"We Shall Overcome" Verse Not Subject To Copyright Protection

We Shall Overcome Foundation v. The Richmond Org., No. 16-cv-2725 (S.D.N.Y. Sep. 2017) (Cote, J.).

In a putative class action challenging the validity of the defendants' copyright in the folk-song "We Shall Overcome," the Court granted plaintiffs partial summary judgment finding that the lyrics and melody of the first verse (repeated as the 5th verse) of the song are not sufficiently original to qualify for copyright registration as a derivative work.  After going through the history of various publications and registrations of the song, the Court held that the defendants could not rely upon their copyright registration's presumption of validity because the defendants had submitted sufficient evidence to rebut the presumption: "They have shown that the Defendants’ 1960 and 1963 applications for a copyright in the Song were significantly flawed."

The next questions was whether the changes to the most well-known verse of the Song, Verse 1/5, embody the originality required for protection by the Copyright Act.  A version of the song was in the public domain, so the issue was whether the changes claimed by the defendants were sufficient to qualify as a a protectable derivative work.  The Court held that "the Plaintiffs have shown that the melody and lyrics of Verse 1/5 of the Song are not sufficiently original to qualify as a derivative work entitled to a copyright.  As a matter of law, the alterations from the PSI Version are too trivial. A person listening to Verse 1/5 of the Song would be hearing the same old song reflected in the published PSI Version with only minor, trivial changes of the kind that any skilled musician would feel free to make. ... More specifically, the changes of “will” to “shall” and “down” to “deep” and the melodic differences in the opening measures and the seventh measure, do not create a distinguishable variation. These differences represent “variations of the piece that are standard fare in the music trade by any competent musician.”  In other words, changing "will" to "shall" was not sufficiently original to warrant copyright protection.

The Court did, however, deny the motion for summary judgment on the issues of the authorship and divestment (by publication), and fraud on the copyright office; and partially granted a Daubert motion precluding expert testimony.

Infringement Claim Dismissed In Country Music Spat Because No "Access"

Arnett v. Jackson, No. 5:16-cv-00872-D (E.D.N.C. Aug. 14, 2017) [Doc. 28].

A songwriter who claimed that his song "Remember Me" was infringed by country music star Alan Jackson's song "Remember When" had his copyright infringement claim dismissed under Fed. R. Civ. P. 12(b)(6) for failure to plausibly allege the defendant's access to the plaintiff's song.  The Plaintiff argued that Jackson had access to Remember Me because it was widely disseminated and sent to third-party intermediaries who knew Jackson.  But, the Court found that the fact that the plaintiff's song was available on the internet and that plaintiff had sold the song (without an allegation of commercial success) did not create an inference of access.  Further, the connections between the alleged third-party intermediaries was not close enough, and the plaintiff did not sufficiently allege how the songs were sufficiently similar in order to assume access.

Six-year Digital Music Antitrust Litigation Refused Class Action Certification

In re Digital Music Antitrust Litig., 2017 US Dist LEXIS 111403 [SDNY July 18, 2017, No. 06-md-1780 (LAP)].

Judge Preska refused to certify as a class action a case alleging price fixing in the digital music industry.  Several individual plaintiffs sought to represent a nationwide class of Digital Music purchasers against defendants Sony BMG Music Entertainment, UMG Recordings, Inc., Warner Music Group Capitol Records, Inc., Capitol-EMI Music, Inc., EMI Group North America, Inc., and Virgin Records America, Inc. The Court found that the Plaintiffs failed to satisfy the typicality requirement and that widespread pirating would raise “unclean hand” defenses that could not be determined on a class-wide basis.

The decision arises out of an ongoing litigation where defendants allegedly control eighty percent of the market for Digital Music in the United States through production, licensing, and distribution of music online and on CDs. The plaintiffs allege that defendants have conspired to restrain trade in and fix prices of Digital Music in order to sell CDs at supra-competitive prices.

