Cameo Clips

MUSIC COPYRIGHTS/INFRINGING 'WORKS'

The U.S. District Court for the Middle District of Tennessee, Nashville Division, ruled that the alleged digital transmission of 308 sound recordings containing a total of 215 musical compositions would constitute 215, rather than 308, acts of infringement. MCS Music America Inc. v. Yahoo! Inc. , 09-cv-00597. The plaintiffs claimed to own the songs, but not the sound recordings, at issue.

District Judge Todd J. Campbell noted: “Plaintiffs contend that, for example, each of the eight different recordings or versions of John McCutcheon's copyrighted musical composition entitled 'Christmas In The Trenches' that were copied, displayed and distributed by [d]efendant Yahoo! Inc. on its music subscription service constitutes eight separate works under the Copyright Act and therefore constitutes eight separate possible statutory awards.” But the district judge explained: “[E]ven though each musical composition is a distinct, viable work with separate economic value and copyright lives of their own, any variation of that 'work' is still simply one 'work' for the purposes of statutory damages. To the extent a disputed musical composition is actually a different musical composition, it is a separate work which requires a separate registration to recover statutory damages. To the extent a sound recording embodies a musical composition and is a separate 'work,' [p]laintiffs must possess ownership and registration of those copyrights to be entitled to any statutory damages. A sound recording that is simply a variation of a copyrighted musical composition does not in and of itself make it a separate 'work' for which statutory damages may be awarded.”

The U.S. District Court for the Southern District of New York decided that the owner of the classical-music record label Medici Classics, which filed a trademark infringement suit, failed to establish a likelihood of consumer confusion by the defendants' use of the label names “Medici Arts” and “Medici Masters” to also sell classical music recordings. Medici Classics Productions LLC v. Medici Group LLC, 07 Civ. 9938(RJH). Plaintiff pianist Jerome Rose used his federally registered “Medici Classics Productions” label name to market his own recordings. District Judge Richard J. Holwell noted: “Plaintiff paints this as a 'classic case of David v. Goliath,' and concedes that its sales have always been modest. (494 copies of five CDs and 335 copies of one DVD.) ' The defendants produce and market CDs, DVDs, and documentary films, as well as audiovisual content for broadcast over the Internet. Beginning in May 2007 they have used the name 'Medici Arts' in releases of classical music DVDs, such as the 2008 DVD and Blu-ray release of the New York Philharmonic's historic concert in Pyongyang, North Korea. ' Medici Arts has had significantly more sales success than Medici Classics: it sold over 42,000 DVDs from May 2007 through September 2008 through retail, Internet, and catalog distribution. Defendants also offer classical music videos and live Webcasts on their own Internet site, medici.tv.”

The district judge then emphasized, among other things: “This is a case where the overall impression created by the [disputing parties'] marks is dissimilar despite the use of the same word. The marks use different typefaces and presentation to create different impressions: in the plaintiff's case, one of royalty and the renaissance, and in the defendant's case, one of modernity.” The court concluded: “Several factors weigh heavily against plaintiff: the mark itself is weak because it has not developed secondary meaning; as used, the marks do not look similar; there is no evidence of actual confusion or bad faith; the products are of equal quality; and the ordinary purchasers are sophisticated and unlikely to be confused by similarity in the labels on the CDs and DVDs they purchase.”

The U.S. District Court for the Southern District of New York denied a plaintiff's motion to remand to state court a suit alleging lack of payment for intellectual property rights to the children's TV project Word World. Schneider v. Word World LLC, 09 Civ. 9116(DLC). District Judge Denise Cote determined that some of project creator Peter Schneider's state law claims really arose under federal law. According to the judge: “In the instant case, it appears that the plaintiff's complaint invokes rights covered by federal law that are sufficiently 'substantial' to support the existence of subject matter jurisdiction in this action. ' The plaintiff claims ownership of 'original names, terms, and trademarks'; argues that his 'creations' and 'work product' were converted, misappropriated, or otherwise used by the defendant without reasonable compensation; and alleges that the defendant passed off plaintiff's intellectual property as its own and 'filed false and improper patent applications, trademark applications, and other applications.' To the extent plaintiff claims ownership of any 'original works of authorship fixed in a[ ] tangible medium of expression' and that the defendant intruded upon the plaintiff's exclusive rights, such claims are subject to complete preemption under the Copyright Act '. Likewise, to the extent that plaintiff alleges that defendant interfered with his ownership of a patent or his commercial use of a federally recognized trademark, the plaintiff's right to relief may 'necessarily depend [ ]on resolution of a substantial question of federal law.' Empire HealthChoice Assurance Inc. v. McVeigh , 396 F.3d 136, 140 (2d Cir.2005) (citation omitted).”

The court further ruled that it had supplemental jurisdiction over Schneider's state causes of action, noting: “Because each of plaintiff's claims against the defendant arise from a 'common nucleus of operative fact' ' namely, plaintiff's claim to compensation based on his participation in, or creation of, the Word World project ' the [c]ourt will exercise its discretion pursuant to 28 U.S.C. '1367 to exercise supplemental jurisdiction over the remaining state-law claims.”

The California Court of Appeal, Second District, affirmed a preliminary injunction against a videogame developer that the plaintiff production company hired to create what was purported to be the first disc jockey videogame. Scratch DJ Game v. California 7 Studios Inc., B216183. The developer agreement had set forth a series of milestone dates and stated in part that “the successful completion of each Milestone in accordance with the Milestone schedule ' is critical to the commercial viability of the Game. ' A material breach may include, but is not limited to, Developer's failure to finish and deliver any milestone in accordance with the Milestone schedule.” The court of appeal noted: “There was evidence defendant had fallen behind the development schedule by September 2008, six months after the parties entered into the Developer Agreement. There was also evidence defendant did not meet any milestones after Dec. 1, 2008.” After Scratch DJ Game sued for breach of contract and of implied covenant, the trial court, in its preliminary injunction order, had directed California 7 to turn over its work product related to the videogame, including the source code.

In its unpublished opinion, the court of appeal found: “Genius Products LLC had paid defendant more than $6 million to develop the game, which was more than the total development fee specified in the Developer Agreement. It was undisputed that without the engine source code, plaintiff could not compile a working version of the game and further develop it; rather it would take plaintiff 'additional years' to complete the project. In the meantime, potential competitors of plaintiff would be marketing their own disc jockey based games. Moreover, defendant had by contract granted Genius Products LLC, now plaintiff, a license for its pre-existing tools and technology. And defendant had agreed that in the event it materially breached the Developer Agreement it would turn over its source code and assist plaintiff to complete development of the game. And the parties agreed that plaintiff could provide defendant's tools and technology to another developer for game completion subject to 'reasonable and appropriate written confidentiality restrictions.'”