Cameo Clips

Copyright Infringement/Substantial Similarity

As with non-protectible elements, copyrightable elements of a defendant's work created before access to a plaintiff's work should be filtered of the substantial-similarity analysis, the U.S. Court of Appeals for the Sixth Circuit decided in a case of first impression. Murray Hill Publications Inc. v. Twentieth Century Fox Film Corp., 01-2668. The case arose out of a suit over the alleged infringement by Fox's film “Jingle All The Way” of the plaintiff's screenplay “Could This Be Christmas.” Reversing for a judgment as a matter of law for Fox, the appeals court noted: “Logic also supports the filtering of independently-created elements. The purpose of the substantial-similarity analysis is to answer the question whether the defendant copied the work of the plaintiff. Ordinarily, similar elements between known work of the plaintiff and the defendant's work will, depending on the degree of uniqueness and originality of the element, support such an inference. However, where defendant owns a prior work containing the same elements, he has no reason, beyond the illicit thrill of copyright infringement, to copy wrongfully from another what he could legally copy from himself. Therefore, where an element occurs both in the defendant's prior work and the plaintiff's prior work, no inference of copying can be drawn.”

Hip-hop artist Snoop Doggy Dogg didn't invade the privacy interests of two women by posing with them for a photograph ' used on the cover of the video/DVD “Girls Gone Wild Doggy Style” ' in which the women lifted their “Snoop Dogg” T-shirts and exposed their breasts, the U.S. District Court for the Eastern District of Louisiana decided. Capdeboscq v. Francis, 03-0556. The plaintiffs had argued that Snoop Dogg may have had some editorial or directorial control over use of the photo on the cover and in the video, and that the rapper had benefited from offering footage shot for the video to consumers who purchased his “Welcome To Tha House Volume 1″ album. But dismissing that part of the plaintiffs' suit, the district court noted: “Such an argument (filled with conjecture and speculation) simply does not create a genuine issue of material fact regarding whether [Snoop Dogg] invaded the Plaintiffs' privacy interests.” (The district court ruled, however, that on the plaintiffs' privacy claim against the video producer, that the issue of whether the party at a New Orleans bar during Mardi Gras at which the photograph was shot was “public” or “private” should be decided by a jury.) The district court further found that the plaintiffs failed to establish that the defendants had been unjustly enriched by selling the video. But a jury will decide whether the defendants defrauded the plaintiffs by allegedly promising that the photograph wouldn't be used in the video.

The entire testimony of an expert witness for a sound recording licensee on estimated lost profits that resulted from a licensor's wrongful termination of a licensing agreement is excluded from the damage phase of the litigation, a Manhattan federal district court held. Point Productions A.G. v. Sony Music Entertainment Inc., 93-4001. In 1991, Sony Music had given Point Productions the exclusive right to distribute master recordings worldwide outside the United States. Sony Music terminated the license in 1993, after Point failed to maintain valid mechanical licenses to use the songs embodied in the recordings. Point sued Sony Music for breach of contract for failure to give Point contractual notice and an opportunity to cure. The district court granted summary judgment in favor of Point and later determined that Point's lost profits should be measured from before the time of its 1995 bankruptcy filing. Graham Churchill, Point's expert witness on lost profits, had been a senior manager with the Mechanical Copyright Protection Society in London for 22 years and co-director of a music-industry consulting firm. The district court found Churchill's professional experience sufficient, but noted that in his expert evidence he had failed to address a series of events that had negatively affected Point's ability to thrive in the budget music market. The court continued: “Even more astounding is that instead of factoring into his analysis these real world facts and events, Churchill systematically adopts possibly speculative assumptions and predictions that are vital to his projections.” The district court further ruled to strike affidavits that Point had submitted to contest Sony Music's motion to exclude, by concluding that accepting new affidavits that “expound a wholly new and complex approach designed to fill a significant and logical gap in the first report would eviscerate the purpose of the expert disclosure rules.”

The trial court didn't abuse its discretion in denying the plaintiffs' bid for a continuance of the defendants' motion for summary judgment so that the plaintiffs could conduct additional discovery in a suit alleging misappropriation of a TV show concept, the Court of Appeal of California, Second Appellate District, Division Four, held in an unpublished opinion. Burton v. Clark, B163886. Cal E. Burton and Ilunga Adell claimed that, after developing the concept for the show “The Men's Room” in which issues are discussed from a male point of view, Burton exclusively revealed the concept to entertainment executive Robert Cambridge, who suggested presenting the concept to TV producer Dick Clark. Burton and Adell filed suit in response to the airing of the Clark-produced TV series “The Other Half,” seeking injunctive relief and alleging intentional interference with economic relationship. The trial court granted summary judgment for the defendants. Affirming denial of a continuance, the court of appeal noted, “Counsel for the Clark defendants pointed out that they had responded to 10 separate sets of discovery … and that plaintiffs had not objected to the adequacy of the responses, had not sought further responses, had not sought to meet and confer, and had not brought a motion to compel.” In any case, the court of appeal found sufficient evidence that the defendants had developed the concept for “The Other Half” independently and before the plaintiffs had presented their concept Cambridge.

