Bit Parts

Copyright Infringement/Parody

Deciding the Family Guy TV show's inclusion of the song “I Need a Jew” was a fair-use parody of the tune “When You Wish Upon a Star,” the U.S. District Court for the Southern District of New York noted: “It was the [U.S.] Supreme Court's intention for the parody doctrine to protect new works that have reason to fear they will be unable to obtain a license from copyright holders who wish to shield their works from criticism.” Bourne v. Twentieth Century Fox Film Corp., 07 Civ. 8580(DAB). The district court explained of the Family Guy episode: “After hearing his friends talk about how men with Jewish-sounding names have helped them to achieve financial success, [the show's character] Peter decides that he 'needs a Jew' to help him with his finances.” The court found, among other things: “Defendants' use of 'When You Wish Upon a Star' calls to mind a warm and fuzzy view of the world that is ultimately nonsense; wishing upon a star does not, in fact, make one's dreams come true. By pairing Peter's 'positive,' though racist, stereotypes of Jewish people with that fairy tale world-view, 'I Need a Jew' comments both on the original work's fantasy of Stardust and magic, as well as Peter's fantasy of the 'superiority' of Jews. The song can be 'reasonably perceived' to be commenting that any categorical view of a race of people is childish and simplistic, just like wishing upon a star.”

Mechanical Licenses/Prospective Song “Holds”

In a dispute over whether a record label properly paid royalties and obtained mechanical licenses to use four compositions, the U.S. District Court for the Southern District of New York noted that “there is some question whether a copyright owner may prospectively withhold mechanical licenses based on a licensee's past failure to pay royalties.” But the court found that it “need not address the general question of whether a copyright owner can prospectively prohibit a licensee from taking advantage of [the compulsory licensing provisions of the Copyright Act's] Sec. 115(b), however, because Harry Fox's September 1997 letter [to defendant Karen Records] does not show nearly as much as [songs publisher] EMI claims. [The Harry Fox Agency serves as a licensing clearinghouse for publishers.] The letter does not indicate that a 'license hold' has been placed on Karen's account; and it only purports to terminate 'the aforesaid licenses with respect to the phonorecords set forth in such schedules.' ' Thus, even assuming a copyright owner or its agent may prospectively place a 'hold' on a licensee's ability to obtain mechanical licenses under Sec. 115 ' a position for which there is little support in the statutory text ' Harry Fox's letter failed to do so.” EMI Entertainment World Inc. v. Karen Records Inc., 1:05-cv-00390-RJH-JCF. The court then decided that, for three of the songs, “Karen is liable as an infringer for all sales that occurred within the limitations period for which it did not pay Harry Fox or EMI a statutory royalty,” and that the record label failed to acquire a valid license for the fourth song.

Right of Publicity/”Non-Commercial” Purpose

The U.S. District Court for the Southern District of Illinois found that the non-commercial purposes exception of the Illinois Right of Publicity Act, 76 ILCS 1075/10 et seq., applied to an alleged rebroadcast by ESPN Classic of a 1981 boxing match between Joe Frazier and plaintiff Floyd “Jumbo” Cummings. Cummings v. ESPN Classic Inc., 08-cv-0718-MJR-PMF. Floyd had sought $50 million for ESPN “exploiting his image, cheapening his name, and subjecting him to ridicule.” Dismissing the suit, the district court explained that “the Act expressly exempts the use of a person's identity for non-commercial purposes and then lists several examples of non-commercial purposes: 'including any news, public affairs, or sports broadcast.' 765 ILCS 1075/35(b)(2). Plainly, ESPN's 2007 showing of the Cummings-Frazier fight would qualify as a 'sports broadcast' which the Act identifies as a type of non-commercial use.” The court thus concluded: “[A]lthough the broadcasting of the fight may have caused Cummings to suffer embarrassment, it did not constitute a violation of the right of privacy protected by the Illinois Right of Privacy Act.”

Sampling Licenses/Song Infringement

The U.S. District Court for the Southern District of New York ruled that a music producer who licensed a sample of the song “I Need a Freak” to the Black Eyed Peas infringed on the rights of the “Freak” songwriter. Tolliver v. McCants, 05 Civ. 10840(JFK). Defendant James McCants argued that songwriter Lynn Tolliver had assigned his entire interest in “I Need a Freak” to McCants, with whom Tolliver had recorded. But granting summary judgment for Tolliver, the district court noted: “To be valid, such an assignment would have to be in writing and signed by plaintiff.” The court added: “Defendant offers no evidence of a written assignment. He has failed to produce one and, in fact, testified that one never existed. At deposition, he stated that the assignment was made through an 'understanding' and a 'verbal agreement' with plaintiff. He confirmed that the only written agreement between them related not to the Composition but to artist royalties from the sale of the recordings.”

