Bit Parts

Copyright/Work-for-Hire

The U.S. Court of Appeals for the Second Circuit ruled that choreography created by dance legend Martha Graham ' while she was artistic director of a school that bore her name and that was “created to serve the creative endeavors of an artistic genius” ' belonged to the school. Martha Graham School and Dance Foundation Inc. v. Martha Graham Center of Contemporary Dance Inc., 02-9451(L). In reaching its conclusion, the appeals court noted, among other things, “In arguing that Graham's dances were not created at the 'instance' of the Center, the [plaintiffs] endeavor to give that word a more particularized meaning than is appropriate for the context in which the 'instance and expense' [work-for-hire] test applies. There is no need for the employer to be the precipitating force behind each work created by a salaried employee, acting within the scope of her regular employment.”

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Film Disputes/Proper Venue

The U.S. District Court for the Southern District of New York granted a motion to transfer a lawsuit brought over the defendants' film “Drumline” to the Central District of California. Lassiter v. Twentieth Century Fox Film Corp., 03 Civ. 8174 (RO). The plaintiffs allege copyright infringement and Lanham Act violations arising from their film “Pay the Price,” which like Fox's “Drumline,” is about African-American college bands. The Manhattan district court first noted that Fox's principal place of business is in Los Angeles. Then in granting the transfer request, the court stated, “Fox argues that this case belongs in California because a substantial number of witnesses and records are located there. Others are scattered around the country. Few are to be found in New York, and fewer still in the Southern District of New York.”

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Internet Downloading/ Copyright Damages

A U.S. magistrate for the Northern District of Texas, Dallas Division recommended that statutory copyright damages be awarded without a hearing against a defaulting defendant in an infringement suit over the downloading of sound recordings from the Internet. Capitol Records Inc. v. Lyons, 3:03-CV-2018-L. The magistrate noted, “Plaintiffs have shown that Defendant copied and distributed Plaintiffs' copyrighted sound recordings without authorization. These unauthorized acts have been deemed admitted by the Court. Plaintiffs only seek the minimum statutory award for infringement. Defendant did not file a response contesting the amount of damages requested by Plaintiffs. Thus, an evidentiary hearing is not required. The Court recommends that Plaintiffs be awarded $750.00 per infringement, for a total statutory damages award of $6000.00.”

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Internet Downloading/ Copyright Liability

The U.S. Court of Appeals for the Ninth Circuit held that the developers of peer-to-peer file sharing software aren't contributorily or vicariously liable for copyright infringement by consumers who download entertainment content without permission. Metro-Goldwyn-Mayer Studios Inc. v. Grokster Ltd., 03-55894. Distinguishing a Seventh Circuit decision that shut down file-sharing, software-maker Aimster, the Ninth Circuit noted on the issue of contributory infringement that the Seventh Circuit had “determined that an important additional factor is how 'probable' the noninfringing uses of a product are.” But the Ninth Circuit added, “Regardless, it is not clear that application of the Aimster rationale would assist the Copyright Owners here. Implicit in the Aimster analysis is that a finding of substantial noninfringing use, including potential use, would be fatal to a contributory infringement claim, regardless of the level of knowledge possessed by the defendant. In Aimster, no evidence was tendered of any noninfringing product use.” See, In re Aimster Copyright Litigation, 334 F.3d 643 (7th Cir. 2003). 

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Internet Downloading/Subpoenas

A Manhattan federal district court ruled that a person who engages in the unauthorized downloading of music from the Internet has a limited free speech right. Sony Music Entertainment Inc. v. Does 1-40, 04 Civ. 473 (DC). Further, the First Amendment doesn't protect the person's identity from being disclosed, the court decided.

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Follow-Up

The U.S. Court of Appeals for the Ninth Circuit has denied a petition for rehearing of its recent ruling that a district court used the “extrinsic” test too mechanically in determining whether a song co-written by Mariah Carey was substantially similar to the plaintiffs' song. Swirsky v. Carey, 03-55033.

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BOOK RELEASE

“Music, Money and Success: The Insider's Guide to Making Money in the Music Industry 4th Edition” by Jeffrey Brabec and Todd Brabec (Jeff Brabec is a member of Entertainment Law & Finance's Board of Editors). Published by Schirmer Trade Books/Music Sales Corp. 4th Edition includes ringtone and cell phone licenses and royalties, 2004/2005 mechanical rates, Internet royalties, and video game licenses and royalties. For further information: [email protected] or 800-431-7187.

