Bit Parts

Reconsideration Motion Denied in Jay-Z Recording Suit

A Manhattan federal district court denied a defense motion for reconsideration of a ruling over alleged rights in the Jay-Z recording “Izzo (H.O.V.A.).” Ulloa v. Universal Music and Video Distribution Corp., 01-9583. Plaintiff Demme Ulloa had alleged copyright infringement and unjust enrichment based on a vocal phrase she contributed to the recording while a visitor at a studio session. Reconfirming its earlier denial of summary judgment for the defendants on those claims, the district court noted that whether the melody occurred in prior art wasn't relevant to the originality of Ulloa's vocal phrase because the defendants “do not contend that Plaintiff copied the Vocal Phrase from those prior works.” The district court also noted in its latest ruling that Ulloa's unjust enrichment claim wasn't preempted at this point by copyright law because she would be able to proceed with the claim if “Defendants prevail at trial in establishing that the Vocal Phrase was either created as a work for hire (and thus Plaintiff has no copyright in the work) or licensed to Defendants.”

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Implied Contract Claim Can Continue

The U.S. Court of Appeals for the Ninth Circuit ruled that plaintiff Jeff Grosso can proceed with his claim of breach of implied contract over the screenplay to the film “Rounders.” Grosso v. Miramax Films Corp., 01-57255. (But the appeals court upheld a grant of summary judgment for the defendants on Grosso's copyright claim.) The Ninth Circuit noted in its unpublished opinion: “Plaintiff's complaint alleged circumstances that, if true, would sustain an action for implied contract: Plaintiff submitted the idea, in script form, to Defendants, at least indirectly, through Defendants' agents. Plaintiff submitted the idea in response to a solicitation by Defendants. Finally, it is alleged that 'the idea was submitted by Plaintiff to Defendants with the understanding and expectation, fully and clearly understood by Defendants, that Plaintiff would be reasonably compensated for its use by Defendants.'”

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Spawn Suit Rehearing Denied

The U.S. Court of Appeals for the Seventh Circuit denied a request for a rehearing en banc by comic book creator/publisher Todd McFarlane following a ruling by that court that writer Neil Gaiman was joint owner of the copyrights in characters he created for the “Spawn” series. McFarlane had argued that Gaiman contributed uncopyrightable ideas, but the appeals court had held that, in the case of comic books, it was enough that the finished product was copyrightable. Gaiman v. McFarlane, 360 F.3d 644 (2004).

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Play's Nudity Permitted

The U.S. District Court for the District of Puerto Rico reinstated an injunction prohibiting a local municipality from banning performances of an adaptation of the Broadway musical “Naked Boys Singing.” Producciones Gran Escenario Inc. v. Miguel Ruiz, 03-2061. The district court stated that: “defendants imply that the nudity in plaintiff's production would not be compatible with [the city theatre's purpose of 'the development of the arts and culture in the community in a safe and sound environment for the enjoyment of all members of the family.' But t]here is no mention of 'family' in [the relevant local ordinance] and no indication that all performances at the Center must always cater to all age groups. In fact it's just the opposite. [The ordinance] states that 'ushers who are minor [sic] may not participate in adults-only show.”

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Footage of TV Anchor Gets No First Amendment Protection

The use in videos and on Web sites of images of a female TV anchor participating in a wet T-shirt contest wasn't protected by the First Amendment, the U.S. District Court for the Northern District of Ohio decided. Bosley v. WildWetT.com, 4:04-cv-393. TV anchor Catherine Bosley filed suit, alleging violation of her right of publicity under Ohio and Florida law. (Bosley worked in Ohio; the wet T-shirt contest took place in Florida.) The district court found no artistic expression or significant editorial comment in the defendants' use of the footage of Bosley. The court also determined that the defendants' use of the images to advertise or promote their products wasn't covered by the public affairs exception to the right of publicity. According to the court, “the images of Catherine Bosley are not sufficiently altered to reflect a creative component which was added to the images of Bosley. … The substance of images were [sic] not accompanied by any dialog discussing Plaintiff's status as a former news anchor. … It appears that Defendants are using the images of Plaintiff Bosley solely for the purpose of commercially exploiting her fame.”

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IRS Needn't Subpoena Labels

The Internal Revenue Service wasn't required to subpoena royalty information from record companies so that a songwriter could make proper returns, the U.S. Tax Court ruled. Poindexter v. Commissioner of Internal Revenue, 122 T.C. No. 15. Robert Poindexter had submitted returns for 1994 and 1996 on which the IRS assessed unpaid taxes. Poindexter claimed that he had been unable to prepare accurate returns due to disputes with record companies over his songwriting royalties. The tax court nevertheless upheld the tax assessments.