Copyright Infringement/Parody

Deciding the Family Guy TV show's inclusion of the song “I Need a Jew” was a fair-use parody of the tune “When You Wish Upon a Star,” the U.S. District Court for the Southern District of New York noted: “It was the [U.S.] Supreme Court's intention for the parody doctrine to protect new works that have reason to fear they will be unable to obtain a license from copyright holders who wish to shield their works from criticism.” Bourne v. Twentieth Century Fox Film Corp., 07 Civ. 8580(DAB). The district court explained of the Family Guy episode: “After hearing his friends talk about how men with Jewish-sounding names have helped them to achieve financial success, [the show's character] Peter decides that he 'needs a Jew' to help him with his finances.” The court found, among other things: “Defendants' use of 'When You Wish Upon a Star' calls to mind a warm and fuzzy view of the world that is ultimately nonsense; wishing upon a star does not, in fact, make one's dreams come true. By pairing Peter's 'positive,' though racist, stereotypes of Jewish people with that fairy tale world-view, 'I Need a Jew' comments both on the original work's fantasy of Stardust and magic, as well as Peter's fantasy of the 'superiority' of Jews. The song can be 'reasonably perceived' to be commenting that any categorical view of a race of people is childish and simplistic, just like wishing upon a star.”

Mechanical Licenses/Prospective Song “Holds”

In a dispute over whether a record label properly paid royalties and obtained mechanical licenses to use four compositions, the U.S. District Court for the Southern District of New York noted that “there is some question whether a copyright owner may prospectively withhold mechanical licenses based on a licensee's past failure to pay royalties.” But the court found that it “need not address the general question of whether a copyright owner can prospectively prohibit a licensee from taking advantage of [the compulsory licensing provisions of the Copyright Act's] Sec. 115(b), however, because Harry Fox's September 1997 letter [to defendant Karen Records] does not show nearly as much as [songs publisher] EMI claims. [The Harry Fox Agency serves as a licensing clearinghouse for publishers.] The letter does not indicate that a 'license hold' has been placed on Karen's account; and it only purports to terminate 'the aforesaid licenses with respect to the phonorecords set forth in such schedules.' ' Thus, even assuming a copyright owner or its agent may prospectively place a 'hold' on a licensee's ability to obtain mechanical licenses under Sec. 115 ' a position for which there is little support in the statutory text ' Harry Fox's letter failed to do so.” EMI Entertainment World Inc. v. Karen Records Inc., 1:05-cv-00390-RJH-JCF. The court then decided that, for three of the songs, “Karen is liable as an infringer for all sales that occurred within the limitations period for which it did not pay Harry Fox or EMI a statutory royalty,” and that the record label failed to acquire a valid license for the fourth song.

Right of Publicity/”Non-Commercial” Purpose

The U.S. District Court for the Southern District of Illinois found that the non-commercial purposes exception of the Illinois Right of Publicity Act, 76 ILCS 1075/10 et seq., applied to an alleged rebroadcast by ESPN Classic of a 1981 boxing match between Joe Frazier and plaintiff Floyd “Jumbo” Cummings. Cummings v. ESPN Classic Inc., 08-cv-0718-MJR-PMF. Floyd had sought $50 million for ESPN “exploiting his image, cheapening his name, and subjecting him to ridicule.” Dismissing the suit, the district court explained that “the Act expressly exempts the use of a person's identity for non-commercial purposes and then lists several examples of non-commercial purposes: 'including any news, public affairs, or sports broadcast.' 765 ILCS 1075/35(b)(2). Plainly, ESPN's 2007 showing of the Cummings-Frazier fight would qualify as a 'sports broadcast' which the Act identifies as a type of non-commercial use.” The court thus concluded: “[A]lthough the broadcasting of the fight may have caused Cummings to suffer embarrassment, it did not constitute a violation of the right of privacy protected by the Illinois Right of Privacy Act.”

Sampling Licenses/Song Infringement

The U.S. District Court for the Southern District of New York ruled that a music producer who licensed a sample of the song “I Need a Freak” to the Black Eyed Peas infringed on the rights of the “Freak” songwriter. Tolliver v. McCants, 05 Civ. 10840(JFK). Defendant James McCants argued that songwriter Lynn Tolliver had assigned his entire interest in “I Need a Freak” to McCants, with whom Tolliver had recorded. But granting summary judgment for Tolliver, the district court noted: “To be valid, such an assignment would have to be in writing and signed by plaintiff.” The court added: “Defendant offers no evidence of a written assignment. He has failed to produce one and, in fact, testified that one never existed. At deposition, he stated that the assignment was made through an 'understanding' and a 'verbal agreement' with plaintiff. He confirmed that the only written agreement between them related not to the Composition but to artist royalties from the sale of the recordings.”