Bit Parts

Internet/Unauthorized Movie Distribution

The U.S. District Court for the Eastern District of Pennsylvania denied summary judgment to both Paramount Pictures and an individual the studio sued for copyright infringement for allegedly posting a copy of the motion picture “Lemony Snicket's: A Series of Unfortunate Events,” on the eDonkey peer-to-peer file-sharing network a week after the movie was released. The district court found there are “genuine issues of material fact as to whether [defendant] Davis was correctly identified as the infringer, whether he was the first propagator of the motion picture, and whether he engaged in any infringing activity.” Paramount Pictures Corp. v. Davis, 05-0316.

Internet/Unauthorized Music Downloading

The U.S. Court of Appeals for the Seventh Circuit affirmed a district court ruling that an individual who claimed she downloaded unlicensed recordings from the Internet to determine whether to buy them couldn't prevail on a fair-use copyright defense. The appeals court noted of the defendant: “Instead of erasing songs that she decided not to buy, she retained them. … A copy downloaded, played, and retained on one's hard drive for future use is a direct substitute for a purchased copy … Many radio stations stream their content over the Internet, paying a fee for the right to do so. Gonzalez could have listened to this streaming music to sample songs for purchase.” The defendant claimed that statutory damages against her should be lowered because she was an innocent infringer. But the district court emphasized: “It is undisputed that BMG Music gave copyright notice as required – 'on the surface of the phonorecord, or on the phonorecord label or container' ([17 U.S.C.] Sec. 402(c)). It is likewise undisputed that Gonzalez had 'access' to records and compact disks bearing the proper notice. She downloaded data rather than discs, and the data lacked copyright notices, but the statutory question is whether 'access' to legitimate works was available rather than whether infringers earlier in the chain attached copyright notices to the pirated works. Gonzalez readily could have learned, had she inquired, that the music was under copyright.” BMG Music v. Gonzalez, 05-1314.

Music Copyrights/Preemption

The Chancery Court for Davidson County, Tennessee at Nashville ruled that a suit by country-music artist Loretta Lynn that seeks reversion of song copyrights and ownership of song and sound-recording copyrights was preempted by federal copyright law. The county court noted that if any of Lynn's claims wasn't “completely preempted, it would only be if and to the extent that Plaintiff limited her claim of recovery of personal property to purely physical possession without a corresponding reversion of royalty bearing interests in copyright materials.” Lynn v. Sure-Fire Music Co. Inc., 04-2827. Thus, Lynn is pursuing her case in federal court.

Music Publishing/Settlement Agreements

The Supreme Court of Mississippi upheld a mediated-settlement agreement between two music companies over rights to several compositions of songwriter Tommy Tate. Chantey had alleged that Malaco improperly hired Tate away from Chantey. A Mississippi circuit court judge referred the case to mediation. But Chantey later claimed, as the supreme court noted, that “the mediation process which resulted in the settlement of this matter was fraught with inequity and procedurally unconscionable due to duress, coercion and mental weakness. Moreover, Chantey alleges that [Malaco counsel Robert A.] Malouf, in representing Malaco at the parties' court-ordered mediation conference, coerced [Chantey's] president, [Sam] Kazery, into signing an agreement he was not prepared to sign by threatening him with prosecution in bankruptcy court.” The state supreme court emphasized, however, that the testimony of Malouf, the mediator and Chantey's counsel at a circuit-court hearing to enforce the settlement “revealed an arm's-length settlement agreement. Thus, the testimony of all the witnesses who testified revealed that the settlement process was fair and without oppression.” Chantey Music Publishing Inc. v. Malaco Inc., 2004-CA-01581-SCT.

Trademarks/Motion-Picture Depictions

The U.S. Court of Appeals for the Eighth Circuit affirmed a district court's summary-judgment ruling that no reasonable jury could find a likelihood of confusion between the “Earth Protector” trademark of an environmental advocacy group and a fictional company in the Disney film “Up, Up and Away.” The appeals court noted, “Because the movie's depiction of the company using the mark is resoundingly negative, it is unlikely that viewers will assume that the real Earth Protector, Inc. was a sponsor of the movie or that Earth Protector, Inc. and Disney are otherwise affiliated.” Davis v. The Walt Disney Co., 05-1999.

