Bit Parts

Copyright Infringement/File Sharing

Federal district courts are split on the sufficiency of complaints by content owners alleging that unauthorized file sharers infringe by “making available” the plaintiffs' copyrights. Now the U.S. District Court for the Eastern District of North Carolina has weighed in on the issue. Warner Bros. Records Inc. v. Doe, 5:08-CV-116-FL. The district court noted: “[T]he Fourth Circuit has held that a library distributes a copyrighted work under Sec. 106(3) [of the Copyright Act] when it 'holds a copy in its collection, lists the copy in its card file, and makes the copy available to the public,' Hotaling v. Church of Jesus Christ of Latter-Day Saints, 118 F.3d 199, 204 (4th Cir. 1997). Parties dispute whether the holding in Hotaling extends to the context of sound recordings made available over the [I]nternet. The court, however, need not decide here whether 'making available' a sound recording over the [I]nternet constitutes a distribution, as plaintiffs' complaint sufficiently alleges an actual dissemination of copies of the recordings has occurred.” The district court continued: “The complaint alleges, upon information and belief, that defendant 'without the permission or consent of Plaintiffs, has continuously used, and continues to use, an online media distribution system to download and/or distribute to the public certain of the Copyrighted Recordings.' ' Attached to the complaint is an exhibit that provides a list of copyrighted recordings, the specific peer-to-peer network used, and an IP address that can reasonably be inferred to belong to defendant. (Ex. A). Exhibit A also contains a date and time, which the complaint indicates is when the files were 'captured.' ' The court, drawing all reasonable factual inferences in plaintiffs' favor, reads this as an allegation that copies of the recordings were actually obtained from defendant at that date and time. In light of these allegations, the court rejects defendant's assertion that '[t]he Complaint and Exhibit A, when taken in the light most favorable to the Plaintiffs, allege only the existence, in a static state, of ten song recordings on a given computer connected to the Internet at a certain moment in time.'”

Copyright Licenses/Notice of Ownership

Section 205(e) of the Copyright Act recognizes the validity of a written non-exclusive license over a transfer of ownership in the underlying copyright where the non-exclusive licensee obtains its license in good faith before the ownership transfer was recorded with the U.S. Copyright Office. But the U.S. District Court for the Middle District of Tennessee, Nashville Division, held that “Sec. 205(e) should not be read as intending to mean that a non-exclusive license initially taken without notice of another's rights provides blanket protection from all manners of infringement after the infringing party receives unequivocal notice of another's rights.” Bennett v. Navarre Corp., 3:07-0200. Kenneth Bennett sued after BCI Eclipse distributed several Christmas recordings that Bennett had obtained ownership of from Ritewell Commercial Services. Ritewell had subsequently issued a non-exclusive license to BCI. The district court found the defendants were liable for infringements committed after they received notice of Bennett's copyright ownership rights from Bennett's lawyer. Navarre Corp. owns BCI and distributes BCI's products. The court also found that “Navarre is liable, because, even if it was unaware of Plaintiff's rights to the work which BCI infringed, it would be liable as a vicarious as opposed to a contributory infringer.”

Copyright Ownership/Films

The U.S. District Court for the Central District of California decided that film director Stanley Donen didn't have a separate copyright in a dance sequence that he claimed he created for the 1957 motion picture Funny Face. Donen v. Paramount Pictures, CV 08-03383 DDP (VBKx). Donen filed suit after Paramount licensed the sequence in 2006 for The Gap to use in TV commercials. The district court noted, “Even assuming Plaintiff's argument, his claim is not supported by the Complaint. Paramount registered and renewed a copyright in the 'entirety' of the Motion Picture. ' As such, even assuming the Dance Scene is a copyrightable component, no separate copyright currently exists. Therefore, Defendant Paramount does not hold an ownership interest in this scene in 'trust' for Plaintiff.” But the court allowed Donen to proceed with his claims of ownership or co-ownership of the copyright in the entire film. Donen had originally signed an agreement to provide his services to Loews Corp., which by then as MGM, loaned Donen to Paramount to work on Funny Face. The court explained: “Loews owned all rights and proceeds from any of Plaintiff's work for it under his agreement. ' However, the Loews Agreement is ambiguous as to whether Plaintiff assigned any rights to work performed with Loews' permission for third parties. The Loews Agreement states that Plaintiff's new employer or contractor 'shall be entitled' to any of his rights or proceeds, but does not explicitly assign, transfer, or otherwise encumber any of Plaintiff's rights or proceeds. ' In the only section which squarely addresses this issue, the Loews Agreement states that Plaintiff's services may be loaned 'in any capacity' ' which includes relationships beyond the traditional employer-employee or work for hire settings.”

