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.
Showing posts with label Title. Show all posts
Showing posts with label Title. Show all posts
October 1, 2015
November 30, 2014
11th Cir. Finds Summary Judgment Properly Granted In Favor of BMI And Against Tavern; Adopts 2nd Cir. Davis v. Blige
BMI v. Evie's Tavern Ellenton, Inc., No. 13-15871, 2014 BL 329074 (11th Cir. Nov. 21, 2014).
The 11th Circuit affirmed summary judgment in favor of the performing rights society BMI, rejecting the defendant-tavern's argument that there were questions of material fact as to the copyright ownership of the musical compositions at issue and as to whether defendants were innocent infringers. With respect to the chain-of-title for the five songs at issue, the court examined each chain of title, and further found that the district court properly found that BMI could be awarded judgment on each song in addition to the copyright holder (generally, the music publisher who owned the copyright). As BMI agreed to be responsible for all costs and expenses pursuing infringement actions based on the titles that BMI licenses from copyright owners, the number of them to whom summary judgment is granted made no difference in the award of damages, attorneys' fees and costs. Thus, there was no error in granting summary judgment to the other plaintiffs (the copyright owners) under Fed. R. Civ. P. 61.
As to innocent infringement, the Court affirmed that is not a defense to summary judgment liability, and instead is only a consideration as to the amount of statutory damages to award. The court also found that an award of attorney's fees was appropriate. Notably, the 11th Circuit joined the rule adopted by the Second Circuit in Davis v. Blige, 505 F.3d 90, 99 (2d Cir. 2007) that a copyright co-owner may maintain and recover in a copyright infringement action without joining other co-owners. See fn. 2.
The 11th Circuit affirmed summary judgment in favor of the performing rights society BMI, rejecting the defendant-tavern's argument that there were questions of material fact as to the copyright ownership of the musical compositions at issue and as to whether defendants were innocent infringers. With respect to the chain-of-title for the five songs at issue, the court examined each chain of title, and further found that the district court properly found that BMI could be awarded judgment on each song in addition to the copyright holder (generally, the music publisher who owned the copyright). As BMI agreed to be responsible for all costs and expenses pursuing infringement actions based on the titles that BMI licenses from copyright owners, the number of them to whom summary judgment is granted made no difference in the award of damages, attorneys' fees and costs. Thus, there was no error in granting summary judgment to the other plaintiffs (the copyright owners) under Fed. R. Civ. P. 61.
As to innocent infringement, the Court affirmed that is not a defense to summary judgment liability, and instead is only a consideration as to the amount of statutory damages to award. The court also found that an award of attorney's fees was appropriate. Notably, the 11th Circuit joined the rule adopted by the Second Circuit in Davis v. Blige, 505 F.3d 90, 99 (2d Cir. 2007) that a copyright co-owner may maintain and recover in a copyright infringement action without joining other co-owners. See fn. 2.
February 22, 2013
7th Cir. Affirms Dismissal of 50/50 Case for Failure To Allege Confusion
Eastland Music Group v. Lionsgate Entertainment, No. 12-2928 (7th Cir. 2/21/2013) [Doc. 22].
Plaintiff was the proprietor of the rap duo Phifty-50, and registered “PHIFTY-50” as a trademark. Plaintiff also claimed a trademark in “50/50” and contends that defendants infringed its rights by using “50/50” as the title of a motion picture that opened in 2011. The district court dismissed the case under Rule 12(b)(6). The 7th Circuit affirmed dismissal.
"This complaint fails at the threshold: it does not allege that the use of “50/50” as a title has caused any
confusion about the film’s source—and any such allegation would be too implausible to support costly litigation." Additionally, "If there is any prospect of intellectual property in the phrase 50/50, Eastland Music is a very junior user and in no position to complain about the 2011 film. Phifty-50 entered a crowded field, and its rights are correspondingly weak and narrow." "Only a confusion about origin supports a trademark
claim, and “origin” for this purpose means the “producer of the tangible product sold in the marketplace.” 539 U.S. at 31. Eastland Music’s complaint does not (and could not plausibly) allege that consumers treat it as the producer or source of the film 50/50, or treat Lionsgate as the producer of the 2003 rap album."
Plaintiff was the proprietor of the rap duo Phifty-50, and registered “PHIFTY-50” as a trademark. Plaintiff also claimed a trademark in “50/50” and contends that defendants infringed its rights by using “50/50” as the title of a motion picture that opened in 2011. The district court dismissed the case under Rule 12(b)(6). The 7th Circuit affirmed dismissal.
"This complaint fails at the threshold: it does not allege that the use of “50/50” as a title has caused any
confusion about the film’s source—and any such allegation would be too implausible to support costly litigation." Additionally, "If there is any prospect of intellectual property in the phrase 50/50, Eastland Music is a very junior user and in no position to complain about the 2011 film. Phifty-50 entered a crowded field, and its rights are correspondingly weak and narrow." "Only a confusion about origin supports a trademark
claim, and “origin” for this purpose means the “producer of the tangible product sold in the marketplace.” 539 U.S. at 31. Eastland Music’s complaint does not (and could not plausibly) allege that consumers treat it as the producer or source of the film 50/50, or treat Lionsgate as the producer of the 2003 rap album."
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