”

Given the advisory nature of a seizure order, and what he sees as the irrelevance of the question of foreign cooperation, he states that under Article III of the U.S. Constitution, he would reverse. Today, he was outvoted. An petition to view the case before a fuller appellate panel or up to the Supreme Court is possible.

Eriq Gardner

Posted by Admin on 08/12 at 11:56 AM
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Wednesday, August 03, 2016

Simon Fuller Eyeing Fraud Claims Against ‘American Idol’ Owner

The executive producer of many hit shows asks a bankruptcy court’s authorization to investigate.

Simon Fuller, the creator of American Idol and an executive producer on So You Think You Can Dance, is investigating potential claims against Core Media Group, the rights-holder of those shows.

In April, Core filed for Chapter 11 bankruptcy after Idol’s final season aired and Fuller made a multi-million dollar payment demand. The prospect that Fuller could commence winding-up proceedings on Core affiliate 19 Entertainment in the United Kingdom caused Core to move quickly, and since then, the debtor has been working with creditors on a plan of reorganization to satisfy nearly $400 million in outstanding debt and get the reality television producer back on its feet.

On Tuesday, Fuller made his biggest move in bankruptcy court to date, bringing an ex parte motion for an order authorizing examination of AOG Entertainment and its Core affiliates.

Fuller now asserts a claim worth more than $10 million thanks to his long-term creative services agreement that provides him profit shares of Idol and So You Think You Can Dance. He cites “intimate knowledge” of the debtors operations and alleges that 19 Entertainment has “received little, if any, benefit from the incurrence of such debt.”

He raises the prospect of bringing claims for actual and constructive fraudulent transfers, equitable subordination and disallowance, unjust enrichment, breach of fiduciary duty and aiding and abetting breach of fiduciary duty.

“Upon information and belief, the Debtors made certain material misstatements in connection with the UK Audit regarding the Debtors’ solvency, which may impact fraudulent conveyance and other claims,” adds his motion pushing for authorization to look further into the debtor’s assets and transactions.

More immediately, Fuller, who says he was left off the Unofficial Committee of Unsecured Creditors despite indicating interest in serving as a member, could be priming a challenge to confirmation of the reorganization plan. In court papers, he adds, “If the Debtors want to expedite their exit from these chapter 11 cases, then there must be a concomitant obligation of the Debtors to provide complete and expeditious access to documents and information necessary to evaluate claims and causes of action that may significantly impede the Debtors’ ability to confirm a plan.”

A spokesperson for Core hasn’t yet responded to a request for comment.

Eriq Gardner

Posted by Admin on 08/03 at 09:31 AM
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Thursday, June 16, 2016

Judge Orders Leonardo DiCaprio to Give Deposition in ‘Wolf of Wall Street’ Lawsuit

Arguments that his testimony only serves as harassment and coercion are overruled at a hearing.

Leonardo DiCaprio can’t dodge giving testimony in a lawsuit brought by former Stratton Oakmont executive Andrew Greene over his alleged depiction in Martin Scorsese’s The Wolf of Wall Street.

At a hearing today, United States magistrate judge Steven Locke in New York granted Greene’s motion to compel a deposition.

Greene is suing producers including Paramount Pictures, Red Granite Pictures, DiCaprio’s Appian Way Productions and Sikelia Productions over the character of Nicky “Rugrat” Koskoff, played by actor P.J. Byrne, who wore a toupee and was the subject of the movie line, “Swear to God,
I want to choke him to death.”

The plaintiff claims that the film changed his nickname from “Wigwam” to “Rugrat,” but spread untruths about him and damaged his reputation to the tune of $15 million. A judge rejected claims, but allowed Greene to amend and assert that the filmmakers maliciously libeled him.

In attempting to shield DiCaprio from being deposed, defendants argued that Scorsese and screenwriter Terence Winter had already given testimony, and that plaintiffs failed to give any reason why they needed to question DiCaprio as well since he didn’t write the screenplay nor acted the “Rugrat” part. Judge Locke was told that efforts to question him had “earmarks of the intentional infliction of burden” and Greene’s lawyers wanted “to coerce an outcome that is not based upon the merits of the case.”

