Bit Parts

Concert Financing/Loan Guaranty

The California Court of Appeal, Fourth District, decided that a guarantor for a loan to help finance a Great Wall of China rock concert was obligated to repay the financier who made the loan. Stewart v. Joyce & Associates Inc., G039871. Plaintiff John Stewart had loaned promoter Doc Brown Productions $250,000. Stewart later obtained a default judgment against Doc Brown, but the lower court ruled for loan guarantor Joyce & Associates on the ground that the concert hadn't earned any gross revenue. Reversing and remanding, the court of appeal noted in an unpublished opinion: “While Stewart failed to provide any evidence with regard to the amounts of money, if any, generated from DVD or pay-per-view sales [of the China concert], he provided evidence to show that the filmed footage of the concert and all of its sound recordings were sold for $1,964,117.80. This one sale alone was enough to demonstrate that the concert had generated 'gross revenue' within the meaning of the financier agreement. ' Here, Doc Brown sold what would appear to have been all of the concert-related assets in exchange for substantial consideration-or revenue-to the tune of $1,964,117.80. It would appear to have retained no concert-related assets that had the capacity to generate any other revenue later on. Joyce would have us believe that once Doc Brown so disposed of all the revenue-generating assets, by the simple expedient of accepting [an unsecured promissory] note instead of cash, Stewart never needed to be paid back. Not so fast.”

File-Sharing Suit/Abuse of Process Counterclaim

The U.S. District Court for the Middle District of Pennsylvania ruled that the Noerr-Pennington Doctrine barred a file-sharing defendant's counterclaim that alleged abuse of process by the record company plaintiffs. UMG Recordings Inc. v. Martino, 4:08-CV-1756. The Noerr-Pennington Doctrine provides immunity from liability to a party that legitimately petitions the government, including the courts. Several major labels filed suit claiming that their copyrighted works were being file-shared through defendant Shannon Martino's ISP address. Martino's abuse-of-process counterclaim alleged that she had suffered emotional distress and that the plaintiffs were trying to harass her and “to strong arm this and other defendants into paying damages that were caused and created by third parties by which this defendant had no control.” The district court found, however: “There can be no question that the present plaintiffs have a right to protect their copyright interests via the litigation process. Consequently, even if the defendant could properly allege that the plaintiffs filed this suit for improper reasons, the Noerr-Pennington Doctrine bars the defendant's counterclaim because the plaintiffs are entitled to seek redress in this fashion under federal law. The defendant simply cannot demonstrate that plaintiffs' claims are 'completely baseless' because plaintiffs had probable cause to institute these civil proceedings and reasonably expect success on the merits.” 

Song Infringement/Substantial Similarity Test

The U.S. District Court for the Middle District of Tennessee found no substantial similarity between the plaintiffs' song “Good Ol' Days to Come” and Phil Vassar's hit “Good Ole Days.” Brainard v. Vassar, 3:07-0929. Last year, the district court decided that the suit's state law claims for misappropriation and unjust enrichment were preempted by the federal copyright infringement claim. In the latest ruling, the district court struck down the plaintiffs' unfair competition claim under state law in part because “there is obviously no evidence that any of the defendants attempted to pass off their work as actually being the work of the plaintiffs.” On the infringement claim, the court noted: “In any country song discussing the past and future 'good old days,' the subjects of drinking, socializing, and courting are clearly scenes a faire. Here, when these unprotected elements are removed, as a practical matter, what is left is the technical musical structure that underlies the lyrics and, also, the chorus of the song.” The court observed that “the choruses do not 'build' or 'release' 'the tension' (in the artist's voice) in the chorus in the same way. ' This creates a readily apparent distinction in the structure of the chorus and in the listening experience, as the 'climaxes' of the choruses are reached in different places.”

TV Program Pitches/Independent Creation Defense

The California Court of Appeal, Second District, affirmed a trial court ruling that TV production defendants independently developed a program based on a license from the long-running Eurovision song-competition show. Scottish American Media LLC v. NBC Universal Inc., B205344. Scottish American principal Maurice Fraser had pitched his treatment for a song-competition show, Battle of the States, to NBC, which expressed interest. But NBC decided to develop a show like Eurovision through the U.S. television network's first-look deal with Ben Silverman's Reveille production company. Fraser sued then NBC Universal and Ben Silverman Productions. NBC later decided not to proceed with its show and moved for summary judgment in the Fraser suit. In its unpublished opinion, the court of appeal noted of Fraser's claim of breach of implied contract that “defendants' evidence shows that Silverman discussed importing Eurovision with others in the entertainment industry since the late 1990's.” The court acknowledged that “plaintiffs presented evidence of similarity sufficient to raise an inference that defendants used Fraser's idea,” but added: “Defendants dispelled the inference by presenting evidence of independent creation of defendant's show.” The court of appeal also found that independent creation defeated Fraser's other claims, for breach of confidence, fraud and intentional interference with contractual relations.

