At 8:30 a.m. in the Roybal federal Building tomorrow, jury selection begins for Hollywood superlawyer Terry Christensen and ex-private investigator Anthony Pellicano. Prosecutors allege Christensen paid Pellicano $100,000 to illegally wiretap the ex-wife of long-time client Kirk Kerkorian during a 2002 child support dispute to gain a tactical advantage in the litigation. There have been conversations between Pellicano and Christensen that have come to light about the alleged spying in the case involving billionaire investor Kerkorian, who owned MGM/United Artists. Don't expect to hear talk about the trial: Hollywood has Pelicano fatigue.

There was a failed attempt to remove Christensen's law partner Patty Glaser, well known in showbiz circles, as his defense attorney on grounds she had a conflict that should disqualify her. Prosecutors even subpoenaed Glaser as a potential witness. And Glaser doesn't even practice criminal law. But this week U.S. District Judge Dale S. Fischer let it go. According to news reports, the judge said she'd received a declaration from Christensen in which he waived any conflicts from Glaser's participation in litigation involving the charges against him. The judge also took an oral waiver from Christensen, after a federal prosecutor said he wanted a guarantee that Christensen would not use Glaser's representation as grounds for an appeal or any other legal challenge. 

Christensen is the managing partner of Christensen, Glaser, Fink, Jacobs, Weil & Shapiro and faces one count of conspiracy and one count of wiretapping. Once again, Pellicano will act as his own lawyer even though at the last trial in May he was found guilty of 76 counts. Underscoring what a celebrated attorney Christensen is, Judge Fischer showed him unusual deference. "I believe you've been practicing law longer than I have," she said to him at one point. That's why many in the Hollywood legal community are still shocked and dismayed that Christensen was drawn into the Pellicano scandal.

Today's decision by the U.S. Court of Appeals for the Ninth Circuit in the case of Classic Media Inc vs Winifred Knight Mewborn is yet another win for intellectual property pit bull lawyer Marc Toberoff. Mewborn is the daughter of Eric Knight, the daughter of the world-famous children's author and novel Lassie Come Home and at issue were all Lassie's motion picture (including musical motion picture), television and radio rights for the literary work[s] throughout the world for the full period of the renewal copyrights in the work[s] and any further renewals or extensions. "Seventy years after Eric Knight first penned his tale of the devoted Lassie who struggled to come home, at least some of the fruits of his labors will benefit his daughters," today's court decision said. Toberoff is the bane of Big Media fresh off this victory as well as a recent win on behalf of Superman creator Jerry Seigel. (See my previous, Ruling Against Warner On Superman: How Legally Greedy Can Big Media Get?)

Today's decision is very technical but also very meaningful. "The 9th Circuit is sending a message that authors and their families have these rights, and it's not going to let Big Business Entertainment squash these people," a legal source tells me. The 9th Circuit granted Mewborn's appeal of a U.S. district court judge's grant of summary judgment in favor of Classic Media Inc and denial of Mewborn’s partial summary judgment motion. Each party had sought declaratory relief as to their respective copyright interests in the Lassie Works, works that were in their renewal copyright terms on January 1, 1978 when the Copyright Act of 1976 took effect. But Mewborn's appeal required the 9th Circuit to determine whether the Act’s termination of transfer right, 17 U.S.C. § 304(c), can be extinguished by a post-1978 re-grant of the very rights previously assigned before 1978. "Because we conclude that such a result would circumvent the plain statutory language of the 1976 Act, as well as the congressional intent to give the benefit of the additional renewal term to the author and his heirs, we hold that the post-1978 assignment did not extinguish Mewborn’s statutory termination rights."

Toberoff was defending the now 87-year-old Mewborn after Classic Media sued her for exercising her rights under the 1976 Copyright Act to recapture her father's Lassie. Classic Media’s lawyer, Bonnie Eskenazi of the Century City law firm Greenberg Glusker, beat Toberoff by winning a summary judgment in lower court saying his client had no valid claim. Toberoff appealed that judgment and now triumphs because the 9th Circuit directed the lower court to this time enter summary judgment in Mewborn's favor. Today the court noted the incredible nastiness of Greenberg Glusker which "spewed acrimonious charges, threats and demands" as well as "a vituperative gem of a letter" against Knight's daughter:

On April 12, 1996, Mewborn served a notice of termination within the five-year period required by § 304(c) on Palladium Limited Partnership, LTI’s then successor-in-interest in the Lassie Works. Mewborn sought to recapture her motion picture, television and radio rights by terminating the 1976 Assignment effective May 1, 1998. This began the Lassie Works’ difficult journey home, as counsel on behalf of the parties—but predominantly Classic—spewed acrimonious charges, threats and demands over the rights to the works in a series of correspondence of not much relevance, but nonetheless included in the record before us. On April 1, 1998, counsel for LTI’s then successor-in-interest, Golden Books Family Entertainment, wrote to Mewborn, “rejecting and repudiating” Mewborn’s Termination Notice, and threatening suit against Mewborn. Mewborn discovered in the autumn of 2004 that Classic was preparing to produce a motion picture entitled Lassie Come Home, based on her father’s works. On March 23, 2005, Mewborn’s counsel wrote to Classic, the subsequent successor-in-interest to the Lassie Works, and its production partners demanding that Classic account for and pay to Mewborn her share of profits from Classic’s exploitation of the Lassie motion picture, television and radio rights pursuant to the 1996 Termination Notice, and that Classic cease the unauthorized exploitation of the works in the United Kingdom. Classic’s counsel responded with a vituperative gem of a letter dated March 29, 2005, accusing Mewborn of “extortion,” threatening to sue Mewborn and her counsel “personally,” and claiming that “[t]he damages to which Classic will hold you accountable are enormous . . . [and] irreparable.” The letter asserted that the 1976 Assignment was a “complete irrelevancy” and advised that Mewborn should “govern [herself] accordingly.” This bombastic correspondence did little to further communication or deter litigation."

Los Angeles super-lawyer Pierce O'Donnell, whom Forbes once called the Perry Mason Of Hollywood, used to go after the sleazy practices of Big Media companies. He represented Art Buchwald in the Coming To America case against Paramount (described in his book Fatal Subtraction about phony studio accounting), me against Disney and News Corp (because I did my job as a journalist), and others. So what does O'Donnell do for a second act? As lead counsel for the 350,000 Hurricane Katrina victims, he goes after the U.S. government and the Army Corps of Engineers for the catastrophic flooding of New Orleans. To keep people informed about the progress of the federal case, O'Donnell has set up this website for breaking news and analysis.

City News Service is reporting that an attorney for convicted Hollywood P.I. Anthony Pellicano filed papers today asking for a new trial because of alleged acts of juror misconduct. A jury last month found Pellicano guilty of 76 of 77 federal charges, including racketeering, identity theft, computer fraud and nine counts of wiretapping. He defended himself at trial. But his long-time attorney Steven Gruel claimed in court papers that the foreperson failed to tell the court that she heard Assistant U.S. Atty Daniel Saunders tell Chad Hummel, an attorney for ex-LAPD Sgt. Mark Arneson, that the prosecution would seek perjury charges against the ex-cop. When U.S. District Judge Dale Fischer later asked the panelists if they had heard Saunders' comments, only one juror -- not the forewoman -- raised her hand, Gruel's court papers state. After the 10-week trial ended, the forewoman e-mailed other jurors, ordering them not to speak with an investigator working for Pellicano, Gruel alleges. The attorney also alleged that four jurors deliberated in private when other members of the panel were not around. And the husband of one juror allegedly told her information he learned about the trial from Allison Hope Weiner's blog on the Huffington Post. Gruel told CNS the allegations are quite serious because "the jury is supposed to make its decision in a vacuum.'' Pellicano is set to stand trial with noted entertainment attorney Terry Christensen on July 15th in the case of the alleged wiretapping of the ex-wife of Kirk Kerkorian.

EXCLUSIVE: Entertainment uber-lawyer Skip Brittenham is negotiating a first-look producing deal with Warner Brothers for axed New Line founders Bob Shaye's and Michael Lynne's new production company. I'm told they're only going to get the "ex-studio president's special -- like Mark Platt and Casey Silver". Updating my report yesterday, I can confirm that Mark Kaufman is on board and will be based in New York. And right now both Shaye and Lynne are in town interviewing candidates to be based in Los Angeles. Also, Toby Emmerich has agreed to find some New Line projects that Bob and Michael could be attached to. But at the same time Toby is trying to distance himself from his former bosses. Oy.

Right now, the new company has no name. How about "Old Line"?

Bob Shaye & Michael Lynne Set Shingle)

A lawsuit was filed today in Los Angeles Superior Court by Boston-based Allied Advertising Ltd alleging breach of contract, fraud and deceit, and unfair business practices against David Bergstein and his ThinkFilm movie distribution company. It seeks more than $4.1 million in unpaid bills and contracts, plus damages, interest and a 5% penalty for all sums not paid in full within 30 days of a demand for payment. It is yet the latest twist and turn in what is obviously becoming a financial meltdown in Bergstein's film production and distribution empire which includes ThinkFilm and Capitol Films. (See my previous, Capitol Films Cash Crunch: SAG Demands Meeting With Owner David Bergstein).

The lawsuit follows Bergstein's reported yacht trip to the Cannes Film Festival , included in the complaint: "Between January and May 2008, while most of the ThinkFilm debt to Allied was outstanding, defendants have gone on a lavish film licensing buying spree at various film festivals around the world, including a film about director Roman Polanski scheduled for release on the Home Box Office cable channel later in 2008." 

The facts claimed in the lawsuit point to a business deal gone sour for Allied Advertising, which is in the business of placing advertising and promotion for feature motion pictures owned, licensed or distributed by client production companies or distributors. On June 21st, 2004, Allied and ThinkFilm entered into an agreement under which Allied would place P&A for movies owned and/or licensed or distributed by ThinkFilm with various media outlets around the U.S. ThinkFilm was supposed to pay Allied whenever Allied advanced payment to the media outlets on ThinkFilm's behalf, or pay a hefty penalty. That agreement was modified on November 18, 2004. 

