Biggie's "Party & Bullshit" Fair Use of 1960s Song; 2nd Cir.

Oyewole v. Ora, No. 18-1311 (2nd Cir. 9/4/19)

The Second Circuit affirmed (in a summary order) the lower court’s conclusion that the Notorious B.I.G.’s 1993 song Party And Bullshit was fair use when it sampled the plaintiff’s 1968 song, whose lyrics included the phrase “party and bullshit”

Evidence Of Copying By Steve Winwood Inadmissible; 6th Cir. Affirms

Parker, et al. v. Winwood, et al., No. 18-5305 (6th Cir. 9/17/19).

6th Circuit affirms district court’s finding that the plaintiffs, who alleged the Spencer Davis Group’s famous 1966 song Gimme Some Lovin’ infringed the bass-line in their song from the prior year, failed to submit admissible evidence that Steve Winwood copied the work. The Court also affirmed the finding that the court lacked jurisdiction over one of the defendants, who resides in the UK. The evidence at issue was found to be hearsay: interviews with Steve Winwood. The Court also rejected arguments of striking similarity, which were not timely raised. Notably, there was a strong dissent, which focused on the plaintiffs’ expert report concerning the similarity of the works and observed that there is a “fine line” between inspiration and infringement.

NWA Infringement Claims Trimmed To Composition Only, But Court Does Not Adopt 3-Year Damages Limitation

Mitchel v. Capitol Records, 3:15-CV-00174-JHM (W.D. Ky. Dec. 18, 2017).

Plaintiff alleges infringement of his 1977 song in the 1989 NWA rap song "Striaght Outta Compton."  Defendants made two motions for partial summary judgment.  First, the defendants argued that plaintiff is precluded from recovering any damages for infringements that occurred more than three years prior to his filing of the law suit, as barred by the statute of limitations.  Second, defendants argued that plaintiff did not own the sound recording for his song (only the musical composition) and thus could not recover for any infringement of the sound recording.  The former motion was denied, and the latter was granted.

As to the statute of limitations defense, the Court held that notwithstanding the Supreme Court's Petrella decision, Sixth Circuit precedent "defines accrual of a copyright claim as occurring when the plaintiff “knew of the potential violation or is chargeable with such knowledge.”  Continuing, "When the [Petrella] opinion is read in conjunction with footnote 4, which acknowledges that most circuits will modify this rule so as to focus on the date of 'discovery' as opposed to the date of 'occurrence,' then Petrella reiterates what the Sixth Circuit already requires: that damages be limited to those claims for infringement that accrued within three years of the initiation of the suit, with accrual being determined by the rules of the 8 circuit (until the Supreme Court “passe[s] on the question')."  Because Plaintiff had presented evidence that his claim did not accrue until 2014 (when it was allegedly discovered), his claim was not time-barred.

As to the sound recording, the Court held that defendant had provided proof that plaintiff did not own the sound recording.  The plaintiff's evidence (e.g., a mechanical license agreement) at best established his ownership of the musical work/composition.

Rick Ross "Hustlin'" Case Revived After 11th Cir. Holds Copyright Registrations Should Not Have Been Invalidated Absent Proof Of Scienter

Roberts v. Gordy, No. 16-12284 (11th Cir. Dec. 15, 2017).

The 11th Circuit held that, in a case brought by hip-hop artists over the use of their song "Hustlin'" in the dance song "Party Rock Anthem," the lower Court erred in invalidating the plaintiffs' copyright registrations.  The District Court had sua sponte raised the issue of invalid copyright registrations and failure to demonstrate ownership in dismissing the case at summary judgment.

First, the Appellate Court held that invalidity was not raised as an affirmative defense, and therefore should not have been the basis for dismissal, as it was waived by the defendants.  Second, the Appellate Court held that the lower court applied the wrong standard -- specifically on the element of scienter -- in finding that there had been a fraud on the copyright office in obtaining the registrations.  

Rappers are skilled in poetry and rhythm—not necessarily in proper copyright registration procedures. While error is not generally a strong legal argument, it is a sufficient counter to a claim of Fraud on the Copyright Office. This is not a case where Rapper A attended a Rapper B concert, heard a delightful song, stole the composition, and fraudulently registered it with the Copyright Office—far from it. There is no dispute by any party that Appellants authored and created Hustlin’, and there is no dispute that they continue to receive the writers’ share of royalties from their musical composition. Furthermore, Appellees never proffered any argument or theory as to why Appellants would attempt to deceive the Copyright Office, when they are, in fact, the undisputed authors. As indicated by the absence of any sort of motive for deception, the errors made in each of the registrations were done in good faith. As portions of the ownership interest were acquired by record companies, those companies— incorrectly, but in good faith—filed for a new registration to protect their newly acquired interests presumably under the assumption that no previous registration had been filed.

