Bit Parts

Copyright Preemption/Unfair Competition

The U.S. District Court for the Southern District of Texas decided that author Michael Baisden should amend his complaint over the stage production and film of his novel 'The Maintenance Man' to better state an unfair-competition allegation. Baisden v. I'm Ready Productions Inc. (IRP), H-08-0451. Baisden gave the defendants a three-year license for the stage play, but alleged underpayment of royalties and that the license rights were exceeded. The district court ruled, among other things, that Baisden properly alleged copyright infringement. But the court explained that Texas doesn't recognize a claim for unfair competition 'without some allegation of an independent substantive tort or other illegal conduct ' Although plaintiff argues that his unfair competition claim seeks to vindicate IRP's unlawful attempts to obtain access and derive profits from his current and prospective business relationships, he has neither alleged in his complaint that IRP (or either of the other two defendants) breached a confidential relationship or otherwise engaged in fraudulent or unethical conduct, nor argued that proof of his state law claim for unfair competition requires proof of an additional element not required to prove his federal copyright claim. ' However, because this case is still in an early stage of development and because the court is not persuaded that plaintiff is unable as a matter of law to state a claim that falls under the penumbra of unfair competition under Texas law, plaintiff will be accorded an opportunity
to amend his complaint.'

Music Publishing/Contract Interpretation

The California Court of Appeal, Second District, ruled that federal copyright law didn't control the issue of whether music publishing agreements R&B saxophonist Junior Walker entered into with Jobete Music in 1975 and 1983 replaced single-song agreements he signed in the 1960s. De Walt v. Jobete Music Co. Inc., B197108. Walker's heirs claimed that the 1960s agreements hadn't conveyed the songs' renewal rights. The Court of Appeal noted in an unpublished opinion: 'We agree with Jobete that because the jury determined that the 1960's single-song agreements were replaced by the parties' later agreements and [Walker's heirs] admitted that the later agreements did convey renewal copyrights, the jury was never called upon to decide whether the 1960's single-song agreements conveyed renewal copyrights. Accordingly, no federal question was raised and the case was properly tried in state court.'

Rights in Band Names and Member Personas/Injunctive Relief

The Court of Appeal of California, Second District, upheld a permanent injunction barring founding Doors members Ray Manzarek and Robby Krieger from using 'The Doors' in a name to identify their current band or 'The Doors' logo, or the name, voice or likeness of deceased Doors lead singer Jim Morrison. Densmore v. Manzarek, B186036. The Court of Appeal also affirmed a trial court ruling that Manzarek and Krieger must pay $3.2 million of their profits into The Door's partnership. Founding Doors drummer John Densmore and the estates of lead singer Jim Morrison and his girlfriend Pamela Courson (the Morrison and Courson estates together hold a one-quarter interest in The Doors) sued Manzarek and Krieger, who were touring as 'The Doors Of The 21^st Century.' Manzarek and Krieger claimed their use of Morrison's indicia was protected under the First Amendment by being 'transformative. It helped transport the concertgoers to the time The Doors were at their zenith, the late '60s, without representing that Morrison, who died in 1971, would be appearing at the concert, which, of course, any Doors fan or reasonable attendee would know could not happen.' But the Court of Appeal emphasized in its unpublished opinion: 'This argument only confirms that appellants were exploiting Morrison to publicize their concerts in 2003-2004. The Doors of the '60's were in no sense a new creation of appellants' band of 2003/2004. The only reason to 'transport' concertgoers in 2003/2004 to The Doors 'at their zenith' was to suggest that the 2003/2004 concerts were, in fact, concerts by The Doors.' As for the permanent injunction, the court of appeal noted, 'Appellants can identify themselves as founding or original members of The Doors and can use the words 'The Doors' in the process of doing so. Manzarek and Krieger, however, cannot identify themselves as The Doors.'

The U.S. District Court for the Southern District of New York denied a preliminary injunction to the family of John Lennon on the basis that use of a 15-second excerpt of the song 'Imagine' ' along with the subtitled lyrics 'Nothing to kill or die for/And no religion too' ' in the film 'Expelled: No Intelligence Allowed' constituted copyright fair use. Lennon v. Premise Media Corp., 08 Civ. 3813(SHS). The defendants described 'Expelled' as 'examin[ing] the scientific community's academic suppression of those who ask provocative questions about the origin and development of life.' The District Court noted: 'Defendants' use of 'Imagine' is transformative because their purpose is to criticize the song's message. Moreover, the amount and substantiality of the portion used is reasonable in light of defendants' purpose. Although 'Imagine,' as a creative work, is at the core of copyright protection, and defendants' use of the song is at least partially commercial in nature, the weight of these factors against a finding of fair use is limited given that defendants' use is transformative. Finally, plaintiffs have not shown that defendants' use will usurp the market for licensing the song for non-transformative purposes.'