Then, in October 2006, ThinkFilm was acquired by Los Angeles entrepreneurs David Bergstein shortly after he bought Capitol Films that January. "But between Fall 2006 (when Bergstein assumed control of ThinkFilm) and March 2008, defendants became increasingly delinquent on their obligation to pay Allied invoices when due. Through his manipulation of the business operations and employees of ThinkFilm, Bergstein repeatedly promised to honor and pay in full the debt of Thinkfi;l owed to Allied," the lawsuit alleges. By November 2007, that sum was $1.9M. ThinkFilm promised to present a schedule to pay up. So Allied says it advanced an additional $2.2M from November 2007 through March 2008.

But, with the total now $4.1M, "defendants have failed to pay any of this arrearage," the lawsuit claims. "On April 5th, 2008, thinkfilm executives stated in writing to Allied that a repayment schedule had been developed by certain ThinkFilm executives, but that it required the authorization of Bergstein, who dominates and controls ThinkFilm... However, Bergstein has proceeded to deplete much of the hard assets of ThinkFilm by, in March 2008, selling the ThinkFilm Canadian library to Entertainment One Ltd." This is also when Bergstein went on his "lavish film licensing buying spree" referenced above. A final demand letter was sent to May 12, and the bill remains unpaid, resulting in the lawsuit today.

On the fraud and deceit cause of action, the lawsuit alleges, the defendants "were part of a plan or scheme to defraud and deceive Allied and other third parties. Between January 2008 and May 2008, defendants paid millions of dollars to acquire the rights to new feature motion pictures (or the right to produce or distribute such films). In order to convince film owners, producers, production companies and other third parties that it had credibility with advertising agencies such as Allied, to professionally and effectively advertise forthcoming motion pictures, defendants needed to create an impression that they were paying print and advertising obligations as they came due, which was not true. In furtherance of this scheme, defendants needed to deceive Allied into believing that a payment schedule would be presented and honored in good faith.

"Defendants knew that their representations were false when they made, or they were made recklessly and without regard for the truth... Defendants' actions were perpetrated with fraud, malice and oppression."

Interestingly, the lawsuit contends that after Fall 2006, there existed "a unity of interests and ownership between defendant David Bergstein and ThinkFilm LLC such that ... defendants are the alter egos of each other in that at all times herein mentioned, thinkFilm was a mere shell, instrumentality and conduit of David Bergstein, through which he carried on his business, exercising complete control and dominance of ThinkFilm to such an extent that any individuality or separateness of these defendants ceased to exist." 

The jury in the federal trial of Hollywood P.I. Anthony Pellicano and 4 co-defendants still hasn't reached a decision after its first full week of deliberating. In the meantime, I thought you'd want to see this letter about Bert Fields (left, arriving at Roybal building read to testify; photo by Jim Stevenson for DHD) sent by his longtime pal and Greenberg Glusker law partner Bonnie Eskenazi to Arianna Huffington complaining about HuffPo's trial coverage and commentary by Allison Hope Weiner. Eskenazi used to be Fields' right-hand woman on most of his big cases. And Eskenazi also worked with Weiner (who's a lawyer) eons ago at the old Wyman Bautzer firm. I doubt there'll be a reunion party anytime soon. That said, I'm well aware that many of you will strenuously disagree with this letter, and many of you will vigorously defend it. Remember, I'm just the messenger:

May 9, 2008
Ms. Arianna Huffington
The Huffington Post
Re:Allison Hope Weiner’s May 1, 2008 Article

Dear Ms. Huffington:

I have read Allison Hope Weiner’s May 1, 2008 rant on the Huffington Post (“Pellicano Trial: The Jury Has The Case”) about how the “rich and powerful” people escaped the Pellicano case “without a scratch,” while the poor folks were prosecuted.

With no supporting facts at all, Ms. Weiner suggests in her agitated blog that the rich and powerful were guilty and should have been indicted, but escaped prosecution because of their wealth and power.

Apparently, Ms. Weiner didn’t notice that, these days, the federal government is regularly prosecuting rich and powerful people (including lawyers), convicting them and sending them to jail just to “set an example.” In the Pellicano case, itself, they’ve prosecuted a major film director, a music executive and a very prominent lawyer, all of whom would seem to fit in the “rich and powerful” category. Ms. Weiner’s frenzied assertion that people were not prosecuted in the Pellicano case because they were rich and powerful is demonstrable nonsense.

Her bizarre tirade suggests that my partner, Bert Fields, is one of those people who escaped prosecution “without a scratch,” because of his supposed wealth and power. She makes these wild and vitriolic assertions without the support of a single fact, except that Bert, like many others including the government itself, used Anthony Pellicano as an investigator.

This is not the first time Ms. Weiner has engaged in this kind of malevolent attack. She’s been at it for months, with no factual support, just repeating her venomous accusations.

