(CelebrityAccess News Service) — The US Court of Appeals for the Ninth Circuit ruled in favor of the Beastie Boys in a copyright infringement lawsuit, finding there was no infringement in the band’s use of a copyrighted sample from a flute composition, “Choir,” by James W. Newton Jr., because its use was minimal.
In 1992, the band obtained a license from ECM Records to sample a six-second, three-note sequence and looped in its song “Pass the Mic. Eight years later, Newton sued the band stating they should have gotten a license from him and that their use of the sequence infringed the “heart” of his composition.
The court said, "Newton is in a weak position to argue that the similarities between the works are substantial, or that an average audience would recognize the appropriation." — Jane Cohen and Bob Grossweiner
Complete Rosie Trial Coverage: Exec Recommended Tweaking Rosie's Numbers
USA, publisher of Rosie O'Donnell's magazine, admitted that he recommended manipulating the magazine's financial performance in order to keep O'Donnell on board.
"We did not want to shut down," Lawrence Diamond, the CFO, said as O'Donnell lawyer Matthew Fishbein questioned him. He spoke in Manhattan's State Supreme Court, where O'Donnell and G+J sued each other for breach of contract.
O'Donnell's lawyers say G+J executives tweaked the figures as a fight for control of the magazine. If Rosie lost more than $4.2 million in a fiscal year, O'Donnell — by contract — would have been permitted to quit.
Her lawyers say bogus circulation numbers were reported to the Audit Bureau of Circulations, a nonprofit association whose information is used to help decide advertising rates.
Fishbein elicited testimony from an ABC official that while Rosie charged advertisers on the basis of a circulation of 3.5 million per month, its actual subscription and newsstand sales usually fell short of that number.
Circulation shortfalls would result in lost revenue and rebates to advertisers.
Diamond said the recommendation to tweak Rosie's numbers came after an April 2002 e-mail memo from magazine executive Glenn Spotto warned, "Bad news coming on the newsstand, it appears that we are inching closer to that trigger point."
Diamond then wrote a memo to Axel Ganz, an executive at G+J's German parent company, Bertelsmann AG, saying, "G+J USA is recommending to you that we manage the financials such that we do not fall below the required threshold point so that we can continue to publish 'Rosie.' We are asking you for approval to this strategy."
"We thought it was in both parties' interests to continue publishing the magazine," Diamond told Fishbein. "We thought it had great potential and great future value."
Diamond testified that he wrote a follow-up letter to Ganz so that he would have a written record of his approval of the numbers managing strategy.
In a videotaped deposition of Ganz taken on May 23, 2003, Ganz said he did not remember receiving such a request from Diamond and declared, "We don't manage books. He might have been talking about looking at other ways to enhance revenues."
However, a May 8, 2002, e-mail indicated Diamond sent an e-mail to G+J CEO Daniel Brewster saying, "He (Ganz) agrees with our recommendation."
Earlier in the day, Michael Lavery, president of ABC, said it is an offense under his association's bylaws to falsify information provided to ABC.
Fishbein displayed evidence exhibits that showed G+J's internal circulation figures were less than those reported to ABC.
And Lavery showed that Rosie's total circulation for 12 months of 2002 averaged 3.36 million, while the rate base for charging advertisers was 3.50 million. He said that amounted to a shortfall of 3.8 percent.
David Williams, an accountant for Deloitte Touche LLP, testified that after examining the magazine's financial records for O'Donnell's legal team, he found unreported liabilities and expenses improperly excluded.
G+J lawyers say O'Donnell killed the magazine because of a fight over the cover of the September 2002 issue which featured actresses from the TV show "The Sopranos." The cover, showing O'Donnell between Lorraine Bracco and Edie Falco, was never used.
O'Donnell quit Rosie in mid-September 2002, and the magazine, which began publishing in April 2001, folded with the December 2002 issue.
The publishers sued O'Donnell for $100 million, alleging breach of contract for walking away. She countersued for $125 million, saying G+J broke its contract with her by cutting her out of key editorial decisions.
State Supreme Court Justice Ira Gammerman, who has overseen cases involving Joan Collins and Woody Allen, is hearing the trial without a jury and will decide the case.
The trial is expected to conclude Wednesday.
O'Donnell Wants $8 Million in Legal Fees
NEW YORK (AP) — Rosie O'Donnell said she will try to recover $8 million in legal fees from her battle with the publisher of her now-defunct magazine, now that a judge indicated neither side will win any money.
