Bit Parts

Independent Creation Testimony Defeats Rap Riff Copyright Claim

The U.S. Court of Appeals for the Eleventh Circuit found that the testimony of defendant Teriyakie Smith ' writer of the rap song “Betcha Can't Do it Like Me,” recorded by co-defendants rap group D4L ' established independent creation of the composition, thereby defeating a copyright infringement claim by the owner of the rap song “Come Up,” recorded by Woodlawn Click. Watt v. Butler, 10-14710. The suit was filed over a three-note riff. Plaintiff Charles Watt contended that he sold or gave away up to 15,000 CDs of Woodlawn Click's recording in the southeastern United States. In an unpublished opinion, the Eleventh Circuit observed Watt's “evidence of access [that] depends largely on the assumption that members of the Atlanta rap community share music among themselves and that the song 'Come Up' became popular and was widely shared for many years” was too speculative to establish either D4L or Smith had access to “Come Up.” However, the appeals court did agree with the Northern District of Georgia federal court that “Watt could show that 'Come Up' and 'Betcha' were substantially similar because the riff, which is a copyrightable element, is the same in both songs.” The appeals court then considered Smith's testimony “that he wrote the music for 'Betcha,' and specifically the riff, in 2004 using three adjacent keys on his laptop keyboard and the 'Fruity Loops' music production software.” The appeals court decided that Smith's testimony, “though not corroborated by documentary evidence or by a disinterested third-party, was plausible. ' As a result, even if Watt had made out a prima facie case based on a showing of access and substantial similarity, the evidence of independent creation would have negated the presumption of copying that arose from Watt's prima facie case.”

Right to Percentage 'Equal to' Label's Net Receipts Doesn't Support Conversion Claim in Creedence Clearwater Digital Royalties Suit

The U.S. District Court for Northern District of California allowed former members of Creedence Clearwater Revival (CCR) to proceed with a claim of breach of covenant of good faith and fair dealing in their suit seeking increased payments for digital sales of CCR recordings through Apple iTunes. But District Judge Edward M. Chen in part dismissed a conversion claim by CCR's drummer Doug Clifford and bassist Stu Cook and by Patricia Fogerty, widow of CCR rhythm guitarist Tom Fogerty, because the band's 1988 contract with Concord's predecessor, Fantasy, “states that Plaintiffs will receive a royalty 'equal to' 50% of Fantasy's net receipts, not that Plaintiffs are entitled to 50% of Fantasy's net receipts. ' The net receipts establish the measure of the amount Plaintiffs are entitled to, rather than creating an ownership interest in an identifiable sum.” Clifford v. Concord Music Group, C-11-2519.

'Substantial Value' Allegation in Implied Contract Case Not Enough to Meet $75,000 Amount in Controversy for Federal Subject Matter Jurisdiction

The U.S. District Court for the Central District of California remanded a case back to Los Angeles Superior that alleges breach of implied contract over a television series idea. Krabbe v. Discovery Communications Inc., CV 12-330. Discovery Communications had moved for removal of the suit to federal court under 28 U.S.C. '1441. But federal District Judge John F. Walker concluded Discovery failed to establish that the amount in controversy of plaintiff Kylie Krabbe's complaint exceeded $75,000, as required by '1441. Judge Walker determined that Discovery was “merely reiterating the allegations of Plaintiff's complaint, in which she claims that Defendant breached an implied contract to compensate her for the use of an idea for a television series and alleges that her 'idea had substantial value' and that 'if Discovery used [her] idea,' she would be paid to 'produce the show' and for 'use of her idea.' It is not facially apparent from these vague allegations that the amount in controversy exceeds $75,000, and Defendant has produced no other evidence to meet its burden of establishing that it is more likely than not that the amount in controversy exceeds $75,000.”

Independent Creation Testimony Defeats Rap Riff Copyright Claim

The U.S. Court of Appeals for the Eleventh Circuit found that the testimony of defendant Teriyakie Smith ' writer of the rap song “Betcha Can't Do it Like Me,” recorded by co-defendants rap group D4L ' established independent creation of the composition, thereby defeating a copyright infringement claim by the owner of the rap song “Come Up,” recorded by Woodlawn Click. Watt v. Butler, 10-14710. The suit was filed over a three-note riff. Plaintiff Charles Watt contended that he sold or gave away up to 15,000 CDs of Woodlawn Click's recording in the southeastern United States. In an unpublished opinion, the Eleventh Circuit observed Watt's “evidence of access [that] depends largely on the assumption that members of the Atlanta rap community share music among themselves and that the song 'Come Up' became popular and was widely shared for many years” was too speculative to establish either D4L or Smith had access to “Come Up.” However, the appeals court did agree with the Northern District of Georgia federal court that “Watt could show that 'Come Up' and 'Betcha' were substantially similar because the riff, which is a copyrightable element, is the same in both songs.” The appeals court then considered Smith's testimony “that he wrote the music for 'Betcha,' and specifically the riff, in 2004 using three adjacent keys on his laptop keyboard and the 'Fruity Loops' music production software.” The appeals court decided that Smith's testimony, “though not corroborated by documentary evidence or by a disinterested third-party, was plausible. ' As a result, even if Watt had made out a prima facie case based on a showing of access and substantial similarity, the evidence of independent creation would have negated the presumption of copying that arose from Watt's prima facie case.”

Right to Percentage 'Equal to' Label's Net Receipts Doesn't Support Conversion Claim in Creedence Clearwater Digital Royalties Suit

The U.S. District Court for Northern District of California allowed former members of Creedence Clearwater Revival (CCR) to proceed with a claim of breach of covenant of good faith and fair dealing in their suit seeking increased payments for digital sales of CCR recordings through Apple iTunes. But District Judge Edward M. Chen in part dismissed a conversion claim by CCR's drummer Doug Clifford and bassist Stu Cook and by Patricia Fogerty, widow of CCR rhythm guitarist Tom Fogerty, because the band's 1988 contract with Concord's predecessor, Fantasy, “states that Plaintiffs will receive a royalty 'equal to' 50% of Fantasy's net receipts, not that Plaintiffs are entitled to 50% of Fantasy's net receipts. ' The net receipts establish the measure of the amount Plaintiffs are entitled to, rather than creating an ownership interest in an identifiable sum.” Clifford v. Concord Music Group, C-11-2519.

'Substantial Value' Allegation in Implied Contract Case Not Enough to Meet $75,000 Amount in Controversy for Federal Subject Matter Jurisdiction

The U.S. District Court for the Central District of California remanded a case back to Los Angeles Superior that alleges breach of implied contract over a television series idea. Krabbe v. Discovery Communications Inc., CV 12-330. Discovery Communications had moved for removal of the suit to federal court under 28 U.S.C. '1441. But federal District Judge John F. Walker concluded Discovery failed to establish that the amount in controversy of plaintiff Kylie Krabbe's complaint exceeded $75,000, as required by '1441. Judge Walker determined that Discovery was “merely reiterating the allegations of Plaintiff's complaint, in which she claims that Defendant breached an implied contract to compensate her for the use of an idea for a television series and alleges that her 'idea had substantial value' and that 'if Discovery used [her] idea,' she would be paid to 'produce the show' and for 'use of her idea.' It is not facially apparent from these vague allegations that the amount in controversy exceeds $75,000, and Defendant has produced no other evidence to meet its burden of establishing that it is more likely than not that the amount in controversy exceeds $75,000.”