Bit Parts

The U.S. District Court for the Southern District of New York is allowing Artists Rights Enforcement Corp. to amend a complaint it brought against the estate of R&B singer Ben E. King over King's share of rights in songs that include “Stand by Me” and “There Goes My Baby.” Artists Rights Enforcement Corp. (AREC) v. Estate of King, 16-CV-1121. In December 2016, District Judge J. Paul Oetken dismissed AREC's claim over a 2014 written agreement between King for AREC to administer and to find a purchaser for King's catalog. In that earlier ruling, District Judge Oetken found the 2014 agreement void because it had been entered into before King sent copyright terminations to Sony/ATV Tunes under 17 U.S.C. §304(c) to recapture his part of the song copyrights. In a May 2017 decision in the case, Judge Oetken denied AREC's motion for reconsideration. But the district judge did find AREC could amend its lawsuit to allege breach of an oral contract with King promising payment to AREC of a 10% fee for arranging for the sale of King's songwriter royalties. AREC seeks 10% of $7.8 million that the Music Sales Group said it was willing to put up to purchase King's rights. The deal wasn't finalized, however, because King's estate claimed his April 2015 death voided the oral agreement with AREC. Judge Oetken observed in his May 2017 ruling: “Because a promise of royalty payments may exist separately from a promise to transfer any direct interest in or rights under a copyright, the motion to amend to add the additional count is not obviously futile in this respect. Taking the facts as pleaded as true, and drawing all inferences in AREC's favor, the [c]ourt cannot assume that any agreement necessarily included the purchase of 'both King's writer's interest and his reverted copyright interest,' rather than just his royalties. That is, not every promise of royalty payments necessarily runs afoul of the Copyright Act, so more argument or fact development can clarify the picture.”

“Thin” Copyright Protection for Jokes

The U.S. District Court for the Southern District of California addressed the novel issue of the extent to which individual jokes may be subject to copyright protection. Kaseberg v. Conaco LLC, 15cv1637. In addition, the district court allowed comedy writer Alex Kaseberg to proceed with infringement claims against TV host Conan O'Brien, O'Brien chief writer Mike Sweeney and other co-defendants over several two-line jokes based on current events. But in doing so District Judge Janis L. Sammartino agreed with the defendants that jokes are at most entitled to “thin” copyright protection. District Judge Sammartino noted: “Each joke begins with a factual sentence and then immediately concludes with another sentence providing humorous commentary on the preceding facts. Facts, of course, are not protected by copyright. … And although the punchlines of the jokes are creative, they are nonetheless constrained by the limited number of variations that would (1) be humorous (2) as applied to the specific facts articulated in each joke's previous sentence and (3) provide mass appeal. This merits only thin protection. The standard for infringement must therefore also be some form of 'virtual identity.'” District Judge Sammartino also discussed the difference in access concerns between jokes and other types of copyrightable content: “Each joke was only comedically viable for a very short period, and an alleged infringer could have copied the joke in mere seconds, or even have later done so subconsciously after earlier reading the joke. This is in stark contrast to an entire screenplay or novel, which would remain creatively viable for an extended period and take much longer for an alleged infringer to absorb; in such cases the access window — and potential for discovering proof of such access — necessarily stretches longer.”

California Talent Agencies Act Isn't “Vague”

The U.S. Court of Appeals for the Ninth Circuit upheld a federal district court's dismissal of a challenge by personal managers to the licensing requirements of the California Talent Agencies Act, Calif. Labor §1700 et seq. National Conference of Personal Managers Inc. (NCOPM) v. Brown, 15-56388. The U.S. District Court for the Central District of California had ruled that the phrase “procur[ing] employment” in §1700.44, for when a state license is needed when getting work for talent, wasn't unconstitutionally vague. The Ninth Circuit noted the California Court of Appeal found in Wachs v. Curry , 13 Cal. App. 4th 616 (1993) that “the term 'procure' is used with respect to employment in several other California statutes and is not 'so lacking in objective content as to render the [Talent Agencies] Act facially unconstitutional' or unconstitutional as-applied here.” The Ninth Circuit also affirmed dismissal of the NCOPM's claim under the U.S. Constitution's commerce clause by not allowing for out-of-state licenses. On this, the appeals court explained that TAA §1700.19(b) “merely provides than an actual license must contain an address of the location in which the licensee is authorized to conduct business as a talent agency — the law does not preclude out-of-state parties from becoming licensed talent agencies.”

