Cameo Clips

The 1948 book “Crusade in Europe,” authored by World-War-II General Dwight Eisenhower, was created under the 1909 Copyright as a work for hire, the U.S. Court of Appeals for the Ninth Circuit decided. Twentieth Century Fox Film Corp. v. SFM Entertainment LLC, 03-57052. The 1909 Act mentioned, but didn't define, “work for hire.” However, into the 1960s federal courts found work for hire only in traditional employee/employer relationships ' before expanding the doctrine into situations in which the hiring party controlled or supervised creation of a copyright. The Ninth Circuit found that the defendants infringed on the plaintiffs' rights in the book's copyright. According to the court: “Where, as here, a reluctant author who historically had refused to engage in the creative process begins to write voraciously after being persuaded by a publisher, the evidence is sufficient to support the factual conclusion that the work was at the publisher's 'instance.' … We thus uphold the district court's conclusion that, because General Eisenhower would not have authored or published Crusade in Europe without Doubleday's convincing, and because there is no question that Doubleday carried the financial load of preparing the book, it was in fact created at the instance and expense of the commissioning party.” (The book was at the center of another aspect of this litigation that led to the U.S. Supreme Court's decision in Dastar Corp. v. Twentieth Century Fox Film Corp., 539 U.S. 23, 123 S. Ct. 2041 (2003). Dastar released videotapes that used footage from a Fox TV series based on the Eisenhower book. The Supreme Court held that the federal Lanham Act, meant to protect against confusion of source of goods, covered the producer of goods, rather than an author who sought credit attribution and whose work was embodied in the goods.)

Based on the value of expert-witness reports, the U.S. District Court for the Eastern District of Washington granted summary judgment to the defendants in a copyright-infringement suit over the Grammy-Award winning song “Dance With My Father.” The defendants included Richard Marx and the estate of Luther Vandross; Marx and Vandross co-authored “Dance With My Father.” The district court explained: “[The defendants' musicologist Dr. Lawrence] Ferrara concludes that the two works are not substantially similar and the portion that is similar, is a seven-note melodic sequence that is in the public domain. In Plaintiff's initial expert report, Dr. David Asplin fails to indicate if he examined the [Copyright Office] Deposit Copy [of the plaintiff singing without accompaniment her song] 'Heart of Gold' or the [fully orchestrated] Non-Deposit Copy. Dr. Asplin does not address whether 'Dance' is substantially similar to 'Heart of Gold' or whether the purported similarities represent expression that is original to her. Additionally, Plaintiff has failed to provide a rebuttal expert report, or otherwise present competent testimony contesting the conclusions of expert musicologist Dr. Ferrara.” Griffin v. J-Records, CV-04-226-LRS.

In a different case, a Manhattan federal district court granted a defense motion to preclude the report of the plaintiff's expert witness in a copyright-infringement suit that includes rap artist Ludacris and his producer Kanye West as defendants. The court issued its ruling following a series of orders seeking the depositions of plaintiff's expert Judith Finnell and her assistant, the production of materials on which Finnell had based her expert report, and declarations and affidavits from Finnell or her assistant that the requested documents had been handed over. According to the court: “Here, the proffered reasons for non-compliance ' Ms. Finell's engagement with matters on the west coast and the non-payment of her bill ' have long since ended and, yet, there still has been no compliance. … At a minimum, the prejudice that would result to defendants if I were to allow the Finell reports and testimony to stand is that defendants would not have the benefit of the underlying notes, communications and analysis which may be critical for cross-examination. Merely striking a rebuttal report and allowing Ms. Finell to otherwise testify would deprive defendants of potentially important fodder for cross-examination. … I will award the defendants reasonable expenses, including attorneys' fees, caused by the plaintiffs' failure to comply.” BMS Entertainment/Heat Music LLC v. Bridges, 04 Civ. 2584.