智慧財產相關案例分享
經營遊戲店被訴販賣盜版光碟,律師協助獲判無罪

委託人小如民國91年即於台北市開立一間精品店,其時常會有客人或朋友因遊戲主機方面發生一些問題時,會請小如代為修繕或加以測式之。然於民國93年年末時,突然被警方到店表示,該店有提供該店消費之客戶改遊戲機之防盜拷措施之服務,且同時亦於該店內扣押相關電腦主動、遊戲光碟片及空白光碟片等。此外就其所扣押之遊戲光碟片部份,亦被認為有仿冒當時市面上最夯的sony和微軟的Xbox之商標,進而將其相關商品加以出售獲利之情形存在,故檢警就上述之行為對小如提起公訴,認其違反著作權法第80之2條規定及刑法偽造私文書之相關規定........https://www.alicelaw.com.tw/cases_content.html?n=65

▲蘇狀師談娛樂法(藝人代言契約實務–藝人代言契約應注意事項)

Rights & Licenses 權利及授權 [Sender.Name] is requesting the exclusive right and license to utilize this name in connection with the advertisement, promotion, and sale of their product. This contract is an agreement for those rights and services with the following terms being in place. 被授權者(下稱甲)要求專屬權及被授權利用權利者(下稱乙)之姓名於廣告行銷與銷售產品。本契約係依根據下列條款所為係爭權利與服務之協議。 [Endorser.Name] will provide rights for [Sender.Company] to hold all exclusive rights and licenses needed during the term of [Agreement.Term]. including the ability for use of any nicknames, initials, autographs, photographs, or any other property in relation to the advertisement or sale of mentioned product. 在契約期間,乙將專屬授權與甲,包括有權去利用任何乙之別名、藝名、簽名,照片或其他任何與廣告行銷有關之財產或本契約提及之銷售產品。 Endorsement Agreement Effective Date 代言契約生效日 This agreement shall become effective as of signature dates below and will remain effective for a term of 12 months unless prematurely terminated for failure to comply with any of the terms or conditions listed in this agreement. 本契約於下簽名日時生效,並於簽名生效後12個月為契約期間,除非契約任一方有違約情事,於預先終止本契約,否則契約仍有效存續。 Payment of Royalties 給付權利金 [Sender.Company] agrees to pay all royalties due from sales of such products as agreed between parties.Any and all royalties owed will be due on a yearly basis and shall be payable no later than thirty (30) days after the termination of the preceding full calendar quarter. For each royalty period due [Sender.Comany] will provide endorser with written notice of all royalties as well as any and all descriptions of Products that were sold during the Royalty Period or whether any actual Royalty was owed. “Net Sales” shall mean [Sender.Company] gross sales of Product, excluding all customary discounts and allowances as well as returns. The receipt or acceptance by [Endorser.LegalName] for above mentioned statement or payment shall not prevent Endorser from challenging or requesting proof of such document findings. Any and all obligations for the payment of Royalties shall survive expiration or termination of this Agreement and will continue for as long as Endorsed Constructor continues to sell the Product or payment is owed. In the event of underpayment to endorser for any and all royalties, endorser will bill for all royalties as well as interest fees in relation for said royalties.

▲蘇狀師談娛樂法(專屬及非專屬經紀契約)

Acting Agents – Exclusive and non-exclusive contracts 當職經紀人–專屬及非專屬契約 Exclusive An Exclusive contract with a talent agent means that your agent represents you for pretty much everything regardless of where the gig is. He represents you in New York, Los Angeles, Wichita…. where ever you go and whatever you do. Most exclusive agreements entitle the agent to their commissions even if they did not get you the gig or have anything to do with it. 專屬經紀契約意指不管你身在何處你的經紀人均係你的代表,不管你身在何處如紐約、洛杉磯、威奇托,亦不管你為何事,經紀人均代表你。絕大部分之經紀契約使經紀人都能獲取傭金,即便他們未能使藝人獲取酬勞或者使藝人後取酬勞而無所作為。 Non-Exclusive非專屬契約 This is the more popular type of contract and it is less restricting than the Exclusive contract. A Non-Exclusive agreement basically states that you can have more than one agent and is a popular choice for actors that work out of different cities. You can have one agent for New York and another for Los Angeles. The agent that gets paid is the one who sent you to the audition. 此種非專屬經紀契約係較受歡迎之契約態樣與專屬經紀契約相比,係較不受限制。非專屬經紀契約基本上規範你可以有一個以上之經紀人,同時此種模式也較受藝人歡迎。 Exclusive An Exclusive contract with a talent agent means that your agent represents you for pretty much everything regardless of where the gig is. He represents you in New York, Los Angeles, Wichita…. where ever you go and whatever you do. Most exclusive agreements entitle the agent to their commissions even if they did not get you the gig or have anything to do with it. 專屬經紀契約意指不管你身在何處你的經紀人均係你的代表,不管你身在何處如紐約、洛杉磯、威奇托,亦不管你為何事,經紀人均代表你。絕大部分之經紀契約使經紀人都能獲取傭金,即便他們未能使藝人獲取酬勞或者使藝人獲得酬勞與經紀人所為無因果關係,亦不生影響。   Non-Exclusive非專屬契約 This is the more popular type of contract and it is less restricting than the Exclusive contract. A Non-Exclusive agreement basically states that you can have more than one agent and is a popular choice for actors that work out of different cities. You can have one agent for New York and another for Los Angeles. The agent that gets paid is the one who sent you to the audition. 此種非專屬經紀契約係較受歡迎之契約態樣與專屬經紀契約相比,係較不受限制。非專屬經紀契約基本上規範你可以有一個以上之經紀人,同時此種模式,也較受藝人歡迎,同時提供藝人身處於不同城市一個不錯之選擇。你可以在紐約有個經紀人,同時在洛杉磯也有個經紀人。可獲得報酬之經紀人是可以使你大量曝光的那個推手。 Contract terms契約期限 Contracts are normally signed for period of a year even though sometimes longer terms are used. Many people are afraid of contracts and beginning actors sometimes get the misconception that they are now in someway “owned” by the agent. With most contracts that is not the case and the contract is a way to make sure that you pay the agency if you got the gig they sent you on. 契約正常以1年為期,即使有時會長於1年。許多人懼怕契約同時一些剛起步之藝人有時誤解他們為經紀人“所有”。契約是你獲得報酬將之提付與經紀人酬勞的一種方式。 A contract is nothing to fear. It spells out the agreement between both sides and what each side provides the other.  If you believe your agency is not doing its job you can request to end the agreement in writing. If an agency is unhappy with your performance, they will simply not send you to auditions and you may never get anything in writing from them. 無需懼怕契約,契約是雙方明確規範雙方權利義務之一種書面協議。倘若你認為你的經紀人不能勝任的話,你可以書面終止經紀契約。假如你的經紀人對你的表現不甚滿意,他們將不會為你力爭試鏡機會,同時也不會以書面方式告知你。