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Stan Soocher Entertainment Law & Finance [email protected] theyfoughtthelaw.com

Reconsideration Motion Denied in Jay-Z Recording Suit

A Manhattan federal district court denied a defense motion for reconsideration of a ruling over alleged rights in the Jay-Z recording “Izzo (H.O.V.A.).” Ulloa v. Universal Music and Video Distribution Corp., 01-9583. Plaintiff Demme Ulloa had alleged copyright infringement and unjust enrichment based on a vocal phrase she contributed to the recording while a visitor at a studio session. Reconfirming its earlier denial of summary judgment for the defendants on those claims, the district court noted that whether the melody occurred in prior art wasn't relevant to the originality of Ulloa's vocal phrase because the defendants “do not contend that Plaintiff copied the Vocal Phrase from those prior works.” The district court also noted in its latest ruling that Ulloa's unjust enrichment claim wasn't preempted at this point by copyright law because she would be able to proceed with the claim if “Defendants prevail at trial in establishing that the Vocal Phrase was either created as a work for hire (and thus Plaintiff has no copyright in the work) or licensed to Defendants.”

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Implied Contract Claim Can Continue

The U.S. Court of Appeals for the Ninth Circuit ruled that plaintiff Jeff Grosso can proceed with his claim of breach of implied contract over the screenplay to the film “Rounders.” Grosso v. Miramax Films Corp., 01-57255. (But the appeals court upheld a grant of summary judgment for the defendants on Grosso's copyright claim.) The Ninth Circuit noted in its unpublished opinion: “Plaintiff's complaint alleged circumstances that, if true, would sustain an action for implied contract: Plaintiff submitted the idea, in script form, to Defendants, at least indirectly, through Defendants' agents. Plaintiff submitted the idea in response to a solicitation by Defendants. Finally, it is alleged that 'the idea was submitted by Plaintiff to Defendants with the understanding and expectation, fully and clearly understood by Defendants, that Plaintiff would be reasonably compensated for its use by Defendants.'”

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Spawn Suit Rehearing Denied

The U.S. Court of Appeals for the Seventh Circuit denied a request for a rehearing en banc by comic book creator/publisher Todd McFarlane following a ruling by that court that writer Neil Gaiman was joint owner of the copyrights in characters he created for the “Spawn” series. McFarlane had argued that Gaiman contributed uncopyrightable ideas, but the appeals court had held that, in the case of comic books, it was enough that the finished product was copyrightable. Gaiman v. McFarlane , 360 F.3d 644 (2004).

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Play's Nudity Permitted

The U.S. District Court for the District of Puerto Rico reinstated an injunction prohibiting a local municipality from banning performances of an adaptation of the Broadway musical “Naked Boys Singing.” Producciones Gran Escenario Inc. v. Miguel Ruiz, 03-2061. The district court stated that: “defendants imply that the nudity in plaintiff's production would not be compatible with [the city theatre's purpose of 'the development of the arts and culture in the community in a safe and sound environment for the enjoyment of all members of the family.' But t]here is no mention of 'family' in [the relevant local ordinance] and no indication that all performances at the Center must always cater to all age groups. In fact it's just the opposite. [The ordinance] states that 'ushers who are minor [sic] may not participate in adults-only show.”

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Footage of TV Anchor Gets No First Amendment Protection

The use in videos and on Web sites of images of a female TV anchor participating in a wet T-shirt contest wasn't protected by the First Amendment, the U.S. District Court for the Northern District of Ohio decided. Bosley v. WildWetT.com, 4:04-cv-393. TV anchor Catherine Bosley filed suit, alleging violation of her right of publicity under Ohio and Florida law. (Bosley worked in Ohio; the wet T-shirt contest took place in Florida.) The district court found no artistic expression or significant editorial comment in the defendants' use of the footage of Bosley. The court also determined that the defendants' use of the images to advertise or promote their products wasn't covered by the public affairs exception to the right of publicity. According to the court, “the images of Catherine Bosley are not sufficiently altered to reflect a creative component which was added to the images of Bosley. … The substance of images were [sic] not accompanied by any dialog discussing Plaintiff's status as a former news anchor. … It appears that Defendants are using the images of Plaintiff Bosley solely for the purpose of commercially exploiting her fame.”

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IRS Needn't Subpoena Labels

The Internal Revenue Service wasn't required to subpoena royalty information from record companies so that a songwriter could make proper returns, the U.S. Tax Court ruled. Poindexter v. Commissioner of Internal Revenue , 122 T.C. No. 15. Robert Poindexter had submitted returns for 1994 and 1996 on which the IRS assessed unpaid taxes. Poindexter claimed that he had been unable to prepare accurate returns due to disputes with record companies over his songwriting royalties. The tax court nevertheless upheld the tax assessments.

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Stan Soocher Entertainment Law & Finance [email protected] theyfoughtthelaw.com