Former Jefferson Starship Founder Can Sue Over Band Name

Chaquico v. Freiberg, 2017 US Dist LEXIS 128167 [ND Cal Aug. 11, 2017, No. 17-cv-02423-MEJ].

A California Federal Judge determined that the band ‘Jefferson Starship’ lost the right to use their name when co-founder Paul Katner died in 2016. The band name had been contractually retired in 1985 under an agreement, after Katner and various other founders left the band. In 1993, Craig Chaquico, whom brought the suit, agreed to allow Katner to use the name for a new band under a new agreement. The Judge determined that Katner’s death terminated the ’93 agreement and the band’s new members as well as older founders were barred from using the name as they were not parties to the agreement. While the Judge dismissed Chaquico’s Lanham Act claims that the former band members’ imagines in marketing creates confusion, she is allowing the breach of contract claim to proceed.

Win for Facebook In Anti-SLAPP Case Involving Country Artist

Cross v. Facebook, Inc., 2017 Cal. App. LEXIS 691 [Ct App Aug. 9, 2017, Nos. A148623, A149140]

A California Court of Appeals sided with Facebook, granting an anti-SLAPP motion and striking the complaint by Mikel Knight, a Country Rap/Urban Country artist. Knight filed a complaint against Facebook alleging six causes of action arising from a Facebook page inciting violence and death threats against Knight and his team.

As a part of Knight’s label’s marketing efforts, independent contractors were hired to drive vans throughout the country, promoting Knight’s music and merchandise. In 2014, two separate incidents occurred where drivers fell asleep at the wheel and were involved in car accidents, resulting in two deaths and one serious injury. Shortly after the incidents, a Facebook page called “Families Against Mikel Knight” was created by people related to the victims. Numerous individuals posted comments to the page inciting death threats and violence, and members of Knight’s promotion team were verbally threatened and physically assaulted. Knight requested Facebook remove the page after various business deals fell through due to its existence. Facebook refused.

The Court agreed with a special motion filed by Facebook to dismiss all six causes of action as they arose from protected activity and that plaintiffs could not show a probability of prevailing on any of them. The Court of Appeals instructed the trial court to enter an order granting the anti-SLAPP motion and strike the complaint.

 

Guitar Infringement Suit Transferred to Florida

Webster v. Dean Guitars et al., No. 17-cv-03027 (U.S. District Court for the Central District of California July 26, 2017).

A copyright suit against a guitar production company and the estate of Pantera frontman “Dimebag” Darrell Abbott was transferred to the Middle District of Florida after a California Federal Judge determined that Florida is the more convenient venue. In granting the motion, the judge determined that Florida would be more accessible to most of the parties and witnesses. While two additional defendants were added to the amended complaint, the judge was not convinced that these two defendants, located in California, were significant enough to keep the case in the state.

The case was brought by Buddy “Blaze” Webster claiming that he wasn’t paid for the modifications he made to a Dean-branded guitar that ultimately became synonymous with “Dimebag” Darrell.

Claims Against Beyoncé For Sampled Clips for “Formation” Survive, Despite Assertion of Fair Use

Estate of Barré et al. v. Carter et al., No. 2:17-cv-01057 (U.S. District Court for the Eastern District of Louisiana July 26, 2017)

A Louisiana federal judge refused to dismiss a copyright lawsuit against Beyoncé claiming she illegally sampled YouTube clips in her music video for “Formation.” The judge determined that Beyoncé’s use of the deceased YouTube star, Anthony Barré’s audio, would likely fail the four-factor fair use test. The Judge stated that Beyoncé’s use of Barré’s work was “highly commercial” and copied “the heart” of the original work, both weighing against a finding of fair use.  Barré’s estate had presented “sufficient facts at this stage of litigation to show that the four-factor fair use test could ultimately weigh against a finding of fair use.”

