BIT PARTS

The California Court of Appeal, Second Appellate District, affirmed an anti-SLAPP motion by comic actor/screenwriter Daman Wayans to dismiss a lawsuit brought by actor Pierre Daniel, who worked as an extra in Wayans' movie A Haunted House 2. Daniel v. Wayans, B261814. Daniel, who is African-American, claimed, among other things, that Wayans, who is also African-American, racially harassed Daniel by calling him “nigga” and comparing him to the cartoon character Cleveland Brown from the TV series Family Guy. Affirming the Los Angeles Superior Court's dismissal of the lawsuit under California's anti-SLAPP law, Cal. Civ. Code §425.16, the court of appeal noted: “[T]he gravamen of Daniel's complaint stems not from any conduct incidental to Wayans's free speech rights; rather, all of the alleged misconduct is based squarely on Wayans's exercise of free speech — the creation and promotion of a full-length motion picture, including the off-camera creative process.” The court of appeal added: “The Daniel's argument that the movie's creative process occurred only when the cameras were rolling rests on an unreasonably narrow or constrained view of the creative process generally.” The court also emphasized, “Nigga is not an unambiguous racial epithet in today's world, especially when used intra-racially, as it was here.”

Lanham Act Doesn't Apply to Unauthorized Use of Roger Nichols Song in Political Ad

The U.S. District Court for the District of Columbia dismissed a false association claim brought by songwriter Roger Nichols under the federal Lanham Act over the unlicensed use of his song “Times of Your Life,” originally recorded by Paul Anka, in a Wisconsin TV political ad by the DC-based conservative group Club for Growth Action. Nichols v. Club for Growth Action, 16-220. “Times of Your Life” has previously been used with Nichols' permission in commercials and in the TV series Mad Men. District Judge Rosemary M. Collyer found on Nichols' claim under the Lanham Act, 11 U.S.C. §1125: “The Ad at issue here is … political speech expressing a point of view, not commercial speech attempting to promote a good or service. The Lanham Act only covers speech 'in connection with any goods or services,' and Plaintiffs have failed to allege facts indicating that Club for Growth's Ad involved a good or service covered by the Lanham Act.” Nichols also sued for copyright infringement. On this Judge Collyer noted: “Plaintiffs allege that Defendant copied a 30-second portion of the musical composition and made no alterations to the melody or tone of portion of the musical composition that was used. Defendant [raises fair use and] focuses its argument on the differences between the lyrics of Times of Your Life and the lyrics used in the Ad and does not dispute that the musical composition itself was not altered. The court allowed Nichols to proceed with his copyright infringement claim by noting: “Fair use is not traditionally determined on a motion to dismiss and this Court will not disrupt that tradition.”

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Stan Soocher is Editor-in-Chief of Entertainment Law & Finance and a tenured Associate Professor of Music & Entertainment Studies at the University of Colorado's Denver Campus. He is author of the book Baby You're a Rich Man: Suing the Beatles for Fun & Profit (ForeEdge/University Press of New England) . For more, visit www.stansoocher.com.

California Federal Court Rules in Favor of YouTube in Lawsuit over Removal of Artist's Music Video

The U.S. District Court for the Northern District of California dismissed a lawsuit brought by a music company over YouTube's initial removal of an artist's music video for auto-inflating user view counts. Darnaa LLC v. Google Inc., 15-03221. Darnaa's complaint alleged breach of the covenant of good faith and fair dealing. But District Judge William Alsup upheld YouTube's limitation-of-liability clause in its service agreement with Darnaa that applies to an “interruption or cessation of transmission.” Darnaa argued Cal. Civ. Code §1668 supported its case. That statute states: “All contracts which have for their object, directly or indirectly, to exempt anyone from responsibility for his own fraud, or willful injury to the person or property of another, or violation of law, whether willful or negligent, are against the policy of the law.” Judge Alsup explained, however: “Darnaa, LLC, has not alleged that Google acted fraudulently, or that it willfully or intentionally injured Darnaa's person or property. Darnaa, LLC's claims simply stem from Google's interruption of service and resetting the view count on the 'Cowgirl' video, which it did pursuant to a term in the agreement (namely, the prohibition of systems that artificially inflate view counts). As pled, [Darnaa's complaint] … does not protect such a claim from the limitation-of-liability clause found in Section 10 of the terms of service agreement.

Daman Wayans' Anti-SLAPP Motion Is Granted in Racial Harassment Suit by Actor

The California Court of Appeal, Second Appellate District, affirmed an anti-SLAPP motion by comic actor/screenwriter Daman Wayans to dismiss a lawsuit brought by actor Pierre Daniel, who worked as an extra in Wayans' movie A Haunted House 2. Daniel v. Wayans, B261814. Daniel, who is African-American, claimed, among other things, that Wayans, who is also African-American, racially harassed Daniel by calling him “nigga” and comparing him to the cartoon character Cleveland Brown from the TV series Family Guy. Affirming the Los Angeles Superior Court's dismissal of the lawsuit under California's anti-SLAPP law, Cal. Civ. Code §425.16, the court of appeal noted: “[T]he gravamen of Daniel's complaint stems not from any conduct incidental to Wayans's free speech rights; rather, all of the alleged misconduct is based squarely on Wayans's exercise of free speech — the creation and promotion of a full-length motion picture, including the off-camera creative process.” The court of appeal added: “The Daniel's argument that the movie's creative process occurred only when the cameras were rolling rests on an unreasonably narrow or constrained view of the creative process generally.” The court also emphasized, “Nigga is not an unambiguous racial epithet in today's world, especially when used intra-racially, as it was here.”

Lanham Act Doesn't Apply to Unauthorized Use of Roger Nichols Song in Political Ad

The U.S. District Court for the District of Columbia dismissed a false association claim brought by songwriter Roger Nichols under the federal Lanham Act over the unlicensed use of his song “Times of Your Life,” originally recorded by Paul Anka, in a Wisconsin TV political ad by the DC-based conservative group Club for Growth Action. Nichols v. Club for Growth Action, 16-220. “Times of Your Life” has previously been used with Nichols' permission in commercials and in the TV series Mad Men. District Judge Rosemary M. Collyer found on Nichols' claim under the Lanham Act, 11 U.S.C. §1125: “The Ad at issue here is … political speech expressing a point of view, not commercial speech attempting to promote a good or service. The Lanham Act only covers speech 'in connection with any goods or services,' and Plaintiffs have failed to allege facts indicating that Club for Growth's Ad involved a good or service covered by the Lanham Act.” Nichols also sued for copyright infringement. On this Judge Collyer noted: “Plaintiffs allege that Defendant copied a 30-second portion of the musical composition and made no alterations to the melody or tone of portion of the musical composition that was used. Defendant [raises fair use and] focuses its argument on the differences between the lyrics of Times of Your Life and the lyrics used in the Ad and does not dispute that the musical composition itself was not altered. The court allowed Nichols to proceed with his copyright infringement claim by noting: “Fair use is not traditionally determined on a motion to dismiss and this Court will not disrupt that tradition.”

*****
Stan Soocher is Editor-in-Chief of Entertainment Law & Finance and a tenured Associate Professor of Music & Entertainment Studies at the University of Colorado's Denver Campus. He is author of the book Baby You're a Rich Man: Suing the Beatles for Fun & Profit (ForeEdge/University Press of New England) . For more, visit www.stansoocher.com.