Flo & Eddie, Inc. v. SiriusXM, No. 13-23182-CIV-GAYLES/TURNOFF (S.D. Fla. dated June 22, 2015).
A Florida federal court granted defendant Sirius summary judgment as to liability on plaintiff Flo & Eddie's (the Turtle's) common-law copyright infringement claims, although New York and California courts have found differently. The Florida federal court observed that Florida is different from New York and California, inasmuch as as there is no Florida legislation covering sound recordings nor is there a bevy of case law interpreting common law copyright related to the arts. "The Court finds that the issue of whether copyright protection for pre- 1972 rec ordings should include the exclusive right to public performance is for the Florida legislature." Accordingly, the Court found that Florida common law did not provie plaintiff with the exclusive right of public performance in the Turtles' sound recordings. Further, the Court found that back-up and buffer copies made by Sirius were not unlawful reproductions. Because the Court found that Sirius had not infringed any of Plaintiff's copyrights, the Court also dismissed plaintiff's related claims for unfair competition, conversion and civil theft (all of which were based on alleged copyright infiringement).
Showing posts with label De Minimis Copying. Show all posts
Showing posts with label De Minimis Copying. Show all posts
June 23, 2015
December 10, 2014
Sampling Case Against Jay-Z Dismissed Because No Substantial Similarity
Tufamerica Inc. v. WB Music Corp. et al., No. 1:13-cv-07874-LAK (SDNY filed 12/08/14) [Doc. 19].
The Court dismissed a claim against Jay-Z that was based on the sampling and use of the word “oh” in an audio recording and music video entitled Run This Town. Plaintiff’s works were a composition and a pre-1972 sound recording thereof in each of which the word “oh” appears once. The Court held that, even assuming that defendants copied, or “sampled,” a portion of plaintiff’s works, plaintiff had not stated a plausible claim because there was no substantial similarity.
According to the Court, "Run This Town bears very little and perhaps no similarity at all to [Plaintiff's song]. The melody and lyrics are entirely different. The lyrics do not contain the word 'oh'. And while the Court assumes, as plaintiff contends, that the alleged 'sample' of that word appears in the accused recording and video 42 separate times, it must be said also that it does so, if at all, only in the background and in such a way as to be audible and aurally intelligible only to the most attentive and capable listener."
The Court observed, in dicta, that plaintiff's usage of the word "oh" in the composition likely was not subject to copyright protection, though it may have been in the sound recording. However, the Court found other grounds to dismiss and therefore assumed "oh" was protectable. Specifically, the Court found there was no substantial similarity.
First, the "oh" was not quantitatively significant in either the composition or sound recording thereof. Second, the court found that the qualitative significance of "oh" in plaintiff's work was insufficient. "Oh" was not the heart of the composition, having appeared only once and being a common word. As to the recording, "oh" only appeared at the beginning, and was a replaceable term; indeed, "oh" could have been removed completely without significantly changing the essence of the recording. That Jay-Z used the "oh" more than 40 times did not change the analysis, because what is relevant is the qualitative and quantitative significance of the copied portion in relation to the plaintiff’s work as a whole (not the significance to the defendant's work).
The Court dismissed a claim against Jay-Z that was based on the sampling and use of the word “oh” in an audio recording and music video entitled Run This Town. Plaintiff’s works were a composition and a pre-1972 sound recording thereof in each of which the word “oh” appears once. The Court held that, even assuming that defendants copied, or “sampled,” a portion of plaintiff’s works, plaintiff had not stated a plausible claim because there was no substantial similarity.
According to the Court, "Run This Town bears very little and perhaps no similarity at all to [Plaintiff's song]. The melody and lyrics are entirely different. The lyrics do not contain the word 'oh'. And while the Court assumes, as plaintiff contends, that the alleged 'sample' of that word appears in the accused recording and video 42 separate times, it must be said also that it does so, if at all, only in the background and in such a way as to be audible and aurally intelligible only to the most attentive and capable listener."
The Court observed, in dicta, that plaintiff's usage of the word "oh" in the composition likely was not subject to copyright protection, though it may have been in the sound recording. However, the Court found other grounds to dismiss and therefore assumed "oh" was protectable. Specifically, the Court found there was no substantial similarity.
First, the "oh" was not quantitatively significant in either the composition or sound recording thereof. Second, the court found that the qualitative significance of "oh" in plaintiff's work was insufficient. "Oh" was not the heart of the composition, having appeared only once and being a common word. As to the recording, "oh" only appeared at the beginning, and was a replaceable term; indeed, "oh" could have been removed completely without significantly changing the essence of the recording. That Jay-Z used the "oh" more than 40 times did not change the analysis, because what is relevant is the qualitative and quantitative significance of the copied portion in relation to the plaintiff’s work as a whole (not the significance to the defendant's work).