Anthony Pellicano, himself, has repeatedly stated that he deliberately kept Bert in the dark about his methodologies. Mr. Pellicano even referred to Bert as “Mr. Clean Jeans,” whom he said would never approve of any questionable activity. He was right.

What Mr. Pellicano reported to Bert were findings about the cases on which he worked, not overheard conversations. Nothing Mr. Pellicano communicated to Bert in any way raised the specter of wiretapping. Notwithstanding Ms. Weiner’s spiteful and overheated prose, the suggestion that Bert “must have been” aware of illegal activity by Mr. Pellicano is simply preposterous.

The government investigated this matter for more than five years. Bert cooperated fully with that investigation. He spoke voluntarily to the FBI without counsel. Our firm turned over to the government hundreds of thousands of documents, including Bert’s own files. Bert even agreed to extend the statute of limitations, so that the government could complete its investigation. In connection with the recent trial, he announced that he was prepared to testify fully if called by either side. He spent two days in the courthouse waiting to be called. Apparently, to Ms. Weiner’s great disappointment, Bert wasn’t called by either side.

I’ve worked closely with Bert for many years, having first met Bert when I was opposing counsel in a very heated battle between two entertainment titans. So I can say from both sides of counsel table that Bert is the most honorable and upstanding lawyer I have ever known.

After more than five years of rigorous investigation, the government came up with no evidence that could support a charge that Bert Fields engaged in or knew of any criminal conduct. That is why he was not prosecuted. That is the only reason. It was not, as Ms. Weiner claims, because of wealth and power. Ms. Weiner’s continued hysterical diatribe against Bert is not journalism. It’s the bitter product of irrational malice.

Sincerely,
Bonnie E. Eskenazi

Here is DHD/LA Weekly trial correspondent Steven Mikulan's wrap-up: "Prosecutor Daniel Saunders got the last word in during the government rebuttal argument. Saunders, who’d been lumbered during his  closing argument by the need to enumerate most of the 78 counts involved in the RICO case, got to unload on the five defendants and their attorneys. He upbraided the defense for diverting attention away from the accused to the case’s many unindicted or plea-bargained witnesses, noting that to try to fix the crimes’ responsibility on such lesser actors was “like going after the johns and not the prostitutes, the junkies and not the dealers.” After 90 minutes, Saunders concluded by declaring, “This case is not about Hollywood. It’s not about Sylvester Stallone or Keith Carradine. It’s not even about Brad Grey or Michael Ovitz . . . This is a case about people who believed the justice system could be bought with a $25,000 nonrefundable retainer.”

So the trial that would not end is finally ending with closing arguments. Not much of a Hollywood angle to report, except for the lawyer for LAPD Sgt Mark Arneson, who is accused of doing all those illegal law enforcement database investigations.  I've been reading the coverage - anxiously awaiting the verdict on this end! "It makes no sense that Mr. Ovitz a pillar of the hollywood community would hire Mr. Pellicano to put a fish on a car of a reporter. If he had a problem with The New York Times, he would just call the editor."

Meanwhile, jailed Hollywood P.I. Anthony Pellicano, who is defending himself, spoke for a mere 16 minutes -- and mostly rambled.

About Pellicano's closing argument, DHD/LA Weekly trial correspondent Steven Mikulan wrote: "Pellicano had told Judge Dale Fischer that he needed somewhere between an hour to an hour and a half to complete his speech to the jury, but he gave himself the hook after only 16 minutes. Appearing relaxed, affable and confident, Pellicano nevertheless gave a rambling dissertation on the roles of the jury and prosecutor. Jurors stared at him alertly but with opaque expressions.

"Pellicano has made much of how he detests snitches and 'rats', and certainly the government’s dance card was packed with witnesses who were either cooperating with prosecutors for lesser sentences in cases related to Pellicano’s, or who had completely dodged indictments in exchange for their testimony about Pellicano’s alleged wiretapping activities.

"' 'I could stand up here and take up more of your time and try to sway you," Pellicano instead told jurors. 'But Mr. Pellicano has instructed me not to do so.' "

The jury is expected to get the case tomorrow.

In the government's closing argument in the RICO trial of Pellicano and four co-defendants (including Arneson) who are facing nearly 80 counts involving wire fraud, conspiracy, identity theft and bribery, Mikulan praises prosecutor Daniel Saunders for getting to the point:

"The problem facing Saunders was that he had to remind the jurors of each and every count – not only matching the alleged crimes to the names of victims, but also to whom, exactly, among the defendants, the counts pertained. Saunders also had to give a brief summary of the charges, which ran his argument to almost an hour past the trial’s normal 2 p.m. closing time.  Still, the jurors remained attentive throughout the long day and Saunders landed some jabs, describing Pellicano’s investigation business as "a thoroughly corrupt organization . . . operated by a very well-connected and highly paid thug.”

