Cameo Clips

COPYRIGHT INFRINGMENT/NON-TRADITIONAL TEST

The U.S. District Court for the Western District of Michigan took the unusual step in a copyright infringement case of using a non-traditional list of similarities to find there was no substantial similarity between the plaintiff's novels and the defendants' TV series. Davis v. American Broadcasting Cos. Inc., 1:10-CV-167. Plaintiff David Davis wrote two mystery books as David Walks-As-Bear that featured the Native American protagonist Ely Stone, a “modern-day warrior and protector.” The Ely Stone TV series was a comedy-drama about an eighth-year associate at a law firm. In comparing the novels with the TV show, District Judge Robert J. Jonker considered Davis's claim that both Stone characters experienced “visions,” were reluctant heroes, had spiritual advisors, were romantically involved with women named Maggie, and that both the novels and the series had side characters with similar names. Judge Jonker observed: “Although courts have cautioned against considering lists of similarities between works to determine whether the works are substantially similar because such lists 'are inherently subjective and unreliable' and tend to 'emphasize [ ] random similarities scattered throughout the works,' [quoting Litchfield v. Spielberg, 736 F.2d 1352, 1356 (9th Cir. 1984)] such a list is valuable here because it serves to demonstrate the dearth of similarities, even random and scattered similarities, between the works at issue here.”

Concluding on a more traditional copyright-comparison note, the district court found in dismissing Davis's suit: “The books and the show are completely different in almost every imaginable way, including the sequences of events, mood, dialogue, characters, plot, pace, setting, and themes. There is no overlap between the original components of the works, and any similarities between them are either unprotectible or not substantial. Reasonable minds could not differ on this issue.”

The U.S. District Court for the Northern District of California denied summary judgment to Latino rapper Pitbull (i.e., Armando Perez) in a trademark infringement and unfair competition suit filed against him by the reggae-hip-hop-rock band Rebelution. Rebelution LLC v. Perez, C 09-3979 MHP. The music group, which owns a federally registered mark for “Rebelution,” sued over the 2009 album Pitbull ' Starring in Rebelution, released by Sony Music Entertainment.

In defense, Pitbull argued that his “use of the word rebelution from plaintiff's mark was in connection with an artistic work” and thus protected by the First Amendment. But U.S. District Judge Marilyn Hall Patel noted that a First Amendment use would require “reference to the meaning associated with plaintiff's mark.” The district judge emphasized that Pitbull “concedes that prior to releasing his album, he had never heard of plaintiff.” Instead, he had stated during a deposition that, after seeing the word “rebelution” in a Miami, FL, storefront: “I said, Wow, that is a great word, because it had everything to do with me in the music business, my family in Cuba and me just as a fighter in general.”

The Pitbull defendants further argued there was no likelihood of consumer confusion between his use and the plaintiff band's mark. Judge Patel found, however: “Defendants are correct that the word rebelution is used by various third-parties [e.g., as the title for albums by several other artists much lesser known than Pitbull], and this issue may ultimately pose a significant hurdle for plaintiff in demonstrating the strength of its mark. ' [Yet, a]t bottom, defendants undisputedly incorporate the word rebelution, as used in plaintiff's mark, on the cover of their musical recording, and also market their musical recording in a similar fashion as plaintiff. Although no evidence of actual confusion or degree of care was presented, given the fluid preferences of the ordinary consumer of popular music, a reasonable jury could find that defendants' use of the word rebelution is 'likely to confuse an appreciable number of people as to the source of the product.'”

COPYRIGHT INFRINGMENT/NON-TRADITIONAL TEST

The U.S. District Court for the Western District of Michigan took the unusual step in a copyright infringement case of using a non-traditional list of similarities to find there was no substantial similarity between the plaintiff's novels and the defendants' TV series. Davis v. American Broadcasting Cos. Inc., 1:10-CV-167. Plaintiff David Davis wrote two mystery books as David Walks-As-Bear that featured the Native American protagonist Ely Stone, a “modern-day warrior and protector.” The Ely Stone TV series was a comedy-drama about an eighth-year associate at a law firm. In comparing the novels with the TV show, District Judge Robert J. Jonker considered Davis's claim that both Stone characters experienced “visions,” were reluctant heroes, had spiritual advisors, were romantically involved with women named Maggie, and that both the novels and the series had side characters with similar names. Judge Jonker observed: “Although courts have cautioned against considering lists of similarities between works to determine whether the works are substantially similar because such lists 'are inherently subjective and unreliable' and tend to 'emphasize [ ] random similarities scattered throughout the works,' [quoting Litchfield v. Spielberg , 736 F.2d 1352, 1356 (9th Cir. 1984)] such a list is valuable here because it serves to demonstrate the dearth of similarities, even random and scattered similarities, between the works at issue here.”

Concluding on a more traditional copyright-comparison note, the district court found in dismissing Davis's suit: “The books and the show are completely different in almost every imaginable way, including the sequences of events, mood, dialogue, characters, plot, pace, setting, and themes. There is no overlap between the original components of the works, and any similarities between them are either unprotectible or not substantial. Reasonable minds could not differ on this issue.”

The U.S. District Court for the Northern District of California denied summary judgment to Latino rapper Pitbull (i.e., Armando Perez) in a trademark infringement and unfair competition suit filed against him by the reggae-hip-hop-rock band Rebelution. Rebelution LLC v. Perez, C 09-3979 MHP. The music group, which owns a federally registered mark for “Rebelution,” sued over the 2009 album Pitbull ' Starring in Rebelution, released by Sony Music Entertainment.

In defense, Pitbull argued that his “use of the word rebelution from plaintiff's mark was in connection with an artistic work” and thus protected by the First Amendment. But U.S. District Judge Marilyn Hall Patel noted that a First Amendment use would require “reference to the meaning associated with plaintiff's mark.” The district judge emphasized that Pitbull “concedes that prior to releasing his album, he had never heard of plaintiff.” Instead, he had stated during a deposition that, after seeing the word “rebelution” in a Miami, FL, storefront: “I said, Wow, that is a great word, because it had everything to do with me in the music business, my family in Cuba and me just as a fighter in general.”

The Pitbull defendants further argued there was no likelihood of consumer confusion between his use and the plaintiff band's mark. Judge Patel found, however: “Defendants are correct that the word rebelution is used by various third-parties [e.g., as the title for albums by several other artists much lesser known than Pitbull], and this issue may ultimately pose a significant hurdle for plaintiff in demonstrating the strength of its mark. ' [Yet, a]t bottom, defendants undisputedly incorporate the word rebelution, as used in plaintiff's mark, on the cover of their musical recording, and also market their musical recording in a similar fashion as plaintiff. Although no evidence of actual confusion or degree of care was presented, given the fluid preferences of the ordinary consumer of popular music, a reasonable jury could find that defendants' use of the word rebelution is 'likely to confuse an appreciable number of people as to the source of the product.'”