McDonald v. West et al., No. 14-cv-8794 (S.D.N.Y. Sep. 30, 2015) [Doc. 42].
In case about two songs both called "Made In America," the Court dismissed the Complaint against Kanye West, Jay-Z and others alleging copyright infringement of the plaintiff's song, pursuant to Rule 12(b)(6). First, the Court found that even though the two songs shared the same title, the song title "Made In America" was not copyrightable. "It is too brief, common, and unoriginal to create any exclusive right." Second, the Court analyzed similarity between the lyrics in the chorus of each song, along with alleged musical similarity. However, the Court found that plaintiff did not plausibly plead substantial similarity. The Court then turned to a "holistic" comparison of the two songs, because even if the indvidual elements that make up Plaintiff's songs are uncopyrightable, they still may represent a protected selection and arrangement of unprotectable elements. The Court found that no reasonable jury could find the two songs similar, lyrically or musically. The differences were major. "Where any reasonable juror would conclude - as here - that the differences are many, and what similarities exist are based on unprotectable elements, the two works are not substantially similar as a matter of law." Accordingly, the Court dismissed the complaint.
October 1, 2015
September 29, 2015
Party Rock Anthem Not A Parody Of Hustlin'; Material Questions Remain Regarding Fair Use Defense
Roberts v. Gordy et al, No. 13-cv-24700 (S.D. Fla. dated Sep. 17, 2015).
The Court found that defendants are precluded at trial from arguing that Party Rock Anthem parodies the song Hustlin', but that summary judgment was inappropriate because questions of fact remain regarding whether Defendants' use, outside the parody context, was a fair use. Specifically, material questions existed regarding the purpose and transformativeness of Defendant's use and the market impact of their use.
The Court found that defendants are precluded at trial from arguing that Party Rock Anthem parodies the song Hustlin', but that summary judgment was inappropriate because questions of fact remain regarding whether Defendants' use, outside the parody context, was a fair use. Specifically, material questions existed regarding the purpose and transformativeness of Defendant's use and the market impact of their use.
"Everyday I'm Hustlin'" Phrase Not Copyrightable
Roberts v. Gordy, No. 13-cv-24700 (S.D. Fla. dated Sep. 15, 2015).
In a dispute between the alleged owners of the song "Hustlin'," whose chorus repeats the phrase "everday I'm hustlin'," and members of the group LFMAO who sell merchandise bearing the phrase "everday I'm shufflin'," a phrase from their hit song "Party Rock Anthem," the Court held that the isolated phrase "everyday I'm hustlin'" is not copyrightable. The Court noted that "copyright protection does not automatically extend to every component of a copyrighted work," and that "the overwhelming authority is that short phrases or common or ordinary words are not copryightable." It was indisputable that the plaintiff's "Hustlin'" composition and lyrics was an original creative work subject to copyright protection -- but, the question was whether the use of a three-word phrase appearing int he musical composition, divorced from the accompanying music, modified, and subsequently printed on merchandise, constituted an infringement of the composition. "The answer, quite simply, is that it does not." Moreover, the defendants set forth various evidence that the terms "hustling" or "hustlin'" have been used in numerous songs prior to Plaintiff's creation of "Hustlin'" and that at least one song pre-dating "Hustlin'" has the exact lyric "everday I'm hustlin'" in it. Lastly, the Court was unable to find any basis or precedent supporting the conclusion that a short, modified, set of words printed on merchandise can infringe on the copyright for a musical composition. Plaintiff's rights do not extend that far, the Court concluded.
In a dispute between the alleged owners of the song "Hustlin'," whose chorus repeats the phrase "everday I'm hustlin'," and members of the group LFMAO who sell merchandise bearing the phrase "everday I'm shufflin'," a phrase from their hit song "Party Rock Anthem," the Court held that the isolated phrase "everyday I'm hustlin'" is not copyrightable. The Court noted that "copyright protection does not automatically extend to every component of a copyrighted work," and that "the overwhelming authority is that short phrases or common or ordinary words are not copryightable." It was indisputable that the plaintiff's "Hustlin'" composition and lyrics was an original creative work subject to copyright protection -- but, the question was whether the use of a three-word phrase appearing int he musical composition, divorced from the accompanying music, modified, and subsequently printed on merchandise, constituted an infringement of the composition. "The answer, quite simply, is that it does not." Moreover, the defendants set forth various evidence that the terms "hustling" or "hustlin'" have been used in numerous songs prior to Plaintiff's creation of "Hustlin'" and that at least one song pre-dating "Hustlin'" has the exact lyric "everday I'm hustlin'" in it. Lastly, the Court was unable to find any basis or precedent supporting the conclusion that a short, modified, set of words printed on merchandise can infringe on the copyright for a musical composition. Plaintiff's rights do not extend that far, the Court concluded.