Copyright Suit Dismissed Against Beatles Company

Sid Bernstein Presents LLC v. Apple Corps Ltd. et al., No. 1:16-cv-07084 (S.D.N.Y. July 26, 2017)

The Court dismissed a copyright suit against the Beatles' Apple Corp. company, determining that Sid Bernstein Presents LLC – the company that currently owns intellectual property rights of a promoter who is credited with bringing The Beatles to the U.S. – did not have rights over footage from the band’s 1965 concert at Shea Stadium. The complaint alleged that Sid Bernstein Presents LLC retained copyrights to the footage and that The Beatles Company had infringed their copyright by allowing it to be used in Ron Howard’s “Eight Days a Week.” After reading through the contracts, the Judge determined that the language makes an admission that Sid Bernstein was not involved in the filming of the concert and was not the “author” of the footage for the purposes of copyright law.

Michael Jackson’s Production Company to pay $9.4M in Royalty Damages to Quincy Jones

Jones  v. MJJ Productions Inc. et al., No. BC525803 (Superior Court of the State of Cal. For the Cty. Of L.A.)

Michael Jackson’s production company was ordered to pay producer Quincy Jones more than $9.4 million in royalty damages for his work on “Thriller,” “Bad,” and “Off the Wall.” The jury determined that Jones was shorted after Jackson’s estate had breached contracts but declined to award Jones the full $30 million sought

Paul McCartney and Sony Settle Copyright Termination of Transfer Litigation

McCartney v. Sony/ATV Music Publishing LLC, et al., No. 17-cv-363 (ER) (S.D.N.Y. Document 41 Filed 06/29/17).

The parties resolved their litigation involving Paul McCartney's termination notices by entering into a confidential settlement agreement and jointly requested that the Court enter a proposed order dismissing the action without prejudice.

Lack of Personal Jurisdiction Over BBC Films In Copyright Infringement Action

Hit Bound Muisc, Ltd. v. BBC Films, et. al., No. 2:16-cv-7125 CBM (Ksx) (C.D. Cal. June 2017).

BBC Films is a British Corporation responsible for providing broadcast television, radio news and entertainment content in the United Kingdom. Hit Bound Music Ltd., a Canadian music publisher, sued BBC, among others, alleging that the company infringed on three of Hit Bound’s copyrights for the soundtrack in the film “My Old Lady.”

The court ultimately dismissed the claims against BBC Films for lack of personal jurisdiction, determining that the company’s principal place of business is in the United Kingdom. Hit Bound argued that BBC should be subject to general jurisdiction because one of their subsidiaries maintains an office in Los Angeles. The court held that BBC Films had no business operations or property in California and the company is not incorporated in California so it is not subject to general jurisdiction and the parent-subsidiary relationship is insufficient to establish personal jurisdiction after the Supreme Court’s decision in Daimler AG v. Bauman.

Court Partially Voids Deal Between Prince's Estate and Universal Music

In re: The Estate of Prince Rogers Nelson, Deceased, No. 10-PR-16 in the Carver County District Court June 2017.

A Minnesota judge voided a portion of Universal Music Group’s $31 million deal with Prince’s estate, ordering the estate to refund Universal Music Group’s advanced payment.

After determining that the exclusive licensing agreement made back in January included rights that were already guaranteed to Warner Bros. through previous agreements, Prince’s estate asked the court to rescind the agreement so they could ensure no overlapping occurred. The court determined that rescinding the agreement was in everyone’s best interest as opposed to long and expensive litigation. 
 

Claims Over 'Steve Harvey Show' Theme Song Trimmed

We 3 Kings v. The Steve Harvey Show, No. 2:14-cv-08816-DSF-AS Document 213 (C.D. Cal. Filed 06/23/17).

