Cameo Clips

COPYRIGHT INFRINGEMENT/LACK OF ACCESS

The U.S. District Court for the Southern District of New York granted summary judgment for Mariah Carey and her co-defendants in a suit alleging that the song 'It's Like That' from Carey's album 'The Emancipation of Mimi' infringed on plaintiff Rachele Chafir's song 'Sexy.' Chafir v. Carey, 06 Civ. 3016(KMW). The district court found that Chafir failed to show the defendants had access to her work or that, alternatively, the two songs were strikingly similar. The district court noted in part: 'Plaintiff cannot infer access from the fact that the Individual Defendants cannot recall who composed the alleged infringing portion of Defendants' Song. Plaintiff suggests that this collective 'memory loss' creates an 'inference that [the Individual Defendants] have something to hide.' ' There is absolutely no evidence on record, however, apart from Plaintiff's speculation, supporting such an inference.'

The U.S. District Court for the District of Massachusetts granted summary judgment for Dan Brown, author of the best-selling book 'The DaVinci Code,' in a copyright-infringement suit by John F. Dunn, author of the book 'The Vatican Boys.' Dunn v. Brown, 06-30134-MAP. The district court declined to accept Dunn's claim of substantial 'thematic and structural' similarity. The court noted the theory 'has little or no support in the law as a basis for a copyright claim. Plaintiff offers no allegation of verbatim, or near verbatim, copying; rather, Plaintiff asserts that the basic outlines of the two books are sufficiently similar that the latter book must, or at least may, be seen as violating Plaintiff's copyright. No prior case recognizing a theory of copyright infringement based on the sort of thematic or structural similarity posited by Plaintiff has been offered in his memorandum opposing summary judgment, nor has the court found one.' The court added: 'Far from being similar, the characters, plot devices, settings, pacing, tone, and theme of the two books are entirely different.'

The U.S. Court of Appeals for the First Circuit decided that a reconstruction copy of a musical composition didn't qualify as a 'deposit copy' for purposes of proper copyright registration. Torres-Negron v. J&N Records Inc., 06-2058. Plaintiff Fernando Torres-Negron claimed he wrote the song 'Noche de Fiesta' in 1993. He applied for copyright registration after learning in 2001 of the song's allegedly infringing use on several CDs. By that time, the appeals court noted, 'he no longer had access to either the original writing of the lyrics or the tape recording of the song. ' Torres reconstructed his original work from memory by singing the song, while clapping the rhythm, into a tape recorder. It was the reconstruction, made in 2001, that he submitted to the Copyright Office. ' [W]e conclude that a reconstruction, created without first-hand access to the original, cannot constitute a 'copy' sufficient to satisfy the deposit copy requirement in 17 U.S.C. Sec. 408(b).'

The U.S. District Court for the Southern District of New York found that a genuine issue of material fact exists as to whether a record-distribution agreement included the right to make derivative works from the underlying compositions. TeeVee Toons Inc. (TVT) v. DM Records Inc., 05 Civ. 5602(JGK). TVT alleged copyright infringement by DM Records of several compositions in which TVT in 2001 obtained the copyright interests of rapper Lil Jon. The songs previously appeared on Lil Jon's 'Get Crunk, Who U Wit: da Album,' manufactured by engineer/mixer Carlos Glover. A 2000 termination agreement between Glover and Lil Jon gave Glover the right to make derivative works from the compositions. Glover then signed a deal for DM Records to distribute recordings containing the compositions.

The district court noted: 'On its face, the [Glover/DM Records] agreement is solely a record distribution agreement, and does not specifically convey any right to DM Records to make derivative works. On the other hand, the agreement is an exclusive distribution agreement with a worldwide territory; it requires Glover to obtain any necessary licenses and copyright registrations for the covered recordings; and it defines recordings broadly and includes reproductions made in the future. The plaintiff contends that the agreement did not provide DM Records the right to make any derivative works from the Compositions in the future without obtaining a separate license for that use in the future. However, the agreement is not so unambiguous that the Court could decide as a matter of law whether it required Glover to distribute future derivative works from the Compositions through DM Records and undertook to convey any necessary licenses to do that.'

