Bit Parts

Film Studio Wins Tax Credit Case

The Court of Appeal of Louisiana, First Circuit, affirmed that a production company continued to qualify for state motion-picture tax credits. Red Stick Studio Development L.L.C. v. State of Louisiana , 2009 CA 1347. Louisiana allowed investor tax credits for productions and their infrastructures. Section '3(C) of Act 456 of the 2007 Regular Session of the Legislature, La. R.S. 47:6007, grandfathered infrastructure projects for which applications for pre-certification or initial certification had been filed by Aug. 1, 2007. Red Stick submitted its application on Feb. 27, 2007. The state then issued an Initial Certification Letter that stated “the applicant shall have until Jan. 1, 2010, to earn tax credits on this project.” Red Stick filed suit, challenging the letter's language, and the trial court ruled for the studio. The Court of Appeal ruled: “We agree with the trial court's determination that the words 'qualify for' as they are used in Section 3(C) mean that an application filed on or before Aug. 1, 2007, must 1) apply for and receive its Initial Certification Letter and 2) spend a minimum of 20[%] or $10 million of the total base investment provided for in the Initial Certification Letter that is unique to film production infrastructure before Jan. 1, 2010. Thereafter, it is qualified to earn 40[%] infrastructure tax credits for the life of the project. The law is to be applied as written with no further interpretation made in search of the intent of the legislature.”

One-Second Sample Isn't Automatic Copyright Infringement

The U.S. District Court for the Southern District of Florida refused to find that the sampling of one-note of a sound recording automatically constitutes copyright infringement. Saregama India Ltd. v. Mosley, 08-20373-CrV. The defendants had used an unauthorized sampled from the Indian sound recording “Bagor Mein Bahar Hai (“BMBH”) in “Put You on the Game” (“PYOG”) on Jayceon Taylor's “The Documentary.” The district court found no substantial similarity and granted summary judgment for the defendants. The plaintiff relied on Bridgeport Music Inc. v. Dimension Films , 410 F.3d 792 (6th Cir. 2005). In Saregama India, U.S. District Judge Patricia A. Seitz noted: “[In Bridgeport Music,] the Sixth Circuit held that any sampling of a sound recording constitutes infringement, no matter how small the sampled snippet. ' However, the Sixth Circuit's decision to carve out an exception for sound recordings has not been followed in this Circuit. Indeed, the Eleventh Circuit imposes a 'substantial similarity' requirement as a constituent element of all infringement claims.” Judge Seitz continued: “In essence, the Sixth Circuit held that the copyright statute dictated a broader scope of protection for sound recordings than that afforded to musical compositions or other types of copyrightable work. Bridgeport, 410 F.3d at 800-01. Rather than couching this distinction in the 'copyright-granting' statutory provisions of 17 U.S.C. '106, the Sixth Circuit looked to 17 U.S.C. '114(b), which clarified and limited the scope of copyright protection for sound recordings, to proclaim that 'a sound recording [copyright] owner has the exclusive right to “sample” his own recording.' ' [But] Section 114(b)'s derivative-work provision addresses the scope of protection given to derivative works, not original works. There is no indication that Congress sought to expand the scope of protection for original works by redefining the term 'derivative work' to include all works containing any sound from the original sound recording, whether those works bear substantial similarities to the original work or not.”

“Sham Affidavit” Rule Applied in Memorabilia Suit

The U.S. District Court for the Eastern District of California applied the “sham affidavit” rule to a “corrected declaration” submitted by famed test pilot Chuck Yeager in his suit over the sale of memorabilia. Yeager v. Bowlin, 2:08-102 WBS JFM. The sham affidavit rule prevents a party from establishing an issue of fact by submitting an affidavit that contradicts that party's prior deposition testimony. Granting the defendants' motion for summary judgment, U.S. District Judge William B. Shubb noted: “At his deposition, Yeager stated that he did not recall answers to approximately 185 different questions, including questions that go to the heart of this action. ' However, in Yeager's Corrected Declaration, he now states that he is able to recall these same matters in detail after 'having his recollection refreshed[.]' ' It is clear that Yeager's declaration is a sham. In his declaration, Yeager gives no explanation as to why he suffered from such extensive memory loss at his deposition, other than to say his recollection was refreshed by a series of documents which are not attached to his declaration. ' This claim is unbelievable given that Yeager was shown over [20] exhibits during his deposition in an attempt to refresh his recollection.” Judge Shubb concluded that “the disparity between the affidavit and deposition is so extreme that the court must regard the differences between the two as contradictions.”