Lenz v. Universal Music, No. 13-16106 (9th Cir. filed 9/14/2015) [decision].
Copyright owners must consider whether allegedly infringing use is "fair use" before sending takedown notices under the DMCA, holds the 9th Circuit. In the so-called "dancing baby case," Plaintiff alleged that Universal Music violated 17 USC 512(f) by misrepresenting in a takedown notice that a home video of her son dancing to a Prince song and posted on YouTube constituted an infringing use of a portion of a "Prince" composition. The Court held that the DMCA requires copyright owners to consider fair use before sending a takedown notice, and that failure to do so raises an issue of fact whether the copyright owner formed a subjective good faith belief that the use was not authorized by law. Available theories of good faith belief are actual knowledge, and willful blindness. "Universal faces liability if it knowingly misrepresented in the takedown notification that it had formed a good faith belief the video was not authorized by the law, i.e. did not constitute fair use." A prevailing plaintiff in such a case is entitled to nominal damages. Ultimately, the 9th Circuit affirmed the district court's denial of the cross-motions for summary judgment, such that the case would proceed to trial on the issue of whether Universal had actual knowledge, and the amount of damages.
September 9, 2015
Film Festival Temporarily Enjoined From Screening Aretha Franklin Documentary
Franklin v. Nat'l Film Preserve, No. 15-cv-1921 (D. Colo. filed 9/4/2015) [Doc. 14].
The Court issued a temporary restraining order enjoining the Telluride Film Festival from screening a documentary film about Aretha Franklin, which consisted primarily of previously unreleased footage from a 1972 concert. The deed granting the film producer rights in the footage required Ms. Franklin's consent to use the footage, which defendant did not obtain.
The Court found that Ms. Franklin has a strong interest in her rights of publicity, and to the use of her name/likeness. She also had a federal statutory right to prevent bootlegging. 17 USC 1101(1). The Court found that the film, which essentially recreated the entire concert experience, was not a fair use, and that a TRO would preserve the status quo.
The Court issued a temporary restraining order enjoining the Telluride Film Festival from screening a documentary film about Aretha Franklin, which consisted primarily of previously unreleased footage from a 1972 concert. The deed granting the film producer rights in the footage required Ms. Franklin's consent to use the footage, which defendant did not obtain.
The Court found that Ms. Franklin has a strong interest in her rights of publicity, and to the use of her name/likeness. She also had a federal statutory right to prevent bootlegging. 17 USC 1101(1). The Court found that the film, which essentially recreated the entire concert experience, was not a fair use, and that a TRO would preserve the status quo.
August 12, 2015
Article re: Musical Lyrics Copyright Infringement Cases
Nicholas Tsui, How Similar Is Too Similar: The Predictability of Court Decisions in Musical Lyrics Copyright Cases, 62 J. Copyright Soc'y 307 (2015).
The author finds that despite the various ways in which different courts have interpreted the "substantial similarity" test in copyright infringement cases involving lyrics, the similiarity judgments in courts throughout the country were actually quite consistenent. The author states that he was able to accurately predict the court's outcome over 90% of the time using a simple similarity metric that counted overlapping words, phrases and lines. "My results indicate that courts' decisions on substantial similarity follow a relatively simple pattern analysis that while fact-specific was not so nuanced as to be unpredictable."
The author finds that despite the various ways in which different courts have interpreted the "substantial similarity" test in copyright infringement cases involving lyrics, the similiarity judgments in courts throughout the country were actually quite consistenent. The author states that he was able to accurately predict the court's outcome over 90% of the time using a simple similarity metric that counted overlapping words, phrases and lines. "My results indicate that courts' decisions on substantial similarity follow a relatively simple pattern analysis that while fact-specific was not so nuanced as to be unpredictable."
August 6, 2015
Taylor Swift Must Be Deposed, Despite Her World Tour
Blue Sphere, Inc. v. Swift et al., No. 8:14-cv-00782-CJC-DFM (C.D. Cak. filed 08/04/15) [Doc. 65].
Despite her world tour, and claims that she has no knowledge about Plaintiff's claims, Taylor Swift must be deposed in a trademark action. The Court denied her motion for a protective order, finding that that, notwithstanding the "apex doctrine" that protects high-level corporate executives from harassing depositions, "the extraordinary circumstances that would warrant a pr otective order prohibiting the deposition of a named party are not present here." Further, Swifts schedule -- including her world tour -- was not a basis for a protective order. "There is no evidence in the record to show that Plai ntiffs have been inconsiderate of Swift’s schedule. To the contrary, the record shows just the opposi te. Nor does the evidence suggest that Plaintiffs have sandbagged Swift’s deposition to coincide with her world tour; instead, the record shows that, as in most cases, most deposi tions have been left until the end of the discovery period."