The U.S. District Court for the Southern District of New York granted a motion to exclude the testimony of valuation experts of 24/7 Records in the label's suit against Artemis Records and Sony Music Entertain- ment over termination of a record-distribution agreement. 24/7 Records Inc. v. Sony Music Entertainment Inc., 03 Civ. 3204(MGC). 24/7 sought damages for its demise based on the fair-market value of its business on the termination date. The label's expert Gordon Anderson, a veteran record executive, concluded 24/7 was worth at least $2 million and as much as $5 million at that time. Record-industry lawyer David Berman, also an expert for 24/7, agreed with Anderson's numbers. The $2 million figure was based on the amount of money invested in 24/7 as of the termination, but the court emphasized: 'Anderson does not provide any source for this theory of valuation. Nor does he testify that this is an established or accepted method of valuing a business.' Of the $5 million figure, the court noted: 'Anderson does not explain how he translated 24/7's financial solvency, successful exploitation of artists and music, industry notoriety, and relationship with Artemis and [Sony Music distribution arm] RED into dollar figures. At his deposition he testified that he did not ascribe independent values to any of these factors.'

The U.S. Court of Appeals for the Eighth Circuit decided that a company had a First Amendment right to use, without a license, the names of and information about major league baseball players for fantasy-sports products. C.B.C. Distribution and Marketing Inc. v. Major League Baseball Advanced Media L.P., 06-3357. The appeals court found that the use was for commercial advantage but that 'the information used in CBC's fantasy baseball games is all readily available in the public domain, and it would be strange law that a person would not have a first amendment right to use information that is available to everyone.' The court added: 'But major league baseball players are rewarded, and handsomely, too, for their participation in games and can earn additional large sums from endorsements and sponsorship arrangements. Nor is there any danger here that consumers will be misled, because the fantasy baseball games depend on the inclusion of all players and thus cannot create a false impression that some particular player with 'star power' is endorsing CBC's products.'

COPYRIGHT INFRINGEMENT/LACK OF ACCESS

The U.S. District Court for the Southern District of New York granted summary judgment for Mariah Carey and her co-defendants in a suit alleging that the song 'It's Like That' from Carey's album 'The Emancipation of Mimi' infringed on plaintiff Rachele Chafir's song 'Sexy.' Chafir v. Carey, 06 Civ. 3016(KMW). The district court found that Chafir failed to show the defendants had access to her work or that, alternatively, the two songs were strikingly similar. The district court noted in part: 'Plaintiff cannot infer access from the fact that the Individual Defendants cannot recall who composed the alleged infringing portion of Defendants' Song. Plaintiff suggests that this collective 'memory loss' creates an 'inference that [the Individual Defendants] have something to hide.' ' There is absolutely no evidence on record, however, apart from Plaintiff's speculation, supporting such an inference.'

The U.S. District Court for the District of Massachusetts granted summary judgment for Dan Brown, author of the best-selling book 'The DaVinci Code,' in a copyright-infringement suit by John F. Dunn, author of the book 'The Vatican Boys.' Dunn v. Brown, 06-30134-MAP. The district court declined to accept Dunn's claim of substantial 'thematic and structural' similarity. The court noted the theory 'has little or no support in the law as a basis for a copyright claim. Plaintiff offers no allegation of verbatim, or near verbatim, copying; rather, Plaintiff asserts that the basic outlines of the two books are sufficiently similar that the latter book must, or at least may, be seen as violating Plaintiff's copyright. No prior case recognizing a theory of copyright infringement based on the sort of thematic or structural similarity posited by Plaintiff has been offered in his memorandum opposing summary judgment, nor has the court found one.' The court added: 'Far from being similar, the characters, plot devices, settings, pacing, tone, and theme of the two books are entirely different.'