Attorney's Fees Awarded To Village People Member
Scorpio Music v. Willis, No. 11-cv-1557 (S.D. Cal. filed 9/15/15) [Doc. 280].
In a dispute over the percentage of copyright ownership over the Village People's hit songs (including "YMCA") that went to a jury trial, the Court held that an original member of the group and author (invidivually and jointly) of various songs was entitled to attorney's fees as the prevailing party. 17 USC 505. The court found that Mr. Willis was the prevailing party and that he achieved a high degree of success: he defeated Plaintiff's claim that he could not unilaterally terminate his grants of copyright under 17 USC 203, prevailed on a number of summary judgment motions brought on the grounds of statute of limitations and laches, and prevailed on 13 of the 24 compositions at trial (including YMCA, the most lucrative). Specifically, the Court found that granting fees would advance the purposes of the Copyright Act inasmcuh as Mr. Willis was "trying to get back what he transferred to Plaintiffs, parties with superior bargaining power, decades ago. An award of attorney's fees is justified to encourage authors like Willis to assert their rights to regain their copyright interests and to deter production companies and other transferees of copyright from attempting to interfere with those rights." Willis sought an award of approximately $527,000, and the Court did not find that an upward or downward adjustment was warranted. Costs of approximately $3,000 were also taxed.
In a dispute over the percentage of copyright ownership over the Village People's hit songs (including "YMCA") that went to a jury trial, the Court held that an original member of the group and author (invidivually and jointly) of various songs was entitled to attorney's fees as the prevailing party. 17 USC 505. The court found that Mr. Willis was the prevailing party and that he achieved a high degree of success: he defeated Plaintiff's claim that he could not unilaterally terminate his grants of copyright under 17 USC 203, prevailed on a number of summary judgment motions brought on the grounds of statute of limitations and laches, and prevailed on 13 of the 24 compositions at trial (including YMCA, the most lucrative). Specifically, the Court found that granting fees would advance the purposes of the Copyright Act inasmcuh as Mr. Willis was "trying to get back what he transferred to Plaintiffs, parties with superior bargaining power, decades ago. An award of attorney's fees is justified to encourage authors like Willis to assert their rights to regain their copyright interests and to deter production companies and other transferees of copyright from attempting to interfere with those rights." Willis sought an award of approximately $527,000, and the Court did not find that an upward or downward adjustment was warranted. Costs of approximately $3,000 were also taxed.
September 28, 2015
Court Has Jurisdiction Over King Of Pop's Executors In Photo Shoot Case, But Plaintiff's Counsel Disqualified As A Witness
Noval Williams Films v. Branc, 14-cv-4711 (S.D.N.Y. Sep. 3, 2015) [Doc. 43].
In a case where Plaintiff film matker sought a declaratory judgment against Michael Jackson's estate that it did not infringe the copyrights in certain audivisual and photographic materials by using them in a documentary film, the Court denied Michael Jackson's executor's motion to dismiss for lack of jurisdiction, or alternatively to transfer to California federal court. However, the executor's motion disqualify plaintiff's counsel was granted because he is a material witness.
In a case where Plaintiff film matker sought a declaratory judgment against Michael Jackson's estate that it did not infringe the copyrights in certain audivisual and photographic materials by using them in a documentary film, the Court denied Michael Jackson's executor's motion to dismiss for lack of jurisdiction, or alternatively to transfer to California federal court. However, the executor's motion disqualify plaintiff's counsel was granted because he is a material witness.
FCC Denies ASCAP's Challenge To Pandora's Acquisition Of FM Radio Station
In re Pandora Radio LLC, FCC 15-129 (FCC released Sep. 17, 2015).
