Bit Parts

A Manhattan federal court has awarded attorney fees and costs to broadcast companies that won on fair use grounds a copyright infringement suit against them over the airing of excerpts from the film 'The Story of G.I. Joe' in obituaries of actor Robert Mitchum. Video-Cinema Films Inc. v. Cable News Network Inc., 98-7128. Among other things, the district court found objectively unreasonable the plaintiff's argument that use of copyrighted material must be essential or an actual necessity to constitute fair use.

The U.S. District Court for the Southern District of New York has denied a motion by MP3.com to dismiss federal trademark and state right-of-publicity claims by artists popular in the 1950s and 1960s challenging the digital downloading of sound recordings. Chambers v. Time Warner, 00-2839. The district court noted on the trademark claim, 'While defendant points to the presence on the website of a disclaimer which reads: 'MP3.com does not purport to own any rights in or to the aforementioned Artist's name, nor does it intend to imply said Artist's endorsement or sponsorship of MP3.com, its products or services,' ' it is far from clear that the Court can take cognizance of this disclaimer on a motion to dismiss. ' [E]ven if the disclaimer could be taken to defeat plaintiffs' false endorsement claim as it relates to activity occurring after the date the disclaimer was posted, it does not, by itself, absolve defendant of liability for allegedly infringing activity occurring before the disclaimer was posted.' But the court went on to deny the plaintiff's motion for class certification. In a separate ruling in the same captioned case, the district court held that record company defendants can proceed with their motion for attorney fees on copyright claims that the artists voluntarily abandoned at an earlier stage of the litigation. The court noted that it could consider the attorney fees application because the copyright claims weren't dismissed for lack of jurisdiction.

Arli$$ Doesn't Infringe

The U.S. Court of Appeals for the Second Circuit has ruled in an unpublished opinion that the HBO TV series 'Arli$$' wasn't substantially similar in 'total concept and feel' to an outline for a proposed series entitled 'Schmoozers.' Willis v. Home Box Office, 01-9418. The appeals court noted about the individual aspects of the works in dispute, 'It is true that both works are situation comedies that feature a money-driven talent agent as their primary character, and that satirize the American entertainment industry as being wholly populated by self-absorbed, morally-depraved individuals. It is also true that both works surround the primary character with a supporting cast comprised of a hapless, male sidekick and an intelligent, female assistant. We agree with the District Court, however, that such similarities are based on stereotypical characters and stock themes, and thus any copying by the defendant related to noncopyrightable aspects of [the plaintiff's] work.'

No 'Cybill' Rehearing