Nevertheless, the judge is allowing Greene to make DiCaprio the third one on defendants’ side allowed to be deposed, and as mentioned in our earlier story, his testimony — which may cover Appian Way’s early involvement on the film — will happen as federal authorities are investigating the source of money that Red Granite used to fund Wolf of Wall Street. If questions towards DiCaprio aren’t deemed relevant by his lawyers, the magistrate judge may be called in again to determine the scope of the interrogation.


Eriq Gardner
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Posted by Admin on 06/16 at 04:39 PM
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Monday, May 23, 2016

Philippe Dauman Files Lawsuit Challenging Removal from Sumner Redstone Trust

He asserts that Shari Redstone is manipulating her father.

The fight over the future of Viacom is again escalating on Monday as chief executive Philippe Dauman and George Abrams have together filed a lawsuit challenging their removal from the Sumner Redstone National Amusements Trust.

A complaint has been filed in the Commonwealth of Massachusetts Probate and Family Court and seeks a ruling to invalidate the changes announced on Friday night. Over the weekend, a spokesperson for Redstone said the removal of Dauman and Abrams was necessary given Viacom’s performance and their intention to sell Viacom’s subsidiary Paramount Pictures. Dauman is expressing concern about Shari Redstone’s influence over her father, and the new lawsuit will be the latest to probe the competency of media mogul Sumner Redstone, who will turn 93 later this month.

“Shari Redstone is attempting to illegally hijack her father’s well-established estate plan by removing professional managers and reportedly installing her daughter, an employee and a friend who are firmly under her control,” said Dauman in a statement. “We all continue to have great respect and affection for Mr. Redstone, but he is clearly being manipulated by his daughter, Shari. After years of estrangement, she has inserted herself into his home, taken over his life, and isolated him from anyone not under her control, including longtime business colleagues. In fact, she has recently and repeatedly arranged to deny requests for Viacom board members to meet with her father.”

Dauman and Abrams (a longtime Redstone attorney) have been ousted from the seven-member Trust that exerts its influence over National Amusements, which owns 80 percent of both Viacom and CBS’ stock.  National Amusements general counsel Tad Jankowski, family friend Jill Krutick and possibly Redstone’s granddaughter Kimberlee Ostheimer are being eyed as replacements.

The three are seen as being much closer to Shari Redstone, who has been at odds with Dauman, and the latter is fighting back. According to the complaint filed in Massachusetts, Shari has been the “dissenting voice” in the Viacom boardroom, her “press campaign has included false and misleading statements regarding Viacom’s performance,” and when Viacom directors voted to replace Sumner Redstone as chairman in February, “Shari cast the lone vote against Mr. Dauman.”

The complaint follows on the heels of an unsuccessful petition by Sumner Redstone’s longtime companion Manuela Herzer, who was thrown out of his home and attempted to reclaim her position as his healthcare agent. Back in November, Dauman said in a declaration that Redstone was “engaged and attentive,” but now his lawsuit states the elder Redstone “cannot initiate or participate in meaningful conversation, including discussions concerning his business or personal affairs. His ability to understand and assess the consequences of his actions is limited. Indeed, during the first week of March, Mr. Dauman visited Mr. Redstone and Mr. Redstone appeared almost totally non-responsive, and could not meaningfully communicate at all.”

The complaint also asserts that Redstone’s moves to oust him from the Trust are being handled by “a lawyer with whom Mr. Redstone has never before been associated.”

Dauman puts the blame on Shari.

“Her singular goal is to assume complete control of his businesses, despite Mr. Redstone’s long-term desire for a professionally managed Trust and an independent Board of Directors,” added Dauman in his statement. “Shari’s actions amount to an unlawful corporate takeover, and if effectuated, could have far-reaching consequences for thousands of shareholders and employees of Viacom.”

This morning a representative for Shari Redstone said in a statement on her behalf, “It is absurd for anyone to accuse Shari of manipulating her father or controlling what goes on in his household. Sumner makes his own decisions regarding whom he wants to see both in his home and elsewhere, and he has his own team of independent advisors to counsel him on corporate and other matters. As to the idea that Shari, an attorney and respected businesswoman, would ‘unlawfully’ use his name, that is utterly ridiculous.”

