Bit Parts

Alleged Oral Copyright License No Bar to Infringement Suit

The U.S. District Court for the Southern District of New York refused to dismiss a copyright infringement suit over an instrumental score composed for the direct-to-DVD movie Don Dinero ' Su Vida Y la Calle. Ortiz v. Guitian Music Brothers Inc. (GMB), 07 Civ. 3897. Plaintiff Juan Ortiz claimed he had been promised transportation costs, a production fee, and 10% of both the stock in GMB and of the publishing rights in the music he composed for the film. The defendants argued that: “Ortiz entered an oral agreement whereby he agreed to create the Works with the express purpose that Defendants would incorporate them in [the] Motion Picture and with the express understanding that Defendants would sell and distribute the Motion Picture nationally and internationally.” U.S. District Judge Robert W. Sweet noted, however: “Even if the [c]ourt were to find that such an oral nonexclusive license was apparent on the face of the Amended Complaint, such a finding would not preclude Ortiz from bringing the instant copyright claim because it is further alleged that Defendants did not perform their part of the understanding between the parties. ' Assuming an oral license did exist and that Plaintiff's allegations of non-payment are true, such license was revocable, and by instituting this action, Plaintiff revoked any license that may have existed between him and Defendants.”

Musical Compositions' Valuation Upheld

The Tennessee Court of Appeals upheld a $2.8 million valuation of songwriting royalties for the estate of country-music songwriter Harlan Howard, who wrote numerous hits recorded by many different artists. In re Estate of Howard, M2008-00540-COA-R3-CV. Howard died in 2002. His two eldest children, Perry and Jennifer, challenged the valuation conducted by Howard's long-time music accountant Mike Vaden as too high because it reduced their royalty share from 12.5% each to 6.9% each, as a result of the estate's bid to not exceed the federal estate tax credit. Vaden's valuation was applied to the Howard estate's bid to reduce its tax liability. The accountant had use an average annual songs value based on eight years, then multiplied that by eight years. Both numbers are greater than the average range of years used for song valuations, but took into account economic problems of the music industry and the high stature of Howard as a songwriter. Perry and Jennifer Howard claimed Vaden had acted in conflict of interest. Upholding the valuation, the court of appeals explained that “the trial court recognized that Vaden owed the estate a duty of loyalty and objectivity. It recognized that 'Vaden's valuation might have been affected by his long and continuing business relationship with the Executrix [widow Melanie Howard], but it concluded from the evidence overall that he fulfilled his fiduciary responsibilities and carried out his duties for the benefit of the estate.” The court of appeals also affirmed that Melanie Howard acted in good faith in including the royalty interest of Harlan Howard's youngest child, Clementyne, in the taxable estate.

Song Suit Against Destiny's Child Sent to Trial

The U.S. District Court for the Northern District of Illinois denied a summary judgment bid by Destiny's Child in a copyright infringement suit filed against the vocal group over the song “Cater 2 U.” Allen v. Destiny's Child, 06 C 6606. Chief Judge James F. Holderman ruled: “On the evidentiary record now before it, the court declines to find as a matter of law that no reasonable jury could find the phrase 'cater to you' to be an original expression of the theme set forth in the Allen Song.” In the prior common source defense, Destiny's Child expert witness Anthony Ricigliano had found several songs on the Internet with the phrase “cater to you.” (Both plaintiff Rickey Allen's and the defendants' songs are also titled “Cater 2 U.”) But the district judge noted that “Ricigliano admits that he would 'need to do some further research' to find out when the songs were written. ' Without dates, or any authentication of the lyrics themselves, the songs' function as 'prior art' is significantly limited.” The court also held that the question of any substantial similarity between the “total concept and feel” of the two songs “is best left for a jury to decide” and that “[b]ecause the defense of independent creation depends on a determination of the credibility of [Destiny's Child members Beyonc'] Knowles, [Kelly] Rowland, and [Michelle] Williams, the court cannot find that the Songwriter Defendants prevail in this defense as a matter of law.” But the court did rule “that no reasonable jury could find that the three-note phrase in [the hook of] the Allen Song is sufficiently unique in and of itself so as to be considered an original [protected] expression.”

