Bit Parts

Copyright Infringement/Rule 12(b)(6) Motion

Though rarely granted by courts in copyright-infringement cases, the U.S. District Court for the Central District of California approved a Rule 12(b)(6) motion to dismiss a copyright-infringement claim alleging that the syndicated talk show 'Rachael Ray' was substantially similar to a treatment and brief script titled 'Showbiz Chefs' that the plaintiffs submitted to the Food Network. Zella v. The E.W. Scripps Co., CV 06-7055 ABC(JTLX). The district court considered only the complaint itself and DVDs of 'Rachael Ray' episodes. The court also took judicial notice that hosts, celebrity guests, interviews and cooking segments are common TV-show elements. Then applying the extrinsic test, which examines concrete 'articulable similarities,' the court determined that the works in dispute were dissimilar in characters, dialogue, moods, pace, plots, sequences, settings and themes. The court noted that the plaintiffs 'have attached to their Complaint the one-page synopsis and three-page script for Showbiz Chefs, so the Court may consider it on a motion to dismiss. The Court may also consider the Rachael Ray show, as its content comprises the basis for Plaintiffs' claim and the CBS Defendants have, provided copies of episodes. The Court holds that no reasonable jury could conclude that Rachael Ray is substantially similar to any protectable elements of Showbiz Chefs or to the order in which Plaintiffs have presented non-protectable elements in Showbiz Chefs.'

Record Labels and Their Lawyers/Malicious Prosecution

The U.S. Court of Appeals for the Ninth Circuit affirmed dismissal of two malicious-prosecution actions by the husband and estate of anti-gangsta-rap activist C. Delores Tucker against record label Death Row, its distributor Interscope Records and the labels' ligation lawyers. Estate of Tucker v. Interscope Records, 05-56045. The labels had previously sued Tucker alleging intentional interference with contractual relationship, then voluntarily withdrew the suits without prejudice. The appeals court noted: 'The Tuckers assert that a jury could infer from the ad [in Source magazine in 1995 'calling for Mrs. Tucker's elimination'] and lyrics [in two Tupac Shakur songs] that Death Row and Interscope harbored hostility toward Mrs. Tucker and that they brought the underlying lawsuits for the improper purpose of chilling her anti-rap campaign. ' [But for one thing,] such conduct occurred months after the suits were initiated and is simply not probative of either party's subjective intent in filing the underlying litigation.' As for the labels' litigation counsel, the appeals court found 'the Tuckers fail to pinpoint how any of the evidence in the record suggests that any of the attorney-Defendants filed Death Row v. Tucker and Interscope v. Tucker for a purpose other than honoring their clients' wishes.' However, the court ruled on the Tucker's malicious-prosecution claim against Death Row counsel David Kenner: 'With respect to the abuse of process claim in Death Row v. Tucker, ' [a] reasonable fact-finder could infer from Kenner's drafting of the complaint that Kenner knew the abuse of process claim lacked merit.'

Songwriter Royalties/State Levy Statute

The California Court of Appeal, Second District, affirmed an assignment to a judgment creditor, under Calif. Code of Civ. Proc. Sec. 708.510, of a songwriter's ASCAP royalties. General Electric Capital Corp. v. Huxley (GECC), B194524. GECC obtained a multi-million dollar judgment against Craig Huxley, and served a writ of execution on ASCAP to levy Huxley's present and future royalties. ASCAP decided to hold Huxley's royalties until the matter could be resolved. Sec. 708.510 ' which permits a court to order a debtor to assign a judgment creditor monies that become due to the debtor ' also includes 'royalties.' Huxley argued that royalties 'comprise the only mechanism whereby a composer, like Huxley, can earn income' and should therefore be deemed 'earnings.' Under Civ. Proc. Sec. 704.070(b)(2), 75% of 'earnings' are exempt from levy. The court of appeal noted in an unpublished opinion: 'Thus, according to Huxley, 'an Assignment Order for a composer's ASCAP royalties either deprives him of his ongoing livelihood or creates an involuntary servitude in violation of the Thirteenth Amendment of the U.S. Constitution.' Huxley's argument, which is devoid of authority other than references to the applicable statutes and the Thirteenth Amendment, is better suited for the Legislature.'

Video Games/ Celebrity Trademarks

The U.S. District Court for the District of Arizona denied a motion for summary judgment by the maker of wrestling video games sued for trademark violations by well-known wrestler Warrior. Ultimate Creations Inc. v. THQ Inc., CV-05-1134-PHX-SMM. THQ acknowledged that game players could use its games to create a wrestler they think is like Warrior, but the video-game company claimed fair use. However, the district court noted, among other things, that 'the combination of the signature moves, the face paint, the similar symbol, and 'Warrior' call name suggests that Defendant intentionally provided the tools for consumers to create a wrestler in the likeness of Warrior without regard to his intellectual property rights.'

UPCOMING EVENT

SXSW Music Conference 2008 CLE Program, sponsored by SXSW and the Lommen Abdo Law Firm, with support from the GRAMMY Foundations's Entertainment Law Initiative, the American Bar Association Forum on the Entertainment and Sports Industries, and the Recording Academy's GRAMMYs on the Hill Initiative. In Austin, TX, March 14- 15. For further information: 512- 467-7979; www.sxsw.com.