Accordingly, the case was remanded.  "The Appellants were erroneously 'hustled' out of court, and now deserve to be heard on the merits."

"Gimme Some Lovin'" Guitar Riff Claim Dismissed

Parker v. Winwood et al., No. 16-cv-684 (M.D. Tenn. 10/17/2017) [Doc. 99].

In a copyright infringement action concerning the guitar riff in the classic rock song Gimme Some Lovin' performed by the Spencer Davis Group, the Court granted the defendants' motion for summary judgment.  Plaintiff's song was governed by the 1909 Act, under which the general rule was that the publication of a work with proper notice was necessary to obtain statutory copyright protection.  The Court found that "Although Defendants proffer evidence that the work was distributed as a phonorecord prior to 1978, the Copyright Act specifically states that the distribution of phonorecords prior to 1978 is not considered a publication under copyright law. See 17 U.S.C. § 303. Even if the work-at-issue had been published, however, Plaintiffs would not be foreclosed from bringing an infringement suit so long as they made the requisite deposit. The right to sue is not destroyed for failure to make a prompt deposit after publication."  Accordingly, the motion to dismiss was denied.

Nonetheless, there were other basis to dismiss.  One defendant's motion to dismiss was granted for lack of personal jurisdiction -- he was not properly served, and had no minimum contacts with Tennessee.  As to the record label owner, after rejecting the argument that the plaintiff's lacked standing, the Court nonetheless found that the claim should be dismissed because the record label's sister company owned the rights to plaintiff's song!

Turning to the meat of the claim, the Court granted the defendant musicians summary judgment:

The Court finds no dispute of material fact still exists regarding whether Defendants had a “reasonable possibility” of access to Plaintiffs’ song before they created “Gimme Some Lovin’.” Specifically, the Court finds Plaintiffs have failed to meet their burden to show that there is a dispute regarding whether Defendants infringed Plaintiffs’ song between its release date on October 7, 1966 in the United Kingdom (ECF No. 64 ¶ 25) and the release date of “Gimme Some Lovin’” on October 28, 1966 (ECF No. 64 ¶ 25), or at any time before that date. Defendants presented evidence in the form of affidavits that the members of The Spenser Davis Group had not heard Plaintiffs’ song prior to creating "Gimme Some Lovin’.” (Mervyn Winwood Decl., ECF No. 57 ¶ 5; Stephen Winwood Dec., ECF No. 58 ¶ 4; Spenser Davis Decl., ECF No. 59 ¶¶ 3, 5.) The burden then shifted to Plaintiffs to set forth specific facts showing a triable issue of material fact. Plaintiffs only proffered inadmissible evidence to refute these facts Defendants set out in affidavit form. Plaintiffs also proffer no admissible evidence that Defendants infringed Plaintiffs’ song between its release and Defendants’ release, but rather contend it would have been possible. (ECF No. 64-6 at PageIDs 547-48.) Because Plaintiffs have failed to proffer any admissible evidence that establishes a genuine issue of material fact as to whether Defendants heard Plaintiffs’ song prior to creating or releasing “Gimme Some Lovin’,” the Court GRANTS summary judgment in favor of Defendants Steve Winwood and Kobalt (ECF No. 54)

"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.

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.

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.

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.

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.

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).

Copyright Ownership Claims Time-Barred For Songs Recently Sampled In Popular Songs

Wilson v. Dynatone Publishing, No. 16-cv-104 (S.D.N.Y. April 10, 2017).

For two songs from the 1970s that were recently sampled in popular songs, Plaintiffs sought a declaratory judgment judgment that they are the copyright owners of the sampled songs and that the defendants' copyrights are invalid, and Plaintiffs also sought an accounting.  The Court granted the defendants' motion to dismiss under Rule 12(b)(6).

The Court found that the copyright ownership claims were untimely and barred by the statute of limitations.  The claims accrued in the early 1970s.  The accounting claims, in addition to an absence of allegations of a fiduciary relationship, also were time-barred.

High School Music Teacher Has Qualified Immunity In "Glee" Copyright Case

Tresona Multimedia v. Burbank High School, 16-cv-04781 (C.D. Cal. Dec. 22, 2016).