"As an orator Saunders maintained an even keel – appearing neither ingratiating nor demanding toward the jurors. He would not be rushed, yet he seemed mindful, in the afternoon, of just how long he was running. More important, Saunders displayed a formidable command of his material, speaking for long stretches of time without referring to notes. Yet the sheer Alexandrian inventory of charges precluded him from engaging in the kind of narrative-tweaking storytelling that might have brought the eight-week proceedings to more vivid life."

U.S. District Court Judge Dale Fischer nixed Pellicano co-defendant LAPD Sgt Mark Arneson's motion for a mistrial. If only this trial would end... and it will soon. The case goes to the jury this week.

Breaking Pellicano Bombshell: A Mistrial? Feds' Witness Screws Up Trial Big-Time

Today the retired FBI agent who led the Pellicano investigation testified that he believed Ovitz's hiring of the Hollywood private-eye led to that June 2002 fish-rose-&-note warning left on Anita Busch's Audi. But Stan Ornellas stopped short of saying Ovitz specifically ordered the June 2002 threat against the freelance journalist who had co-written with staff writer Bernie Weinraub a series of stories exposing trouble within Ovitz's management and production company AMG that spring. And, on cross-examination, the attorney for LAPD Sgt Mark Arneson asked: "Is it possible Mr. Ovitz hired Mr. Pellicano ... but had nothing to do with the threats?'' To which Ornellas replied, "Yes."

Ornellas also testified that he interviewed Ovitz after Pellicano's arrest in November 2002, and that Ovitz mentioned Busch's name. The G-man also testified that the FBI retrieved a recorded telephone call of Pellicano speaking with Meyer after the FBI raided the P.I.'s West Hollywood office on Nov. 21, 2002. According to Ornellas, Pellicano said on the recording that Ovitz was at the heart of his legal problems. Ornellas also testified that Pellicano demanded $20,000 per month from Ovitz. Ovitz has not been charged with any wrongdoing in the Pellicano trial. (See my previous: Ovitz Testifies Busch/Weinraub NYT Articles "Wildly Embarrassing")

The entertainment uber-litigator just confirmed to me that he was formally notified today. The lawyer for Pellicano trial co-defendant LAPD Sgt Mark Arneson had intended to put Fields on the witness stand. So Bert spent two days down at the Roybal federal building cooling his heels. Federal prosecutor Daniel Saunders had vowed to grill Fields for a minimum four hours during cross-examination if he testified. It sure looks as if Arneson's attorney backed down. Fields vs Saunders: now that would have been a real-life court drama. 

So Hollywood's uber-litigator Bert Fields keeps getting bumped, and bumped again, so the earliest he could take the witness stand in the Pellicano federal trial is Friday, according to my colleague Steven Mikulan who's reporting on it for DHD and LA Weekly. Tomorrow, lawyers on both sides will discuss jury instructions with the judge as the trial winds down. (Photo of Fields outside the Roybal federal building taken by Jim Stevenson exclusively for DHD)

Let me knock down yet another rumor. Intellectual property pit bull Marc Toberoff tells me he doesn't represent the Don Adams estate and isn't suing Warner Bros over Get Smart. Toberoff did take on Warner Brothers when the studio attempted to deny Buck Henry (and Mel Brooks, repped by Alan U. Schwartz) financial participation as creators of the series, but that was settled. On the other hand, it is true that Toberoff is the bane of Warner Bros' existence fresh off a victory on behalf of Superman creator Jerry Seigel and other lawsuits involving the studio's product like The Dukes of Hazzard, The Wild Wild West, and Smallville. (See my previous: Ruling Against Warner On Superman: How Legally Greedy Can Big Media Get?) As for Get Smart, the biggest obstacle facing it isn't legal but comedic.

The Pellicano trial's court session today was cancelled even though Hollywood superlawyer Bert Fields showed up to take the witness stand after being called by the defense attorney for LAPD Sgt Mark Arneson. (See photo below by Jim Stevenson exclusively for DHD.) So while Bert cools his heels, the defense will get a hearing tomorrow at 10 AM before U.S. District Judge Dale Fischer over allegations that prosecutors illegally used confidential testimony in their cross examination of Arneson last Friday. After this issue was raised, jurors were dismissed today and Fields instructed to return to court tomorrow where he'll testify after FBI agent Stan Ornalles. (Photo by Jim Stevenson exclusively for DHD)

UPDATED: I'm told that reclusive author of the 7-volume Harry Potter series of books, J.K. Rowling, is flying from Scotland to NYC in order to testify Monday when the trial starts in the lawsuit she and Warner Bros jointly filed last October against Michigan-based RDR Books. The company, which normally publishes books about travel and Judaica, will defend The Harry Potter Lexicon which began online and is about to become what it says is a "reference guide" which Rowling can't lay claim to. But issues of copyright infringement and fair use are in dispute over online material that's been subsequently published. The case will be heard in federal court for the Southern District of New York. Rowling will be the first witness for the plaintiffs. "It's very important to her," an insider told me Friday night. "She doesn't feel that somebody else should be effectively ripping off her work and infringing on her intellectual property."