California District Judge, Dale Fischer granted partial summary judgment in favor of “The Steve
Harvey Show” , in regard to all copyrights except those filed prior to We 3 Kings Inc.’s
first amended complaint. In 2014, We 3 Kings Inc., brought suit against the Steve Harvey Show, its production company, and 27 satellite broadcasting and cable companies for using its music for its second season after their license for the first season had expired. We 3 Kings Inc. is seeking $700 for each time the music was used in the show’s second season, multiplied by each of the television stations that distributed it. The damages amount to $42.3 million.

Judge Fischer stated that a copyright suit cannot be maintained if a copyright application had not been submitted to the Copyright Office prior to the filing of the complaint. Only one of the copyrights at issue were submitted prior to the filing of the first amended complaint.

The Steve Harvey Show argued that the company had an express license from We 3 Kings, Inc.
for season one of the show, and an implied license for any episodes thereafter. We 3 Kings, Inc.
refuted The Steve Harvey Show’s argument, stating that the contract was approved by We 3
Kings Inc.’s ousted president and is unenforceable. Judge Fischer stated that there are still
significant questions of material fact remaining in regards to both parties’ arguments. However,
Judge Fischer did agree with The Steve Harvey Show’s argument that the broadcasting
companies are protected from copyright liability by a statute that grants them a blanket license to air the episodes at issue because they had no input in the content of the work.

Lyndard Skynard Tour Info Must Be Turned Over

Ronnie Van Zant Inc. et al. v. Artimus Pyle et al., No. 1:17-cv-03360 (S.D.N.Y. June 2017)

 

The legal entities and estates for founding late Lynyrd Skynyrd band members are seeking a permanent injunction blocking the production of a film about a plane crash that killed some of the band’s original members.

 

Following the plane crash, members of Lynyrd Skynyrd went on a 10-year hiatus, which ended once the surviving members reunited for a tribute tour. Judith Van Zant Jenness, widow of Van Zent, brought suit amid the reunion tour, which ended in a consent order laying out the details of all future Lynyrd Skynyrd events and their post-breakup image.

U.S. District Judge Robert Sweet ordered that the legal entities for the late band members must produce any available tour lists and information regarding Lynyrd Skynyrd shows that followed the 1988 agreement. The film company is arguing that the band has been violating the agreement for years. Judge Sweet ordered the information to determine whether ex-drummer Artimus Pyle and Cleopatra Films are in compliance with the agreement.

The plaintiffs are currently in the process of developing their own film about the band.

In Case Involving The Name of a Band, The U.S. Supreme Court Rules Disparagement Clause of Lanham Act Unconstitutional

Matal v. Tam, No. 15-1293 (U.S. June 19, 2017)

The United States Supreme Court ruled that the disparagement clause of the Lanham Act was unconstitutional under the Free Speech Clause of the First Amendment.  The disparagement clause of the Lanham Act, Section 2(a), prohibited the registration of trademarks that my, “disparage ... or bring ... into contemp[t] or disrepute” any “persons, living or dead.” 15 U.S.C. §1051(a).

An Asian-American rock band, “The Slants,” were refused registration of their band name based on a 2(a) rejection that “the slants” is a derogatory term for Asians. The Supreme Court held that the disparagement clause was not narrowly drawn enough to prevent trademarks that support discrimination. The court stated that the clause, “reaches any trademark that disparages any person, group, or institution. It applies to trademarks like the following: ‘Down with racists,’ ‘Down with sexists,’ ‘Down with homophobes.’ It is not an anti-discrimination clause; it is a happy-talk clause. In this way, it goes much further than is necessary to serve the interest asserted.”