In a case involving high school choir performances of four songs, the Court finds that the music director was protected by "qualified immunity" from the plaintiff's copyright infringement claims.  Additionally, the Court found that the plaintiff lacked standing to sue for copyright infringement with respect to three songs; and as to the fourth song at issue, summary judgment was denied due to questions of fact concerning the statute of limitations defense.

As to standing, the plaintiff's rights derived from less than 100% owners of the songs and under 9th Circuit law the plaintiff did not have exclusive rights in the songs and therefore lacked standing.  As to the three year statute of limitations, the Court found a question of fact whether the plaintiff should have known of the infringing activity.

Lastly, as to qualified immunity the Court recognized there was no binding 9th Circuit law on the matter (though some other district courts had considered the issue).  Deciding that the doctrine applied, the Court found that as a matter of law the music teacher was protected.

3rd Cir. Affirms Judgment For Usher In "Bad Girl" Copyright Dispute

Marino v. Usher, No. 15-2270 (3rd Cir. Dec. 8, 2016).

Songwriter-plaintiff appealed the lower court's grant of summary judgment to Usher (and the other defendants) in a copyright action involving the song "Bad Girl."  The 3rd Circuit affirmed the finding that the claim must fail because the song was jointly written by plaintiff and certain of the defendants (Guice and Barton).  "The district court correctly held that co-authors of a joint work are each entitled to undivided ownership and that the joint owner of a copyright cannot sue his co-owner for infringement.  The court reasoned that, without direct infringement, there can be no vicarious infringement, hence the derivative song, Bad Girl, did not infringe on Marino’s
rights. The district court also concluded that Guice and Barton conveyed a valid nonexclusive
license for the song to the other defendants."

Additionally, the Court held that the state-law claims were pre-empted, that the plaintiff had granted an implied license, that his sound recording claims failed because there was no copyright registration for the sound recording, and that defendant's were properly granted costs/fees (in a 90% reduced amount based upon plaintiff's financial circumstances).  Lastly, the Court affirmed the financial sanction entered against Plaintiff's lawyer for improperly communicating with an unrepresented defendant in violation of the Pennsylvania rules of professional conduct.

"Jersey Boys" Infringes Copyright In Unpublished Autobiography, Finds Jury

Corbello v. DeVito, No. 08-867 (D. Nev. Nov. 28, 2016) [Doc. 1084].

The jury returned a verdict for the plaintiff in the "Jersey Boys" infringement action, finding that plaintiff did not grant an implied license to use the unpublished autobiography of Tommy DeVito (a member of the Four Seasons), that the play infringes the unpublished autobiography, that there was no fair use, that 10% of the success of the play is attributable to the unpublished autobiography, and that ten defendants were liable for direct infringement.  The docket reflects that the Court set a briefing schedule for post-trial motions, and directed the defendants to place monies in escrow.

"We Shall Overcome" Putative Class Action Survives Dismissal

We Shall Overcome Foundation v. Richmond Org., No. 16-2725 (S.D.N.Y. Nov. 21, 2016).

In a putative class action challenging the Defendants' copyright in the song "We Shall Overcome" on the basis that the lyrics of the first verse is virtually indistinguishable from a song in the public domain, the Court denied the defendants' Rule 12(b)(6) motion to dismiss the copyright claims, but did dismiss the state-law claims as pre-empted.  The Court found that the plaintiffs had plausibly alleged: (1) that the first verse in the copyrighted work “We Shall Overcome” lacks originality (thereby rebutting the certificate of registration); (2) fraud on the copyright office by deliberately omitting from their application for a copyright in a derivative work all reference to the public domain spiritual or the publications of “I Shall Overcome” and “We Shall Overcome” as antecedents to the Song; and (3) divestment of copyright protection, under the 1909 Act, by publishing the work without including notice of copyright.  However, the state-law claims were dismissed as pre-empted (Those claims are for money had and received, violation of New York General Business Law § 349, breach of contract, and rescission for failure of consideration).

Judge Dismisses Jersey Boys Suit Against Frankie Valli After Trial

Corbello v. DeVito, 08-cv-867 (D. Nev. Nov. 17, 2016).

The widow of a ghostwriter who had been engaged by a member of the Four Seasons to write an autobiography (the work), lost her copyright infringement case against Frankie Valli alleging that he and the other members of the band wrongfully misappropriated the work in making the hit musical "Jersey Boys."  The evidence at trial was un-rebutted that neither Valli nor band-mate Bob Gaudio ever saw the work until their depositions.  The Court further found that all claims for willful infringement failed as a matter of law.