But an attorney for publisher Gruner + Jahr USA cautioned Thursday that the fight wasn't over. "The judge hasn't made any final ruling," Martin Hyman said on the "Today" show.
Each side blamed the other for the 2002 demise of Rosie magazine, and each sought nine-figure damage awards in their civil lawsuits — a tussle that state Supreme Court Justice Ira Gammerman called "ill-conceived."
"It seems to me that neither side has proved any damages," Gammerman said Wednesday after lawyers for G+J and the former television host rested their cases following a two-week non-jury trial.
Outside court Wednesday, O'Donnell declared: "I'm very happy that it's over."
"The story of this case is not who won or lost, but how many times peace was offered and war was chosen by the other side," she said.
Later, outside the Broadway theater where her musical "Taboo," starring 1980s pop star Boy George, opens Thursday, O'Donnell said she was upset about wasting so much money on legal fees.
O'Donnell's lawyer, Lorna Schofield, told "Today" she was "working very hard" to recover the money.
Hyman said he disagreed that the publisher's case lacked merit, repeating assertions that the magazine shutdown cost G+J tens of millions of dollars.
"What the judge said was that he did not think that either party could prove damages to his satisfaction in view of the fact that the magazine had never been profitable. That's what he said and we will address that issue as we go down the road," he said.
Rosie, a magazine reminiscent of Oprah Winfrey's successful publication, O, debuted amid much optimism two years ago, but a bitter battle for editorial control ensued in late summer 2002, as Rosie's sales declined.
No Winner In Rosie Magazine Court Battle
NEW YORK (AP) — Neither Rosie O'Donnell nor publisher Gruner+Jahr USA emerged a winner in an ugly and "ill-conceived" court battle over the defunct magazine Rosie and no money damages will likely be awarded, a Manhattan judge said Wednesday.
"It seems to me that neither side has proved any damages," state Supreme Court Justice Ira Gammerman said after lawyers for G+J and the former television host rested their cases after a two-week trial. Each side blamed the other for the magazine's 2002 demise, and each sought nine-figure damage awards in their civil lawsuits.
But the judge said that aside from one witness's guess about Rosie's future value, "there is no evidence that the magazine would have made any money at all." He said a damage award requires "more than the hope and expectation" of making money.
"It seems to me that aside from the issue of attorneys' fees, we're just dealing with bragging rights here, who wins and who loses," Gammerman said.
The judge's comments from the bench were not an official ruling but he offered no indication he would change his mind. The case was not heard by a jury, leaving the decision in Gammerman's hands. He said lawyers could submit briefs by Dec. 17 for a possible award of legal fees and on other issues they want him to consider before he makes an official ruling.
"I'm very happy that it's over," O'Donnell said outside court, where she plugged "Taboo," the Broadway musical she is producing. "The story of this case is not who won or lost, but how many times peace was offered and war was chosen by the other side.
"I have no vengeance toward (G+J)," O'Donnell said. "I will never speak about the company again, or any of its employees, not because I signed a confidentiality agreement, but because I'm simply happy about the fact that it's finally over."
Martin Hyman, lawyer for G+J, said he disagreed with Gammerman's characterization of the case. Despite the judge's comments, Hyman said he will submit papers asking Gammerman to reconsider damages for his client.
"I'm sure the judge will keep an open mind," Hyman said.
Rosie, a magazine reminiscent of Oprah Winfrey's successful publication, O, debuted amid much optimism two years ago.
G+J and O'Donnell, known then as the "Queen of Nice," had entered a joint venture agreement to remake the failing McCall's title in the mode of her successful television show. The magazine launched its first issue in April 2001.
In late summer 2002, as Rosie's sales declined, a bitter battle for editorial control ensued. The dispute climaxed in a fight over the cover photo for the September issue, which was to feature actresses from the television show "The Sopranos."
The cover photo, showing O'Donnell standing between actresses Lorraine Bracco and Edie Falco, never ran. Although O'Donnell prevailed and a photo she chose was used, she nevertheless quit the joint venture in mid-September 2002. Rosie folded after its December 2002 issue.
G+J sued O'Donnell for $100 million, accusing her of breach of contract for walking away. She countersued for $125 million, saying G+J broke its contract with her by cutting her out of key editorial decisions.
During the trial, Larry Diamond, G+J's chief financial officer, admitted he sent a memo recommending that the company "manage the financials" of the magazine so they could continue publishing it.
