Bit Parts

Music Contract Claims/Copyright Preemption. The U.S. Court of Appeals for the Sixth Circuit decided that state-law claims by country artist Loretta Lynn over contract rights to her copyrights were not preempted by federal copyright law. Lynn v. Sure-Fire Music Co. Inc., 06-5358. Lynn signed an agreement in the 1960s that gave Sure-Fire worldwide copyright interests in her songs but allowed her to void the agreement upon 'new ownership' of Sure-Fire. Lynn claimed the new-ownership clause was triggered around 2003. In an unpublished opinion, the appeals court explained: 'Lynn carefully pleaded her first cause of action to allege only ownership claims based exclusively on the interpretation of the 1966 written amended agreement entered by the parties. She has not asserted an infringement claim or any other theory equivalent to a right exclusive to the Copyright Act ' Lynn's second and third claims are concerned with dominion over tangible personal property ' and fall outside the scope of the Copyright Act ' Lynn's fourth and fifth claims seek the recovery of money for mixed tort and breach of contract claims ' Lynn must prove the formation and breach of an enforceable written contract which she would not be obligated to prove if these claims were merely for copyright infringement.' ' Performers' Names/Trademarks. The U.S. District Court for the District of Nevada refused to grant a preliminary injunction to bar a Korean artist from appearing as 'Rain' in the United States. Rain Corp. v. JYP Entertainment Ltd., 03:07-CV-00081-LRH-RAM. The plaintiff has produced and performed concerts as a Beatles tribute group named 'Rain' since 1975 and has a registered federal trademark for entertainment services. Korean entertainer Ji-Hoon Jeong, known in Asia and with Asian-American audiences as Rain, started appearing in the United States in 2004. The plaintiff sued for trademark infringement and unfair competition. 'Other than speculation, Plaintiff has provided no
evidence that its hard work and investment will be destroyed,' the district court noted, continuing: '[T]he harm Plaintiff seeks to avoid is compensable to the extent Plaintiff is successful [at trial] ' Jung, on the other hand, is currently beginning the United States portion of his 2006-2007 World Tour ' Defendants have invested more than three million dollars in the United States portion of Jung's world tour' (Jeong canceled several U.S. shows, citing production problems.) ' Right of Publicity/ Choice of Law. The U.S. Court of Appeals for the Ninth Circuit decided that a right-of-publicity suit by Jimi Hendrix's estate should be decided under New York law, the guitarist's domicile at the time of his death in 1970. Experience Hendrix LLC v. The James Marshall Hendrix Foundation, 05-36029. The case out of the Western District of Washington is against a fundraising foundation with which Hendrix's half-brother Leon Hendrix is involved. The Washington Personality Rights Act, Wash. Rev. Code Sec. 63.60.030, includes posthumous rights but contains no choice-of-law provision. New York has no posthumous right of publicity. The federal appeals court's unpublished ruling affirms a grant of partial summary judgment for the defendant foundation. Meanwhile, the Washington Supreme Court declined to review a 2006 ruling by the state Court of Appeals of Washington that Jimi Hendrix's adopted sister Janie hadn't unduly influenced Jim's father Al, whose will left control of Jimi's estate to Janie and largely disinherited Leon. In re Estate of Hendrix, 55711-4-I. ' Right of Publicity/Single-Publication Rule. The Court of Appeal of California, Second District, ruled that the single-publication rule (SPR) applies to the state's right-of-publicity statute, Calif. Civ. Code Sec. 3344, and that the limitations period for Sec. 3344 is two years. Christoff v. Nestl' USA Inc., B182880. (Under the SPR, 'publication' happens upon first general public distribution.) The court of appeal also decided that Sec. 3344 applies to plaintiff Russell Christoff, a professional model whose image was used on a Taster's Choice coffee label without consent or payment. [A jury had awarded Christoff more than $15.3 million.] The court of appeal noted: 'In a retrial the trier of fact must consider whether a reasonable person in Christoff's position had a meaningful ability to discover the use of his likeness ' Christoff is not required to show that Nestl' knew it lacked his consent when it used his image or that he was a celebrity. To recover profits under section 3344, Christoff is required to provide some evidence that the profits were attributable to the use of his identity or persona. If he does, the burden then shifts to Nestl' to show that the percentage of its profits that are not attributable to the use of Christoff's persona.' ' Screenplay Web Sites/Trademarks. The U.S. District Court for the Northern District of California refused to grant a preliminary injunction to stop Universal City Studios from using the title 'Whisper' for an upcoming film. Guichard v. Universal City Studios LLLP, C 06-6392 JSW. Writer Robert Guichard, who set up the website 'Whisper of the Blue' for his unproduced screenplay, filed a trademark claim under the federal Lanham Act. The district court noted, among other things, in an unpublished opinion that although Guichard 'alleges that there have been multiple visits to his website since its launch on Feb. 4, 2006, this minimal use does not establish 'use in commerce' as required to establish priority.'

Except where otherwise indicated, all editorial content of Entertainment Law & Finance is written by Editor-in-Chief Stan Soocher.

