Bit Parts

The U.S. Court of Appeals for the Eleventh Circuit decided that the estate of a songwriter who had a right to royalties from his composition could rely on a publishing company's copyright registration of the song to proceed with an infringement suit. Smith v. Casey, 13-12351. In Smith, the son of songwriter/producer Ronald L. Smith filed suit alleging the defendants improperly continued to exploit the song “Spank,” which Smith wrote, then co-produced for Jimmy “Bo” Horne as a 1979 record release for Sunshine Sound, a company affiliated with K.C. of the Sunshine Band. But the U.S. District Court for the Southern District of Florida dismissed Ronald Smith Jr.'s suit. Reversing in part, the appeals court observed that Sunshine Sound's publishing affiliate Harrick Music “registered a claim to copyright in the 'Spank' composition, specifically identifying Smith as the composer and informing the Copyright Office the work was not made for hire. Nothing in '411(a) [of the U.S. Copyright Act's registration prerequisite provision] indicates that a composer who has agreed to assign his legal interest in a composition, along with the right to register it, in exchange for royalties, may not rely on the registration his assignee files.” But the Eleventh Circuit agreed with the lower court that Smith Jr.'s claim for a declaratory ruling on the validity of termination notices Smith Sr. sent in 2011 to recapture four song copyright assignments wasn't yet ripe for adjudication. “As best we can tell, the Copyright Office has neither accepted nor rejected the estate's termination notices,” the appeals court noted,'adding that, in any case, 'the estate expressly alleged that the earliest date the termination notices could be legally effective is August of 2014.”

'Vampyres' Book Didn't Defame Plaintiff with Same Name as Fictional Character

The Court of Civil Appeals of Oklahoma affirmed the dismissal of a suit by plaintiff Erin Bates over a character with the same name in the 'vampyres' series book Hidden, A House of Night Novel. Bates v. Cast, 111739. Bates' suit, filed in Tulsa County, alleged defamation, appropriation of likeness, false light and intentional infliction of emotional distress. The appeals court noted, among other things, that 'in those jurisdictions where the issue has been addressed, the courts uniformly hold that, in order to establish a claim for defamation arising from a work of fiction, it must be shown that, viewing the work of fiction as a whole, the fictional character depicts the plaintiff, and the test is whether a reasonable reader would understand the fictional character 'was, in actual fact, [the plaintiff] conducting herself as described.” Bates was taught in high school by P.C. Cast, who co-authors the House of Night series with her daughter Kristin. The appeals court concluded, however: 'Considering in its totality Defendants' fictional work of fantasy about a school for vampyres, populated by vampyre students, we are hardpressed to say, even viewing the evidentiary materials in the light most favorable to Plaintiff, that any reasonable reader would conclude that the book's fictional 'Erin Bates' character actually depicts Plaintiff conducting herself as described in the book.'

Hulk Hogan Denied Temporary Injunction Against Publication of Sex Tape

The Court of Appeal of Florida, Second District, affirmed the denial of Hulk Hogan's bid for a temporary injunction to stop publication of a sex tape that he says was created without his consent. Gawker Media LLC v. Bollea, 2D13-1951. Gawker Media published a report and video excerpts of the sex tape, of an extramarital affair of Hogan's, on its website. But Gawker denies being responsible for creation of the video. The court of appeal noted: “Here, the written report and video excerpts are linked to a matter of public concern ' Mr. Bollea's [i.e., Hulk Hogan's] extramarital affair and the video evidence of such ' as there was ongoing public discussion about the affair and the Sex Tape, including by Mr. Bollea himself. Therefore, Mr. Bollea failed to meet the heavy burden to overcome the presumption that the temporary injunction is invalid as an unconstitutional prior restraint under the First Amendment.”

Publisher's Copyright Registration Permits Songwriter's Estate to Pursue Infringement Claim

The U.S. Court of Appeals for the Eleventh Circuit decided that the estate of a songwriter who had a right to royalties from his composition could rely on a publishing company's copyright registration of the song to proceed with an infringement suit. Smith v. Casey, 13-12351. In Smith, the son of songwriter/producer Ronald L. Smith filed suit alleging the defendants improperly continued to exploit the song “Spank,” which Smith wrote, then co-produced for Jimmy “Bo” Horne as a 1979 record release for Sunshine Sound, a company affiliated with K.C. of the Sunshine Band. But the U.S. District Court for the Southern District of Florida dismissed Ronald Smith Jr.'s suit. Reversing in part, the appeals court observed that Sunshine Sound's publishing affiliate Harrick Music “registered a claim to copyright in the 'Spank' composition, specifically identifying Smith as the composer and informing the Copyright Office the work was not made for hire. Nothing in '411(a) [of the U.S. Copyright Act's registration prerequisite provision] indicates that a composer who has agreed to assign his legal interest in a composition, along with the right to register it, in exchange for royalties, may not rely on the registration his assignee files.” But the Eleventh Circuit agreed with the lower court that Smith Jr.'s claim for a declaratory ruling on the validity of termination notices Smith Sr. sent in 2011 to recapture four song copyright assignments wasn't yet ripe for adjudication. “As best we can tell, the Copyright Office has neither accepted nor rejected the estate's termination notices,” the appeals court noted,'adding that, in any case, 'the estate expressly alleged that the earliest date the termination notices could be legally effective is August of 2014.”

'Vampyres' Book Didn't Defame Plaintiff with Same Name as Fictional Character

The Court of Civil Appeals of Oklahoma affirmed the dismissal of a suit by plaintiff Erin Bates over a character with the same name in the 'vampyres' series book Hidden, A House of Night Novel. Bates v. Cast, 111739. Bates' suit, filed in Tulsa County, alleged defamation, appropriation of likeness, false light and intentional infliction of emotional distress. The appeals court noted, among other things, that 'in those jurisdictions where the issue has been addressed, the courts uniformly hold that, in order to establish a claim for defamation arising from a work of fiction, it must be shown that, viewing the work of fiction as a whole, the fictional character depicts the plaintiff, and the test is whether a reasonable reader would understand the fictional character 'was, in actual fact, [the plaintiff] conducting herself as described.” Bates was taught in high school by P.C. Cast, who co-authors the House of Night series with her daughter Kristin. The appeals court concluded, however: 'Considering in its totality Defendants' fictional work of fantasy about a school for vampyres, populated by vampyre students, we are hardpressed to say, even viewing the evidentiary materials in the light most favorable to Plaintiff, that any reasonable reader would conclude that the book's fictional 'Erin Bates' character actually depicts Plaintiff conducting herself as described in the book.'