O'Donnell's lawyers said this signaled G+J's plan to manipulate Rosie's revenue figures so they remained above the level that would have allowed O'Donnell to quit without liability.
When O'Donnell testified, she was forced to admit that she lied during a deposition when she denied telling a cancer survivor, Rosie executive Cindy Spengler, that liars get cancer. O'Donnell was apparently angry that the woman did not speak up for her at a meeting.
Gammerman — who has heard many celebrity trials, including ones involving Joan Collins and Woody Allen — said there was no evidence proving either side caused the other to suffer damages. He suggested that O'Donnell would not have sued G+J if the publisher had not sued her first.
Rapper Slick Rick Released From Jail
TAMPA, Fla. (AP) — Rapper Ricky "Slick Rick" Walters was released from jail Friday, more than 17 months after U.S. immigration officials moved to deport the British-born star.
Reached by telephone in his lawyer's car, Walters told The Associated Press he was relieved to be freed and intended to head home to his wife and children in New York.
"I am fine," Walters said. "It feels good, fresh air, a new beginning."
Walters' release was cleared a week ago by federal Judge Kimba Wood, who ruled the Board of Immigration Appeals should never have reversed its earlier decision that Walters could stay in the United States despite a criminal conviction.
The rapper, best known for his solo platinum album, "The Great Adventures of Slick Rick," was detained in June 2002 as he returned to Florida after a weeklong gig aboard a cruise ship. His detainment came amid the immigration crackdown following the Sept. 11 attacks.
As the months passed with 38-year-old Walters in jail south of Tampa, supporters including comedian Chris Rock, actor Will Smith, record mogul Russell Simmons and the Rev. Jesse Jackson spoke out about his case.
Walters said he spent the last week not certain when he would be released. He ran into further problems when jail workers couldn't locate his driver's license, and he had to get a temporary one for identification for the flight home.
"It's been pretty stressful," he said of his detention at the Bradenton facility, which has a contract with immigration officials to house detainees. "You don't know if you are going to be in America. You don't know if you are going to be in England."
He said his children, ages 12 and 13, missed having him be a part of their lives. "They weren't certain they were going to see me in this country again," Walters said.
The time in jail, though, allowed him to work on his music, he said.
"It think it's just like another adventure," Walters said. "Just building character, giving me more substance to write about."
Courtney Love Pleads Innocent to Charges
BEVERLY HILLS, Calif. (AP) — Courtney Love pleaded innocent Wednesday to two felony drug counts after ridiculing the charges in a rambling monologue to reporters before the court appearance.
The complaint against the 39-year-old singer-actress said she illegally possessed two painkillers when she was treated at a hospital for an Oct. 2 overdose. The two painkillers, hydrocodone and oxycodone, can be prescribed legally.
She called the charges "retarded."
"I didn't even break a law. I didn't even shoplift," Love said before the hearing at Beverly Hills Municipal Court.
The drug charges stem from an incident last month that began with Love allegedly trying to break into the Los Angeles home of her former boyfriend. After her release, Beverly Hills police and paramedics were called to Love's home and had to take her to a hospital for treatment of a drug overdose.
Love's attorney, William Genego, told The Associated Press that Love had not intentionally overdosed but rather had taken the wrong medication by mistake. Genego said Love turned over a bag of pills to police after they were called to her home. The drug charges stem from Love not having a prescription for three pills in the bag, Genego said.
Carrying her pet beagle, Molly, and a bouquet of red roses, Love rambled to reporters Wednesday about missing money, an affair with a married man and throwing a sleeping pill at a police officer.
"Don't tell," said Love, whose past heroin use was widely reported. "It's a big secret I used to do drugs."
Judge Elden Fox scheduled a preliminary hearing for Dec. 11. He instructed Love to meet with Santa Monica probation officials to assess her suitability for a drug diversion program.
If she is found eligible, Love could plead guilty, undergo counseling and pay administrative fees, and her plea would be erased after two years, Fox said.
Love complained to Gengeo during the hearing that potential court dates conflicted with a planned trip to London, a video shoot and the Academy Awards.
"What is it we're continuing?" she asked at one point. "Do I have to live in this weird hell?"
Love is the widow of Nirvana frontman Kurt Cobain, who committed suicide in 1994. She received a Golden Globe nomination for her role in the 1996 movie "The People vs. Larry Flynt."