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Stan Soocher [email protected] www.theyfoughtthelaw.com

Copyright/Work-for-Hire

The U.S. Court of Appeals for the Second Circuit ruled that choreography created by dance legend Martha Graham ' while she was artistic director of a school that bore her name and that was “created to serve the creative endeavors of an artistic genius” ' belonged to the school. Martha Graham School and Dance Foundation Inc. v. Martha Graham Center of Contemporary Dance Inc., 02-9451(L). In reaching its conclusion, the appeals court noted, among other things, “In arguing that Graham's dances were not created at the 'instance' of the Center, the [plaintiffs] endeavor to give that word a more particularized meaning than is appropriate for the context in which the 'instance and expense' [work-for-hire] test applies. There is no need for the employer to be the precipitating force behind each work created by a salaried employee, acting within the scope of her regular employment.”

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Film Disputes/Proper Venue

The U.S. District Court for the Southern District of New York granted a motion to transfer a lawsuit brought over the defendants' film “Drumline” to the Central District of California. Lassiter v. Twentieth Century Fox Film Corp ., 03 Civ. 8174 (RO). The plaintiffs allege copyright infringement and Lanham Act violations arising from their film “Pay the Price,” which like Fox's “Drumline,” is about African-American college bands. The Manhattan district court first noted that Fox's principal place of business is in Los Angeles. Then in granting the transfer request, the court stated, “Fox argues that this case belongs in California because a substantial number of witnesses and records are located there. Others are scattered around the country. Few are to be found in New York, and fewer still in the Southern District of New York.”

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Internet Downloading/ Copyright Damages

A U.S. magistrate for the Northern District of Texas, Dallas Division recommended that statutory copyright damages be awarded without a hearing against a defaulting defendant in an infringement suit over the downloading of sound recordings from the Internet. Capitol Records Inc. v. Lyons, 3:03-CV-2018-L. The magistrate noted, “Plaintiffs have shown that Defendant copied and distributed Plaintiffs' copyrighted sound recordings without authorization. These unauthorized acts have been deemed admitted by the Court. Plaintiffs only seek the minimum statutory award for infringement. Defendant did not file a response contesting the amount of damages requested by Plaintiffs. Thus, an evidentiary hearing is not required. The Court recommends that Plaintiffs be awarded $750.00 per infringement, for a total statutory damages award of $6000.00.”

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Internet Downloading/ Copyright Liability

The U.S. Court of Appeals for the Ninth Circuit held that the developers of peer-to-peer file sharing software aren't contributorily or vicariously liable for copyright infringement by consumers who download entertainment content without permission. Metro-Goldwyn-Mayer Studios Inc. v. Grokster Ltd., 03-55894. Distinguishing a Seventh Circuit decision that shut down file-sharing, software-maker Aimster, the Ninth Circuit noted on the issue of contributory infringement that the Seventh Circuit had “determined that an important additional factor is how 'probable' the noninfringing uses of a product are.” But the Ninth Circuit added, “Regardless, it is not clear that application of the Aimster rationale would assist the Copyright Owners here. Implicit in the Aimster analysis is that a finding of substantial noninfringing use, including potential use, would be fatal to a contributory infringement claim, regardless of the level of knowledge possessed by the defendant. In Aimster, no evidence was tendered of any noninfringing product use.” See, In re Aimster Copyright Litigation, 334 F.3d 643 (7th Cir. 2003). 

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Internet Downloading/Subpoenas

A Manhattan federal district court ruled that a person who engages in the unauthorized downloading of music from the Internet has a limited free speech right. Sony Music Entertainment Inc. v. Does 1-40, 04 Civ. 473 (DC). Further, the First Amendment doesn't protect the person's identity from being disclosed, the court decided.

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Follow-Up

The U.S. Court of Appeals for the Ninth Circuit has denied a petition for rehearing of its recent ruling that a district court used the “extrinsic” test too mechanically in determining whether a song co-written by Mariah Carey was substantially similar to the plaintiffs' song. Swirsky v. Carey, 03-55033.

---

BOOK RELEASE

“Music, Money and Success: The Insider's Guide to Making Money in the Music Industry 4th Edition” by Jeffrey Brabec and Todd Brabec (Jeff Brabec is a member of Entertainment Law & Finance's Board of Editors). Published by Schirmer Trade Books/Music Sales Corp. 4th Edition includes ringtone and cell phone licenses and royalties, 2004/2005 mechanical rates, Internet royalties, and video game licenses and royalties. For further information: [email protected] or 800-431-7187.

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Stan Soocher [email protected] www.theyfoughtthelaw.com