Music Contract Claims/Copyright Preemption. The U.S. Court of Appeals for the Sixth Circuit decided that state-law claims by country artist Loretta Lynn over contract rights to her copyrights were not preempted by federal copyright law. Lynn v. Sure-Fire Music Co. Inc., 06-5358. Lynn signed an agreement in the 1960s that gave Sure-Fire worldwide copyright interests in her songs but allowed her to void the agreement upon 'new ownership' of Sure-Fire. Lynn claimed the new-ownership clause was triggered around 2003. In an unpublished opinion, the appeals court explained: 'Lynn carefully pleaded her first cause of action to allege only ownership claims based exclusively on the interpretation of the 1966 written amended agreement entered by the parties. She has not asserted an infringement claim or any other theory equivalent to a right exclusive to the Copyright Act ' Lynn's second and third claims are concerned with dominion over tangible personal property ' and fall outside the scope of the Copyright Act ' Lynn's fourth and fifth claims seek the recovery of money for mixed tort and breach of contract claims ' Lynn must prove the formation and breach of an enforceable written contract which she would not be obligated to prove if these claims were merely for copyright infringement.' ' Performers' Names/Trademarks. The U.S. District Court for the District of Nevada refused to grant a preliminary injunction to bar a Korean artist from appearing as 'Rain' in the United States. Rain Corp. v. JYP Entertainment Ltd., 03:07-CV-00081-LRH-RAM. The plaintiff has produced and performed concerts as a Beatles tribute group named 'Rain' since 1975 and has a registered federal trademark for entertainment services. Korean entertainer Ji-Hoon Jeong, known in Asia and with Asian-American audiences as Rain, started appearing in the United States in 2004. The plaintiff sued for trademark infringement and unfair competition. 'Other than speculation, Plaintiff has provided no
evidence that its hard work and investment will be destroyed,' the district court noted, continuing: '[T]he harm Plaintiff seeks to avoid is compensable to the extent Plaintiff is successful [at trial] ' Jung, on the other hand, is currently beginning the United States portion of his 2006-2007 World Tour ' Defendants have invested more than three million dollars in the United States portion of Jung's world tour' (Jeong canceled several U.S. shows, citing production problems.) ' Right of Publicity/ Choice of Law. The U.S. Court of Appeals for the Ninth Circuit decided that a right-of-publicity suit by Jimi Hendrix's estate should be decided under New York law, the guitarist's domicile at the time of his death in 1970. Experience Hendrix LLC v. The James Marshall Hendrix Foundation, 05-36029. The case out of the Western District of Washington is against a fundraising foundation with which Hendrix's half-brother Leon Hendrix is involved. The Washington Personality Rights Act, Wash. Rev. Code Sec. 63.60.030, includes posthumous rights but contains no choice-of-law provision. New York has no posthumous right of publicity. The federal appeals court's unpublished ruling affirms a grant of partial summary judgment for the defendant foundation. Meanwhile, the Washington Supreme Court declined to review a 2006 ruling by the state Court of Appeals of Washington that Jimi Hendrix's adopted sister Janie hadn't unduly influenced Jim's father Al, whose will left control of Jimi's estate to Janie and largely disinherited Leon. In re Estate of Hendrix, 55711-4-I. ' Right of Publicity/Single-Publication Rule. The Court of Appeal of California, Second District, ruled that the single-publication rule (SPR) applies to the state's right-of-publicity statute, Calif. Civ. Code Sec. 3344, and that the limitations period for Sec. 3344 is two years. Christoff v. Nestl' USA Inc., B182880. (Under the SPR, 'publication' happens upon first general public distribution.) The court of appeal also decided that Sec. 3344 applies to plaintiff Russell Christoff, a professional model whose image was used on a Taster's Choice coffee label without consent or payment. [A jury had awarded Christoff more than $15.3 million.] The court of appeal noted: 'In a retrial the trier of fact must consider whether a reasonable person in Christoff's position had a meaningful ability to discover the use of his likeness ' Christoff is not required to show that Nestl' knew it lacked his consent when it used his image or that he was a celebrity. To recover profits under section 3344, Christoff is required to provide some evidence that the profits were attributable to the use of his identity or persona. If he does, the burden then shifts to Nestl' to show that the percentage of its profits that are not attributable to the use of Christoff's persona.' ' Screenplay Web Sites/Trademarks. The U.S. District Court for the Northern District of California refused to grant a preliminary injunction to stop Universal City Studios from using the title 'Whisper' for an upcoming film. Guichard v. Universal City Studios LLLP, C 06-6392 JSW. Writer Robert Guichard, who set up the website 'Whisper of the Blue' for his unproduced screenplay, filed a trademark claim under the federal Lanham Act. The district court noted, among other things, in an unpublished opinion that although Guichard 'alleges that there have been multiple visits to his website since its launch on Feb. 4, 2006, this minimal use does not establish 'use in commerce' as required to establish priority.'

Except where otherwise indicated, all editorial content of Entertainment Law & Finance is written by Editor-in-Chief Stan Soocher.