Photographer Sues Rapper 50 Cent for $21M
NEW YORK (AP) — 50 Cent and his record label have been sued for $21 million by a New York Post photographer who claims the rapper's bodyguards attacked him.
James Alcorn alleges in a lawsuit filed in state Supreme Court that he was "assaulted and battered" by seven bodyguards Aug. 27 while photographing 50 Cent, who was shopping in the diamond district.
With the 27-year-old rapper looking on, the unidentified men allegedly slammed Alcorn down on the sidewalk, then loomed over him as he snapped a photo of them. Alcorn claims he suffered neck and jaw injuries.
The incident was being investigated as a possible misdemeanor assault, a police spokesman, Sgt. Kevin Hayes, said Tuesday. A call to 50 Cent's spokeswoman at Interscope Records wasn't immediately returned.
The lawsuit, filed Monday, accuses 50 Cent and Interscope of "not exercising reasonable care and diligence in the employment" of the bodyguards.
Judge Denies New Trial in Concert Shooting
SHREVEPORT, LA (AP) — A judge denied a motion for a new trial for the man convicted of killing a teenager in a gang-related shootout outside a rap concert.
Tatum Strogen, 17, was killed Sept. 1, 2002, caught in a crossfire motivated by an ongoing feud between Shreveport and Bossier City gangs.
Edward James McKinney, 37, was convicted of second-degree murder in late September for firing the fatal bullet. He is scheduled to be sentenced Friday in state district Judge Ramona Emanuel's courtroom. Emanuel denied his attorney's motion for a new trial Monday.
McKinney faces a mandatory life sentence. McKinney's attorney, Frank Zaccaria, said he will file an appeal after the sentencing.
"I still don't believe the man is guilty of second-degree murder," Zaccaria said. "At the worst, manslaughter. I firmly believe he is innocent. I believe the evidence is sufficient. These weren't aimed shots; these were wild shots."
McKinney was one of seven defendants involved in last year's shooting. The remaining men were charged by the state with rioting resulting in human death or illegal use of a weapon in the course of a violent crime. A conviction for either of those offenses carries up to a 20-year sentence.
McKinney's mother, Gloria Flakes, said she wants to know where justice is in a system that would "grant the gang members as little as 10 years in prison or immunity in exchange for their testimony, allowing for the threat of future similar occurrences, while my son, a non-gang member, awaits a possible life sentence."
She said she would never try to minimize or dismiss the tragedy of an "innocent, young life," but equally tragic, she added, is for McKinney to spend life in prison if there is any possibility of innocence.
Aretha Franklin May Settle Tabloid Suit
ALBUQUERQUE, New Mexico(AP) — Nobody's saying whether R-E-S-P-E-C-T is on the table, but Aretha Franklin and the Star are sitting down to discuss settlement of the soul superstar's lawsuit against the supermarket tabloid.
Last year, Franklin sued the Star and its parent company, American Media Inc., over an article that alleged she had a drinking problem.
Barry Langberg, Franklin's Los Angeles lawyer, has said everything in the article published in March 2000 was false.
Franklin — best known for such hits as "Respect," "Natural Woman," "Chain of Fools" and "Think" — and the lawyers for both sides left court late Friday afternoon with no word of the progress toward settlement. Langberg's office said he would not be available for immediate comment because he had to catch a plane back to Los Angeles after the hearing.
Langberg has said he could reasonably have sued the Star in any state because it is sold nationwide. He has not specified why he chose New Mexico as the venue for the lawsuit.
Rapper Tray Deee Arrested in California
LONG BEACH, Calif. (AP) — Rapper Tray Deee, a member of the hip-hop group Tha Eastsidaz, was in custody Saturday after being arrested for allegedly shooting at people outside of a business, police said.
No one was injured and the 37-year-old rapper, whose given name is Tray Muhammad, was arrested at his Fontana home Friday several hours after the alleged shooting, said Officer Jana Blair of the Long Beach Police Department.
He was booked for felony assault with a deadly weapon and was being held in the city jail with bail set at $50,000.
There was little information on the shooting's circumstances, Blair said.
"Someone fired a handgun in the direction of individuals in front of an establishment. Someone identified him as a possible suspect," she said.
An investigation was underway and detectives expected to present evidence Wednesday to the Los Angeles district attorney's office, which will decide if charges should be filed.
