Bit Parts

Copyright Infringement/Implied License

The U.S. Court of Appeals for the Third Circuit affirmed a district court finding that plaintiff Michael Lowe had given defendants that included producers Scott Storch and Dr. Dre an implied license to use a composition by Lowe in a recording by the act Xzibit. Lowe v. Loud Records, 03-4812. “Lowe testified that he gave Storch the beat so that Storch could give it to Dr. Dre for a song, and that is exactly what happened,” the appeals court noted in its unpublished opinion.

Copyright Infringement/Voluntary Dismissal

Less than 2 weeks before a scheduled trial, Shady Records, Eminem's record label, agreed to the voluntarily dismissal of its copyright infringement suit against Source magazine over the posting of lyrics from early Eminem songs on Source's Web site. The Web postings were part of a debate about the hip-hop authenticity of Eminem. Denying both sides requests for costs and fees, the Manhattan federal district court emphasized: “In light of the litigation excesses of both sides, the Court has resisted the repeated cries of both parties for sanctions. The most equitable result, in light of the totality of the circumstances, is for each side to bear its own costs.” Shady Records Inc. v. Source Enterprises Inc., 03 Civ. 9944 (GEL).

Copyright Renewal Interests/Rehearing Denied

The U.S. Court of Appeals for the Sixth Circuit denied a petition for rehearing of its recent ruling that the renewal copyright interests of songs by Roger Miller that took effect after his death should be divided one-half to his wife and the other half among his children. Broadcast Music Inc. v. Turner, 02-5766. Daughter Sharon Miller Turner had claimed the renewal interests should be shared equally among the wife and children.

Lyrics Liability/False Light

The Court of Appeals of Michigan upheld the dismissal of a lyrics-liability suit against hip-hop artist Eminem that alleged false-light invasion of privacy. Bailey v. Mathers, 252123. The song “Brain Damage” contained lyrics about Eminem's experiences with plaintiff Deangelo Bailey at school as a child. In its unpublished opinion, the court of appeals noted: “Examined in the context of the song lyrics as a whole, defendant's story contains a number of signals that would convey to a reasonable person that it should not be taken literally. … Examples include the highly improbable event of a school principal assisting plaintiff in 'stomping' on defendant and leaving him for dead, plaintiff's successful attack on defendant with a broomstick after being beaten in the bathroom, and, ultimately, defendant returning home only to be beaten by his mother with a remote control, causing defendant's 'whole brain' to fall out of his skull. … In light of plaintiff's admissions that he 'picked on' defendant when defendant was in the fourth grade and that plaintiff was part of a group at school that did 'bully type things' such as pushing defendant down, we uphold the trial court's determination that no genuine issue of material fact was shown relative to this issue.”

Sound Recordings/Common Law Copyright

The New York Court of Appeals decided that New York law gives common-law copyright protection to pre-1972 sound recordings, which aren't covered by federal copyright law, whether or not the recordings are public domain in their country of origin. Capitol Records Inc. v. Naxos of America Inc., 30. The court of appeals also ruled that copyright infringement and unfair competition aren't the same claims in New York. Finally, the court determined whether a plaintiff's work is popular doesn't affect common-law copyright protection and that the unauthorized release of remastered recordings that are protected can constitute infringement.

Right of Publicity/Motion Pictures

Citing a “fundamental constitutional concern,” the Supreme Court of Florida clarified language in the state's right-of-publicity law, Florida Statutes Sec. 540.08(1), which requires express consent to use a person's name, portrait, photograph or other likeness “for purposes of trade or for any commercial purpose.” In a Sec. 540.08 suit brought by families of characters portrayed in the docudrama film “The Perfect Storm,” about the sinking of the fishing boat Andrea Gail off the coast of New England, the state Supreme Court ruled for the film defendants. According to the court, the term “commercial purpose” doesn't apply to publications, such as motion pictures, that don't directly promote a product or service. Tyne v. Time Warner Entertainment Co. L.P., SC03-1251.

Trademarks/Motion Pictures

The U.S. District Court for the District of Minnesota decided that even if the Earth Protector Licensing Corp. had a valid registered trademark for TV uses or a common law trademark in the “Earth Protector” name (the court found neither trademark right existed), there was no likelihood of confusion created by the defendants' use of the name for a fictional company in the TV movie “Up, Up and Away.” Davis v. The Walt Disney Co., 04-1749. The plaintiffs' use and the defendants' use of “Earth Protector” weren't in competitive proximity to each other, the court noted.

