Cameo Clips

The First Circuit noted: '[W]e need not decide whether the application approach or the registration approach should govern, as we conclude that the defendants were entitled to summary judgment under either approach. More specifically, we agree with the district court's conclusion that summary judgment was proper because there was a lack of evidence as to 'whether the copies [that the plaintiffs] submitted to the Copyright Office [i.e., copies of the allegedly infringing sound recordings from the defendants' album rather than the original recordings on which the plaintiffs had worked] me[t] all of the requirements for deposit copies' and 'the Copyright Office ha[d] not yet taken a position on whether it ha[d] received all of the required materials for registration.'”

In another part of the case, the appeals court found that the plaintiffs weren't third-party beneficiaries of a profit-sharing agreement between co-defendant LT's Benjamin Records, for which the plaintiff producers had worked, and Machete Music. (Note: The New York Appellate Division, First Department, recently decided in a royalties dispute that the producer of the singer Pink wasn't a third-party beneficiary of a letter of direction Pink sent to LaFace Records, on which she was rostered. Specialists Entertainment Inc. v. Moore, 11874N.)

Teller Prevails in Infringement Suit Over Signature Magic Trick

The U.S. District Court for the District of Nevada decided that a magic trick by plaintiff Teller, of Penn & Teller fame, was copyrightable and that a trick performed by the defendant in videos he created and uploaded to YouTube was substantially similar. Teller v. Dogge, 2:12-CV-591.

Teller sued for copyright infringement of his signature 'Shadows' trick. Defendant Gerard Dogge had tagged his 'The Rose and Her Shadow' videos with 'Penn' and 'Teller' keywords. District Judge James C. Mahan noted: 'While Dogge is correct that magic tricks are not copyrightable, this does not mean that 'Shadows' is not subject to copyright protection. ' The mere fact that a dramatic work or pantomime includes a magic trick, or even that a particular illusion is its central feature does not render it devoid of copyright protection. ' Teller's certificate of registration describes the action of 'Shadows' with meticulous detail, appearing as a series of stage directions acted out by a single performer.' On substantial similarity, District Judge Mahan emphasized that 'whether Dogge uses Teller's method, a technique known only by various holy men of the Himalayas, or even real magic is irrelevant, as the performances appear identical to an ordinary observer.'

The case continues on Teller's unfair competition claim under the federal Lanham Act.

Copyright Registration Prerequisite Not Met

The U.S. Court of Appeals for the First Circuit ruled that an e-mail from the Copyright Office stating it was 'waiting to resolve' the sufficiency of materials submitted for the copyright registration of several songs didn't allow the songwriters to proceed with an infringement suit. Alicea v. Machete Music, 12-1548.

Three reggaeton producers sued over alleged use of their compositions on the 2008 album by Erre XI distributed by Machete Music, which is owned by co-defendant UMG Recordings. The U.S. District Court for the District of Massachusetts granted summary judgment for the defendants on the ground that the plaintiffs had yet to satisfy the registration prerequisite of 17 U.S.C. '411(a) for filing an infringement action. Federal circuits use one of two different tests for determining whether the '411(a) prerequisite is satisfied: either from when the registration application is filed or when the Copyright Office issues the registration certificate.

The First Circuit noted: '[W]e need not decide whether the application approach or the registration approach should govern, as we conclude that the defendants were entitled to summary judgment under either approach. More specifically, we agree with the district court's conclusion that summary judgment was proper because there was a lack of evidence as to 'whether the copies [that the plaintiffs] submitted to the Copyright Office [i.e., copies of the allegedly infringing sound recordings from the defendants' album rather than the original recordings on which the plaintiffs had worked] me[t] all of the requirements for deposit copies' and 'the Copyright Office ha[d] not yet taken a position on whether it ha[d] received all of the required materials for registration.'”

In another part of the case, the appeals court found that the plaintiffs weren't third-party beneficiaries of a profit-sharing agreement between co-defendant LT's Benjamin Records, for which the plaintiff producers had worked, and Machete Music. (Note: The New York Appellate Division, First Department, recently decided in a royalties dispute that the producer of the singer Pink wasn't a third-party beneficiary of a letter of direction Pink sent to LaFace Records, on which she was rostered. Specialists Entertainment Inc. v. Moore, 11874N.)

Teller Prevails in Infringement Suit Over Signature Magic Trick

The U.S. District Court for the District of Nevada decided that a magic trick by plaintiff Teller, of Penn & Teller fame, was copyrightable and that a trick performed by the defendant in videos he created and uploaded to YouTube was substantially similar. Teller v. Dogge, 2:12-CV-591.

Teller sued for copyright infringement of his signature 'Shadows' trick. Defendant Gerard Dogge had tagged his 'The Rose and Her Shadow' videos with 'Penn' and 'Teller' keywords. District Judge James C. Mahan noted: 'While Dogge is correct that magic tricks are not copyrightable, this does not mean that 'Shadows' is not subject to copyright protection. ' The mere fact that a dramatic work or pantomime includes a magic trick, or even that a particular illusion is its central feature does not render it devoid of copyright protection. ' Teller's certificate of registration describes the action of 'Shadows' with meticulous detail, appearing as a series of stage directions acted out by a single performer.' On substantial similarity, District Judge Mahan emphasized that 'whether Dogge uses Teller's method, a technique known only by various holy men of the Himalayas, or even real magic is irrelevant, as the performances appear identical to an ordinary observer.'

The case continues on Teller's unfair competition claim under the federal Lanham Act.