Although it has agreed to remove Rowling’s name from the back cover, RDR Books has refused to stop publication, leading to the present legal brouhaha. Joining Rowling in this lawsuit is Warner Bros Entertainment Inc, which holds trademark rights in the names, places and characters in the books and copyrights in the films based on all the Harry Potter's. The sued publisher's statement is below. But, first, here's the joint statement by Rowling and Warner Bros provided to me tonight:

"Ms. Rowling is very supportive of individuals and groups who enjoy her characters, especially the fan sites. She has given exclusive interviews to various webmasters, and presented fan sites with awards. Her willingness to make available the intellectual property in Harry Potter for charitable purposes is well known, and she has supported creative book authors who have written analysis, criticism and comment on her works. To date, approximately 100 books relating to Harry Potter have been published in the US alone, including religious, mythological and scientific analyses. Notwithstanding her support for these fans and authors, J.K. Rowling owns the copyright in all the books of the Harry Potter series and also in the fictional characters, events, places and things that make up the world of Harry Potter. In addition, she owns the copyright in two companion guides that she authored.

"Steven Vander Ark runs a fan website called ‘Harry Potter Lexicon’ which has been online since 2000.  Ms. Rowling has been supportive of the website, which is free of charge for people to use.  She even gave it a fan site award in 2004.  However, Mr. Vander Ark has now entered into an agreement for a printed version of the Lexicon, which RDR Books intends to profit from by publishing at a price of $24.95.  The book is very different than the website and far inferior to it.  It fails to include any of the commentary and discussion that enrich the website and instead is nothing more than a re-arrangement of J.K. Rowling’s own written material.

"J. K Rowling believes that this is wrong.  Mr. Vander Ark himself also appears to believe that it’s wrong.  On his website, he writes, 'I don’t give permission for people to just copy my work for their own use.  Not only is that illegal, since everything in the Lexicon is copyrighted, it’s also just plain wrong.' In addition, to fans who were proposing a 'Fan-Made Harry Potter Encyclopedia,' he e-mailed: 'Basically, it is illegal to sell a book like that.  Jo has reserved all publishing rights to her intellectual property, which means that she’s the only one who may publish any book that is a guide or encyclopedia to her world.'

"Ms. Rowling also believes that if this book is published, it may detract from sales of her own planned encyclopedia, the proceeds from which will go to charity, just as the proceeds from her other companion books have already been donated to charity. There is a long history of authors using their intellectual property rights to benefit charities.  The income from works by George Bernard Shaw continues to support the British Museum, British Library, National Gallery of Ireland and Royal Academy of Dramatic Art, the copyrights in Rudyard Kipling’s works help support the National Trust, while the copyright in J. M. Barrie’s Peter Pan continues to support the Great Ormond Street Hospital for Children.  Sadly, the Stanford Center for Law and the Internet, which is acting against J. K. Rowling in this case, has previously attacked Great Ormond Street Hospital and attempted to deprive it of the income intended by J. M. Barrie’s bequest.

"Repeated, cordial efforts have been made to persuade RDR Books not to go ahead with publishing the Lexicon.  Although it has agreed to remove J. K. Rowling’s name from the back cover, RDR Books has refused to stop publication, leading to the present legal action being taken.  Joining the author in this lawsuit is Warner Bros Entertainment, Inc., which holds trademark rights in the names, places and characters in the books and the copyrights in the films based on the Harry Potter books.  Together, they are suing RDR Books (but not Mr. Vander Ark personally) to prevent publication and to seek appropriate damages."

---
Here is RDR Books' statement about the lawsuit given to me Saturday night:

New York Federal District Court Judge Robert Patterson has scheduled a trial for April 14 in the matter of Warner Bros. Entertainment and J.K. Rowling v. RDR Books. The judge consolidated a previously scheduled injunction hearing with the trial. The plaintiffs want to block publication of librarian Steve Vander Ark's Harry Potter Lexicon.

In this action, a distinguished and tremendously successful novelist demands the suppression of a reference guide to her works. J.K. Rowling, author of the Harry Potter books, asserts that this reference guide infringes both her copyright in the seven Potter novels and her right to publish, at some unidentified point in the future, a reference guide of her own. In support of her position she appears to claim a monopoly on the right to publish literary reference guides, and other non-academic research, relating to her own fiction.

This is a right no court has ever recognized. It has little to recommend it. If accepted, it would dramatically extend the reach of copyright protection, and eliminate an entire genre of literary supplements: third party reference guides to fiction, which for centuries have helped readers better access, understand and enjoy literary works. By extension, it would threaten not just reference guides, but encyclopedias, glossaries, indexes, and other tools that provide useful information about copyrighted works. Ms. Rowling's intellectual property rights simply do not extend so far and, even if they did, she has not shown that the publication of this reference guide poses a sufficient threat of irreparable harm to justify an injunction. Her injunction motion should be denied.

Bert Fields was not called to the witness stand today.