Judge Overturns ‘Jersey Boys’ Verdict; Jury Came to Wrong Conclusion

Corbello v. DeVito et al., No. 2:08-cv-00867 (D. Nev. June 13, 2017)

U.S. District Judge Robert Jones overturned a verdict that the creators of “Jersey Boys,” had improperly used material from an unpublished autobiography of Tommy DeVitto. In November, the jury found for Donna Corbello, widow of Rex Woodard who was the ghostwriter of DeVitto’s autobiography. After the jury found that the show’s writers infringed on the copyrighted material, the defendants filed a motion for a new trail. Judge Jones determined the show’s content constituted fair use of the book. He stated that the jury could have found 145 creative words to have been copied from the book into the show. He determined those 145 words to constitute about 0.2 percent of the 68,500 words in the book. Back in November, the jury concluded that 10 percent of the play’s success was credited to the book, which Judge Jones called “unsupportable.” While comparing the book to the play was a difficult job, the jury also had to deal with 40 pages of instructions, which may have caused them to come to an improper conclusion.

Illinois & Common Law Copyright Infringement Of Pre-1972 Songs

Sheridan v. iHeartMedia Inc., No. 1:15-cv- 09229 (N.D. Ill. June 5, 2017).

An Illinois judge dismissed a class action against iHeartMedia Inc. to start paying royalties for pre-1972 sound recordings. The judge ruled that any copyright protection afforded by the state’s common law is extinguished when a song is published. The judge said that Illinois’ common law would only protect unpublished songs and once a song was sold or broadcast, “no common-law copyright protection is available for those recordings.”

Spotify Settles Songwriter Royalty Class Action

Ferrick v. Spotify USA Inc. et al., No. 1:16-cv-08412 (S.D.N.Y. May 30, 2017).

Spotify has agreed to pay $43 million to settle two class actions brought by Camper VanBeethoven lead singer David Lowery, and singer-songwriter Melissa Ferrick. The actions claimed that Spotify chose “systemic and willful copyright infringement” by failing to pay proper royalties to thousands of songwriters and their music publishers.

SoundExchange Royalties Case Against Muzak Reinstated By Appellate Court

SoundExchange v. Muzak, No. 16-7041 (D.C. Cir. Apr. 25, 2017).

The D.C. Court of Appeals reversed the dismissal of SoundExchange's complaint against Muzak, which alleges that Muzak underpaid royalties.  SoundExchange is a nonprofit entity charged with the responsibility of collecting royalties for performing artists and copyright owners of music; Muzak is a company that supplies digital music channels to satellite television networks who, in turn, sell to subscribers.  Muzak argued that it was permitted to pay lower, "grandfathered," rates that had been set by a copyright royalties board even after certain corporate changes.  There had been a statutory change in the 1990s as part of the DMCA-compromise, and the case turned on the statutory definition of a "preexisting subscription service."  The Court concluded:

The grandfather provisions were intended to protect prior investments the three business entities had made during a more favorable pre-1998 rate-setting regulatory climate. “Muzak was [a] pioneer music service that incurred both the benefits and risks that came with its investment,” specifically its investment in DishCD. 71 Fed. Reg. at 64,646. But when Muzak expands its operations and provides additional transmissions to subscribers to a different “service,” (i.e., SonicTap), this is an entirely new investment. * * * We conclude, therefore, that the better interpretation of the statute is that the term “service” contemplates a double limitation; both the business and the program offering must qualify before the transmissions are eligible for the favorable rate.

Lyric Infringement Claim Dismissed Under Renewal Provisions Of 1909 Act

Chase v. Warner Bros. et al., No. 15-cv-10063 (S.D.N.Y. Mar. 27, 2017).

Plaintiff's copyright infringement claim was dismissed because under the 1909 Copyright Act the author of the lyrics, which had been included in a songbook of nursery rhymes, had not renewed the copyright.   Instead, the book itself (a "composite" work) had been registered and renewed by the publisher.  But under section 24 of the 1909 Act, the Court held that the publisher could only renew its interest in part of the book and that the author of the lyrics, which had been contributed to the book, needed to renew the copyright in the lyrics.  Accordingly, the defendants' motion to dismiss was granted, because the author of the lyrics had not renewed the registration for the part that she had contributed to the book.  (Defendants were alleged to be using the lyrics in the TV show The Big Bang Theory).