Cameo Clips

CONCERT PERFORMANCES/PUBLIC ACCESS BROADCASTS

The U.S. District Court for the District of Massachusetts denied a TV producer's motion to dismiss a copyright infringement suit by a singer/songwriter whose performance was broadcast on a cable public access program. However, the district court denied the singer/songwriter's motion for summary judgment against the producer and Comcast of Massachusetts. Daggs v. Bass, 11-30070

Carol Daggs (p/k/a “Jazzage”) filed suit after a performance of her playing three original compositions at the Organixsoul showcase in Springfield, MA, appeared on the City Beat public access program. In her suit, she claimed that City Beat producer Tony Bass had videotaped her performance without her permission.

District Judge Dennis Saylor IV observed: “Although she does not refer to it as such, plaintiff also makes a claim under 17 U.S.C. '1101, known as the 'Anti-Bootlegging Statute.' This statute broadly prohibits unauthorized creation of and trafficking in sound recordings and music videos.”

Judge Saylor went on to note that in his motion to dismiss on the pleadings, Bass “seems to suggest that plaintiff did not suffer any harm, and in fact benefitted from his willingness to provide her with a free copy of the recording. This is not a legal basis for dismissing plaintiff's claims. In a case alleging copyright infringement, there is no requirement that a plaintiff plead any harm beyond the unlawful infringement itself.”

The court then explained that the Cable Communications Act of 1984 (CCA), 47 U.S.C. '558, shields cable operators from “all civil actions ' concerning the content of programs” on public access, which the CCA prohibits cable operators from editing. Besides, the court noted, Comcast had a blanket license to broadcast any songs in the repertoire of the American Society of Composers, Authors and Publishers, the performing rights society to which Daggs belongs.

Finally, Judge Saylor found on Daggs' motion for summary judgment as to Bass, “there is a dispute as to whether defendant's recording of plaintiff's performance and the subsequent broadcast were authorized. Defendant contends that plaintiff knew he was recording the showcase, knew he was a producer for a television show, and asked him for a copy of the recording. A reasonable factfinder could find that plaintiff's actions were sufficient to grant defendant an implied license to record and broadcast her performance, and thus provide a valid defense to copyright infringement.”

The Court of Appeals of Michigan decided that a developer of a video game for a distributor qualified for a Michigan film tax credit. MVW Games L.L.C. v. Michigan Film Office (MFO), 304999. MVW Games was formed to produce a video game based on the Discovery Channel TV series Man vs. Wild. MVW, which operated in Farmington Hills, MI, filed an application with the state for $400,798 in film production tax credits. But the MFO denied the credit by finding that MVW didn't qualify as an “eligible production company” because “it does not own or control all of the rights necessary to produce the video game as an overall project.” Mich. Comp. Laws (MCL) 208.1455 stated that a tax credit applicant “must have ownership of, and or control over, all of the intellectual property and other rights necessary to produce the production.”) MVW filed a challenge to the MFO in Oakland Circuit Court, which found in favor of MVW.

Affirming in an unpublished opinion, the state appeals court noted: “Defendants argue that because plaintiff was developing the game pursuant to the terms of a contract with Crave Entertainment, it was not producing the game for distribution as required by MCL 208.1455(13(k), and therefore was not a qualified production. ' Although plaintiff produced the game for Crave Entertainment, who distributed the game, there is nothing in the statutory language that specifically requires plaintiff to both produce and distribute the qualified production. ”

Note: The Michigan film tax credit was replaced by the Michigan Film Incentive program at the start of 2012. The new program specifically states that an interactive game company qualifies as an “eligible production company” without owning or controlling the intellectual property.

CONCERT PERFORMANCES/PUBLIC ACCESS BROADCASTS

The U.S. District Court for the District of Massachusetts denied a TV producer's motion to dismiss a copyright infringement suit by a singer/songwriter whose performance was broadcast on a cable public access program. However, the district court denied the singer/songwriter's motion for summary judgment against the producer and Comcast of Massachusetts. Daggs v. Bass, 11-30070

Carol Daggs (p/k/a “Jazzage”) filed suit after a performance of her playing three original compositions at the Organixsoul showcase in Springfield, MA, appeared on the City Beat public access program. In her suit, she claimed that City Beat producer Tony Bass had videotaped her performance without her permission.

District Judge Dennis Saylor IV observed: “Although she does not refer to it as such, plaintiff also makes a claim under 17 U.S.C. '1101, known as the 'Anti-Bootlegging Statute.' This statute broadly prohibits unauthorized creation of and trafficking in sound recordings and music videos.”

Judge Saylor went on to note that in his motion to dismiss on the pleadings, Bass “seems to suggest that plaintiff did not suffer any harm, and in fact benefitted from his willingness to provide her with a free copy of the recording. This is not a legal basis for dismissing plaintiff's claims. In a case alleging copyright infringement, there is no requirement that a plaintiff plead any harm beyond the unlawful infringement itself.”

The court then explained that the Cable Communications Act of 1984 (CCA), 47 U.S.C. '558, shields cable operators from “all civil actions ' concerning the content of programs” on public access, which the CCA prohibits cable operators from editing. Besides, the court noted, Comcast had a blanket license to broadcast any songs in the repertoire of the American Society of Composers, Authors and Publishers, the performing rights society to which Daggs belongs.

Finally, Judge Saylor found on Daggs' motion for summary judgment as to Bass, “there is a dispute as to whether defendant's recording of plaintiff's performance and the subsequent broadcast were authorized. Defendant contends that plaintiff knew he was recording the showcase, knew he was a producer for a television show, and asked him for a copy of the recording. A reasonable factfinder could find that plaintiff's actions were sufficient to grant defendant an implied license to record and broadcast her performance, and thus provide a valid defense to copyright infringement.”

The Court of Appeals of Michigan decided that a developer of a video game for a distributor qualified for a Michigan film tax credit. MVW Games L.L.C. v. Michigan Film Office (MFO), 304999. MVW Games was formed to produce a video game based on the Discovery Channel TV series Man vs. Wild. MVW, which operated in Farmington Hills, MI, filed an application with the state for $400,798 in film production tax credits. But the MFO denied the credit by finding that MVW didn't qualify as an “eligible production company” because “it does not own or control all of the rights necessary to produce the video game as an overall project.” Mich. Comp. Laws (MCL) 208.1455 stated that a tax credit applicant “must have ownership of, and or control over, all of the intellectual property and other rights necessary to produce the production.”) MVW filed a challenge to the MFO in Oakland Circuit Court, which found in favor of MVW.

Affirming in an unpublished opinion, the state appeals court noted: “Defendants argue that because plaintiff was developing the game pursuant to the terms of a contract with Crave Entertainment, it was not producing the game for distribution as required by MCL 208.1455(13(k), and therefore was not a qualified production. ' Although plaintiff produced the game for Crave Entertainment, who distributed the game, there is nothing in the statutory language that specifically requires plaintiff to both produce and distribute the qualified production. ”

Note: The Michigan film tax credit was replaced by the Michigan Film Incentive program at the start of 2012. The new program specifically states that an interactive game company qualifies as an “eligible production company” without owning or controlling the intellectual property.