Cameo Clips

BANKRUPTCY PRIORITIES/PAYMENTS TO MUSICIANS

The U.S. Court of Appeals for the Tenth Circuit decided that the Colorado Springs Symphony Orchestra owed ' as an administrative expense priority ' post-bankruptcy filing wages and benefits to the members of the Pikes Peak Musicians Association. Peters v. Pikes Peak Musicians Association, 05-1017.

The symphony had entered into a collective bargaining agreement with the musician's union. The appeals court noted: 'The parties explicitly agreed that, as long as the musicians remained available, they would be compensated for a minimum number of pay periods, regardless of whether the Orchestra called upon them to play. ' Even after the filing of the [bankruptcy] petition, the Orchestra scheduled practices and events but subsequently cancelled them. Accordingly, we conclude that, by foregoing other opportunities and remaining ready, willing, and able to play, the musicians performed 'services' under the terms of the contract. ' Musicians possess unique talents and an orchestra has a special chemistry, especially where, as here, the group of musicians has been practicing and performing together over the course of a season. The loss of their services would be insurmountable if some or all of the musicians ceased to remain available to play. ' [T]he musicians' availability was not only beneficial but necessary to the preservation of the Orchestra's business.'

The U.S. Bankruptcy Appellate Panel for the Ninth Circuit ruled that a statutory-damages award for willful copyright infringement is a non-dischargeable debt for 'willful and malicious injury' under 11 U.S.C. Sec. 523(a)(6), if it is found that the infringer had the subjective intent to commit the harm. In re Albarran, SC05-1398MASPA. The debtors argued that a non-dischargeable injury required proof of actual damages before copyright damages can be non-dischargeable. But the appellate panel noted: 'Here, the [home-video distribution] debtors' actual knowledge of the creditor's copyright interest at the time of infringement was proof of their 'substantial certainty' of resultant harm.'

The U.S. District Court for the Southern District of Texas, Houston Division, ruled that the assignee of the co-interest in the song 'Still Tipping' wasn't co-owner of a derivative work based on the song. Tilford v. Jones, H-05-2989. Randy Jefferson, the author of the original song's music and structure, had assigned his interest to plaintiff Bradley Tilford. Tilford sued after the song's co-owner created a version that included new background music and a different tempo. According to the district court: 'Plaintiff does not allege, as he must, that he or Jefferson actually collaborated in the creation of Song II. ' As such, joint ownership in a prior work is insufficient to make one a joint author of a derivative work.'

The U.S. District Court for the Middle District of Alabama found 'the fact that a copyright holder grants recording companies the right to make and distribute promotional copies of their songs does not mean that it waives its right to collect fees when a radio station wishes to broadcast publically from the promotional copy.' Simpleville Music v. Mizell, 1:04cv393-MHT. ASCAP members had filed suit against the owner of two radio stations. The defendant also argued that no payment was required under the exemption provided by 17 U.S.C. Sec. 110(3), which applies to the 'performance of a nondramatic literary or musical work or of a dramatico-musical work of a religious nature, or display of a work, in the course of services at a place of worship or other religious assembly.' The courtnoted, however, that the 'broadcast [of] copyrighted songs, performed during church services, without authorization, for such broadcasts are not 'at a place of worship.”

BANKRUPTCY PRIORITIES/PAYMENTS TO MUSICIANS

The U.S. Court of Appeals for the Tenth Circuit decided that the Colorado Springs Symphony Orchestra owed ' as an administrative expense priority ' post-bankruptcy filing wages and benefits to the members of the Pikes Peak Musicians Association. Peters v. Pikes Peak Musicians Association, 05-1017.

The symphony had entered into a collective bargaining agreement with the musician's union. The appeals court noted: 'The parties explicitly agreed that, as long as the musicians remained available, they would be compensated for a minimum number of pay periods, regardless of whether the Orchestra called upon them to play. ' Even after the filing of the [bankruptcy] petition, the Orchestra scheduled practices and events but subsequently cancelled them. Accordingly, we conclude that, by foregoing other opportunities and remaining ready, willing, and able to play, the musicians performed 'services' under the terms of the contract. ' Musicians possess unique talents and an orchestra has a special chemistry, especially where, as here, the group of musicians has been practicing and performing together over the course of a season. The loss of their services would be insurmountable if some or all of the musicians ceased to remain available to play. ' [T]he musicians' availability was not only beneficial but necessary to the preservation of the Orchestra's business.'

The U.S. Bankruptcy Appellate Panel for the Ninth Circuit ruled that a statutory-damages award for willful copyright infringement is a non-dischargeable debt for 'willful and malicious injury' under 11 U.S.C. Sec. 523(a)(6), if it is found that the infringer had the subjective intent to commit the harm. In re Albarran, SC05-1398MASPA. The debtors argued that a non-dischargeable injury required proof of actual damages before copyright damages can be non-dischargeable. But the appellate panel noted: 'Here, the [home-video distribution] debtors' actual knowledge of the creditor's copyright interest at the time of infringement was proof of their 'substantial certainty' of resultant harm.'

The U.S. District Court for the Southern District of Texas, Houston Division, ruled that the assignee of the co-interest in the song 'Still Tipping' wasn't co-owner of a derivative work based on the song. Tilford v. Jones, H-05-2989. Randy Jefferson, the author of the original song's music and structure, had assigned his interest to plaintiff Bradley Tilford. Tilford sued after the song's co-owner created a version that included new background music and a different tempo. According to the district court: 'Plaintiff does not allege, as he must, that he or Jefferson actually collaborated in the creation of Song II. ' As such, joint ownership in a prior work is insufficient to make one a joint author of a derivative work.'

The U.S. District Court for the Middle District of Alabama found 'the fact that a copyright holder grants recording companies the right to make and distribute promotional copies of their songs does not mean that it waives its right to collect fees when a radio station wishes to broadcast publically from the promotional copy.' Simpleville Music v. Mizell, 1:04cv393-MHT. ASCAP members had filed suit against the owner of two radio stations. The defendant also argued that no payment was required under the exemption provided by 17 U.S.C. Sec. 110(3), which applies to the 'performance of a nondramatic literary or musical work or of a dramatico-musical work of a religious nature, or display of a work, in the course of services at a place of worship or other religious assembly.' The courtnoted, however, that the 'broadcast [of] copyrighted songs, performed during church services, without authorization, for such broadcasts are not 'at a place of worship.”