Kelly M. Klaus

Only a few intellectual property cases get noticed by the mainstream media. But Klaus has been involved in more than his share.

The Munger Tolles litigation partner represented Warner/Chappell Music Inc. in its bid to keep “Happy Birthday to You” out of the public domain. He argued for the National Collegiate Athletic Association when former UCLA basketball star Ed O’Bannon sued over the use of his likeness in a video game.

Perhaps most famously he represented Universal Music Corp. in the nine-year saga over a 29-second video clip: the “dancing baby” case involving the Prince tune “Let’s Go Crazy.”

Other recent cases may have made fewer headlines, but were no less important.

Last year, he represented movie studios in Disney Enterprises Inc. v. VidAngel Inc., 16-CV04109 (C.D. Cal., filed June 9, 2016). The company claimed its streaming service was allowed under the Family Home Movie Act of 2005 because they offered family-friendly filtering.

A judge disagreed. Klaus said filtering ultimately had little do with the case.

Instead, the company thought it had discovered a loophole to stream movies without permission from the studios. The company would buy 1,000 DVDs, he said, then keep 999 in their boxes, copy one use that to stream to up to 1,000 people at a time. They claimed the rights holders were compensated when the company bought the DVDs.

“You’re operating an on-demand streaming service,” Klaus said. “It’s a different set of rights.”

Another prominent recent case didn’t involve intellectual property but the First Amendment. The class action filing challenged the use of “smoking imagery” in movies rated G, PG and PG-13. Forsythe v. Motion Picture Association of America Inc., 16-CV00935 (N.D. Cal., filed Feb. 25, 2016).

Klaus headed a team that was able to get the complaint dismissed. While smoking has been a factor in ratings since 2007, he said the MPAA never claimed there was a one-size-fits-all standard for all depictions of smoking.

He noted the Disney animated classic “Pinocchio” contains a famous smoking scene, though certainly one that doesn’t glorify the habit.

“We argued that ratings are a way of providing information to parents,” Klaus said. “In fact, the ratings group has been explicit in saying that it would not automatically apply an R rating to any movie with smoking in it.”

— Malcolm Maclachlan