The U.S. Court of Appeals for the First Circuit decided that a reconstruction copy of a musical composition didn't qualify as a 'deposit copy' for purposes of proper copyright registration. Torres-Negron v. J&N Records Inc., 06-2058. Plaintiff Fernando Torres-Negron claimed he wrote the song 'Noche de Fiesta' in 1993. He applied for copyright registration after learning in 2001 of the song's allegedly infringing use on several CDs. By that time, the appeals court noted, 'he no longer had access to either the original writing of the lyrics or the tape recording of the song. ' Torres reconstructed his original work from memory by singing the song, while clapping the rhythm, into a tape recorder. It was the reconstruction, made in 2001, that he submitted to the Copyright Office. ' [W]e conclude that a reconstruction, created without first-hand access to the original, cannot constitute a 'copy' sufficient to satisfy the deposit copy requirement in 17 U.S.C. Sec. 408(b).'

The U.S. District Court for the Southern District of New York found that a genuine issue of material fact exists as to whether a record-distribution agreement included the right to make derivative works from the underlying compositions. TeeVee Toons Inc. (TVT) v. DM Records Inc., 05 Civ. 5602(JGK). TVT alleged copyright infringement by DM Records of several compositions in which TVT in 2001 obtained the copyright interests of rapper Lil Jon. The songs previously appeared on Lil Jon's 'Get Crunk, Who U Wit: da Album,' manufactured by engineer/mixer Carlos Glover. A 2000 termination agreement between Glover and Lil Jon gave Glover the right to make derivative works from the compositions. Glover then signed a deal for DM Records to distribute recordings containing the compositions.

The district court noted: 'On its face, the [Glover/DM Records] agreement is solely a record distribution agreement, and does not specifically convey any right to DM Records to make derivative works. On the other hand, the agreement is an exclusive distribution agreement with a worldwide territory; it requires Glover to obtain any necessary licenses and copyright registrations for the covered recordings; and it defines recordings broadly and includes reproductions made in the future. The plaintiff contends that the agreement did not provide DM Records the right to make any derivative works from the Compositions in the future without obtaining a separate license for that use in the future. However, the agreement is not so unambiguous that the Court could decide as a matter of law whether it required Glover to distribute future derivative works from the Compositions through DM Records and undertook to convey any necessary licenses to do that.'

The U.S. District Court for the Southern District of New York granted a motion to exclude the testimony of valuation experts of 24/7 Records in the label's suit against Artemis Records and Sony Music Entertain- ment over termination of a record-distribution agreement. 24/7 Records Inc. v. Sony Music Entertainment Inc., 03 Civ. 3204(MGC). 24/7 sought damages for its demise based on the fair-market value of its business on the termination date. The label's expert Gordon Anderson, a veteran record executive, concluded 24/7 was worth at least $2 million and as much as $5 million at that time. Record-industry lawyer David Berman, also an expert for 24/7, agreed with Anderson's numbers. The $2 million figure was based on the amount of money invested in 24/7 as of the termination, but the court emphasized: 'Anderson does not provide any source for this theory of valuation. Nor does he testify that this is an established or accepted method of valuing a business.' Of the $5 million figure, the court noted: 'Anderson does not explain how he translated 24/7's financial solvency, successful exploitation of artists and music, industry notoriety, and relationship with Artemis and [Sony Music distribution arm] RED into dollar figures. At his deposition he testified that he did not ascribe independent values to any of these factors.'

The U.S. Court of Appeals for the Eighth Circuit decided that a company had a First Amendment right to use, without a license, the names of and information about major league baseball players for fantasy-sports products. C.B.C. Distribution and Marketing Inc. v. Major League Baseball Advanced Media L.P., 06-3357. The appeals court found that the use was for commercial advantage but that 'the information used in CBC's fantasy baseball games is all readily available in the public domain, and it would be strange law that a person would not have a first amendment right to use information that is available to everyone.' The court added: 'But major league baseball players are rewarded, and handsomely, too, for their participation in games and can earn additional large sums from endorsements and sponsorship arrangements. Nor is there any danger here that consumers will be misled, because the fantasy baseball games depend on the inclusion of all players and thus cannot create a false impression that some particular player with 'star power' is endorsing CBC's products.'