Copyright Infringement/Substantial Similarity

As with non-protectible elements, copyrightable elements of a defendant's work created before access to a plaintiff's work should be filtered of the substantial-similarity analysis, the U.S. Court of Appeals for the Sixth Circuit decided in a case of first impression. Murray Hill Publications Inc. v. Twentieth Century Fox Film Corp ., 01-2668. The case arose out of a suit over the alleged infringement by Fox's film “Jingle All The Way” of the plaintiff's screenplay “Could This Be Christmas.” Reversing for a judgment as a matter of law for Fox, the appeals court noted: “Logic also supports the filtering of independently-created elements. The purpose of the substantial-similarity analysis is to answer the question whether the defendant copied the work of the plaintiff. Ordinarily, similar elements between known work of the plaintiff and the defendant's work will, depending on the degree of uniqueness and originality of the element, support such an inference. However, where defendant owns a prior work containing the same elements, he has no reason, beyond the illicit thrill of copyright infringement, to copy wrongfully from another what he could legally copy from himself. Therefore, where an element occurs both in the defendant's prior work and the plaintiff's prior work, no inference of copying can be drawn.”

Hip-hop artist Snoop Doggy Dogg didn't invade the privacy interests of two women by posing with them for a photograph ' used on the cover of the video/DVD “Girls Gone Wild Doggy Style” ' in which the women lifted their “Snoop Dogg” T-shirts and exposed their breasts, the U.S. District Court for the Eastern District of Louisiana decided. Capdeboscq v. Francis, 03-0556. The plaintiffs had argued that Snoop Dogg may have had some editorial or directorial control over use of the photo on the cover and in the video, and that the rapper had benefited from offering footage shot for the video to consumers who purchased his “Welcome To Tha House Volume 1″ album. But dismissing that part of the plaintiffs' suit, the district court noted: “Such an argument (filled with conjecture and speculation) simply does not create a genuine issue of material fact regarding whether [Snoop Dogg] invaded the Plaintiffs' privacy interests.” (The district court ruled, however, that on the plaintiffs' privacy claim against the video producer, that the issue of whether the party at a New Orleans bar during Mardi Gras at which the photograph was shot was “public” or “private” should be decided by a jury.) The district court further found that the plaintiffs failed to establish that the defendants had been unjustly enriched by selling the video. But a jury will decide whether the defendants defrauded the plaintiffs by allegedly promising that the photograph wouldn't be used in the video.

The entire testimony of an expert witness for a sound recording licensee on estimated lost profits that resulted from a licensor's wrongful termination of a licensing agreement is excluded from the damage phase of the litigation, a Manhattan federal district court held. Point Productions A.G. v. Sony Music Entertainment Inc ., 93-4001. In 1991, Sony Music had given Point Productions the exclusive right to distribute master recordings worldwide outside the United States. Sony Music terminated the license in 1993, after Point failed to maintain valid mechanical licenses to use the songs embodied in the recordings. Point sued Sony Music for breach of contract for failure to give Point contractual notice and an opportunity to cure. The district court granted summary judgment in favor of Point and later determined that Point's lost profits should be measured from before the time of its 1995 bankruptcy filing. Graham Churchill, Point's expert witness on lost profits, had been a senior manager with the Mechanical Copyright Protection Society in London for 22 years and co-director of a music-industry consulting firm. The district court found Churchill's professional experience sufficient, but noted that in his expert evidence he had failed to address a series of events that had negatively affected Point's ability to thrive in the budget music market. The court continued: “Even more astounding is that instead of factoring into his analysis these real world facts and events, Churchill systematically adopts possibly speculative assumptions and predictions that are vital to his projections.” The district court further ruled to strike affidavits that Point had submitted to contest Sony Music's motion to exclude, by concluding that accepting new affidavits that “expound a wholly new and complex approach designed to fill a significant and logical gap in the first report would eviscerate the purpose of the expert disclosure rules.”

The trial court didn't abuse its discretion in denying the plaintiffs' bid for a continuance of the defendants' motion for summary judgment so that the plaintiffs could conduct additional discovery in a suit alleging misappropriation of a TV show concept, the Court of Appeal of California, Second Appellate District, Division Four, held in an unpublished opinion. Burton v. Clark, B163886. Cal E. Burton and Ilunga Adell claimed that, after developing the concept for the show “The Men's Room” in which issues are discussed from a male point of view, Burton exclusively revealed the concept to entertainment executive Robert Cambridge, who suggested presenting the concept to TV producer Dick Clark. Burton and Adell filed suit in response to the airing of the Clark-produced TV series “The Other Half,” seeking injunctive relief and alleging intentional interference with economic relationship. The trial court granted summary judgment for the defendants. Affirming denial of a continuance, the court of appeal noted, “Counsel for the Clark defendants pointed out that they had responded to 10 separate sets of discovery … and that plaintiffs had not objected to the adequacy of the responses, had not sought further responses, had not sought to meet and confer, and had not brought a motion to compel.” In any case, the court of appeal found sufficient evidence that the defendants had developed the concept for “The Other Half” independently and before the plaintiffs had presented their concept Cambridge.