Cameo Clips

COPYRIGHT INFRINGEMENT/ CARTOON SERIES

The U.S. District Court for the Northern District of Illinois, Eastern Division, ruled that there was no substantial similarity between the plaintiff's documentary and the defendants' television cartoon series, and that any superficial similarities were based on non-protectable elements. Murphy v. Murphy, 04 C 3496. Documentary filmmaker Daryl Murphy videotaped individuals in the Chicago Housing Authority Projects, where he was raised. Murphy claimed he sent the documentary to Oprah Winfrey's Harpo Productions with a note stating: 'Hope maybe you would show my film on your show, and pass it on to Spike Lee, Tom Hanks, Quincy Jones, Ron Howard, Fred Williamson.' Daryl Murphy later filed a copyright-infringement action against actor Eddie Murphy, executive producer Ron Howard and others involved in the creation and production of 'The PJs,' an Emmy-Award-winning cartoon show set in an urban housing project.

Granting summary judgment for the defendants, the district court explained: '[N]o reasonable jury could find that Plaintiff's video is substantially similar to 'The PJs'. Plaintiff's videotape consists mainly of a disconnected series of interviews with real people, while 'The PJs' is a fictional cartoon with plots related to its fictional characters. The look and feel of the two works are entirely different. Further, what few superficial similarities between Plaintiff's videotape and 'The PJs' concern non-protectable elements of Plaintiff's video, not copyrightable depictions. For example, Plaintiff claims that some of the 'foamation' characters on 'The PJs' look like people in his videotape and that certain of the buildings in the cartoon resemble buildings in his videotape; but Plaintiff cannot own a copyright in someone else's appearance or the way a building looks ' Taking images and facts from real-life people and places and then recasting those images and facts into a cartoon does not support a claim for copyright infringement. Regardless of how original the Plaintiff claims his documentary is, the facts it exposes are 'free for the taking.”

The district court added: 'Plaintiff's videotape was never publicly aired; and Plaintiff does not claim that he sent it to any of the Defendants ' Defendants are also entitled to summary judgment because the evidence is uncontradicted that the concept and characters for 'The PJs' were conceived and created before Plaintiff claims to have sent his videotape to Oprah.' (Winfrey's company had no record of receiving the tape.)

RECORDING AGREEMENTS/LABEL BANKRUPTCY

The U.S. Court of Appeals for the Eleventh Circuit decided that a record label validly obtained an artist's music copyrights ' without an obligation to pay royalties to the artist ' from a company that rejected the artist's contracts in bankruptcy. Thompkins v. Lil' Joe Records Inc., 05-10143. Rap artist Jeffrey Thompkins (p/k/a JT Money) had signed an exclusive agreement with Luke Records in 1989 to create recordings to be released as 'Poison Clan.' JT Money later executed agreements with Luke Records for rights in his compositions. But Luke Records filed for bankruptcy in 1995 and rejected its future royalty obligations to JT Money. Lil' Joe Records then bought assets of the debtor that included the JT Money copyrights. When JT Money sued Lil' Joe over the rights in his works, the district court granted summary judgment for the defendants on the ground that the bankruptcy court's confirmation order precluded JT Money's claims.

Affirming, the appeals court noted: 'We hold that the rejection of the 1989 Agreement did not cause ownership of the Poison Clan Song copyrights to revert to Thompkins; thus, the copyrights properly passed into Luke Records' bankruptcy estate and from there were legally assigned to Lil' Joe. In essence, Thompkins asks this court to deem an executory contract rejection under Sec. 365 [of the U.S. Bankruptcy Code] to be the functional equivalent of a rescission, rendering void the contract and requiring that the parties be put back in the positions they occupied before the contract was formed. This is not the purpose of Sec. 365, nor does Thompkins cite any authority to show otherwise ' [W]hen the bankruptcy court approved the rejection of the Agreement, it freed Luke Records from the obligation, or 'burden,' to pay royalties under the contractual terms and gave Thompkins a pre-petition claim for damages resulting from the breach.'

The court concluded: 'Ultimately, this case boils down to a simple problem'Thompkins missed his chance through the bankruptcy to recover some of the royalty money he would have been owed by Luke Records. Having belatedly realized his error, he now asks this court to play the role of deus ex machina, swooping in to rescue his claims with interpretations of the bankruptcy code that ignore its premium on finality. This we cannot do. Thompkins may think unfair the procedure that Congress devised, but his legal arguments to overcome it are unavailing.'