In launching the lawsuit, Abrams says, “For over 25 years Sumner has discussed his will and various Trusts with me and I was instrumental in setting up this Trust at the time of his divorce. He has impressed on me his wishes that the Trust be managed in a professional manner and that the children of his son and his daughter be treated fairly and equally despite some internal family conflicts. He also discussed at length with me his feelings about Viacom and CBS and the future of both companies. The changes purportedly being made would alter his previously and repeatedly expressed wishes. As a result of some of the information which has recently been received, I believe a court test on the question of undue influence is necessary.”

Eriq Gardner
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Posted by Admin on 05/23 at 11:14 AM
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Tuesday, April 12, 2016

Judge orders copyright trial over opening notes of Led Zeppelin’s ‘Stairway to Heaven’

LOS ANGELES –  A trial is needed to determine if Led Zeppelin’s “Stairway to Heaven” copies its opening notes from a song performed by the rock band Spirit, a federal judge has ruled.

U.S District Judge R. Gary Klausner ruled Friday that lawyers for the trustee of late Spirit guitarist Randy Wolfe had shown enough evidence to support a case that “Stairway to Heaven” copies music from the Spirit song “Taurus.”

“Taurus” was written by Wolfe in either 1966 or 1967, years before Led Zeppelin released “Stairway to Heaven” in 1971. Klausner wrote that while the songs have some differences, lawyers for Wolfe’s trustee may be able to prove they are substantially similar.

Led Zeppelin and Spirit performed at some concerts and festivals around the same time, but not on the same stage. Klausner wrote that the evidence presented so far represented a circumstantial case that Led Zeppelin may have heard “Taurus” performed before “Stairway to Heaven” was created.

After-hours phone and email messages sent to Helene M. Freeman, Led Zeppelin’s attorney, were not immediately returned. Experts hired by the band contend both “Stairway to Heaven” and “Taurus” use notes that have been used in music for centuries.

Francis Alexander Malofiy, attorney for Wolfe’s trustee Michael Skidmore, praised the ruling. He said while many copyright cases are an uphill battle, Klausner’s ruling brings his client one step closer to getting Wolfe credit for helping create one of the most recognizable song introductions in rock history.

Skidmore was able to overcome statute-of-limitations hurdles to sue over “Stairway to Heaven” because the song was remastered and re-released in 2014.

A jury trial is scheduled for May 10 in Los Angeles. Klausner’s ruling removed Zeppelin band member John Paul Jones from the case. Bandmates Robert Plant and Jimmy Page remain defendants in the case.

A trial would represent the third time in recent months that a Los Angeles federal jury has heard a copyright-infringement case involving a hit song. In March 2015, a jury found that Robin Thicke and Pharrell Williams had copied a Marvin Gaye song to create their 2013 hit, “Blurred Lines” and awarded Gaye’s children $7.4 million. A judge trimmed the award, and the verdict is under appeal.

Later in the year, another jury was empaneled to determine whether the Jay-Z hit “Big Pimpin’” copied the work of an Egyptian composer, but a judge ruled in the rapper’s favor before deliberations began.

Associated Press

Posted by Admin on 04/12 at 08:27 AM
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Saturday, April 09, 2016

Google’s Injunction Against Mississippi Attorney General Reversed By Appeals Court

The 5th Circuit tears up an order that prohibited Jim Hood from moving forward with an investigation of the web giant for making available pirated goods and content.

Here’s some late-breaking Friday news that will be cheered at the headquarters of the Motion Picture Association of America, not to mention state attorney generals throughout the nation.

The 5th Circuit Court of Appeals has decided to vacate an injunction prohibiting Mississippi AG Jim Hood from bringing a civil or criminal charge against Google for making accessible third-party content like imported prescription drugs and pirated movies.

To understand why this is such a big deal takes a short trip back to the Sony hack, when it was revealed that the MPAA worked with leading law enforcement officials like Hood to get tough on Google in what was then called “Operation Goliath.”

Google was incensed at the disclosures, blogging about how the “MPAA conspired to achieve SOPA’s goals through nonlegislative means” and bringing a lawsuit aimed at stopping Hood’s subpoena requesting all sorts of information. It wanted broad injunctive relief. The web giant argued that Hood’s efforts violated Section 230 of the Communications Decency Act — providing some immunity for ISPs on third-party content — as well as the First and Fourth Amendments of the U.S. Constitution. According to a Google memorandum, “[I]f a state Attorney General can punish, irrespective of well-established federal law, any search engine or video-sharing platform whenever he finds third-party content he deems objectionable, search engines and video-sharing platforms cannot operate in their current form.”