August 18, 2014
Suit Against Kanye West Dismissed On "De Minimis" Grounds
Steward v. West, No. CV 13-02449 (C.D. Cal. Aug. 14, 2014).
In this copyright infringement action against Kanye West et al concerning a sample, the Court granted defendants' Rule 12(c) motion for judgment on the pleadings. On the motion, the Court considered the sound recordings and held that, while plaintiff's sound recordings were sufficiently original to be protectable, defendants' copying was de minimis. "The result of these distortions and the short length of the samples is that the average audience would not recognize plaintiffs’ Song in any of Defendants’ songs without actively searching for it. In the Ninth Circuit, digital sampling is de minimis when 'the average audience would not recognize the appropriation.'" Accordingly, the copyright infringement (and dependent contributory liability claims) were dismissed.
In this copyright infringement action against Kanye West et al concerning a sample, the Court granted defendants' Rule 12(c) motion for judgment on the pleadings. On the motion, the Court considered the sound recordings and held that, while plaintiff's sound recordings were sufficiently original to be protectable, defendants' copying was de minimis. "The result of these distortions and the short length of the samples is that the average audience would not recognize plaintiffs’ Song in any of Defendants’ songs without actively searching for it. In the Ninth Circuit, digital sampling is de minimis when 'the average audience would not recognize the appropriation.'" Accordingly, the copyright infringement (and dependent contributory liability claims) were dismissed.
November 19, 2013
Madonna's "Vogue" Does Not Infringe Horn-Hit
VMG Salsoul, LLC v. Madonna Louise Ciccone, et al., No. 12-cv-05967 (C.D. Cal. filed 11/18/2013) [Doc. 116].
Plaintiff alleges copyright infringement for the appropriation of a single horn stab (“Horn Hit”) from Plaintiff’s work, Love Break. The Horn Hit is a single chord that is played eleven times in Defendants’ work, Vogue. The Court found that neither the chord nor the Horn Hit sound sufficiently original to merit copyright protection. Even if the alleged appropriation was subject to copyright protection, the Court found that any copying was de minimis. Accordingly, defendants were granted summary judgment.
The Court recognized that while a valid certificate of registration with the copyright office entitles Plaintiff to
a presumption of originality, Defendants may overcome this presumption by demonstrating that the Horn Hit is not original. The Court then concluded that, as a matter of law, the Horn Hit is not sufficiently original to merit copyright protection. "The Horn Hit is not a component of the 'hook' in Plaintiff’s Love Break nor is it accompanied by a lyric. As a result, the Court finds that this single chord is not sufficiently original to merit copyright protection".
The Court further found that even if the alleged appropriation was subject to copyright protection, Defendants’ use was de minimis. "Having listened to the sound recordings of Chicago Bus Stop, Love Break, and Vogue, the Court finds that no reasonable audience would find the sampled portions qualitatively or quantitatively significant in relation to the infringing work, nor would they recognize the appropriation. The Court finds that any sampling of the Horn Hit was de minimis or trivial." Lastly, there was also evidence of independent creation.
Plaintiff alleges copyright infringement for the appropriation of a single horn stab (“Horn Hit”) from Plaintiff’s work, Love Break. The Horn Hit is a single chord that is played eleven times in Defendants’ work, Vogue. The Court found that neither the chord nor the Horn Hit sound sufficiently original to merit copyright protection. Even if the alleged appropriation was subject to copyright protection, the Court found that any copying was de minimis. Accordingly, defendants were granted summary judgment.
The Court recognized that while a valid certificate of registration with the copyright office entitles Plaintiff to
a presumption of originality, Defendants may overcome this presumption by demonstrating that the Horn Hit is not original. The Court then concluded that, as a matter of law, the Horn Hit is not sufficiently original to merit copyright protection. "The Horn Hit is not a component of the 'hook' in Plaintiff’s Love Break nor is it accompanied by a lyric. As a result, the Court finds that this single chord is not sufficiently original to merit copyright protection".
The Court further found that even if the alleged appropriation was subject to copyright protection, Defendants’ use was de minimis. "Having listened to the sound recordings of Chicago Bus Stop, Love Break, and Vogue, the Court finds that no reasonable audience would find the sampled portions qualitatively or quantitatively significant in relation to the infringing work, nor would they recognize the appropriation. The Court finds that any sampling of the Horn Hit was de minimis or trivial." Lastly, there was also evidence of independent creation.
September 12, 2013
Beastie Boys Avoid Several Copyright Claims In Sampling Case
TufAmerica, Inc. v. Diamond et al., No. 12-cv-3529-AJN (S.D.N.Y. filed Sep. 10, 2013).
Plaintiff brought a copyright infringement action against the Beastie Boys alleging unlawful sampling of 6 pieces of plaintiff's music in five Beastie Boys songs that appear on two Beastie Boys albums (Paul's Boutique and Licensed to Ill). Defendants moved to dismiss for failure to state a claim under Rule 12(b)(6).
