Bit Parts

Entertainment Law: The Year in Review, sponsored by the District of Columbia Bar. In Washington, DC, April 17. For further information: 202-626-3464; www.dcbar.org/for_lawyers/events/search_results.cfm.

Album Funding/Loan or Investment. The Court of Appeals of Georgia ruled that a triable issue exists as to whether money given an artist to make and promote an album was a loan or an investment. Marcum v. Gardner, A06A2184. Funder Rob Marcum sued for return of $50,000 after he was unable to reach a final agreement with musician Don Gardner for a total of $150,000 to fund Gardner's album. Reversing the lower court, the court of appeals explained; 'Neither the trial court nor the defendants provide any insight as to why the defendants were entitled to retain the $50,000 as a matter of law ' Moreover, [Gardner's personal manager Dennis] Kurtz, who conducted all negotiations with Marcum, understood that 'Gardner would have to return Marcum's $50,000 if no agreement was reached.” ' Bands/ Partnerships Claims. The U.S. Court of Appeals for the Ninth Circuit found sufficient evidence to establish an issue of triable fact as to whether Alejandro Lopez, former drummer for Los Huracanes del Norte, was a partner in the band. Lopez v. Musinorte Entertainment Corp., 05-15486. In its unpublished opinion, the appeals court noted: '[A] 1992 Artist Recording Agreement and 1994 extension of that agreement established the band members' intent to jointly own certain of the recordings and to share jointly in the profits of the new Unico recordings. These facts support a finding of the existence of a partnership [under Arizona law] ' Moreover, the trademark application ' asserted that the band was a partnership and that Lopez was a general partner.' The appeals court also found a triable issue on Lopez's claim that he was a joint author of the band's master recordings, in part because 'Lopez came forward with evidence that he made an independently copyrightable creative contribution to the sound recordings on par with the other musicians when he developed and performed the rhythmic and percussion elements during the master recordings.' Also, that 'the parties agreed that the band members were equally billed in recordings and performances for the 20 years that Lopez played as a drummer in the band.' … Documentaries/ Defamation. The U.S. Court of Appeals for the Sixth Circuit has affirmed that Michael Moore's film documentary 'Bowling for Columbine' didn't defame the brother of convicted Oklahoma City bomber Terry Nichols. Nichols v. Moore, 05-2075. The appeals court noted: '[E]ach sentence of Moore's narration regarding [plaintiff] James Nichols in Bowling for Columbine is substantially true. Though it is possible that a viewer of the movie could erroneously conclude that James Nichols made practice bombs in preparation for Oklahoma City, and was arrested and charged in the Oklahoma City bombing, the court finds that plaintiff's evidence cannot meet the high hurdle presented by a defamation by implication claim.' ' Film Distribution/Taxes. The Court of Appeals of Michigan decided that Buena Vista Home Entertainment is a 'film distributor' under the state's Single Business Tax Act (SBT). Buena Vista Home Entertainment Inc. v. Department of Treasury, 263536. The SBT allows a film distributor to exclude from its tax based the royalties the distributor paid film producers after July 1993. The state appeals court noted in its unpublished opinion that Buena Vista 'is a film distributor principally engaged in distributing copyrighted motion pictures for home entertainment using the medium of videocassettes.' The court then rejected the treasury department's argument that the SBT applied instead to distributors of movie theaters.

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