Bit Parts

The U.S. Court of Appeals for the Sixth Circuit decided that Kanye West's hip-hop song “Stronger” didn't infringe on hip-hop artist Vince P's song of the same name. Peters v. West, 11-1708. Though finding that West may have had access to the plaintiff's composition, the Sixth Circuit explained in affirming dismissal of the suit: “Vince P's theory is that the combination of the songs' similar hooks, their shared title, and their references to [British model] Kate Moss would permit a finding of infringement. But ' in the end we see only two songs that rhyme similar words, draw from a commonplace maxim [i.e., Friedrich Nietzsche's 'What does not kill me, makes me stronger'], and analogize feminine beauty to a specific successful model.” The Sixth Circuit found that these were no more than “small cosmetic similarities.” (The appeals court's opinion is also noteworthy for its examination of how the tests for determining infringing copying are “surprisingly muddled” among the federal judicial circuits.)

Sublicense for U.S. Song Remains Valid in Russia

The U.S. District Court for the Middle District of Tennessee, Nashville Division, decided that a Russian artist had a valid sublicense to use a song by U.S. songwriters, even though the original song licensee failed to pay the songwriters full royalties. Murphy v. Lazarev, 3:10-cv-0530. Plaintiffs Taryn Murphy and Chris Landon had licensed their song “Almost Sorry” to the Moscow-based Style Records, which paid the writers a $4,000 advance but no further royalties before filing for bankruptcy. The license stipulated that it was to be governed by Russian law. Style had sublicensed rights to Russian musician Sergey Lazarev, who recorded a popular version of the song. Murphy and Landon later sued Lazarev alleging copyright violations. Dismissing the suit, District Judge Aleta A. Trauger noted: “Here, the plaintiffs and Style Records did not agree to cancel the Licensing Contract (see [Russian Civil Code,] Art. 450), nor, in the absence of such an agreement, did the plaintiffs file a claim to cancel the contract in an appropriate court of law (see, Art. 450(2)).” Judge Trauger added:
“[E]ven if it were true that Style Records went bankrupt in 2010, the plaintiffs have not identified any Russian legal authority establishing that such a bankruptcy would have extinguished the Licensing Contract (and the associated license to Almost Sorry) by operation of law.”

Talent Agent Experience Helps Establish Foundation as Expert on Personal Management Post-Term Commissions

The Court of Appeal of California, Second Appellate District, ruled that an expert's declaration had sufficient foundation for establishing an industry custom and practice that personal managers receive post-term commissions from talent they represent, for deals negotiated by the manager during the management term. Howard Entertainment Inc. v. Kudrow, B234962. The ruling came in litigation alleging that actress Lisa Kudrow owes her former manager Scott Howard post-term monies under a 1991 oral management agreement. Howard's expert Martin Bauer has worked in the entertainment industry since 1974, in his early years largely as a talent agent before becoming a personal manager in 1998. The trial court excluded Bauer's initial and supplemental expert declarations. But the court of appeal noted: “That Bauer was not a personal manager in 1991 ' the date of the Howard-Kudrow agreement ' and cannot point to specific people he talked to then is not fatal. ' [For example,] Bauer, in his additional declaration, augmented the original declaration by stating it had been the custom and usage in the entertainment industry from at least the early 1980's that talent agents, when their services are terminated by a client, continue to receive from the client post-termination commissions on engagements entered into and services performed while the agent was rendering services to that client. Bauer noted that there are certain similarities between personal managers and talent agents'.”

Stan Soocher is Editor-in-Chief of Entertainment Law & Finance and a tenured Associate Professor of Music & Entertainment Industry Studies at the University of Colorado's Denver Campus. He can be reached at [email protected] or via www.stansoocher.com.

Film Budgets Subject to Public Disclosure

The Supreme Court of Iowa ruled that filmmakers that received state tax credits couldn't enjoin the public release of the films' final budgets. Iowa Film Production Services v. Iowa Department of Economic Development, 10-1719. Iowa's Film Television and Video Project Promotion Program was enacted in 2007 but later suspended over government mismanagement issues. The filmmakers had asked for confidential treatment when submitting their initial applications. Final budgets, required to be submitted later, were sought by the Des Moines Register & Tribune. The state supreme court noted of the budgets information: “The record does not show that the Producers made reasonable efforts to preserve confidentiality of their financial data as against the outside world in general. ' The Producers failed to show, for instance, that individuals who worked for them and came into contact with this information were required not to disclose it.” The court concluded the final budgets didn't qualify as protectable trade secrets under Iowa Code '22.7(3).

