Cameo Clips

Copyright Infringement/Expert's Report

A songwriter failed to establish substantial similarity as a matter of law between his and the defendants' musical compositions, the U.S. Court of Appeals for the First Circuit decided. Johnson v. Gordon, 04-2475. The unpublished opinion is worth reviewing for the appeals court's detailed consideration of the plaintiff's expert witness report. The appeals court began its decision by commenting: “Music is an international language that has the capacity to bring together people from every corner of the world. It is also an economic engine, capable of yielding financial gain to those who own and control it. This appeal, which involves a controversy over the authorship of a hit song, exposes us to that coarser side of the music industry.”

Plaintiff Calvin R. Johnson claimed that the defendants' song “You're the One,” a hit for the vocal group SWV, infringed on Johnson's song “You're the One (For Me).” In his plaintiff's expert witness report, Kenrick John had used the compositional methodologies of inversion ' in which ascending melodies are made descending and vice-versa ' and retrograde ' which starts with the last melodic note and ends with the first melodic note. Describing John's report as a “herculean effort to assimilate the two melodies,” the appeals court nevertheless noted: “Mr. John revealed that it was necessary to apply a series of other alterations to the plaintiff's melody, beyond the mechanisms of inversion and retrograde, in order to arrive at a melody that bore any resemblance to bars 1 and 2 of the defendants' song. He also admitted that even in this contrived format, the plaintiff's two-bar melody still did not yield a close match to the defendants' two-bar melody. … The witness first transposed bars 16 and 17 of the plaintiff's composition into D flat (the key of the defendants' song). He then altered the melody by raising it a perfect fifth (moving each note seven half-steps up the musical scale). At that point, he applied the known formula for inversion, but altered the rhythm to match that of the defendants' song. And, finally, he added an A flat note to the altered, inverted version of the plaintiff's bars 16 and 17. … [The] outcome does little to advance the plaintiff's cause.”

TVT Records failed to present a “legally sufficient evidentiary basis” for its claims of tortious interference and fraudulent concealment over a failed joint venture with defendant Island Def Jam Music Group (IDJ) to produce and promote recordings by the rap group Cash Money Click, the U.S. Court of Appeals for the Second Circuit ruled. TVT Records v. The Island Def Jam Music Group, 03-9026(L). TVT had claimed that after it and IDJ agreed to work together on the release of new TVT album by Cash Money Click ' a group earlier signed to TVT of which IDJ artist Ja Rule had been a member ' IDJ worked to hurt the album's success. A jury ruled in favor of TVT and the trial judge set the compensatory and punitive damages total at about $54 million. Reversing, the appeals court noted: “One asserting a tortious interference claim must also show that the defendant was not a party to the contract with which he allegedly interfered. … IDJ claims that [a side letter agreement among IDJ, TVT, Ja Rule and record producer Irv Gotti and an earlier agreement among TVT, Ja Rule and Gotti] were a single contract and that, because the jury implicitly found that an oral agreement embodying the [side letter agreement] had been created, IDJ was necessarily a party to the [earlier agreement]. Consequently, IDJ could not have tortiously interfered with Gotti's and Ja Rule's performance under the [earlier agreement]. … We think it is sufficiently clear that the [two agreements] are one agreement and that there was nothing for the jury to decide.” That left the defendant liable for $126,720 in compensatory damages for breach of contract.

The appeals court also held that TVT couldn't claim copyright infringement without first rescinding the licenses on which the infringement claim was based.

Copyright Infringement/Expert's Report

A songwriter failed to establish substantial similarity as a matter of law between his and the defendants' musical compositions, the U.S. Court of Appeals for the First Circuit decided. Johnson v. Gordon, 04-2475. The unpublished opinion is worth reviewing for the appeals court's detailed consideration of the plaintiff's expert witness report. The appeals court began its decision by commenting: “Music is an international language that has the capacity to bring together people from every corner of the world. It is also an economic engine, capable of yielding financial gain to those who own and control it. This appeal, which involves a controversy over the authorship of a hit song, exposes us to that coarser side of the music industry.”

Plaintiff Calvin R. Johnson claimed that the defendants' song “You're the One,” a hit for the vocal group SWV, infringed on Johnson's song “You're the One (For Me).” In his plaintiff's expert witness report, Kenrick John had used the compositional methodologies of inversion ' in which ascending melodies are made descending and vice-versa ' and retrograde ' which starts with the last melodic note and ends with the first melodic note. Describing John's report as a “herculean effort to assimilate the two melodies,” the appeals court nevertheless noted: “Mr. John revealed that it was necessary to apply a series of other alterations to the plaintiff's melody, beyond the mechanisms of inversion and retrograde, in order to arrive at a melody that bore any resemblance to bars 1 and 2 of the defendants' song. He also admitted that even in this contrived format, the plaintiff's two-bar melody still did not yield a close match to the defendants' two-bar melody. … The witness first transposed bars 16 and 17 of the plaintiff's composition into D flat (the key of the defendants' song). He then altered the melody by raising it a perfect fifth (moving each note seven half-steps up the musical scale). At that point, he applied the known formula for inversion, but altered the rhythm to match that of the defendants' song. And, finally, he added an A flat note to the altered, inverted version of the plaintiff's bars 16 and 17. … [The] outcome does little to advance the plaintiff's cause.”

TVT Records failed to present a “legally sufficient evidentiary basis” for its claims of tortious interference and fraudulent concealment over a failed joint venture with defendant Island Def Jam Music Group (IDJ) to produce and promote recordings by the rap group Cash Money Click, the U.S. Court of Appeals for the Second Circuit ruled. TVT Records v. The Island Def Jam Music Group, 03-9026(L). TVT had claimed that after it and IDJ agreed to work together on the release of new TVT album by Cash Money Click ' a group earlier signed to TVT of which IDJ artist Ja Rule had been a member ' IDJ worked to hurt the album's success. A jury ruled in favor of TVT and the trial judge set the compensatory and punitive damages total at about $54 million. Reversing, the appeals court noted: “One asserting a tortious interference claim must also show that the defendant was not a party to the contract with which he allegedly interfered. … IDJ claims that [a side letter agreement among IDJ, TVT, Ja Rule and record producer Irv Gotti and an earlier agreement among TVT, Ja Rule and Gotti] were a single contract and that, because the jury implicitly found that an oral agreement embodying the [side letter agreement] had been created, IDJ was necessarily a party to the [earlier agreement]. Consequently, IDJ could not have tortiously interfered with Gotti's and Ja Rule's performance under the [earlier agreement]. … We think it is sufficiently clear that the [two agreements] are one agreement and that there was nothing for the jury to decide.” That left the defendant liable for $126,720 in compensatory damages for breach of contract.

The appeals court also held that TVT couldn't claim copyright infringement without first rescinding the licenses on which the infringement claim was based.