Copyright Infringement/Implied License

The U.S. Court of Appeals for the Third Circuit affirmed a district court finding that plaintiff Michael Lowe had given defendants that included producers Scott Storch and Dr. Dre an implied license to use a composition by Lowe in a recording by the act Xzibit. Lowe v. Loud Records, 03-4812. “Lowe testified that he gave Storch the beat so that Storch could give it to Dr. Dre for a song, and that is exactly what happened,” the appeals court noted in its unpublished opinion.

Copyright Infringement/Voluntary Dismissal

Less than 2 weeks before a scheduled trial, Shady Records, Eminem's record label, agreed to the voluntarily dismissal of its copyright infringement suit against Source magazine over the posting of lyrics from early Eminem songs on Source's Web site. The Web postings were part of a debate about the hip-hop authenticity of Eminem. Denying both sides requests for costs and fees, the Manhattan federal district court emphasized: “In light of the litigation excesses of both sides, the Court has resisted the repeated cries of both parties for sanctions. The most equitable result, in light of the totality of the circumstances, is for each side to bear its own costs.” Shady Records Inc. v. Source Enterprises Inc., 03 Civ. 9944 (GEL).

Copyright Renewal Interests/Rehearing Denied

The U.S. Court of Appeals for the Sixth Circuit denied a petition for rehearing of its recent ruling that the renewal copyright interests of songs by Roger Miller that took effect after his death should be divided one-half to his wife and the other half among his children. Broadcast Music Inc. v. Turner, 02-5766. Daughter Sharon Miller Turner had claimed the renewal interests should be shared equally among the wife and children.

Lyrics Liability/False Light

The Court of Appeals of Michigan upheld the dismissal of a lyrics-liability suit against hip-hop artist Eminem that alleged false-light invasion of privacy. Bailey v. Mathers, 252123. The song “Brain Damage” contained lyrics about Eminem's experiences with plaintiff Deangelo Bailey at school as a child. In its unpublished opinion, the court of appeals noted: “Examined in the context of the song lyrics as a whole, defendant's story contains a number of signals that would convey to a reasonable person that it should not be taken literally. … Examples include the highly improbable event of a school principal assisting plaintiff in 'stomping' on defendant and leaving him for dead, plaintiff's successful attack on defendant with a broomstick after being beaten in the bathroom, and, ultimately, defendant returning home only to be beaten by his mother with a remote control, causing defendant's 'whole brain' to fall out of his skull. … In light of plaintiff's admissions that he 'picked on' defendant when defendant was in the fourth grade and that plaintiff was part of a group at school that did 'bully type things' such as pushing defendant down, we uphold the trial court's determination that no genuine issue of material fact was shown relative to this issue.”

Sound Recordings/Common Law Copyright

The New York Court of Appeals decided that New York law gives common-law copyright protection to pre-1972 sound recordings, which aren't covered by federal copyright law, whether or not the recordings are public domain in their country of origin. Capitol Records Inc. v. Naxos of America Inc., 30. The court of appeals also ruled that copyright infringement and unfair competition aren't the same claims in New York. Finally, the court determined whether a plaintiff's work is popular doesn't affect common-law copyright protection and that the unauthorized release of remastered recordings that are protected can constitute infringement.

Right of Publicity/Motion Pictures

Citing a “fundamental constitutional concern,” the Supreme Court of Florida clarified language in the state's right-of-publicity law, Florida Statutes Sec. 540.08(1), which requires express consent to use a person's name, portrait, photograph or other likeness “for purposes of trade or for any commercial purpose.” In a Sec. 540.08 suit brought by families of characters portrayed in the docudrama film “The Perfect Storm,” about the sinking of the fishing boat Andrea Gail off the coast of New England, the state Supreme Court ruled for the film defendants. According to the court, the term “commercial purpose” doesn't apply to publications, such as motion pictures, that don't directly promote a product or service. Tyne v. Time Warner Entertainment Co. L.P., SC03-1251.

Trademarks/Motion Pictures

The U.S. District Court for the District of Minnesota decided that even if the Earth Protector Licensing Corp. had a valid registered trademark for TV uses or a common law trademark in the “Earth Protector” name (the court found neither trademark right existed), there was no likelihood of confusion created by the defendants' use of the name for a fictional company in the TV movie “Up, Up and Away.” Davis v. The Walt Disney Co., 04-1749. The plaintiffs' use and the defendants' use of “Earth Protector” weren't in competitive proximity to each other, the court noted.