“Stronger” Similarities Not Strong Enough to be Infringing

The U.S. Court of Appeals for the Sixth Circuit decided that Kanye West's hip-hop song “Stronger” didn't infringe on hip-hop artist Vince P's song of the same name. Peters v. West, 11-1708. Though finding that West may have had access to the plaintiff's composition, the Sixth Circuit explained in affirming dismissal of the suit: “Vince P's theory is that the combination of the songs' similar hooks, their shared title, and their references to [British model] Kate Moss would permit a finding of infringement. But ' in the end we see only two songs that rhyme similar words, draw from a commonplace maxim [i.e., Friedrich Nietzsche's 'What does not kill me, makes me stronger'], and analogize feminine beauty to a specific successful model.” The Sixth Circuit found that these were no more than “small cosmetic similarities.” (The appeals court's opinion is also noteworthy for its examination of how the tests for determining infringing copying are “surprisingly muddled” among the federal judicial circuits.)

Sublicense for U.S. Song Remains Valid in Russia

The U.S. District Court for the Middle District of Tennessee, Nashville Division, decided that a Russian artist had a valid sublicense to use a song by U.S. songwriters, even though the original song licensee failed to pay the songwriters full royalties. Murphy v. Lazarev, 3:10-cv-0530. Plaintiffs Taryn Murphy and Chris Landon had licensed their song “Almost Sorry” to the Moscow-based Style Records, which paid the writers a $4,000 advance but no further royalties before filing for bankruptcy. The license stipulated that it was to be governed by Russian law. Style had sublicensed rights to Russian musician Sergey Lazarev, who recorded a popular version of the song. Murphy and Landon later sued Lazarev alleging copyright violations. Dismissing the suit, District Judge Aleta A. Trauger noted: “Here, the plaintiffs and Style Records did not agree to cancel the Licensing Contract (see [Russian Civil Code,] Art. 450), nor, in the absence of such an agreement, did the plaintiffs file a claim to cancel the contract in an appropriate court of law (see, Art. 450(2)).” Judge Trauger added:
“[E]ven if it were true that Style Records went bankrupt in 2010, the plaintiffs have not identified any Russian legal authority establishing that such a bankruptcy would have extinguished the Licensing Contract (and the associated license to Almost Sorry) by operation of law.”

Talent Agent Experience Helps Establish Foundation as Expert on Personal Management Post-Term Commissions

The Court of Appeal of California, Second Appellate District, ruled that an expert's declaration had sufficient foundation for establishing an industry custom and practice that personal managers receive post-term commissions from talent they represent, for deals negotiated by the manager during the management term. Howard Entertainment Inc. v. Kudrow, B234962. The ruling came in litigation alleging that actress Lisa Kudrow owes her former manager Scott Howard post-term monies under a 1991 oral management agreement. Howard's expert Martin Bauer has worked in the entertainment industry since 1974, in his early years largely as a talent agent before becoming a personal manager in 1998. The trial court excluded Bauer's initial and supplemental expert declarations. But the court of appeal noted: “That Bauer was not a personal manager in 1991 ' the date of the Howard-Kudrow agreement ' and cannot point to specific people he talked to then is not fatal. ' [For example,] Bauer, in his additional declaration, augmented the original declaration by stating it had been the custom and usage in the entertainment industry from at least the early 1980's that talent agents, when their services are terminated by a client, continue to receive from the client post-termination commissions on engagements entered into and services performed while the agent was rendering services to that client. Bauer noted that there are certain similarities between personal managers and talent agents'.”

Stan Soocher is Editor-in-Chief of Entertainment Law & Finance and a tenured Associate Professor of Music & Entertainment Industry Studies at the University of Colorado's Denver Campus. He can be reached at [email protected] or via www.stansoocher.com.