Here's the list of famous clients whom Pellicano co-defendant LAPD Sgt Mark Arneson testified today he "helped" as part of private security work paid by the Hollywood private-eye: Kelsey Grammer, Farrah Fawcett, Rick Springfield, Mary J Blige, Enya, Vidal Sasson, Jesse Jackson, members of the Disney family, Whoopi Goldberg, Goldie Hawn, Nicolas Cage, Michael J Fox. Arneson also claimed he did bodyguarding duty at the Oscars, Emmys, Grammys and Soul Train awards. "I thought I was helping the greater good of the Los Angeles Police Department," he testified. But prosecutors pointed out he victimized other famous people with illegal law enforcement database searches. "I knew what I was doing was against LAPD policy. I knew what I was doing is wrong." 

I'm excerpting this Q&A with uber-attorney Kenny Ziffren [of Ziffren, Brittenham, Branca, Fischer, Gilbert-Lurie, Stiffelman, Cook, Johnson, Lande & Wolf] which will appear in the next DGA Quarterly because he talks about his behind-the-scenes work on behalf of the directors guild in the recent contract negotiations. He details how the DGA and WGA worked together on the key issue of distributors’ gross. And he even throws in some advice for the actor guilds:

Q. You have been a consultant to the DGA for going on eight or nine years at this point—how did you first come to consult for the Guild?
A. Jay Roth and I had known each other for a while from other activities, some Guild stuff. I had done a great deal of transaction and participation work for many years for directors and the industry in general. My initial work for the Guild started with the 1998 television residual study. The guilds had recently negotiated a provision that gave them access to detailed information about the TV business. The DGA brought me onboard as a TV ‘expert’ to help with implementation.

Q. Can you describe your role in the recent negotiations?
A. Well, I had numerous meetings with Jay and with the staff over a two-year period to consult about various developing approaches for the then-upcoming round of negotiations. Because we knew that new media would be a significant negotiations subject, the Guild wanted to get the views of a lot of experts in the business and so Michael Apted and Jay organized a weekend leadership retreat in the spring of 2006 at a hotel in Santa Monica and we had half a dozen “outsiders” come in and tell us their views of where the business had been, where it was going and how technology delivery systems had affected and would affect the industry in the future.

Out of that retreat, the Guild selected two or three of the individuals present and then reached out for another consulting firm. The consultants were, in essence, given an assignment to develop unbiased forecasts of the future of new media through various models. I was involved in a number of those meetings and I commented throughout the process on the research. Eventually, the reports of the various consultants were delivered and then melded into a single report, which the DGA staff then shared with the Negotiating Committee and the DGA National Board. And then during informal and formal negotiations, I was in contact with Gil [Cates] and Jay as a regular sounding board.

Q. What was your involvement in defining ‘distributors’ gross’ and the development of provisions relating to accessing information?
A. The process that led to the final agreement on the definition of the term ‘distributors’ gross,’ data access and related subjects came out of a meeting that Gil Cates and Jay Roth had with Bob Iger and Peter Chernin. They agreed that these key issues should be handled by a small group of people who were expert in these areas in the real world. Gil and Jay designated myself and [DGA general counsel] David Korduner as the DGA negotiators, and Peter and Bob designated Mark Pettowitz and Howard Kurtzman as the studio negotiators for the AMPTP. I started the ball rolling by having a couple of preliminary conversations with Mark.

David Korduner and I then drafted the preliminary proposal on ‘distributors’ gross’ agreements and allocations, record keeping, reporting, and audit rights. We presented to Mark and Howard — went back and forth, had a couple of meetings, had several conference calls. Basically, by the time the negotiations formally started for the DGA and AMPTP, our part of the deal was essentially done. There were a few dots and commas and semicolons that needed to get resolved, but I’d say we were 98% done by the time the formal negotiations had started. When the formal negotiations had concluded, our roughly five-six pages of materials were included in the overall agreement that the parties had negotiated.

Q. Did you ever share that information with the WGA?
A. When the WGA heard that we had closed our deal, they called over, I believe to Jay, and asked if they could see and/or discuss with us the pertinent provisions of this arrangement. The DGA agreed, so David and I sat down with [WGA general counsel] Tony Segall, [WGA assistant executive director] Chuck Slocum, and [consultant to the WGA] Alan Wertheimer at my office on the Friday immediately after the DGA announced its deal and we handed them the five pages and went over it line by line with them and spent about an hour and a half answering questions about it. They all seemed to be quite satisfied and pleased with what we had negotiated. The WGA subsequently requested some minor clarifying language changes that we all agreed to incorporate — making the final ‘distributors’ gross’ language between the WGA agreement and the DGA agreement identical.

Q. What do you see as the most complex challenges facing the industry in the short-term?
A. Short-term, I believe it’s to try to explain to the two performers’ unions the concept that this is not a watershed moment and that new media is evolving. It’s better right now to have access to the  information that’s needed to try to track the new media industries and their business patterns. If the other guilds can understand that concept, then we can get back to work again in full force and follow the trends that the industry may take in new media. And so that is, to me, the major short-term issue and hopefully that will get resolved before June 30, or long before, if possible.