Copyright Infringement/File Sharing

Federal district courts are split on the sufficiency of complaints by content owners alleging that unauthorized file sharers infringe by “making available” the plaintiffs' copyrights. Now the U.S. District Court for the Eastern District of North Carolina has weighed in on the issue. Warner Bros. Records Inc. v. Doe, 5:08-CV-116-FL. The district court noted: “[T]he Fourth Circuit has held that a library distributes a copyrighted work under Sec. 106(3) [of the Copyright Act] when it 'holds a copy in its collection, lists the copy in its card file, and makes the copy available to the public,' Hotaling v. Church of Jesus Christ of Latter-Day Saints , 118 F.3d 199, 204 (4th Cir. 1997). Parties dispute whether the holding in Hotaling extends to the context of sound recordings made available over the [I]nternet. The court, however, need not decide here whether 'making available' a sound recording over the [I]nternet constitutes a distribution, as plaintiffs' complaint sufficiently alleges an actual dissemination of copies of the recordings has occurred.” The district court continued: “The complaint alleges, upon information and belief, that defendant 'without the permission or consent of Plaintiffs, has continuously used, and continues to use, an online media distribution system to download and/or distribute to the public certain of the Copyrighted Recordings.' ' Attached to the complaint is an exhibit that provides a list of copyrighted recordings, the specific peer-to-peer network used, and an IP address that can reasonably be inferred to belong to defendant. (Ex. A). Exhibit A also contains a date and time, which the complaint indicates is when the files were 'captured.' ' The court, drawing all reasonable factual inferences in plaintiffs' favor, reads this as an allegation that copies of the recordings were actually obtained from defendant at that date and time. In light of these allegations, the court rejects defendant's assertion that '[t]he Complaint and Exhibit A, when taken in the light most favorable to the Plaintiffs, allege only the existence, in a static state, of ten song recordings on a given computer connected to the Internet at a certain moment in time.'”

Copyright Licenses/Notice of Ownership

Section 205(e) of the Copyright Act recognizes the validity of a written non-exclusive license over a transfer of ownership in the underlying copyright where the non-exclusive licensee obtains its license in good faith before the ownership transfer was recorded with the U.S. Copyright Office. But the U.S. District Court for the Middle District of Tennessee, Nashville Division, held that “Sec. 205(e) should not be read as intending to mean that a non-exclusive license initially taken without notice of another's rights provides blanket protection from all manners of infringement after the infringing party receives unequivocal notice of another's rights.” Bennett v. Navarre Corp., 3:07-0200. Kenneth Bennett sued after BCI Eclipse distributed several Christmas recordings that Bennett had obtained ownership of from Ritewell Commercial Services. Ritewell had subsequently issued a non-exclusive license to BCI. The district court found the defendants were liable for infringements committed after they received notice of Bennett's copyright ownership rights from Bennett's lawyer. Navarre Corp. owns BCI and distributes BCI's products. The court also found that “Navarre is liable, because, even if it was unaware of Plaintiff's rights to the work which BCI infringed, it would be liable as a vicarious as opposed to a contributory infringer.”

Copyright Ownership/Films

The U.S. District Court for the Central District of California decided that film director Stanley Donen didn't have a separate copyright in a dance sequence that he claimed he created for the 1957 motion picture Funny Face. Donen v. Paramount Pictures, CV 08-03383 DDP (VBKx). Donen filed suit after Paramount licensed the sequence in 2006 for The Gap to use in TV commercials. The district court noted, “Even assuming Plaintiff's argument, his claim is not supported by the Complaint. Paramount registered and renewed a copyright in the 'entirety' of the Motion Picture. ' As such, even assuming the Dance Scene is a copyrightable component, no separate copyright currently exists. Therefore, Defendant Paramount does not hold an ownership interest in this scene in 'trust' for Plaintiff.” But the court allowed Donen to proceed with his claims of ownership or co-ownership of the copyright in the entire film. Donen had originally signed an agreement to provide his services to Loews Corp., which by then as MGM, loaned Donen to Paramount to work on Funny Face. The court explained: “Loews owned all rights and proceeds from any of Plaintiff's work for it under his agreement. ' However, the Loews Agreement is ambiguous as to whether Plaintiff assigned any rights to work performed with Loews' permission for third parties. The Loews Agreement states that Plaintiff's new employer or contractor 'shall be entitled' to any of his rights or proceeds, but does not explicitly assign, transfer, or otherwise encumber any of Plaintiff's rights or proceeds. ' In the only section which squarely addresses this issue, the Loews Agreement states that Plaintiff's services may be loaned 'in any capacity' ' which includes relationships beyond the traditional employer-employee or work for hire settings.”