The FCC denied ASCAP's motion for reconsideration of (1) the Media Bureau's decision granting the application to assign the license of KXMZ FM radio station in South Dakaota to Pandora; and (2) the Commission's declaratory ruling, which held that it would serve the public interest to permit a widely dispersed group of shareholders to hold aggreage foreign ownership in Pandora in excess of the 25% benchmark set out in Section 310(b)(5) of the Communications Act of 1934 (subject to certain conditions). The FCC re-affirmed its finding that ASCAP lacked standing to challenge the license assignment. ASCAP also claimed that the Bureau should have examined the rationale and motivation behind Pandora's transaction, specifically, Pandora's hope by acquiring the radio station to qualify for lower music license royalty rates. The FCC found that "whatever the impact of its acquisition on such royalty rates may be, Pandora has undertaken to offer programming responsive to the interests of its local listeners, and ASCAP has failed to identify any substantial and matieral question about Pandora's ability to provide such service in the public interest."
The FCC denied ASCAP's motion for reconsideration of (1) the Media Bureau's decision granting the application to assign the license of KXMZ FM radio station in South Dakaota to Pandora; and (2) the Commission's declaratory ruling, which held that it would serve the public interest to permit a widely dispersed group of shareholders to hold aggreage foreign ownership in Pandora in excess of the 25% benchmark set out in Section 310(b)(5) of the Communications Act of 1934 (subject to certain conditions). The FCC re-affirmed its finding that ASCAP lacked standing to challenge the license assignment. ASCAP also claimed that the Bureau should have examined the rationale and motivation behind Pandora's transaction, specifically, Pandora's hope by acquiring the radio station to qualify for lower music license royalty rates. The FCC found that "whatever the impact of its acquisition on such royalty rates may be, Pandora has undertaken to offer programming responsive to the interests of its local listeners, and ASCAP has failed to identify any substantial and matieral question about Pandora's ability to provide such service in the public interest."
Most "BOSTON" Trademark Claims Dismissed In Dispute Between Former Band Members
Scholz v. Goudreau, No. 13-cv-10951 (D. Mass. Memo & Order Sep. 21, 2015).
In a trademark dispute between two original members of the band BOSTON, the Court dismissed most of the claims against a guitarist on the band's first two albums concerning the promotion of his current musical endeavors. Plaintiff's direct trademark infringement claims were dismissed with respect to various advertisements and performances, as well as defendant's use of meta-tags on his website. The contributory infringement claim survived summary judgment only with respect to defendant's invovlement with one band on the issue of direct control and monitoring of that band's advertisements and promotions. Plaintiff's claim for dilution by tarnishment failed because the alleged use, in connection with a political event, was not a use in commerce. As to unfair competition under the Lanham Act and Mass. state common law, plaintiff failed to establish evidence of reputational injury. As to breach of contract, plaintiff fialued to establish that defendant (and not third parties) violated a prior settlement agreement by deviating from the agreed to term "formerly of BOSTON". As to the "Truth In Music Statute," under Mass. state law, the Court found the statute applicable only to performances in Mass., and as to the two subject performances in the state, neither group sought to perform under the BOSTON name.
In a trademark dispute between two original members of the band BOSTON, the Court dismissed most of the claims against a guitarist on the band's first two albums concerning the promotion of his current musical endeavors. Plaintiff's direct trademark infringement claims were dismissed with respect to various advertisements and performances, as well as defendant's use of meta-tags on his website. The contributory infringement claim survived summary judgment only with respect to defendant's invovlement with one band on the issue of direct control and monitoring of that band's advertisements and promotions. Plaintiff's claim for dilution by tarnishment failed because the alleged use, in connection with a political event, was not a use in commerce. As to unfair competition under the Lanham Act and Mass. state common law, plaintiff failed to establish evidence of reputational injury. As to breach of contract, plaintiff fialued to establish that defendant (and not third parties) violated a prior settlement agreement by deviating from the agreed to term "formerly of BOSTON". As to the "Truth In Music Statute," under Mass. state law, the Court found the statute applicable only to performances in Mass., and as to the two subject performances in the state, neither group sought to perform under the BOSTON name.
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