Q. And long-term?
A. In the long-term, we’re dealing with two industries — TV and features — where the growth rate is probably flat or down over the next three-five years. New media, while it may eventually be additive to existing distribution structures, will be cannibalistic in the short run, and that will present a major challenge not only to the studios, but obviously to the guilds in terms of how talent is employed and what structures are desirable or necessary to either maintain or augment their current income. Additionally, it’s just knowing more and more as time goes on about what new technologies are available and whether they are again additive, cannibalistic or both, and how to manage those in a way that’s good for talent—and the industry.

Q. Do you see VOD, ad-supported streaming and paid downloads — as simply the next generation in the delivery of entertainment — or is there a true difference between what’s going on now and how entertainment has been delivered in the past?
A. I think that the new technologies will impact the feature industry a lot differently than the television industry. Right now, movies have distinct ‘windows,’ periods of time in which they are exhibited in different formats — starting with theatrical release, then DVD sales and rentals, PPV/VOD, then airing on pay/cable television, then free television and so on. The studios’ goal is to maximize profits in each window before moving on to the next format. Over time, those windows have compressed with the clearest example being the theatrical window (time in movie theatres) which has shrunk considerably as DVD and other delivery methods have encroached.

To date, the industry has profited greatly from this windowing structure where the owner/distributor of the product maximizes returns by charging more for ‘the sooner and the better,’ from a quality point of view, when you see the movie. And showing films in theaters is at the top of the chain from both a time and quality point of view. Because this structure is embedded throughout the business, I think that the overall sequence of windows will remain in place, however, the newer methods of delivery -- including streaming and downloads -- will continue to compress the length of each individual window.

The television industry is in the midst of a major transition and just where it’s going is unclear at the moment. In today’s world, there has been incredible growth in the number of outlets and the number of channels and the variety of programming that you can access in the home not to mention the many different delivery systems to receive that content. This is a change in how the business model works because if you’re able to skip through commercials, then the basic underpinning to the broadcast business is going to be a lot different than it was 5, 10, 20, 50 years ago. And the ad model will also change.

Q. Do you see streaming, downloads and VOD eventually overshadowing DVD rentals and sales?
A. Well, in the feature world, I hope not and I don’t think so. I think packaged goods have basically improved the profit picture at the studio level and therefore at the talent level as well. The new technologies, to me, at this point, do not offer the same profit margin or quality viewing that one can get from the packaged goods. And so I would hope that we’ll encourage new media sales, as opposed to rentals, because again, the profit margin on the sales is much, much better than it is in a rental mode, and therefore, more of those dollars stick to the studios, which enables them to pour the money back in to new production which creates employment, and that’s what I look for.

On the TV side, it’s less clear but I believe that as representative of talent, I don’t want a lot of disintermediation. I want there to be strong networks that are willing to spend money on high-quality drama, sitcoms, and other genres. And if we’re moving to the three- and five-minute program, it concerns me that in one sense, viewers are being deprived of good stories that take time to tell, and on the other side, that the talent pool would be shrinking because there won’t be enough support for the long-form (if you can call 22 minutes long).

Chad Hummel, defense attorney for LAPD Sgt Mark Arneson in the Pellicano trial, just told the court that he reserves the right to call entertainment superlawyer Bert Fields as a witness as soon as tomorrow. Interestingly, the federal prosecutors never called Fields after that Fifth Amendment snafu. So Asst. U.S. Attorney Daniel Saunders asked in court why Fields was being called as a witness for Arneson: "We could cross-examine Mr. Fields for four hours, but what is his relevance to defendant Arneson?" Hummel replied that Fields' testimony would go to the matter of whether Arneson was part of a criminal enterprise, as all the defendants are charged with that in the indictment. 

Fields, of course, regularly put Hollywood private eye Anthony Pellicano on legal cases. Meanwhile, Pellicano only intends to call one witness on Friday when he presents his defense. (he's representing himself.) The P.I. had discussed with the federal judge the possibility that he might testify. But it now appears he's decided against that. Stay tuned...

1. Feds Explain Their Bert Fields Snafu...
2. EXCLUSIVE! BERT FIELDS WILL TESTIFY (...And Won't Take The Fifth) 

The WGA issued this news release just now. Below it is the MPAA reaction:

California Senate Judiciary Committee Passes Fair Market Value Bill

Landmark Legislation Aims to End Unfair Accounting Practices in Hollywood

Sacramento --The California State Senate Judiciary Committee today passed Senate Bill 1765, the Fair Market Value Bill. It was introduced by Senator Sheila Kuehl (D-Los Angeles) and coauthored by State Senators Darrell Steinberg, Gloria Romero, Carole Migden, Elaine Alquist and Assembly Members Fiona Ma, Sandré Swanson, and Mike Davis. The bill would end the practice by some major studios of “underselling” television series or movies, thus shortchanging the talent community as well as production workers. The bill can now move to the full Senate for consideration and then to the State Assembly.

“Studios should not be allowed to undervalue their products in sweetheart deals with their own parent company and cost creative talent and crewmembers their rightful share in residuals and contributions to health and welfare funds,” said Senator Sheila Kuehl. 

“This bill is good publi