Cameo Clips

COPYRIGHT INFRINGEMENT/GRAND RIGHTS IN PLAYS

The U.S. Court for the Eastern District of Michigan denied a motion to dismiss a suit that alleges copyright infringement through inclusion of a medley of Sam Cooke songs in an intro segment to a stage play based on the late singer's life. ABKCO Music Inc. v. Washington, 11-10763. ABKCO Music, which controls copyrights in Sam Cooke's songs and sound recordings, had turned down a request to license the “grand” (i.e., dramatic) rights for use of Cooke's music in The Triumph and Tragedy of a Soul Stirrer ' The Life of Sam. Instead, the play's producer, Johnnie Washington, hired vocalist David Watkins to sing a Sam Cooke medley in front of the stage curtain while audience members were being seated for Life of Sam shows at a theater in Detroit. (The medley also contained a song written by Bobby Womack, whose publishing rights-holder joined with ABKCO in suing Washington and playwright Robert Douglas.)

District Judge Sean F. Cox noted that the defendants “submitted affidavits of dozens of patrons who attended” the show. However, denying the defendants' motion for summary judgment, Judge Cox emphasized: “Plaintiffs have provided evidence that tends to show that the [10] minute medley by Watkins was part of the dramatic performance. In viewing this evidence in a light most favorable to the Plaintiffs, Watkins, while singing the Songs, was dressed in costume, mimicked the expressions and gestures of Sam Cooke, and was part of the overall Production, which told the story of the life of Sam Cooke.”

Judge Cox went on to grant summary judgment for the plaintiffs on their claim of contributory infringement and vicarious infringement against Washington and Douglas for use of Sam Cooke songs in a promotional video made by co-defendant Detroit Media Broadcast (DMB) and posted on YouTube. Here, the court found in part: “Logically, Defendants, as the party retaining DMB to promote the Production, must have been the party to grant the authority to develop the AV Ad. Thus, Defendants have materially contributed to DMB's infringing conduct.” But the court found a genuine issue of material fact still existed as to whether use in the ad of Cooke sound recordings ' all pre-1972 and thus covered by state law, rather than federal copyright law ' constituted unfair competition under Michigan law.

The U.S. District Court for the Southern District of New York decided that a digital distribution agreement didn't unambiguously bar the licensor's claim for mechanical royalties from the licensee under the Copyright Act's compulsory licensing provision, 17 U.S.C. '115, for songs embodied in downloads sold. Tuf- America Inc. v. The Orchard Enterprises Inc., 11 Civ. 1816.

District Judge Shira A. Scheindlin observed: “At no point does the [digital distribution] License explicitly provide Orchard with mechanical license rights, define the terms of any mechanical license, set the amount of any mechanical royalties due, or set a mechanical royalty payment schedule. While Orchard correctly notes that the License at times mentions mechanical royalties, it is still reasonably susceptible to an interpretation that does not preempt the Copyright Act's default mechanical royalty provision.”

Granting TufAmerica's request to amend its complaint, Judge Scheindlin noted, for instance: “[T]he License explicitly reserved to TufAmerica the right 'to collect monies payable by statute ', including ' compulsory licensing.' While TufAmerica claims the intent behind this provision was to ensure that Orchard's obligation for mechanical licenses is governed by section 115 rather than the License, Orchard claims the intent was only to preserve TufAmerica's right to collect statutory royalties from third parties. Neither of these interpretations is necessarily unreasonable.”

COPYRIGHT INFRINGEMENT/GRAND RIGHTS IN PLAYS

The U.S. Court for the Eastern District of Michigan denied a motion to dismiss a suit that alleges copyright infringement through inclusion of a medley of Sam Cooke songs in an intro segment to a stage play based on the late singer's life. ABKCO Music Inc. v. Washington, 11-10763. ABKCO Music, which controls copyrights in Sam Cooke's songs and sound recordings, had turned down a request to license the “grand” (i.e., dramatic) rights for use of Cooke's music in The Triumph and Tragedy of a Soul Stirrer ' The Life of Sam. Instead, the play's producer, Johnnie Washington, hired vocalist David Watkins to sing a Sam Cooke medley in front of the stage curtain while audience members were being seated for Life of Sam shows at a theater in Detroit. (The medley also contained a song written by Bobby Womack, whose publishing rights-holder joined with ABKCO in suing Washington and playwright Robert Douglas.)

District Judge Sean F. Cox noted that the defendants “submitted affidavits of dozens of patrons who attended” the show. However, denying the defendants' motion for summary judgment, Judge Cox emphasized: “Plaintiffs have provided evidence that tends to show that the [10] minute medley by Watkins was part of the dramatic performance. In viewing this evidence in a light most favorable to the Plaintiffs, Watkins, while singing the Songs, was dressed in costume, mimicked the expressions and gestures of Sam Cooke, and was part of the overall Production, which told the story of the life of Sam Cooke.”

Judge Cox went on to grant summary judgment for the plaintiffs on their claim of contributory infringement and vicarious infringement against Washington and Douglas for use of Sam Cooke songs in a promotional video made by co-defendant Detroit Media Broadcast (DMB) and posted on YouTube. Here, the court found in part: “Logically, Defendants, as the party retaining DMB to promote the Production, must have been the party to grant the authority to develop the AV Ad. Thus, Defendants have materially contributed to DMB's infringing conduct.” But the court found a genuine issue of material fact still existed as to whether use in the ad of Cooke sound recordings ' all pre-1972 and thus covered by state law, rather than federal copyright law ' constituted unfair competition under Michigan law.

The U.S. District Court for the Southern District of New York decided that a digital distribution agreement didn't unambiguously bar the licensor's claim for mechanical royalties from the licensee under the Copyright Act's compulsory licensing provision, 17 U.S.C. '115, for songs embodied in downloads sold. Tuf- America Inc. v. The Orchard Enterprises Inc., 11 Civ. 1816.

District Judge Shira A. Scheindlin observed: “At no point does the [digital distribution] License explicitly provide Orchard with mechanical license rights, define the terms of any mechanical license, set the amount of any mechanical royalties due, or set a mechanical royalty payment schedule. While Orchard correctly notes that the License at times mentions mechanical royalties, it is still reasonably susceptible to an interpretation that does not preempt the Copyright Act's default mechanical royalty provision.”

Granting TufAmerica's request to amend its complaint, Judge Scheindlin noted, for instance: “[T]he License explicitly reserved to TufAmerica the right 'to collect monies payable by statute ', including ' compulsory licensing.' While TufAmerica claims the intent behind this provision was to ensure that Orchard's obligation for mechanical licenses is governed by section 115 rather than the License, Orchard claims the intent was only to preserve TufAmerica's right to collect statutory royalties from third parties. Neither of these interpretations is necessarily unreasonable.”