TV ADVERTISEMENTS/ 'HOMESTYLE EXEMPTION'

The U.S. District Court for the Southern District of New York decided that the 'homestyle exemption' of the Copyright Act didn't permit the owner of a nationwide truck-stop chain to sell replacement advertisements for the plaintiffs' programs that are seen on televisions at the truck-stop facilities. American Broadcasting Cos. Inc. v. Flying J. Inc. 06 Civ. 2967(DAB). Flying J's truck stops featured televisions with programming from the DISH Network. Flying J used a 'segOne' device that automatically replaced advertisements in the programs with spots from advertisers that paid $30,000 per month to be specifically at the Flying J facilities. When several major TV networks filed suit, Flying J argued that its ad-replacement practice was permissible under the 'homestyle exemption' of 17 U.S.C. Sec. 110(5)(A), which permits 'commercial establishments ' to publicly perform copyrighted works using the kind of apparatus commonly used in private homes.'

The district court noted: 'Defendants may well be correct that their public performance of Plaintiffs' copyrighted audiovisual works for their customers using the DISH Network service was protected by the homestyle exemption, given that such satellite television services, including the types of satellite dish antennae they employ, are today, clearly likely to be 'commonly found in the home' ' [But w]ere the Court to find that the homestyle exemption potentially protects the particular conduct that Plaintiffs allege is infringing, it would effectively be reading a new right into the plain language of 17 U.S.C. Sec. 110(5)(A). The exemption protects 'ordinary radios and television sets' that make unauthorized use of copyrighted works 'for the incidental entertainment of patrons in small businesses or other professional establishments' ' The plain language of the statute is not susceptible to an interpretation that would extend such protection to a brand new commercial technology [i.e., the segOne device] that is instead apparently designed to increase competition in the television advertising business.'

But the district court decided that the plaintiffs' state unfair-competition claim was preempted by federal copyright law.

CHARACTER-NAME SUITS/ANTI-SLAPP STATUTE

The Court of Appeal of California, Second District, Division 3, denied a defense motion to strike under the state's anti-SLAPP statute a lawsuit alleging defamation and invasion of privacy over the release of a DVD edition of the movie 'Reality Bites.' Dyer v. Childress, B187804. California Civil Code Sec. 425.16 is intended to protect against 'a strategic lawsuit against public participation,' that is, one that interferes with discussion of issues of public concern. Screenplay writer Helen Childress had gone to film school with an individual named Troy Dyer and included a character with that name portrayed as 'rebellious slacker.' The real Troy Dyer, now a financial consultant, sued after release of the Tenth Anniversary DVD edition of the movie. The defendants argued that use of Dyer's name amounted to 'conduct in furtherance of the exercise of the constitutional right of ' free speech in connection with ' an issue of public interest,' here issues that had confronted Generation X in the 1990s.

The court of appeal noted, however, that 'not all speech in a movie is of public significance and therefore entitled to protection under the anti-SLAPP statute ' [T]he representation of Troy Dyer as a rebellious slacker is not a matter of public interest and there is no discernable public interest in Dyer's persona. Although Reality Bites may address topics of widespread public interest, the defendants are unable to draw any connection between those topics and Dyer's defamation and false light claims ' [A]ssuming the issues facing Generation X at the start of the 1990's are of significant interest to the public, Dyer, a financial consultant living in Wisconsin who happened to have gone to school with Childress, was not connected to these issues in any way.'

COPYRIGHT INFRINGEMENT/ CARTOON SERIES

The U.S. District Court for the Northern District of Illinois, Eastern Division, ruled that there was no substantial similarity between the plaintiff's documentary and the defendants' television cartoon series, and that any superficial similarities were based on non-protectable elements. Murphy v. Murphy , 04 C 3496. Documentary filmmaker Daryl Murphy videotaped individuals in the Chicago Housing Authority Projects, where he was raised. Murphy claimed he sent the documentary to Oprah Winfrey's Harpo Productions with a note stating: 'Hope maybe you would show my film on your show, and pass it on to Spike Lee, Tom Hanks, Quincy Jones, Ron Howard, Fred Williamson.' Daryl Murphy later filed a copyright-infringement action against actor Eddie Murphy, executive producer Ron Howard and others involved in the creation and production of 'The PJs,' an Emmy-Award-winning cartoon show set in an urban housing project.

Granting summary judgment for the defendants, the district court explained: '[N]o reasonable jury could find that Plaintiff's video is substantially similar to 'The PJs'. Plaintiff's videotape consists mainly of a disconnected series of interviews with real people, while 'The PJs' is a fictional cartoon with plots related to its fictional characters. The look and feel of the two works are entirely different. Further, what few superficial similarities between Plaintiff's videotape and 'The PJs' concern non-protectable elements of Plaintiff's video, not copyrightable depictions. For example, Plaintiff claims that some of the 'foamation' characters on 'The PJs' look like people in his videotape and that certain of the buildings in the cartoon resemble buildings in his videotape; but Plaintiff cannot own a copyright in someone else's appearance or the way a building looks ' Taking images and facts from real-life people and places and then recasting those images and facts into a cartoon does not support a claim for copyright infringement. Regardless of how original the Plaintiff claims his documentary is, the facts it exposes are 'free for the taking.”

