Cameo Clips

U.S. District Judge Robert H. Cleland found that the First Amendment barred Armstrong's misappropriation claim over the photos, noting: “Use of a picture containing Plaintiff performing at this event is a part of this 'work of artistic expression.'”

The district judge then noted that if Armstrong indeed hadn't consented to use of the concert performance footage, “the First Amendment privilege would not apply because the DVD is a reproduction of his full performance.” But the judge added: “Nevertheless, the Copyright Act preempts Plaintiff's appropriation claim regarding his performance on the DVD.”

But the court cautioned parties like the defendant: “Although just because the underlying work is copyrighted, this does not mean that a copyright holder can reproduce it in whatever form it wants without being subject to state-law appropriation claims. For instance, if the copyright holder had licensed out a segment of the performance to a hypothetical defendant such as [guitar manufacturer] Gibson to use in a commercial to advertise its guitars, then the outcome would almost certainly be different.”

On Armstrong's claim of false designation of origin under '43(a) of the Lanham Act, the district court decided: “It is clear from the [DVD] cover that the Executive Producer is Montreux Sounds SA and that it is an 'Eagle Eye Media release.' Plaintiff's picture on the back, coupled with the consent statement, cannot confuse a buyer into thinking that Plaintiff was the producer of the tangible DVD product.”

The U.S. District Court for the District of Columbia refused to grant a defense motion for summary judgment in a copyright infringement action filed by singer Esther Williams over alleged unauthorized sampling from her 1975 recording “Last Night Changed It All.” Williams v. Curington, 07-0714. U.S. District Judge John D. Bates first ruled that Williams timely filed her claim over a sample that appeared on the recording “Last Night Skit” by rapper artist Ghostface Killah, released in 2004. But the court decided that Williams couldn't proceed for alleged infringement going back more than three years from suit filing for a sample that appeared on “Late Night,” a track by Tupac Shakur originally released in 2002.

The district judge then explained: “Whether Williams owns a valid copyright to the sound recording of 'Last Night Changed It All' is the central issue in [sampling-licensor defendant Robert] Curington's motion for summary judgment. ' The parties have presented the [c]ourt with three conflicting accounts of the ownership of the sound recording copyright. In brief, Williams contends that she transferred her copyright interest in the recording to Bullseye [Records] in 1975. Since Bullseye allegedly breached its contract with Williams, on or before March 1, 1977, [for alleged failure to pay her royalties] she claims that she has retained the copyright and offers her 2006 Certificate of Registration from the U.S. Copyright Office as evidence. ' Curington advances two stories, each of which he claims support his ownership of the copyright in question. Curington first contends that he became a partner of Bullseye in 1976 and that he remains a representative of the company. Thus, he alleges that he is authorized to negotiate licenses for the use of 'Last Night Changed It All' as a Bullseye representative. Curington also asserts that he was involved with Bullseye as a producer and publisher ' and received a [50%] interest in the publishing rights to 'Last Night Changed It All' around 1980-81 in return for production work he performed for Bullseye. Curington, as the party seeking summary judgment, has not met his burden of demonstrating the absence of a genuine issue of material fact.”

But the district court went on to decide that Williams' common-law right of publicity claim was preempted by the federal Copyright Act, noting that because “[b]oth copyright and the right of publicity are means of protecting an individual's investment in his or her artistic labors,' they protect equivalent rights.” However, the court ruled that Williams' false light claim wasn't preempted because the 'interest protected' in permitting recovery for placing the plaintiff in a false light 'is clearly that of reputation.'”

CLAIMS OVER PHOTOS, PERFORMANCE IN DVD

The U.S. District Court for the Eastern District of Michigan dismissed common-law misappropriation and federal Lanham Act claims that bass player Ralph Armstrong filed over use of photographs of him and inclusion in a DVD of a recording of his performance with jazz-fusion group the Mahavishnu Orchestra at the Montreux Jazz Festival in 1974. Armstrong v. Eagle Rock Entertainment Inc., 09-CV-11704.

