Cameo Clips

COPYRIGHT INFRINGEMENT/
ACCESS, SIMILARITIES

The U.S. District Court for the Eastern District of Louisiana ruled that a plaintiff in a copyright-infringement suit over a Kid Rock song failed to establish access, or that the works in dispute were substantially or strikingly similar. Landry v. Atlantic Recording Corp., 04-2794. Troy Landry alleged that a repeated two-measure, eight-second riff in Kid Rock's rap-rock song 'Somebody's Gotta Feel This' infringed on two songs Landry wrote. Granting summary judgment for the defendants, the district court explained: 'Landry's allegations, supported only by his affidavit, that the defendants may have heard his music are insufficient to establish access. Landry disseminated copies of his work to various music producers, but any conclusion that these producing defendants heard his work and somehow collaborated with Kid Rock and other performing defendants to copy it is highly speculative. Further, Landry does not contend that his music received nationwide distribution or achieved national acclaim on the music charts to support the allegation that the performing defendants had an opportunity to hear his work. ' Moreover, Landry's statements that Kid Rock could have heard the work [on the jukebox in a club] in New Orleans in 1998 does not address the defendants' affidavits that they completed their song and entered an agreement with the Atlantic Records in September 1997.'

The court continued: 'The works are not so strikingly or substantially similar as to preclude independent creation. The testimony of Landry and his experts focuses only on the two-measure riffs and undermines their conclusion of substantial similarity by recognizing that the measures are common in the rap genre of music. 'The opinions of the defendants' experts support the conclusion that the elements of similarity are common to rock and rap songs and are characteristic of this style of music. ' As an 'ordinary observer' or 'ordinary listener,' the court concludes that a layman would not view the works as substantially similar.'

The U.S. District Court for the Southern District of New York decided that a fraud claim against a TV-content aggregator, over the failure to have music specials broadcast, could be pursued separately from a breach-of-contract claim. M-101 LLC v. iN Demand L.L.C., 06 Civ. 12938(DLC). M-101 was developing TV specials featuring well-known musical artists. It signed an agreement with content aggregator iN Demand (iND), which promised to pay M-101 episode-licensing fees and to 'provide each Episode with a reasonable marketing and advertising campaign which shall include $5 million of MSO [i.e., multiple system operator] media.' After a pilot show with Al Green was broadcast, iND's president informed M-101 that, due to a change in his company's direction, '[m]usic is expected to play little if any rol[e] in our programming line-up' and that the MSOs had 'likely moved on.' When M-101 filed suit, iND argued that M-101's fraud claim should be dismissed because it duplicated a breach-of-contract claim in the complaint. But the district court found: 'M-101 alleges that iND induced it to enter the contract by making a misrepresentation of present fact regarding marketing commitments by third-party MSOs. Although it is related to the subject of the contract, M-101's fraud claim is based on more than a statement of the defendant's intent to perform the contract.'

The court added: 'iND next argues that M-101 has not alleged its fraudulent intent with sufficient particularity. The Complaint supports a strong inference of fraudulent intent because it alleges both motive and opportunity and conscious misbehavior or recklessness.'

COPYRIGHT INFRINGEMENT/
ACCESS, SIMILARITIES

The U.S. District Court for the Eastern District of Louisiana ruled that a plaintiff in a copyright-infringement suit over a Kid Rock song failed to establish access, or that the works in dispute were substantially or strikingly similar. Landry v. Atlantic Recording Corp., 04-2794. Troy Landry alleged that a repeated two-measure, eight-second riff in Kid Rock's rap-rock song 'Somebody's Gotta Feel This' infringed on two songs Landry wrote. Granting summary judgment for the defendants, the district court explained: 'Landry's allegations, supported only by his affidavit, that the defendants may have heard his music are insufficient to establish access. Landry disseminated copies of his work to various music producers, but any conclusion that these producing defendants heard his work and somehow collaborated with Kid Rock and other performing defendants to copy it is highly speculative. Further, Landry does not contend that his music received nationwide distribution or achieved national acclaim on the music charts to support the allegation that the performing defendants had an opportunity to hear his work. ' Moreover, Landry's statements that Kid Rock could have heard the work [on the jukebox in a club] in New Orleans in 1998 does not address the defendants' affidavits that they completed their song and entered an agreement with the Atlantic Records in September 1997.'

The court continued: 'The works are not so strikingly or substantially similar as to preclude independent creation. The testimony of Landry and his experts focuses only on the two-measure riffs and undermines their conclusion of substantial similarity by recognizing that the measures are common in the rap genre of music. 'The opinions of the defendants' experts support the conclusion that the elements of similarity are common to rock and rap songs and are characteristic of this style of music. ' As an 'ordinary observer' or 'ordinary listener,' the court concludes that a layman would not view the works as substantially similar.'

The U.S. District Court for the Southern District of New York decided that a fraud claim against a TV-content aggregator, over the failure to have music specials broadcast, could be pursued separately from a breach-of-contract claim. M-101 LLC v. iN Demand L.L.C., 06 Civ. 12938(DLC). M-101 was developing TV specials featuring well-known musical artists. It signed an agreement with content aggregator iN Demand (iND), which promised to pay M-101 episode-licensing fees and to 'provide each Episode with a reasonable marketing and advertising campaign which shall include $5 million of MSO [i.e., multiple system operator] media.' After a pilot show with Al Green was broadcast, iND's president informed M-101 that, due to a change in his company's direction, '[m]usic is expected to play little if any rol[e] in our programming line-up' and that the MSOs had 'likely moved on.' When M-101 filed suit, iND argued that M-101's fraud claim should be dismissed because it duplicated a breach-of-contract claim in the complaint. But the district court found: 'M-101 alleges that iND induced it to enter the contract by making a misrepresentation of present fact regarding marketing commitments by third-party MSOs. Although it is related to the subject of the contract, M-101's fraud claim is based on more than a statement of the defendant's intent to perform the contract.'

The court added: 'iND next argues that M-101 has not alleged its fraudulent intent with sufficient particularity. The Complaint supports a strong inference of fraudulent intent because it alleges both motive and opportunity and conscious misbehavior or recklessness.'