Bit Parts

Parker Poems Suit Reversal

The U.S. Court of Appeals for the Second Circuit reversed a district court ruling that had been handed down in favor of a compiler of previously uncollected Dorothy Parker films. Silverstein v. Penguin Putnam Inc., 03-7363. In 1994, plaintiff Stuart Silverstein presented to Penguin 122 uncollected Parker poems that he had collected. Penguin instead published its own “Dorothy Parker: Complete Poems” in 1999. Penguin acknowledged that its editor photocopied poems from the book “Not Much Fun: The Lost Poems of Dorothy Parker” that Silverstein had published in 1996. Silverstein argued, among other things, that he had made 600 edits (mostly grammatical) to Parker's poems. Vacating a lower court injunction, the appeals court emphasized that “the right asserted by Silverstein is too slight to support an injunction against publication of the Penguin volume: Silverstein holds no copyright in the poems themselves; Penguin has not used Silverstein's arrangement; and the chief principle of Silverstein's selection ' that the poems previously had not been collected ' reflects an exercise of judgment by Mrs. Parker, not by Silverstein.” But the appeals court also ruled that there are material issues of fact “as to whether Silverstein exercised creativity in selecting the works for his compilation. Those questions must be answered before the creativity, if any, in his selection process can be assessed.”

Stay of 'Doggy' Video Trial Denied

The U.S. Circuit Court of Appeals for the Fifth Circuit upheld a denial of a defense motion to stay the trial in a privacy and fraud suit over the use of the bare-breasted images of two women in the “Girls Gone Wild Doggy Style” video/DVD. Capdeboscq v. Francis, 03-30914. Defendant Joseph Francis, president of Mantra Films, had asked for the stay of the Louisiana federal trial pending the outcome of a criminal investigation and prosecution against him in Florida on racketeering charges. In its unpublished opinion, the appeals court noted: “While discovery about the Mardi Gras incident [in which the civil-suit plaintiffs were photographed] might assist the Florida prosecutor in determining a trial strategy, the information is irrelevant to the allegations in the criminal information and could not be used in the criminal prosecution. This consequence does not implicate Francis's right against self-incrimination because nothing in the record indicates the Florida prosecutor, or any other prosecutor seeks to charge Francis with criminal violations stemming from the February 12, 2002 Mardi Gras incident.”

Estate Songs Ruling

The Court of Appeals of Indiana, First District, decided that a daughter of the late singer/songwriter Bobby Helms, the writer of “Jingle Bell Rock,” was entitled to a motion to set aside an agreed judgment entered into by two of Helms' other children over rights to Helms' songs. Estate of Helms v. Helms-Hawkins, 804 N.E.2d 1260 (2004). The appeals court noted that if Helms' will, in which he devised a large portion of his song rights to his executrix, “is ultimately determined to be invalid, then Bobby's property, including rights to collect his royalties, would pass by the laws of intestate succession. As an heir-at-law, Tyeanne [the daughter challenging the agreed judgment] would share in that distribution. In that scenario, Tyeanne would clearly be a person having an interest or claim that will be affected by the compromise. See I.C. Sec. 29-1-9-2(a). Therefore, a compromise conceding those rights to Robert and Angel [also Helm's children] in the probate proceedings would require Tyeanne's approval.”

Each CD Is a 'Work'

A Manhattan federal district court held that for purposes of calculating statutory damages in a copyright infringement suit, each CD constituted a “work.” The plaintiffs had objected to a magistrate's damages determination. The district judge noted, “Plaintiffs believe each song should be considered its own work. In a digital age in which new recording technologies allow for compilations of a heretofore unimaginable number of songs, there is a great deal of merit to plaintiffs' argument. Nonetheless, the language of 17 U.S.C. Sec. 504(c)(1) demands the conclusion reached by [the magistrate].”

Sinatra Photo Decision

The U.S. Court of Appeals for the Ninth Circuit ruled, in an unpublished opinion, that photographer Phil Stern, whose copyright in a photo of Frank Sinatra entered the public domain when Stern failed to renew the copyright at the end of its first 28-year term in 1985, didn't regain the copyright when he included it in a 1996 copyright registration of “Frank Sinatra” images. Stern v. Sinatra, 02-57120.