▲蘇狀師談娛樂法(名模吉吉哈蒂案深度解析三)

In what the plaintiff called a “nearly identical” case filed at the beginning of 2019, Hadid similarly copied and posted a paparazzi photo of herself, owned by Xclusive-Lee, Inc., to one of her social media accounts without license or permission from the copyright owner. Xclusive-Lee, Inc. v. Hadid, 1:19-cv-00520-PKC-CLP (E.D.N.Y. 2019). 於2019年年初,哈蒂重製一張由狗仔對所攝含有她自己的照片並上傳於其社群網頁,而該照片之著作權人為Xclusive-Lee, Inc.,該公司遂以“幾近相同”為由,對之提起侵害著作財產權訴訟。 Aside from bringing the same claim as Cepeda, Xclusive also notes that Hadid had first-hand knowledge that what she was doing constituted copyright infringement since she had been sued for the same thing just two years prior. The district court dismissed this case due to a lack of a copyright registration, though Hadid’s legal team also raised the defenses of fair use and implied license. The second case may have begun paving the way for future legal challenges to clarify these issues by raising a novel argument—implied license—alongside the more typical defense of fair use. Perhaps the time has come for these arguments to finally be decided by the court since Hadid has been sued yet again—this time for posting a photographer’s copyrighted photo of her former boyfriend and singer/songwriter, Zayn Malik, without license or permission. O’Neil v. Hadid, 1:19-cv-8522 (S.D.N.Y. 2019). An initial pretrial conference is scheduled for January 14, 2020.以上中文譯文,為本人所譯;請尊重著作權,違法利用,本人必究。

▲蘇狀師談娛樂法

'Resident Evil' Stunt Performer Drops Injury Lawsuit in L.A. 惡靈古堡的特技演員撤回在洛杉磯的訴訟 Its possible, however, that Olivia Jackson may pursue the case elsewhere. Attorneys for British stunt performer Olivia Jackson have dropped a Los Angeles-based lawsuit against the makers of Resident Evil: The Final Chapter.  英國特技演員奧利佛傑克森的律師撤回對“惡靈古堡:最終章”之製作公司在洛杉磯的訴訟。 The defendant argued in the motion to dismiss that Jackson's stunt performer contract specifically includes a provision requiring dispute resolution in South Africa. So it's possible that Jackson may pursue the case elsewhere.  被告爭執到該特技演員契約內容明確規定,本契約如發生爭議其訴訟管轄地為南非,因此該特技演員可能在他地另行起訴。 In September 2016, during the filming of Resident Evil: The Final Chapter, in Cape Town, South Africa, Jackson was badly injured during a stunt. While riding a motorcycle at a high speed, the 34-year-old veteran stunt performer collided with a crane-mounted camera that was traveling in the opposite direction. Her left arm was amputated above the elbow and she suffered lasting nerve damage and facial scarring. 2016年9月,在南非開普敦拍攝上開影片期間,34歲特技演員傑可森在為特技時受了很重的傷。事發時以高速騎著摩托車與反向行進之吊掛攝影機相撞。左手臂手肘以下截肢,同時受有持續性神經損害及面部傷疤。 Jackson’s initial U.S lawsuit, filed in September 2019 in Los Angeles, alleged that Resident Evil director Paul W. Anderson and his longtime producing partner, Jeremy Bolt, were responsible, and requested unspecified damages. 傑克遜最初於2019年9月在美國洛杉磯起訴,主張“惡靈古堡”導演Paul W. Anderson及其長期合作夥伴Jeremy Bolt要對其受傷負責,同時要求未定額的損害賠償金。 “The dismissal of the lawsuit included no settlement or payment of any kind,” said Joseph R. Taylor, an attorney with Frankfurt Kurnit Klein & Selz, the firm representing the defendants, which included director Anderson and producer Bolt, along with their respective production companies. “該訴訟無透過和解或給付任何金額而撤回,包括導演及製片和他們各自的製作公司” 代表被告的Frankfurt Kurnit Klein & Selz律師事務所之 Joseph R. Taylor這樣說道。 Jackson’s attorneys didn’t respond to requests for comment.  傑克遜的律師對該上開陳述未做任何回應及評論。