Bit Parts

False Endorsement/No Preemption

The U.S. District Court for the Central District of California ruled that musician Jose Estrada's right-of-publicity claims under California common law and Calif. Civ. Code '3344 over the unauthorized use of his recording of his song “La Bamba” in a TV commercial and a TV program weren't preempted by the Copyright Act. Estrada v. Toyota Motor Sales U.S.A. Inc., CV 08-05992 GAF. “Indeed, the crux of Estrada's allegations is the false message, i.e., false endorsement, that the commercial engendered, not merely the reproduction and distribution of the song,” the district court noted in part. The court found, however, that Estrada must amend his '3344 claim to allege the defendants' “knowing use” and a “direct connection” of the use with the commercial purpose. The district court also ruled that Estrada, known as “Skeey,” could proceed with a false endorsement claim under '43(a) of the Lanham Act over the use of “La Bamba,” which he describes as his “signature song.”

Song Copyright/Implied License

The U.S. Court of Appeals for the Eleventh Circuit affirmed that musician/producer Redwin Wilchcombe gave an implied, non-exclusive license for Lil Jon & the East Side Boyz to use a song Wilchcombe created for the album Kings of Crunk. Wilchcombe v. Teevee Toons Inc., 07-13195. The appeals court noted: “Wilchcombe does not dispute that he created the song for the album at Lil Jon's request and that he instructed [Rick] Taylor [who managed the studio where Lil Jon was recording] to send it to Lil Jon for final mixing and inclusion on the album. Wilchcombe testified in his deposition that he understood Lil Jon would use the song on the album. In addition, Wilchcombe does not dispute that when he handed over the song, he never discussed with Taylor or any of the Appellees that using the song would constitute copyright infringement.” The Eleventh Circuit refused to accept Wilchcombe's argument that the implied license was revoked when his lawyer sent a cease-and-desist letter 72 days after the album was released. “Wilchcombe never argued until his motion for reconsideration [before the district court] that such a license had been revoked,” the appeals court noted, adding “Wilchcombe gave no reason in his motion for reconsideration, nor does he now, why he failed to raise this new legal theory before judgment was rendered.” 

Video-Game Statutes/Unconstitutionality

The U.S. Court of Appeals for the Ninth Circuit affirmed the unconstitutionality of Calif. Civ. Code '1746, enacted to ban the rental or sale to minors of video games with violent content. Video Software Dealers Association (VSDA) v. Schwarzenegger, 07-16620. Federal courts have consistently struck down these types of statutes. The California law defines “violent video game” and imposes a labeling requirement on such product. The appeals court noted: “Applying strict scrutiny, we hold that the Act violates rights protected by the First Amendment because the State has not demonstrated a compelling interest, has not tailored the restriction to its alleged compelling interest, and there exist less-restrictive means that would further the State's expressed interests. Additionally, we hold that the Act's labeling requirement is unconstitutionally compelled speech under the First Amendment because it does not require the disclosure of purely factual information; but compels the carrying of the State's controversial opinion.” In light of its holding, the appeals court saw no need to reach the VSDA's vagueness and equal protection challenges to the statute.

False Endorsement/No Preemption

The U.S. District Court for the Central District of California ruled that musician Jose Estrada's right-of-publicity claims under California common law and Calif. Civ. Code '3344 over the unauthorized use of his recording of his song “La Bamba” in a TV commercial and a TV program weren't preempted by the Copyright Act. Estrada v. Toyota Motor Sales U.S.A. Inc., CV 08-05992 GAF. “Indeed, the crux of Estrada's allegations is the false message, i.e., false endorsement, that the commercial engendered, not merely the reproduction and distribution of the song,” the district court noted in part. The court found, however, that Estrada must amend his '3344 claim to allege the defendants' “knowing use” and a “direct connection” of the use with the commercial purpose. The district court also ruled that Estrada, known as “Skeey,” could proceed with a false endorsement claim under '43(a) of the Lanham Act over the use of “La Bamba,” which he describes as his “signature song.”

Song Copyright/Implied License

The U.S. Court of Appeals for the Eleventh Circuit affirmed that musician/producer Redwin Wilchcombe gave an implied, non-exclusive license for Lil Jon & the East Side Boyz to use a song Wilchcombe created for the album Kings of Crunk. Wilchcombe v. Teevee Toons Inc., 07-13195. The appeals court noted: “Wilchcombe does not dispute that he created the song for the album at Lil Jon's request and that he instructed [Rick] Taylor [who managed the studio where Lil Jon was recording] to send it to Lil Jon for final mixing and inclusion on the album. Wilchcombe testified in his deposition that he understood Lil Jon would use the song on the album. In addition, Wilchcombe does not dispute that when he handed over the song, he never discussed with Taylor or any of the Appellees that using the song would constitute copyright infringement.” The Eleventh Circuit refused to accept Wilchcombe's argument that the implied license was revoked when his lawyer sent a cease-and-desist letter 72 days after the album was released. “Wilchcombe never argued until his motion for reconsideration [before the district court] that such a license had been revoked,” the appeals court noted, adding “Wilchcombe gave no reason in his motion for reconsideration, nor does he now, why he failed to raise this new legal theory before judgment was rendered.” 

Video-Game Statutes/Unconstitutionality

The U.S. Court of Appeals for the Ninth Circuit affirmed the unconstitutionality of Calif. Civ. Code '1746, enacted to ban the rental or sale to minors of video games with violent content. Video Software Dealers Association (VSDA) v. Schwarzenegger, 07-16620. Federal courts have consistently struck down these types of statutes. The California law defines “violent video game” and imposes a labeling requirement on such product. The appeals court noted: “Applying strict scrutiny, we hold that the Act violates rights protected by the First Amendment because the State has not demonstrated a compelling interest, has not tailored the restriction to its alleged compelling interest, and there exist less-restrictive means that would further the State's expressed interests. Additionally, we hold that the Act's labeling requirement is unconstitutionally compelled speech under the First Amendment because it does not require the disclosure of purely factual information; but compels the carrying of the State's controversial opinion.” In light of its holding, the appeals court saw no need to reach the VSDA's vagueness and equal protection challenges to the statute.