The district court added: 'Plaintiff's videotape was never publicly aired; and Plaintiff does not claim that he sent it to any of the Defendants ' Defendants are also entitled to summary judgment because the evidence is uncontradicted that the concept and characters for 'The PJs' were conceived and created before Plaintiff claims to have sent his videotape to Oprah.' (Winfrey's company had no record of receiving the tape.)

RECORDING AGREEMENTS/LABEL BANKRUPTCY

The U.S. Court of Appeals for the Eleventh Circuit decided that a record label validly obtained an artist's music copyrights ' without an obligation to pay royalties to the artist ' from a company that rejected the artist's contracts in bankruptcy. Thompkins v. Lil' Joe Records Inc., 05-10143. Rap artist Jeffrey Thompkins (p/k/a JT Money) had signed an exclusive agreement with Luke Records in 1989 to create recordings to be released as 'Poison Clan.' JT Money later executed agreements with Luke Records for rights in his compositions. But Luke Records filed for bankruptcy in 1995 and rejected its future royalty obligations to JT Money. Lil' Joe Records then bought assets of the debtor that included the JT Money copyrights. When JT Money sued Lil' Joe over the rights in his works, the district court granted summary judgment for the defendants on the ground that the bankruptcy court's confirmation order precluded JT Money's claims.

Affirming, the appeals court noted: 'We hold that the rejection of the 1989 Agreement did not cause ownership of the Poison Clan Song copyrights to revert to Thompkins; thus, the copyrights properly passed into Luke Records' bankruptcy estate and from there were legally assigned to Lil' Joe. In essence, Thompkins asks this court to deem an executory contract rejection under Sec. 365 [of the U.S. Bankruptcy Code] to be the functional equivalent of a rescission, rendering void the contract and requiring that the parties be put back in the positions they occupied before the contract was formed. This is not the purpose of Sec. 365, nor does Thompkins cite any authority to show otherwise ' [W]hen the bankruptcy court approved the rejection of the Agreement, it freed Luke Records from the obligation, or 'burden,' to pay royalties under the contractual terms and gave Thompkins a pre-petition claim for damages resulting from the breach.'

The court concluded: 'Ultimately, this case boils down to a simple problem'Thompkins missed his chance through the bankruptcy to recover some of the royalty money he would have been owed by Luke Records. Having belatedly realized his error, he now asks this court to play the role of deus ex machina, swooping in to rescue his claims with interpretations of the bankruptcy code that ignore its premium on finality. This we cannot do. Thompkins may think unfair the procedure that Congress devised, but his legal arguments to overcome it are unavailing.'

TV ADVERTISEMENTS/ 'HOMESTYLE EXEMPTION'

The U.S. District Court for the Southern District of New York decided that the 'homestyle exemption' of the Copyright Act didn't permit the owner of a nationwide truck-stop chain to sell replacement advertisements for the plaintiffs' programs that are seen on televisions at the truck-stop facilities. American Broadcasting Cos. Inc. v. Flying J. Inc. 06 Civ. 2967(DAB). Flying J's truck stops featured televisions with programming from the DISH Network. Flying J used a 'segOne' device that automatically replaced advertisements in the programs with spots from advertisers that paid $30,000 per month to be specifically at the Flying J facilities. When several major TV networks filed suit, Flying J argued that its ad-replacement practice was permissible under the 'homestyle exemption' of 17 U.S.C. Sec. 110(5)(A), which permits 'commercial establishments ' to publicly perform copyrighted works using the kind of apparatus commonly used in private homes.'

The district court noted: 'Defendants may well be correct that their public performance of Plaintiffs' copyrighted audiovisual works for their customers using the DISH Network service was protected by the homestyle exemption, given that such satellite television services, including the types of satellite dish antennae they employ, are today, clearly likely to be 'commonly found in the home' ' [But w]ere the Court to find that the homestyle exemption potentially protects the particular conduct that Plaintiffs allege is infringing, it would effectively be reading a new right into the plain language of 17 U.S.C. Sec. 110(5)(A). The exemption protects 'ordinary radios and television sets' that make unauthorized use of copyrighted works 'for the incidental entertainment of patrons in small businesses or other professional establishments' ' The plain language of the statute is not susceptible to an interpretation that would extend such protection to a brand new commercial technology [i.e., the segOne device] that is instead apparently designed to increase competition in the television advertising business.'

But the district court decided that the plaintiffs' state unfair-competition claim was preempted by federal copyright law.