Concert Financing/Loan Guaranty

The California Court of Appeal, Fourth District, decided that a guarantor for a loan to help finance a Great Wall of China rock concert was obligated to repay the financier who made the loan. Stewart v. Joyce & Associates Inc., G039871. Plaintiff John Stewart had loaned promoter Doc Brown Productions $250,000. Stewart later obtained a default judgment against Doc Brown, but the lower court ruled for loan guarantor Joyce & Associates on the ground that the concert hadn't earned any gross revenue. Reversing and remanding, the court of appeal noted in an unpublished opinion: “While Stewart failed to provide any evidence with regard to the amounts of money, if any, generated from DVD or pay-per-view sales [of the China concert], he provided evidence to show that the filmed footage of the concert and all of its sound recordings were sold for $1,964,117.80. This one sale alone was enough to demonstrate that the concert had generated 'gross revenue' within the meaning of the financier agreement. ' Here, Doc Brown sold what would appear to have been all of the concert-related assets in exchange for substantial consideration-or revenue-to the tune of $1,964,117.80. It would appear to have retained no concert-related assets that had the capacity to generate any other revenue later on. Joyce would have us believe that once Doc Brown so disposed of all the revenue-generating assets, by the simple expedient of accepting [an unsecured promissory] note instead of cash, Stewart never needed to be paid back. Not so fast.”

File-Sharing Suit/Abuse of Process Counterclaim

The U.S. District Court for the Middle District of Pennsylvania ruled that the Noerr-Pennington Doctrine barred a file-sharing defendant's counterclaim that alleged abuse of process by the record company plaintiffs. UMG Recordings Inc. v. Martino, 4:08-CV-1756. The Noerr-Pennington Doctrine provides immunity from liability to a party that legitimately petitions the government, including the courts. Several major labels filed suit claiming that their copyrighted works were being file-shared through defendant Shannon Martino's ISP address. Martino's abuse-of-process counterclaim alleged that she had suffered emotional distress and that the plaintiffs were trying to harass her and “to strong arm this and other defendants into paying damages that were caused and created by third parties by which this defendant had no control.” The district court found, however: “There can be no question that the present plaintiffs have a right to protect their copyright interests via the litigation process. Consequently, even if the defendant could properly allege that the plaintiffs filed this suit for improper reasons, the Noerr-Pennington Doctrine bars the defendant's counterclaim because the plaintiffs are entitled to seek redress in this fashion under federal law. The defendant simply cannot demonstrate that plaintiffs' claims are 'completely baseless' because plaintiffs had probable cause to institute these civil proceedings and reasonably expect success on the merits.” 

Song Infringement/Substantial Similarity Test

The U.S. District Court for the Middle District of Tennessee found no substantial similarity between the plaintiffs' song “Good Ol' Days to Come” and Phil Vassar's hit “Good Ole Days.” Brainard v. Vassar, 3:07-0929. Last year, the district court decided that the suit's state law claims for misappropriation and unjust enrichment were preempted by the federal copyright infringement claim. In the latest ruling, the district court struck down the plaintiffs' unfair competition claim under state law in part because “there is obviously no evidence that any of the defendants attempted to pass off their work as actually being the work of the plaintiffs.” On the infringement claim, the court noted: “In any country song discussing the past and future 'good old days,' the subjects of drinking, socializing, and courting are clearly scenes a faire. Here, when these unprotected elements are removed, as a practical matter, what is left is the technical musical structure that underlies the lyrics and, also, the chorus of the song.” The court observed that “the choruses do not 'build' or 'release' 'the tension' (in the artist's voice) in the chorus in the same way. ' This creates a readily apparent distinction in the structure of the chorus and in the listening experience, as the 'climaxes' of the choruses are reached in different places.”

TV Program Pitches/Independent Creation Defense

The California Court of Appeal, Second District, affirmed a trial court ruling that TV production defendants independently developed a program based on a license from the long-running Eurovision song-competition show. Scottish American Media LLC v. NBC Universal Inc., B205344. Scottish American principal Maurice Fraser had pitched his treatment for a song-competition show, Battle of the States, to NBC, which expressed interest. But NBC decided to develop a show like Eurovision through the U.S. television network's first-look deal with Ben Silverman's Reveille production company. Fraser sued then NBC Universal and Ben Silverman Productions. NBC later decided not to proceed with its show and moved for summary judgment in the Fraser suit. In its unpublished opinion, the court of appeal noted of Fraser's claim of breach of implied contract that “defendants' evidence shows that Silverman discussed importing Eurovision with others in the entertainment industry since the late 1990's.” The court acknowledged that “plaintiffs presented evidence of similarity sufficient to raise an inference that defendants used Fraser's idea,” but added: “Defendants dispelled the inference by presenting evidence of independent creation of defendant's show.” The court of appeal also found that independent creation defeated Fraser's other claims, for breach of confidence, fraud and intentional interference with contractual relations.