In March 2015, despite blow-back from 46 other AGs around the nation, U.S. District Judge Henry Wingate agreed to the injunction, saying Hood can’t “wage an unduly burdensome fishing expedition into Google’s operations.”

The 5th Circuit today reverses — and even more spectacularly decides to instruct the lower judge to dismiss Google’s case.

Circuit judge Stephen Higginson speaks in his opinion about the “the importance of preserving free speech on the internet” and disagrees with Hood in various respects including the AG’s view of what Google was doing in its push for injunctive relief.

Nevertheless, the injunction is deemed improper first because the controversy is not ripe and second, because there’s no imminent irreparable injury.

It’s not ripe because when Hood issued an administrative subpoena, he had no authority to enforce it. “The issuing agency could not itself sanction non-compliance,” notes Higginson.

The 5th Circuit also writes that the injunction covered “fuzzily defined range of enforcement actions that do not appear imminent. We cannot on the present record predict what conduct Hood might one day try to prosecute under Mississippi law. Hood’s complaints to Google and the public have been wide-ranging, and as Google stresses in its brief, the administrative subpoena is a ‘pre-litigation investigative tool’ seeking information on a broad variety of subject matters— ranging from alleged facilitation of copyright infringement, illegal prescription, drug sales, human trafficking, the sale of false identification documents, and credit card data theft.”

And so, without addressing the reasonableness of the subpoena nor whether Google’s immunity and constitutional arguments hold water if Hood ever did attempt to prosecute Google for facilitating piracy, the appeals court decides that the federal judge’s decision to issue an injunction was in error. The decision gives Hood some latitude in investigating Google and also probably gives the MPAA some breathing room from some of the discovery demands that were made in follow-up legal actions from Google.

Here’s the full opinion.

“We believe the Fifth Circuit’s decision speaks for itself,” said a spokesperson for the MPAA. “But we would like to take this opportunity to thank Attorney General Hood for his ongoing efforts and for his commitment to supporting the rule of law on the internet.”

Eriq Gardner THR.COM

Posted by Admin on 04/09 at 07:44 AM
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Tuesday, April 05, 2016

Sony Music Files Fraud Lawsuit Against Rdio Executives Over Pandora Deal

The major label claims that Rdio executives induced content licensing extensions with misrepresentations, false statements and concealment of an impending bankruptcy.

In a new lawsuit, Sony Music alleges it was defrauded of millions when the on-demand service Rdio came to agreement with Pandora and subsequently filed for Chapter 11 bankruptcy last November.

The complaint filed in New York federal court targets Rdio chief executive officer Anthony Bay, Rdio general counsel Elliott Peters and Rdio senior vice president in charge of content licensing Jim Rondinelli.

The first big bust in the era of streamed music, Rdio sold its key assets to Pandora for $75 million. At the time of the bankruptcy filing, Rdio had more than $190 million in secured debt and about $30 million of unsecured debt. The company was losing $2 million each month.

Licensing sound recordings was one of Rdio’s biggest expenses.

In 2010, Sony came to a content agreement that enabled Rdio to use music from such artists as Michael Jackson, Bob Dylan, Bruce Springsteen and Beyonce. By the end of 2014, according to the complaint, Rdio owed Sony $5.5 million as a minimum revenue guarantee. Sony says that Rdio’s executives approached the label about renegotiating the content agreement and deferring the due date of the payment. Sony agreed to an interim extension.

The complaint states: “Unbeknownst to SME, however, at the same time that Rdio was negotiating the amendment to its Content Agreement with SME, it was simultaneously negotiating its deal with Pandora—under which Rdio would file for bankruptcy; Pandora would buy Rdio’s assets out of bankruptcy; defendant Bay (as part-owner, executive officer, and director of Rdio’s secured creditor) would expect to be first in line to receive proceeds of the Pandora deal; and SME (as an unsecured creditor) would receive pennies on the dollar for the amounts owed to it under the amended Content Agreement.”