Motion to Amend Is Granted In Dispute Over Sale Opportunity for Ben E. King Song Royalties

The U.S. District Court for the Southern District of New York is allowing Artists Rights Enforcement Corp. to amend a complaint it brought against the estate of R&B singer Ben E. King over King's share of rights in songs that include “Stand by Me” and “There Goes My Baby.” Artists Rights Enforcement Corp. (AREC) v. Estate of King, 16-CV-1121. In December 2016, District Judge J. Paul Oetken dismissed AREC's claim over a 2014 written agreement between King for AREC to administer and to find a purchaser for King's catalog. In that earlier ruling, District Judge Oetken found the 2014 agreement void because it had been entered into before King sent copyright terminations to Sony/ATV Tunes under 17 U.S.C. §304(c) to recapture his part of the song copyrights. In a May 2017 decision in the case, Judge Oetken denied AREC's motion for reconsideration. But the district judge did find AREC could amend its lawsuit to allege breach of an oral contract with King promising payment to AREC of a 10% fee for arranging for the sale of King's songwriter royalties. AREC seeks 10% of $7.8 million that the Music Sales Group said it was willing to put up to purchase King's rights. The deal wasn't finalized, however, because King's estate claimed his April 2015 death voided the oral agreement with AREC. Judge Oetken observed in his May 2017 ruling: “Because a promise of royalty payments may exist separately from a promise to transfer any direct interest in or rights under a copyright, the motion to amend to add the additional count is not obviously futile in this respect. Taking the facts as pleaded as true, and drawing all inferences in AREC's favor, the [c]ourt cannot assume that any agreement necessarily included the purchase of 'both King's writer's interest and his reverted copyright interest,' rather than just his royalties. That is, not every promise of royalty payments necessarily runs afoul of the Copyright Act, so more argument or fact development can clarify the picture.”

“Thin” Copyright Protection for Jokes

The U.S. District Court for the Southern District of California addressed the novel issue of the extent to which individual jokes may be subject to copyright protection. Kaseberg v. Conaco LLC, 15cv1637. In addition, the district court allowed comedy writer Alex Kaseberg to proceed with infringement claims against TV host Conan O'Brien, O'Brien chief writer Mike Sweeney and other co-defendants over several two-line jokes based on current events. But in doing so District Judge Janis L. Sammartino agreed with the defendants that jokes are at most entitled to “thin” copyright protection. District Judge Sammartino noted: “Each joke begins with a factual sentence and then immediately concludes with another sentence providing humorous commentary on the preceding facts. Facts, of course, are not protected by copyright. … And although the punchlines of the jokes are creative, they are nonetheless constrained by the limited number of variations that would (1) be humorous (2) as applied to the specific facts articulated in each joke's previous sentence and (3) provide mass appeal. This merits only thin protection. The standard for infringement must therefore also be some form of 'virtual identity.'” District Judge Sammartino also discussed the difference in access concerns between jokes and other types of copyrightable content: “Each joke was only comedically viable for a very short period, and an alleged infringer could have copied the joke in mere seconds, or even have later done so subconsciously after earlier reading the joke. This is in stark contrast to an entire screenplay or novel, which would remain creatively viable for an extended period and take much longer for an alleged infringer to absorb; in such cases the access window — and potential for discovering proof of such access — necessarily stretches longer.”