Bit Parts

Meanwhile, the U.S. District Court for the Eastern District of Pennsylvania granted summary judgment in favor of Usher in an infringement suit over the song “Bad Girl,” also from Usher's Confession album. Marino v. Usher, 11-6811. District Judge Paul S. Diamond found in part that plaintiff Daniel Marino gave Usher an implied license to use “Bad Girl,” which Marino originally co-wrote as “Club Girl.” Judge Diamond's implied license analysis went as follows: “Plaintiff testified that he not only agreed to, but very much wanted, Usher to include 'Club Girl/Bad Girl' in his album ' indeed, he was 'excited' by it. ' Plaintiff sent Pro Tools files for 'Club Girl' to Usher's producers, converting the files to expedite the process. Marino made numerous revisions to 'Club Girl' at Defendants' request to facilitate Usher's use of the song. ' Plaintiff never sought to enjoin distribution of the album, even after learning that he was not properly credited” as a songwriter. In any case, Marino's co-songwriters, who he also sued, had granted the Usher defendants an express license to use their song. In a related ruling, District Judge Diamond decided to issue a sanction against Marino's counsel, Francis Malofiy for “inveigl[ing] an inculpatory affidavit” from Marino co-songwriter William Guice, who wasn't represented by counsel. Then, Judge Diamond continued, “after falsely assuring Guice that he was only a witness, [Malofiy] entered a default against him.” The sanction barred Guice's affidavit from being used as evidence against him in Marino's suit.

Management Company Gets Preliminary Injunction to Block Use of Artist Name It Created

The U.S. District Court for the Southern District of Texas granted a personal manager's bid for a preliminary injunction to block a teen singer the manager previously represented from using the stage name “Sharv'.” Anderson v. Baker, 4:14-CV-1211. Shannon and Harvey Baker, the parents of 15-year-old Kaylah Baker, signed an agreement in May 2013 for Visionworld Entertainment, based in Broward County, FL, to be their daughter's exclusive manager. Visionworld hired a stylist to help develop a signature wholesome image for Kaylah, who the management company then promoted as “Sharv'.” But in March 2014, Shannon Baker sent the management company a contract termination notice after a dispute arose between the Bakers and Visionworld over how to use the artist's social media accounts. When the Bakers continued to promote Sharv' on their own, Visionworld filed a trademark suit against them. District Judge Melinda Harmon first noted: “Much of what has transpired could have been prevented or resolved through clear contractual language. ' Here, the Agreement did not contemplate this highly foreseeable dispute and was completely silent as to the ownership of any intellectual property rights which might be created during the course of the parties' relationship.” Determining that Visionworld came up with the “Sharv'” name and was first to use it in commerce, Judge Harmon went on decide “that Plaintiffs have shown that Defendants fully intend to capitalize on the goodwill and reputation generated by Visionworld by using the Sharv' mark to promote Kaylah Baker, now under their management, to young, impressionable, and unsavvy consumers. As such, the Court concludes that Plaintiffs have met their burden to show infringement of their mark by demonstrating that a likelihood of confusion exists with regard to the image of Sharv' created by Visionworld and the [more risqu'] image of Sharv' now being promoted by Plaintiffs.”

New York Federal Judge Sees No Substantial Similarity Between Plaintiff's Rap Song and Usher's R&B Song

Federal District Judge Denise Cote of the Southern District of New York offered an interesting substantial similarity analysis in a copyright suit alleging Usher's R&B pop song “Caught Up,” from his 2004 album Confessions , infringed on the plaintiff's rap song “Caught Up.” Edwards v. Raymond, 13 Civ. 7985. Dismissing the complaint, Judge Cote found: “A comparison of the sound recordings of the two songs confirms that their music is not substantially similar. There are a number of material differences. First, the Plaintiffs' Song is in significant part a rap song. The Challenged Song has no rapping; Usher sings all of the lyrics. The Plaintiffs' Song also consists of a duet including a male and a female singer, whereas the Challenged Song features a solo male lead singer. Moreover, the Challenged Song contains significantly sparser instrumentation backing the singers' vocals than does the Plaintiffs' Song. The Challenged Song also features 'unmistakable Motown influences' influences, ' whereas the Plaintiffs' Song does not. And the chorus, or hook, of each song, although both employing the phrase 'Caught Up,' feature entirely dissimilar melodies.” District Judge Cote added: “The Plaintiffs' Song is an upbeat, optimistic song, whereas the Challenged Song has a contemplative, questioning feel. Because of these differences, the 'total concept and overall feel' of the music in the two songs are different.” This is the second infringement suit Usher has won in the New York federal court over his song. The first was brought by a different plaintiff, who had also written a song named “Caught Up.” Pyatt v. Raymond, 462 Fed. Appx. 22 (2d Cir. 2012).

Pennsylvania Federal Court Finds Songwriter Gave Usher Implied License

Meanwhile, the U.S. District Court for the Eastern District of Pennsylvania granted summary judgment in favor of Usher in an infringement suit over the song “Bad Girl,” also from Usher's Confession album. Marino v. Usher, 11-6811. District Judge Paul S. Diamond found in part that plaintiff Daniel Marino gave Usher an implied license to use “Bad Girl,” which Marino originally co-wrote as “Club Girl.” Judge Diamond's implied license analysis went as follows: “Plaintiff testified that he not only agreed to, but very much wanted, Usher to include 'Club Girl/Bad Girl' in his album ' indeed, he was 'excited' by it. ' Plaintiff sent Pro Tools files for 'Club Girl' to Usher's producers, converting the files to expedite the process. Marino made numerous revisions to 'Club Girl' at Defendants' request to facilitate Usher's use of the song. ' Plaintiff never sought to enjoin distribution of the album, even after learning that he was not properly credited” as a songwriter. In any case, Marino's co-songwriters, who he also sued, had granted the Usher defendants an express license to use their song. In a related ruling, District Judge Diamond decided to issue a sanction against Marino's counsel, Francis Malofiy for “inveigl[ing] an inculpatory affidavit” from Marino co-songwriter William Guice, who wasn't represented by counsel. Then, Judge Diamond continued, “after falsely assuring Guice that he was only a witness, [Malofiy] entered a default against him.” The sanction barred Guice's affidavit from being used as evidence against him in Marino's suit.