Sony says that Rdio purposely kept its Pandora negotiations and impending bankruptcy secret so as to hold back Sony from demanding immediate payment of the $5.5 million and “inducing” extensions and a restructuring of payment obligations. What’s more, Sony alleges that one day prior to Rdio making its deal with Pandora, a renewal amendment was made that gave Rdio the right to sound recordings through March 31, 2017.

“A material provision of the Renewal Amendment was Rdio’s obligation to pay SME $2 million on October 1, 2015—the day after the Renewal Amendment was executed,” continues the lawsuit. “This presented a dilemma for Rdio: the Pandora deal would be jeopardized either upon Rdio’s taking $2 million in cash out of its business, or upon Rdio failing to make the payment to SME and putting its ongoing access to SME’s content at risk.”

Faced with this situation, Bay and Rondinelli allegedly told Rdio it was raising capital so as to get Sony to extend the due date for the payment.


Sony, represented by Jonathan Sperling at Covington & Burling, is now asserting claims of fraudulent inducement and unjust enrichment. The music major is upset over the $5.5 million it still hasn’t received from the 2010 deal as well as the $2 million not received under the renewal agreement. Sony also takes issue with compensation and bonuses paid out to Bay and Peters — money, it says, that “should have been paid to SME for the rights it licensed to Rdio” — as well as Bay being “personally enriched” by the sale of Rdio assets to Pandora.


“It would be against equity and good conscience to permit Defendants to retain any benefits that they obtained as a result of their fraudulent conduct,” the complaint states.

The defendants couldn’t be reached for comment, but we’ll update if we hear any response.

Eriq Gardner
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Posted by Admin on 04/05 at 03:14 PM
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Sunday, March 27, 2016

Trademark Law V Indiana bakeries square-off over 4-sided doughnuts

Two Indiana bakeries are locked in a bitter battle over which business should be the lone square doughnut-maker.

The Post-Tribune reported that the Valparaiso-based Family Express demanded a court Thursday to declare that it can continue to call its products “Square Donuts.”

However, the Terre Haute-based Square Donuts, which has been making its specialty pastry since the 1960s and has nine locations across Indiana, wants Family Express to drop their case.

Family Express started making its version in 2005, and a year later, Square Donuts sent Family Express a cease-and-desist letter. According to the newspaper, Family Express responded to the letter saying they didn’t think they were infringing and continued to make the doughnut after they never heard back from Square Donuts.

Family Express also made a video showing exactly how they made their square donuts.

The low-level disagreement fermented quietly for several years until both bakeries trademarked its name in 2013. According to the complaint, Family Express’ trademark claim was thrown out because Square Donuts filed a trademark first.


Family Express contacted Square Donuts to try to reach an agreement over the name but those talks went nowhere.

According to the Post-Tribune, Family Express claims that the Square Donuts name is “descriptive and generic,” which would prohibit it from being trademarked. Family Express is looking for the court to rule that they are not infringing by using the name square donuts and that their rival company’s trademark is thereby invalid.


The Associated Press contributed to this report.

Posted by Admin on 03/27 at 09:09 AM
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Friday, March 11, 2016

California Appeals Court Allows Actress To Be Sued for Refusing Nude Sex Scene

Anne Greene loses the argument that the production company improperly retaliated against her claims of being sexually harassed and placed in a dangerous work environment.

Anne Greene, hired to star in Cinemax’s Femme Fatales, can’t escape a producer’s claim she breached the “nudity rider” of her contract by refusing to film nude sex scenes. On Friday, a California appeals court rejected her contention that production company True Crime impinged her right to petition a hostile work environment.

The actress, whose credits include Saw 3D: The Final Chapter, went to court in Dec. 2012 with allegations that she was “blindsided” by sex scenes. Greene says she never would have agreed to the job if she knew it involved “soft-core porn.” She brought claims of being sexually harassed and placed in a dangerous work environment against True Crime and Time Warner. 

According to True Crime, Greene auditioned for lead roles in the second season of Femme Fatales, and in advance, was sent a “sizzle reel” that unmistakably revealed that the series was an erotic, adult-targeted anthology whose principal castmembers appeared partially nude and engaged in acts of simulated sex. The producer says that by the time she accepted an offer to play a part in an episode titled “Jailbreak,” 13 episodes of the show had already aired.