Parker Poems Suit Reversal

The U.S. Court of Appeals for the Second Circuit reversed a district court ruling that had been handed down in favor of a compiler of previously uncollected Dorothy Parker films. Silverstein v. Penguin Putnam Inc., 03-7363. In 1994, plaintiff Stuart Silverstein presented to Penguin 122 uncollected Parker poems that he had collected. Penguin instead published its own “Dorothy Parker: Complete Poems” in 1999. Penguin acknowledged that its editor photocopied poems from the book “Not Much Fun: The Lost Poems of Dorothy Parker” that Silverstein had published in 1996. Silverstein argued, among other things, that he had made 600 edits (mostly grammatical) to Parker's poems. Vacating a lower court injunction, the appeals court emphasized that “the right asserted by Silverstein is too slight to support an injunction against publication of the Penguin volume: Silverstein holds no copyright in the poems themselves; Penguin has not used Silverstein's arrangement; and the chief principle of Silverstein's selection ' that the poems previously had not been collected ' reflects an exercise of judgment by Mrs. Parker, not by Silverstein.” But the appeals court also ruled that there are material issues of fact “as to whether Silverstein exercised creativity in selecting the works for his compilation. Those questions must be answered before the creativity, if any, in his selection process can be assessed.”

Stay of 'Doggy' Video Trial Denied

The U.S. Circuit Court of Appeals for the Fifth Circuit upheld a denial of a defense motion to stay the trial in a privacy and fraud suit over the use of the bare-breasted images of two women in the “Girls Gone Wild Doggy Style” video/DVD. Capdeboscq v. Francis, 03-30914. Defendant Joseph Francis, president of Mantra Films, had asked for the stay of the Louisiana federal trial pending the outcome of a criminal investigation and prosecution against him in Florida on racketeering charges. In its unpublished opinion, the appeals court noted: “While discovery about the Mardi Gras incident [in which the civil-suit plaintiffs were photographed] might assist the Florida prosecutor in determining a trial strategy, the information is irrelevant to the allegations in the criminal information and could not be used in the criminal prosecution. This consequence does not implicate Francis's right against self-incrimination because nothing in the record indicates the Florida prosecutor, or any other prosecutor seeks to charge Francis with criminal violations stemming from the February 12, 2002 Mardi Gras incident.”

Estate Songs Ruling

The Court of Appeals of Indiana, First District, decided that a daughter of the late singer/songwriter Bobby Helms, the writer of “Jingle Bell Rock,” was entitled to a motion to set aside an agreed judgment entered into by two of Helms' other children over rights to Helms' songs. Estate of Helms v. Helms-Hawkins , 804 N.E.2d 1260 (2004). The appeals court noted that if Helms' will, in which he devised a large portion of his song rights to his executrix, “is ultimately determined to be invalid, then Bobby's property, including rights to collect his royalties, would pass by the laws of intestate succession. As an heir-at-law, Tyeanne [the daughter challenging the agreed judgment] would share in that distribution. In that scenario, Tyeanne would clearly be a person having an interest or claim that will be affected by the compromise. See I.C. Sec. 29-1-9-2(a). Therefore, a compromise conceding those rights to Robert and Angel [also Helm's children] in the probate proceedings would require Tyeanne's approval.”

Each CD Is a 'Work'

A Manhattan federal district court held that for purposes of calculating statutory damages in a copyright infringement suit, each CD constituted a “work.” The plaintiffs had objected to a magistrate's damages determination. The district judge noted, “Plaintiffs believe each song should be considered its own work. In a digital age in which new recording technologies allow for compilations of a heretofore unimaginable number of songs, there is a great deal of merit to plaintiffs' argument. Nonetheless, the language of 17 U.S.C. Sec. 504(c)(1) demands the conclusion reached by [the magistrate].”

Sinatra Photo Decision

The U.S. Court of Appeals for the Ninth Circuit ruled, in an unpublished opinion, that photographer Phil Stern, whose copyright in a photo of Frank Sinatra entered the public domain when Stern failed to renew the copyright at the end of its first 28-year term in 1985, didn't regain the copyright when he included it in a 1996 copyright registration of “Frank Sinatra” images. Stern v. Sinatra, 02-57120.