Muhammad formed Tha Eastsidaz with rappers Snoop Dogg and Goldie Loc. The group has released two albums.
Arrest Warrant Issued for Rapper Juvenile
LAWRENCEVILLE, Ga. (AP) — Police have issued an arrest warrant for New Orleans rapper Juvenile for allegedly failing to pay child support.
The multiplatinum rap star, whose real name is Terius Gray, did not show up for a court hearing in August to determine how much child support he should pay the mother of his 6-month-old daughter, said Lt. Nick Neal of the Gwinnett County Sheriff's Department. Deputies obtained the warrant this week on charges of abandonment of a dependent child.
"She is not asking for a million dollars. She is just asking for help," Neal said. "A man of his stature should be able to pay child support."
Juvenile's attorney Larry Duttweiler said his client first plans to take a paternity test to confirm if he's the father.
"I've heard that he has had some other bogus claims before, so we want to get the test," Duttweiler said. "If this turns out to be true, we will deal with this."
Juvenile, 28, won a Billboard Award for R&B Album of the Year for his 1998 release "400 Degreez" and an American Music Award nomination for Favorite Rap/Hip-hop Artist in 1999.
Hip-Hop Group Sues Fox for Using Its Name
NEW YORK (AP) — Hip-hop group Arrested Development is suing Fox for using the band's name as the title of a new sitcom developed by Ron Howard.
The trademark infringement suit claims the use of the name for the TV show will dilute the meaning of the band's name in the eyes of its fans. The Atlanta-based group announced in November it was releasing a new album called "The Heroes of the Harvest," due out next year, according to MTV. The band recorded two albums of socially conscious songs before breaking up in 1996. Their 1992 album "3 years, 5 months and 2 days in the Life of…" sold 5 million copies.
Fox said in a statement the show's title is a commonplace expression as well as "an established psychological condition." Arrested development is defined as "an abnormal state in which development has stopped prematurely."
The sitcom, which stars Jason Bates and Portia de Rossi, is a comedy about a family dealing with life after the patriarch is incarcerated.
It's not the first time Fox has had to fight such a battle. In the early 1990's, the rock group Living Colour sued the network for use of their name in the comedy show "In Living Color." The suit was eventually settled out of court.
Union Members Charged With Cinema Fires
CHICAGO (AP) — Nine union members and their associates have been charged with taking part in a wave of violence that included movie theater arsons in 10 states in a labor dispute, federal officials said Friday.
The nine are named in a federal indictment charging a conspiracy to commit acts of violence, vandalism and arson nationwide against three major motion picture companies.
Prosecutors said the indictment alleges a series of assaults and 20 arson incidents spanning a period of 18 months in 1998-99 in the midst of a labor contract dispute.
All of those charged were described by the U.S. attorney's office as members or prospective members of Chicago Local 110 of the motion picture projectionists union.
Four of those charged, including the current business manager of Local 110, were arrested Friday morning by agents in Chicago, officials said.
U.S. Attorney Patrick J. Fitzgerald scheduled a 1 p.m. CST news conference to unveil the indictment and discuss the details.
Randall Samborn, a spokesman for the U.S. attorney's office, declined to disclose additional details immediately.
Singer Wynonna Judd Charged With DUI
NASHVILLE, TN (AP) — Country singer Wynonna Judd was charged with drunken driving early Thursday after a city police officer stopped her speeding Land Rover close to Music Row.
The arrest report states Judd had an odor of alcohol about her, watery eyes and dilated pupils, and she didn't remember how many drinks she had consumed.
Officer Carey John Adkerson said Judd consented to a breath test and registered a blood alcohol level of 0.175 percent _ more than twice the 0.08 percent legal definition of drunken driving.
The officer said he stopped the vehicle because it was traveling 47 miles per hour in a 30-mile-per-hour zone.
Judd, who began her career as half of the mother-daughter act The Judds, posted the standard $500 bond for a first offense and was released.
The 39-year-old singer said in a written statement that she had been celebrating her impending wedding and a friend's birthday "and clearly let my excitement get the best of me."
"I know there is never a situation where drinking and driving is acceptable and I take full responsibility for my error in judgment."
Judd plans to marry longtime bodyguard D.R. Roach later this month.
A driving under the influence conviction can result in punishment ranging from a fine to community service to 48 hours in jail.
"What the World Needs Now Is Love," Judd's first album in three years, debuted at No. 1 on the Billboard country music chart in August.