Despite her world tour, and claims that she has no knowledge about Plaintiff's claims, Taylor Swift must be deposed in a trademark action. The Court denied her motion for a protective order, finding that that, notwithstanding the "apex doctrine" that protects high-level corporate executives from harassing depositions, "the extraordinary circumstances that would warrant a pr otective order prohibiting the deposition of a named party are not present here." Further, Swifts schedule -- including her world tour -- was not a basis for a protective order. "There is no evidence in the record to show that Plai ntiffs have been inconsiderate of Swift’s schedule. To the contrary, the record shows just the opposi te. Nor does the evidence suggest that Plaintiffs have sandbagged Swift’s deposition to coincide with her world tour; instead, the record shows that, as in most cases, most deposi tions have been left until the end of the discovery period."
August 3, 2015
Ray Charles' Foundation Can Challenge Notices His Heirs Served To Terminate Copyright Grants To The Foundation
The Ray Charles Foundation v. Robinson, No. 13-55421 (9th Cir. Opinion dated July 31, 2015).
The 9th Circuit holds that that the Ray Charles Foundation, the sole beneficiary of Ray Charles’s estate, had standing to challenge the validity and effectiveness of notices of termination of copyright grants conferred by Charles to the predecessors of Warnter/Chappell Music. The Court found that the Foundation was a real party in interest because the termination notices affected its right to royalties, and its claims fell within the statutory zone of interests. Accordingly, it had standing to sue to challenge whether the underlying works were made for hire and thus not subject to the termination provisions of 17 USC 203 and 304(c).
The 9th Circuit holds that that the Ray Charles Foundation, the sole beneficiary of Ray Charles’s estate, had standing to challenge the validity and effectiveness of notices of termination of copyright grants conferred by Charles to the predecessors of Warnter/Chappell Music. The Court found that the Foundation was a real party in interest because the termination notices affected its right to royalties, and its claims fell within the statutory zone of interests. Accordingly, it had standing to sue to challenge whether the underlying works were made for hire and thus not subject to the termination provisions of 17 USC 203 and 304(c).
July 28, 2015
Katie Perry Dismissed From Copyright Suit In Missouri For Lack Of Personal Jurisdiction
Gray v. Hudson, 14-cv-1183 (E.D. Mo. dated July 23, 2015).
A copyright action against Katie Perry alleging that her song "Dark Horse" infringes upon Plaintiff's gospel/hip-hop song was dismissed by the Court for lack of personal jurisdiction over Perry and the other defendants. Fed. R. Civ. P. 12(b)(2). Plaintiffs alleged that Defendants directed their marketing/promotion/sale of the song towards residents of the State of Missouri, including performing concerts in the state. However, the Court agreed with Defendants that it lacked personal jurisdiction due to a lack of minimum contacts necessary to comport with due process. The only defendant who did not contest jurisdiction, Capitol Records, moved to transfer the action to New York or California and the Court granted the motion to transfer to the Central District of California.
A copyright action against Katie Perry alleging that her song "Dark Horse" infringes upon Plaintiff's gospel/hip-hop song was dismissed by the Court for lack of personal jurisdiction over Perry and the other defendants. Fed. R. Civ. P. 12(b)(2). Plaintiffs alleged that Defendants directed their marketing/promotion/sale of the song towards residents of the State of Missouri, including performing concerts in the state. However, the Court agreed with Defendants that it lacked personal jurisdiction due to a lack of minimum contacts necessary to comport with due process. The only defendant who did not contest jurisdiction, Capitol Records, moved to transfer the action to New York or California and the Court granted the motion to transfer to the Central District of California.
July 21, 2015
Jay-Z Awarded Attorney's Fees For Defeating Copyright Claim On Statute Of Limitations Grounds
Mahan v. Roc Nation LLC, Case 1:14-cv-05075-LGS (SDNY filed 07/17/1) [Doc. 81].
After defeating an alleged co-owner's copyright infirngement claims on statute of limitations grounds, the Court awarded Jay-Z and related parties attorney's fees of over $280,000. The Court found that the Defendants were entitled to attorneys’ fees because Plaintiff’s claims under the Copyright Act were plainly time barred and therefore objectively unreasonable. The amount of fees requested was reduced by 10%, however, because Plaintiff asserted five total claims, one of which was a state law claim which, unlike the Copyright Act, did not permit a grant of attorney's fees.
After defeating an alleged co-owner's copyright infirngement claims on statute of limitations grounds, the Court awarded Jay-Z and related parties attorney's fees of over $280,000. The Court found that the Defendants were entitled to attorneys’ fees because Plaintiff’s claims under the Copyright Act were plainly time barred and therefore objectively unreasonable. The amount of fees requested was reduced by 10%, however, because Plaintiff asserted five total claims, one of which was a state law claim which, unlike the Copyright Act, did not permit a grant of attorney's fees.
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