Copyright Preemption/Unfair Competition

The U.S. District Court for the Southern District of Texas decided that author Michael Baisden should amend his complaint over the stage production and film of his novel 'The Maintenance Man' to better state an unfair-competition allegation. Baisden v. I'm Ready Productions Inc. (IRP), H-08-0451. Baisden gave the defendants a three-year license for the stage play, but alleged underpayment of royalties and that the license rights were exceeded. The district court ruled, among other things, that Baisden properly alleged copyright infringement. But the court explained that Texas doesn't recognize a claim for unfair competition 'without some allegation of an independent substantive tort or other illegal conduct ' Although plaintiff argues that his unfair competition claim seeks to vindicate IRP's unlawful attempts to obtain access and derive profits from his current and prospective business relationships, he has neither alleged in his complaint that IRP (or either of the other two defendants) breached a confidential relationship or otherwise engaged in fraudulent or unethical conduct, nor argued that proof of his state law claim for unfair competition requires proof of an additional element not required to prove his federal copyright claim. ' However, because this case is still in an early stage of development and because the court is not persuaded that plaintiff is unable as a matter of law to state a claim that falls under the penumbra of unfair competition under Texas law, plaintiff will be accorded an opportunity
to amend his complaint.'

Music Publishing/Contract Interpretation

The California Court of Appeal, Second District, ruled that federal copyright law didn't control the issue of whether music publishing agreements R&B saxophonist Junior Walker entered into with Jobete Music in 1975 and 1983 replaced single-song agreements he signed in the 1960s. De Walt v. Jobete Music Co. Inc., B197108. Walker's heirs claimed that the 1960s agreements hadn't conveyed the songs' renewal rights. The Court of Appeal noted in an unpublished opinion: 'We agree with Jobete that because the jury determined that the 1960's single-song agreements were replaced by the parties' later agreements and [Walker's heirs] admitted that the later agreements did convey renewal copyrights, the jury was never called upon to decide whether the 1960's single-song agreements conveyed renewal copyrights. Accordingly, no federal question was raised and the case was properly tried in state court.'

Rights in Band Names and Member Personas/Injunctive Relief

The Court of Appeal of California, Second District, upheld a permanent injunction barring founding Doors members Ray Manzarek and Robby Krieger from using 'The Doors' in a name to identify their current band or 'The Doors' logo, or the name, voice or likeness of deceased Doors lead singer Jim Morrison. Densmore v. Manzarek, B186036. The Court of Appeal also affirmed a trial court ruling that Manzarek and Krieger must pay $3.2 million of their profits into The Door's partnership. Founding Doors drummer John Densmore and the estates of lead singer Jim Morrison and his girlfriend Pamela Courson (the Morrison and Courson estates together hold a one-quarter interest in The Doors) sued Manzarek and Krieger, who were touring as 'The Doors Of The 21^st Century.' Manzarek and Krieger claimed their use of Morrison's indicia was protected under the First Amendment by being 'transformative. It helped transport the concertgoers to the time The Doors were at their zenith, the late '60s, without representing that Morrison, who died in 1971, would be appearing at the concert, which, of course, any Doors fan or reasonable attendee would know could not happen.' But the Court of Appeal emphasized in its unpublished opinion: 'This argument only confirms that appellants were exploiting Morrison to publicize their concerts in 2003-2004. The Doors of the '60's were in no sense a new creation of appellants' band of 2003/2004. The only reason to 'transport' concertgoers in 2003/2004 to The Doors 'at their zenith' was to suggest that the 2003/2004 concerts were, in fact, concerts by The Doors.' As for the permanent injunction, the court of appeal noted, 'Appellants can identify themselves as founding or original members of The Doors and can use the words 'The Doors' in the process of doing so. Manzarek and Krieger, however, cannot identify themselves as The Doors.'

The U.S. District Court for the Southern District of New York denied a preliminary injunction to the family of John Lennon on the basis that use of a 15-second excerpt of the song 'Imagine' ' along with the subtitled lyrics 'Nothing to kill or die for/And no religion too' ' in the film 'Expelled: No Intelligence Allowed' constituted copyright fair use. Lennon v. Premise Media Corp., 08 Civ. 3813(SHS). The defendants described 'Expelled' as 'examin[ing] the scientific community's academic suppression of those who ask provocative questions about the origin and development of life.' The District Court noted: 'Defendants' use of 'Imagine' is transformative because their purpose is to criticize the song's message. Moreover, the amount and substantiality of the portion used is reasonable in light of defendants' purpose. Although 'Imagine,' as a creative work, is at the core of copyright protection, and defendants' use of the song is at least partially commercial in nature, the weight of these factors against a finding of fair use is limited given that defendants' use is transformative. Finally, plaintiffs have not shown that defendants' use will usurp the market for licensing the song for non-transformative purposes.'