Internet/Unauthorized Movie Distribution

The U.S. District Court for the Eastern District of Pennsylvania denied summary judgment to both Paramount Pictures and an individual the studio sued for copyright infringement for allegedly posting a copy of the motion picture “Lemony Snicket's: A Series of Unfortunate Events,” on the eDonkey peer-to-peer file-sharing network a week after the movie was released. The district court found there are “genuine issues of material fact as to whether [defendant] Davis was correctly identified as the infringer, whether he was the first propagator of the motion picture, and whether he engaged in any infringing activity.” Paramount Pictures Corp. v. Davis, 05-0316.

Internet/Unauthorized Music Downloading

The U.S. Court of Appeals for the Seventh Circuit affirmed a district court ruling that an individual who claimed she downloaded unlicensed recordings from the Internet to determine whether to buy them couldn't prevail on a fair-use copyright defense. The appeals court noted of the defendant: “Instead of erasing songs that she decided not to buy, she retained them. … A copy downloaded, played, and retained on one's hard drive for future use is a direct substitute for a purchased copy … Many radio stations stream their content over the Internet, paying a fee for the right to do so. Gonzalez could have listened to this streaming music to sample songs for purchase.” The defendant claimed that statutory damages against her should be lowered because she was an innocent infringer. But the district court emphasized: “It is undisputed that BMG Music gave copyright notice as required – 'on the surface of the phonorecord, or on the phonorecord label or container' ([17 U.S.C.] Sec. 402(c)). It is likewise undisputed that Gonzalez had 'access' to records and compact disks bearing the proper notice. She downloaded data rather than discs, and the data lacked copyright notices, but the statutory question is whether 'access' to legitimate works was available rather than whether infringers earlier in the chain attached copyright notices to the pirated works. Gonzalez readily could have learned, had she inquired, that the music was under copyright.” BMG Music v. Gonzalez, 05-1314.

Music Copyrights/Preemption

The Chancery Court for Davidson County, Tennessee at Nashville ruled that a suit by country-music artist Loretta Lynn that seeks reversion of song copyrights and ownership of song and sound-recording copyrights was preempted by federal copyright law. The county court noted that if any of Lynn's claims wasn't “completely preempted, it would only be if and to the extent that Plaintiff limited her claim of recovery of personal property to purely physical possession without a corresponding reversion of royalty bearing interests in copyright materials.” Lynn v. Sure-Fire Music Co. Inc., 04-2827. Thus, Lynn is pursuing her case in federal court.

Music Publishing/Settlement Agreements

The Supreme Court of Mississippi upheld a mediated-settlement agreement between two music companies over rights to several compositions of songwriter Tommy Tate. Chantey had alleged that Malaco improperly hired Tate away from Chantey. A Mississippi circuit court judge referred the case to mediation. But Chantey later claimed, as the supreme court noted, that “the mediation process which resulted in the settlement of this matter was fraught with inequity and procedurally unconscionable due to duress, coercion and mental weakness. Moreover, Chantey alleges that [Malaco counsel Robert A.] Malouf, in representing Malaco at the parties' court-ordered mediation conference, coerced [Chantey's] president, [Sam] Kazery, into signing an agreement he was not prepared to sign by threatening him with prosecution in bankruptcy court.” The state supreme court emphasized, however, that the testimony of Malouf, the mediator and Chantey's counsel at a circuit-court hearing to enforce the settlement “revealed an arm's-length settlement agreement. Thus, the testimony of all the witnesses who testified revealed that the settlement process was fair and without oppression.” Chantey Music Publishing Inc. v. Malaco Inc., 2004-CA-01581-SCT.

Trademarks/Motion-Picture Depictions

The U.S. Court of Appeals for the Eighth Circuit affirmed a district court's summary-judgment ruling that no reasonable jury could find a likelihood of confusion between the “Earth Protector” trademark of an environmental advocacy group and a fictional company in the Disney film “Up, Up and Away.” The appeals court noted, “Because the movie's depiction of the company using the mark is resoundingly negative, it is unlikely that viewers will assume that the real Earth Protector, Inc. was a sponsor of the movie or that Earth Protector, Inc. and Disney are otherwise affiliated.” Davis v. The Walt Disney Co., 05-1999.