The Court agreed with plaintiff that the standard for determining substantial similarity was "fragmented literal similarity", rather than "ordinary observer" standard. Under the "fragmented literal similarity" standard, the question was whether the copying went to trivial or substantive elements. Thus, the "real question" for the Court was whether Plaintiff had alleged that each sample was "quantitatively and qualitatively important to the original work such that the fragmented similarity becomes sufficiently substantial for the use to become an infringement." Under the quantitative analysis, the concept of de minimis copying is relevant. Also, the analysis is of the original song -- not of the use in the allegedly infringing song; therefore, the Court was not persuaded by Plaintiff's allegation in its original complaint that the samples were concealed to a casual listener of the Beastie Boys' songs. Thus, the Court then went on a song-by-song analysis, which included a discussion of whether the sampled portion was even copyrightable material, and dismissed four of the claims based on 4 of the samples. Lastly, under the statute of limitations, the Court also limited the surviving claims to infringements occurring after May 2009 (3 years before the suit was filed).
Plaintiff brought a copyright infringement action against the Beastie Boys alleging unlawful sampling of 6 pieces of plaintiff's music in five Beastie Boys songs that appear on two Beastie Boys albums (Paul's Boutique and Licensed to Ill). Defendants moved to dismiss for failure to state a claim under Rule 12(b)(6).
The Court agreed with plaintiff that the standard for determining substantial similarity was "fragmented literal similarity", rather than "ordinary observer" standard. Under the "fragmented literal similarity" standard, the question was whether the copying went to trivial or substantive elements. Thus, the "real question" for the Court was whether Plaintiff had alleged that each sample was "quantitatively and qualitatively important to the original work such that the fragmented similarity becomes sufficiently substantial for the use to become an infringement." Under the quantitative analysis, the concept of de minimis copying is relevant. Also, the analysis is of the original song -- not of the use in the allegedly infringing song; therefore, the Court was not persuaded by Plaintiff's allegation in its original complaint that the samples were concealed to a casual listener of the Beastie Boys' songs. Thus, the Court then went on a song-by-song analysis, which included a discussion of whether the sampled portion was even copyrightable material, and dismissed four of the claims based on 4 of the samples. Lastly, under the statute of limitations, the Court also limited the surviving claims to infringements occurring after May 2009 (3 years before the suit was filed).
January 31, 2013
Vogue Sample Suit Against Madonna Survives Dismissal
VMG Salsoul LLC v. Ciccone, No. 2:12-cv-5967 (C.D. Cal. filed 1/29/13) [Doc. 29].
Defendant's motion to dismiss under Rule 12(b)(6) -- on the basis of de minimis copying and statute of limitations -- denied.
The factual allegations are: Plaintiff owns the composition and sound recording copyrights of "Love Break", released in or about 1977. Defendants Madonna and Pettibone are “credited with creating the
sound recording” of the song “Vogue,” a “tremendously” successful single that has been on several “top
ten” lists of the best dance songs of the 1990s and was performed by Madonna at the Super Bowl halftime
show on February 5, 2012. Plaintiff alleges that Defendant “sampled” “numerous but intentionally hidden” portions of Love Break into Vogue—specifically, that the horn and strings in Vogue are “intentionally sampled from Love Break throughout.” It further alleges that the sampled portions of Love Break were “intentionally hidden” throughout Vogue, “so as to avoid detection.”
In addressing the Defendants' argument that any copying was de minimis, the Court found that such argument was better suited for summary judgment and should not be decided on a motion to dismiss. Similarly, on the statute of limitations argument, the Court found that evidence was required to determine whether the plaintiff was unaware of the infringement, and that lack of knowledge was reasonable under the circumstances.
Defendant's motion to dismiss under Rule 12(b)(6) -- on the basis of de minimis copying and statute of limitations -- denied.
The factual allegations are: Plaintiff owns the composition and sound recording copyrights of "Love Break", released in or about 1977. Defendants Madonna and Pettibone are “credited with creating the
sound recording” of the song “Vogue,” a “tremendously” successful single that has been on several “top
ten” lists of the best dance songs of the 1990s and was performed by Madonna at the Super Bowl halftime
show on February 5, 2012. Plaintiff alleges that Defendant “sampled” “numerous but intentionally hidden” portions of Love Break into Vogue—specifically, that the horn and strings in Vogue are “intentionally sampled from Love Break throughout.” It further alleges that the sampled portions of Love Break were “intentionally hidden” throughout Vogue, “so as to avoid detection.”
In addressing the Defendants' argument that any copying was de minimis, the Court found that such argument was better suited for summary judgment and should not be decided on a motion to dismiss. Similarly, on the statute of limitations argument, the Court found that evidence was required to determine whether the plaintiff was unaware of the infringement, and that lack of knowledge was reasonable under the circumstances.
Subscribe to:
Posts (Atom)
Posts