Copyright Infringement/Rule 12(b)(6) Motion

Though rarely granted by courts in copyright-infringement cases, the U.S. District Court for the Central District of California approved a Rule 12(b)(6) motion to dismiss a copyright-infringement claim alleging that the syndicated talk show 'Rachael Ray' was substantially similar to a treatment and brief script titled 'Showbiz Chefs' that the plaintiffs submitted to the Food Network. Zella v. The E.W. Scripps Co., CV 06-7055 ABC(JTLX). The district court considered only the complaint itself and DVDs of 'Rachael Ray' episodes. The court also took judicial notice that hosts, celebrity guests, interviews and cooking segments are common TV-show elements. Then applying the extrinsic test, which examines concrete 'articulable similarities,' the court determined that the works in dispute were dissimilar in characters, dialogue, moods, pace, plots, sequences, settings and themes. The court noted that the plaintiffs 'have attached to their Complaint the one-page synopsis and three-page script for Showbiz Chefs, so the Court may consider it on a motion to dismiss. The Court may also consider the Rachael Ray show, as its content comprises the basis for Plaintiffs' claim and the CBS Defendants have, provided copies of episodes. The Court holds that no reasonable jury could conclude that Rachael Ray is substantially similar to any protectable elements of Showbiz Chefs or to the order in which Plaintiffs have presented non-protectable elements in Showbiz Chefs.'

Record Labels and Their Lawyers/Malicious Prosecution

The U.S. Court of Appeals for the Ninth Circuit affirmed dismissal of two malicious-prosecution actions by the husband and estate of anti-gangsta-rap activist C. Delores Tucker against record label Death Row, its distributor Interscope Records and the labels' ligation lawyers. Estate of Tucker v. Interscope Records, 05-56045. The labels had previously sued Tucker alleging intentional interference with contractual relationship, then voluntarily withdrew the suits without prejudice. The appeals court noted: 'The Tuckers assert that a jury could infer from the ad [in Source magazine in 1995 'calling for Mrs. Tucker's elimination'] and lyrics [in two Tupac Shakur songs] that Death Row and Interscope harbored hostility toward Mrs. Tucker and that they brought the underlying lawsuits for the improper purpose of chilling her anti-rap campaign. ' [But for one thing,] such conduct occurred months after the suits were initiated and is simply not probative of either party's subjective intent in filing the underlying litigation.' As for the labels' litigation counsel, the appeals court found 'the Tuckers fail to pinpoint how any of the evidence in the record suggests that any of the attorney-Defendants filed Death Row v. Tucker and Interscope v. Tucker for a purpose other than honoring their clients' wishes.' However, the court ruled on the Tucker's malicious-prosecution claim against Death Row counsel David Kenner: 'With respect to the abuse of process claim in Death Row v. Tucker, ' [a] reasonable fact-finder could infer from Kenner's drafting of the complaint that Kenner knew the abuse of process claim lacked merit.'

Songwriter Royalties/State Levy Statute

The California Court of Appeal, Second District, affirmed an assignment to a judgment creditor, under Calif. Code of Civ. Proc. Sec. 708.510, of a songwriter's ASCAP royalties. General Electric Capital Corp. v. Huxley (GECC), B194524. GECC obtained a multi-million dollar judgment against Craig Huxley, and served a writ of execution on ASCAP to levy Huxley's present and future royalties. ASCAP decided to hold Huxley's royalties until the matter could be resolved. Sec. 708.510 ' which permits a court to order a debtor to assign a judgment creditor monies that become due to the debtor ' also includes 'royalties.' Huxley argued that royalties 'comprise the only mechanism whereby a composer, like Huxley, can earn income' and should therefore be deemed 'earnings.' Under Civ. Proc. Sec. 704.070(b)(2), 75% of 'earnings' are exempt from levy. The court of appeal noted in an unpublished opinion: 'Thus, according to Huxley, 'an Assignment Order for a composer's ASCAP royalties either deprives him of his ongoing livelihood or creates an involuntary servitude in violation of the Thirteenth Amendment of the U.S. Constitution.' Huxley's argument, which is devoid of authority other than references to the applicable statutes and the Thirteenth Amendment, is better suited for the Legislature.'

Video Games/ Celebrity Trademarks

The U.S. District Court for the District of Arizona denied a motion for summary judgment by the maker of wrestling video games sued for trademark violations by well-known wrestler Warrior. Ultimate Creations Inc. v. THQ Inc., CV-05-1134-PHX-SMM. THQ acknowledged that game players could use its games to create a wrestler they think is like Warrior, but the video-game company claimed fair use. However, the district court noted, among other things, that 'the combination of the signature moves, the face paint, the similar symbol, and 'Warrior' call name suggests that Defendant intentionally provided the tools for consumers to create a wrestler in the likeness of Warrior without regard to his intellectual property rights.'

UPCOMING EVENT

SXSW Music Conference 2008 CLE Program, sponsored by SXSW and the Lommen Abdo Law Firm, with support from the GRAMMY Foundations's Entertainment Law Initiative, the American Bar Association Forum on the Entertainment and Sports Industries, and the Recording Academy's GRAMMYs on the Hill Initiative. In Austin, TX, March 14- 15. For further information: 512- 467-7979; www.sxsw.com.