Alleged Oral Copyright License No Bar to Infringement Suit

The U.S. District Court for the Southern District of New York refused to dismiss a copyright infringement suit over an instrumental score composed for the direct-to-DVD movie Don Dinero ' Su Vida Y la Calle. Ortiz v. Guitian Music Brothers Inc. (GMB), 07 Civ. 3897. Plaintiff Juan Ortiz claimed he had been promised transportation costs, a production fee, and 10% of both the stock in GMB and of the publishing rights in the music he composed for the film. The defendants argued that: “Ortiz entered an oral agreement whereby he agreed to create the Works with the express purpose that Defendants would incorporate them in [the] Motion Picture and with the express understanding that Defendants would sell and distribute the Motion Picture nationally and internationally.” U.S. District Judge Robert W. Sweet noted, however: “Even if the [c]ourt were to find that such an oral nonexclusive license was apparent on the face of the Amended Complaint, such a finding would not preclude Ortiz from bringing the instant copyright claim because it is further alleged that Defendants did not perform their part of the understanding between the parties. ' Assuming an oral license did exist and that Plaintiff's allegations of non-payment are true, such license was revocable, and by instituting this action, Plaintiff revoked any license that may have existed between him and Defendants.”

Musical Compositions' Valuation Upheld

The Tennessee Court of Appeals upheld a $2.8 million valuation of songwriting royalties for the estate of country-music songwriter Harlan Howard, who wrote numerous hits recorded by many different artists. In re Estate of Howard, M2008-00540-COA-R3-CV. Howard died in 2002. His two eldest children, Perry and Jennifer, challenged the valuation conducted by Howard's long-time music accountant Mike Vaden as too high because it reduced their royalty share from 12.5% each to 6.9% each, as a result of the estate's bid to not exceed the federal estate tax credit. Vaden's valuation was applied to the Howard estate's bid to reduce its tax liability. The accountant had use an average annual songs value based on eight years, then multiplied that by eight years. Both numbers are greater than the average range of years used for song valuations, but took into account economic problems of the music industry and the high stature of Howard as a songwriter. Perry and Jennifer Howard claimed Vaden had acted in conflict of interest. Upholding the valuation, the court of appeals explained that “the trial court recognized that Vaden owed the estate a duty of loyalty and objectivity. It recognized that 'Vaden's valuation might have been affected by his long and continuing business relationship with the Executrix [widow Melanie Howard], but it concluded from the evidence overall that he fulfilled his fiduciary responsibilities and carried out his duties for the benefit of the estate.” The court of appeals also affirmed that Melanie Howard acted in good faith in including the royalty interest of Harlan Howard's youngest child, Clementyne, in the taxable estate.

Song Suit Against Destiny's Child Sent to Trial

The U.S. District Court for the Northern District of Illinois denied a summary judgment bid by Destiny's Child in a copyright infringement suit filed against the vocal group over the song “Cater 2 U.” Allen v. Destiny's Child , 06 C 6606. Chief Judge James F. Holderman ruled: “On the evidentiary record now before it, the court declines to find as a matter of law that no reasonable jury could find the phrase 'cater to you' to be an original expression of the theme set forth in the Allen Song.” In the prior common source defense, Destiny's Child expert witness Anthony Ricigliano had found several songs on the Internet with the phrase “cater to you.” (Both plaintiff Rickey Allen's and the defendants' songs are also titled “Cater 2 U.”) But the district judge noted that “Ricigliano admits that he would 'need to do some further research' to find out when the songs were written. ' Without dates, or any authentication of the lyrics themselves, the songs' function as 'prior art' is significantly limited.” The court also held that the question of any substantial similarity between the “total concept and feel” of the two songs “is best left for a jury to decide” and that “[b]ecause the defense of independent creation depends on a determination of the credibility of [Destiny's Child members Beyonc'] Knowles, [Kelly] Rowland, and [Michelle] Williams, the court cannot find that the Songwriter Defendants prevail in this defense as a matter of law.” But the court did rule “that no reasonable jury could find that the three-note phrase in [the hook of] the Allen Song is sufficiently unique in and of itself so as to be considered an original [protected] expression.”