Greene says that the script changed, and there became a scene where she was to receive oral sex. Greene informed True Crime she wasn’t comfortable with this, and the producer says it accommodated her concern. But on the second day of shooting, where she was to stimulate nude sex with a male actor, she allegedly refused to perform topless. Replacing her at this late point was impossible, says the production company, which adds it allowed her to use “pasties” to cover up her nipples despite the network’s supposed policy against this. Greene says she only went ahead “under duress” with simulated sexual intercourse because of a $100,000-plus threat for breaching her contract.

After Greene sued and provided more salacious details about what she was asked to do — including allegedly performing with a male actor wearing a sock on his penis who began to bleed from his mouth onto Greene’s face — the defendant hit back with counterclaims, which led to Greene’s argument via a motion to strike that the producer’s action amounted to improper retaliation. A Los Angeles Superior Court rejected Greene’s motion.

Thus comes today’s opinion from Justice Norman Epstein at the Second Appellate District in California.

Epstein writes that True Crime’s contract claims against Greene reference a small portion of her own complaint, but otherwise “is independently supported by facts regarding Greene’s alleged breach of the Nudity Rider and Employment Agreement, activity arising before Greene filed her complaint.”

Because of this, True Crime looking to punish Greene for her behavior on set is not deemed to “arise from her protected activity.” Although the First Amendment to the U.S. Constitution guarantees a citizen’s right to petition grievances, California’s anti-SLAPP statute can’t save her from facing claims by the production company in court.

The showdown now goes back to the LA Superior Court, which could soon be the center of a provocative trial.


Eriq Gardner
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Posted by Admin on 03/11 at 04:08 PM
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Friday, February 19, 2016

Kesha Denied Injunction Bid in Dispute With Dr. Luke

Despite the pop star’s sexual abuse allegations, the judge says it’s not reasonable to “decimate a contract that was heavily negotiated.”

On Friday, pop star Kesha Rose Sebert and songwriter-producer Dr. Luke (Lukasz Gottwald) squared off in a New York courtroom in a contentious dispute where the sanctity of a recording contract is being examined in light of sexual abuse allegations. Dr. Luke has come out ahead.

Kesha, who alleges that Dr. Luke drugged and raped her, has been pushing for a preliminary injunction that would allow her to record outside of Dr. Luke’s purview. Her attorneys have told the judge that the careers of pop stars are short and that if an injunction doesn’t issue, the irreparable harm she faces is a ruined career. After being briefed on the arguments, New York Supreme Court Justice Shirley Kornreich was skeptical.

“You’re asking the court to decimate a contract that was heavily negotiated and typical for the industry,” said the judge to Mark Geragos, the attorney for Kesha, who sat in the back row with her mother Pebe and looked solemn.

Kornreich heard arguments that Dr. Luke had invested a substantial amount — $60 million in her career — and that he had agreed to allow her to record without her involvement. The judge told Geragos that “decimates your argument,” adding ” My instinct is to do the commercially reasonable thing.”

Her decision to deny an injunction came amid planned protests from Kesha fans outside the courtroom.

Dr. Luke’s own position is that Kesha and her reps are attempting to extort him in order to extricate her from contracts with Luke’s Kemosabe Records label, housed under Sony. He denies the sexual abuse and attributes her action to becoming frustrated by a stalled career. His attorneys have argued that Kesha’s claims came too late and are too vague, the harm is overstated and that she’s not likely to prevail on her discrimination, harassment and hate crime claims nor beat his ones for allegedly breaching a contract and committing defamation.

At today’s hearing, Justice Kornreich’s role was sorting through this mess, deciding not only whether an injunction should issue, but also whether to grant dueling motions to dismiss. Kornreich spoke how about the lack of medical evidence such as hospital records from the assault allegations. “I don’t understand why I have to take the extraordinary measure of granting an injunction.”

Geragos acknowledged that Kesha has always been amenable to recording with Sony, separate from Luke’s company, but also that the offer from the other side amounted to an “elusive promise.” As the hearing continues, that appears to be the likely outcome.


Eriq Gardner thr

Posted by Admin on 02/19 at 11:20 AM
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