Bit Parts

The U.S. Court of Appeals for the Third Circuit upheld an award of statutory damages that exceeded the defendants' related revenues from the infringements, especially for an event that generated just $180 in ticket sales. Broadcast Music Inc. (BMI) v. Crocodile Rock Corp., 14-3891. The defendants' Allentown, PA, nightclub grossed $15,000 and $180 respectively in ticket sales from two concerts at which a total of five unlicensed BMI songs were publicly performed (four of them at the later show). The U.S. District Court for the Eastern District of Pennsylvania issued a default judgment against the defendants and hit them with $7,000 in statutory damages per infringement, for a total of $35,000 (plus $67,000 to BMI in costs and attorney fees). On appeal, the Crocodile Rock defendants argued the damages were too high in light of the club's ticket sales, that for a default judgment the district court should have awarded the statutory minimum of $750 per infringement. But in a brief, straightforward, unpublished opinion, the Third Circuit noted: “Courts have wide discretion in determining statutory damages. ' Indeed, so long as the trial court's statutory damages award falls within the statute's prescribed limits, our review of such award 'is even more deferential than abuse of discretion.'”

“DJ Logic” Loses Trademark Suit

The U.S. District Court for the Eastern District of Michigan decided that DJ/turntablist Lee Kibler didn't have a strong, enforceable trademark for the name “DJ Logic,” which he has used since 1999. Kibler v. Hall, 14-10017. Kibler sued rapper Robert Hall, who has performed as “Logic” since 2009. Senior United States District Judge Arthur J. Tarnow noted in part: “Plaintiff has produced no survey evidence showing consumer recognition of his mark. Likewise, he has produced no evidence concerning the marketing of his albums. Plaintiff has sold less than 300 albums over the past three years and less than 60,000 since release of his first album sixteen years ago. He currently has no recording contract, and his past recording contracts were not with a major label. In sum, the evidence shows that Plaintiff's mark has little commercial strength.” Judge Tarnow added that the use of “Logic” by other musicians further weakened Kibler's mark: “Defendants have identified various musicians who, like Plaintiff, market music online under a name incorporating 'logic' or a variation thereof ' some of whom also incorporate 'DJ' into their name.” The district judge later observed: “Considered in its totality, the 'DJ Logic' mark is significantly distinct from Defendant Hall's 'Logic' mark. The 'DJ' portion not only changes the look and sound of the mark but also describes or suggests certain characteristics of Plaintiff's music.”

Second Circuit Affirms Jury Instruction That Cited Only Part of Copyright Act's List of Fair Use Factors

The U.S. Court of Appeals for the Second Circuit cautiously embraced a New York district judge's jury instruction that didn't set forth all four factors of the copyright fair-use test of 17 U.S.C. '107. Jamie Keeling, creator of a stage parody of the 1991 action movie Point Break, sued a theatrical producer who used Keeling's parody Point Break Live! without a license. The producer Eve Hars contended Keeling's parody wasn't a copyright protected work over which Keeling could sue Hars for infringement. Southern District of New York District Judge Thomas Griesa ruled against Hars on summary judgment, by finding that the owner of a fair use parody may file her own claim for infringement. The district judge later instructed the jury to focus on '107's “purpose and character of use” factor to determine the transformativeness of Keeling's work over the Point Break movie. Judge Griesa noted to the jury that citing the full “list of [statutory fair use] factors [is] without much content or meaning.” In affirming, including on the jury's finding of infringement of Keeling's parody by Hars, the Second Circuit observed: “We find [Judge Griesa's] stated rationale ' the desire to 'put a little more content on the discussion,' which the 'list of factors' alone lacked[] ' to be understandable, if not advisable. [But t]he safer course is for the trial judge to explain the application of all four factors, however briefly, based on the circumstances presented.”

Ticket Sales of Just $180 Don't Bar Statutory Damages of $7,000 Per Song Infringed

The U.S. Court of Appeals for the Third Circuit upheld an award of statutory damages that exceeded the defendants' related revenues from the infringements, especially for an event that generated just $180 in ticket sales. Broadcast Music Inc. (BMI) v. Crocodile Rock Corp., 14-3891. The defendants' Allentown, PA, nightclub grossed $15,000 and $180 respectively in ticket sales from two concerts at which a total of five unlicensed BMI songs were publicly performed (four of them at the later show). The U.S. District Court for the Eastern District of Pennsylvania issued a default judgment against the defendants and hit them with $7,000 in statutory damages per infringement, for a total of $35,000 (plus $67,000 to BMI in costs and attorney fees). On appeal, the Crocodile Rock defendants argued the damages were too high in light of the club's ticket sales, that for a default judgment the district court should have awarded the statutory minimum of $750 per infringement. But in a brief, straightforward, unpublished opinion, the Third Circuit noted: “Courts have wide discretion in determining statutory damages. ' Indeed, so long as the trial court's statutory damages award falls within the statute's prescribed limits, our review of such award 'is even more deferential than abuse of discretion.'”