Eagle Rock had obtained a license from Montreux Sounds to use sound recordings on the two-disc DVD Mahavishnu Orchestra: Live at Montreux 1974-1984. Armstrong's photo appeared on the DVD back cover and twice inside, with the liner notes. Armstrong claimed he “did not consent to any audio or video recordation of [his] person while performing, engaging, or participating in the 1974 Montreux Performance,” though he did acknowledge seeing video cameras that he said he thought were capturing “simulcast on other screens at the Montreux Festival and possibly [for] televised on Swiss Television.”

U.S. District Judge Robert H. Cleland found that the First Amendment barred Armstrong's misappropriation claim over the photos, noting: “Use of a picture containing Plaintiff performing at this event is a part of this 'work of artistic expression.'”

The district judge then noted that if Armstrong indeed hadn't consented to use of the concert performance footage, “the First Amendment privilege would not apply because the DVD is a reproduction of his full performance.” But the judge added: “Nevertheless, the Copyright Act preempts Plaintiff's appropriation claim regarding his performance on the DVD.”

But the court cautioned parties like the defendant: “Although just because the underlying work is copyrighted, this does not mean that a copyright holder can reproduce it in whatever form it wants without being subject to state-law appropriation claims. For instance, if the copyright holder had licensed out a segment of the performance to a hypothetical defendant such as [guitar manufacturer] Gibson to use in a commercial to advertise its guitars, then the outcome would almost certainly be different.”

On Armstrong's claim of false designation of origin under '43(a) of the Lanham Act, the district court decided: “It is clear from the [DVD] cover that the Executive Producer is Montreux Sounds SA and that it is an 'Eagle Eye Media release.' Plaintiff's picture on the back, coupled with the consent statement, cannot confuse a buyer into thinking that Plaintiff was the producer of the tangible DVD product.”

The U.S. District Court for the District of Columbia refused to grant a defense motion for summary judgment in a copyright infringement action filed by singer Esther Williams over alleged unauthorized sampling from her 1975 recording “Last Night Changed It All.” Williams v. Curington, 07-0714. U.S. District Judge John D. Bates first ruled that Williams timely filed her claim over a sample that appeared on the recording “Last Night Skit” by rapper artist Ghostface Killah, released in 2004. But the court decided that Williams couldn't proceed for alleged infringement going back more than three years from suit filing for a sample that appeared on “Late Night,” a track by Tupac Shakur originally released in 2002.

The district judge then explained: “Whether Williams owns a valid copyright to the sound recording of 'Last Night Changed It All' is the central issue in [sampling-licensor defendant Robert] Curington's motion for summary judgment. ' The parties have presented the [c]ourt with three conflicting accounts of the ownership of the sound recording copyright. In brief, Williams contends that she transferred her copyright interest in the recording to Bullseye [Records] in 1975. Since Bullseye allegedly breached its contract with Williams, on or before March 1, 1977, [for alleged failure to pay her royalties] she claims that she has retained the copyright and offers her 2006 Certificate of Registration from the U.S. Copyright Office as evidence. ' Curington advances two stories, each of which he claims support his ownership of the copyright in question. Curington first contends that he became a partner of Bullseye in 1976 and that he remains a representative of the company. Thus, he alleges that he is authorized to negotiate licenses for the use of 'Last Night Changed It All' as a Bullseye representative. Curington also asserts that he was involved with Bullseye as a producer and publisher ' and received a [50%] interest in the publishing rights to 'Last Night Changed It All' around 1980-81 in return for production work he performed for Bullseye. Curington, as the party seeking summary judgment, has not met his burden of demonstrating the absence of a genuine issue of material fact.”

But the district court went on to decide that Williams' common-law right of publicity claim was preempted by the federal Copyright Act, noting that because “[b]oth copyright and the right of publicity are means of protecting an individual's investment in his or her artistic labors,' they protect equivalent rights.” However, the court ruled that Williams' false light claim wasn't preempted because the 'interest protected' in permitting recovery for placing the plaintiff in a false light 'is clearly that of reputation.'”