Bit Parts

Another shoe dropped in a recent run of losses by owners of pre-Feb. 15, 1972 sound recordings seeking performance royalties from satellite and online streaming services like Sirius XM and iHeart. In the class action lawsuit, the U.S. District Court for the Northern District of Illinois struck down all claims raised by the pre-1972 sound recordings owners. Sheridan v. iHeartMedia Inc., 15-CV-09229. Among them, Illinois provides common law copyright protection to unpublished works. District Judge John J. Tharp Jr. noted a key issue was “whether Illinois provides common law copyright protection to pre-1972 sound recordings that have been sold to the public, but were not licensed by the defendant for public performance.” District Judge Tharp added: “No broadcaster has ever been held liable under any cause of action available under Illinois law for broadcasting a pre-1972 sound recording without authorization.” However, he wrote: “No case law has defined the limits of what constitutes broadcasting (for example, if it includes services such as cable television and satellite radio for which recipients must pay a fee or a restaurant that plays music over its dining room speakers). Without such guidance, the Court construes the term according to its common meaning — that broadcasters include, at least, all forms of radio and television.” Judge Tharp concluded: “Having published their recordings through decades of sales to the public, the [named plaintiffs] Sheridans surrendered their common law copyright protection under Illinois law to bar public performance of those recordings. Neither the [Illinois Uniform Deceptive Trade Practices Act] nor the Illinois common law tort of conversion provides a means of restoring that right. The former exempts broadcasters and the latter does not reach intangible property rights; neither provides a basis to regard as tortious the growth of broadcast radio over the past century. With no substantive counts remaining, the unjust enrichment claim must fail as well.”

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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.

Mash-Up of Dr. Seuss/Star Trek Components Is a Fair Use

The U.S. District Court for the Southern District of California decided that the book Oh, the Places You'll Boldly Go!, which mashes up components from the Dr. Seuss book Oh, the Places You'll Go with components from Star Trek adventures, was a copyright fair use. Dr. Seuss Enterprises L.P. v. ComicMix LLC, 16cv2779. District Judge Janis L. Sammartino reached her decision on a motion to dismiss. On the purpose and character of use, the defendants had claimed their work was a parody. District Judge Sammartino disagreed by finding, “Boldly merely uses Go!'s illustration style and story format as a means of conveying particular adventures and tropes from the Star Trek canon.” But the district judge went on to find that “although Boldly fails to qualify as a parody it is no doubt transformative. In particular, it combines into a completely unique work the two disparate worlds of Dr. Seuss and Star Trek.” On amount and substantiality of use, Judge Sammartino observed: “[T]here is no dispute that Boldly copies many aspects of Go!'s and other Dr. Seuss illustrations. However, Boldly does not copy them in their entirety; each is infused with new meaning and additional illustrations that reframe the Seuss images from a unique Star Trek viewpoint. Nor does Boldly copy more than is necessary to accomplish its transformative purpose.” Acknowledging the popularity of mash-ups as an art form (while noting not all mash-ups will be fair uses), the district court emphasized: “[I]f fair use was not viable in a case such as this, an entire body of highly creative work would be effectively foreclosed.” Finally, on Dr. Seuss Enterprises's Lanham Act trademark violation claim over title and typeface, the court found none because the defendant's uses of those were artistically relevant to Boldly.

No Viable Causes of Action Found Under Illinois Law for Streaming of Pre-1972 Recordings

Another shoe dropped in a recent run of losses by owners of pre-Feb. 15, 1972 sound recordings seeking performance royalties from satellite and online streaming services like Sirius XM and iHeart. In the class action lawsuit, the U.S. District Court for the Northern District of Illinois struck down all claims raised by the pre-1972 sound recordings owners. Sheridan v. iHeartMedia Inc., 15-CV-09229. Among them, Illinois provides common law copyright protection to unpublished works. District Judge John J. Tharp Jr. noted a key issue was “whether Illinois provides common law copyright protection to pre-1972 sound recordings that have been sold to the public, but were not licensed by the defendant for public performance.” District Judge Tharp added: “No broadcaster has ever been held liable under any cause of action available under Illinois law for broadcasting a pre-1972 sound recording without authorization.” However, he wrote: “No case law has defined the limits of what constitutes broadcasting (for example, if it includes services such as cable television and satellite radio for which recipients must pay a fee or a restaurant that plays music over its dining room speakers). Without such guidance, the Court construes the term according to its common meaning — that broadcasters include, at least, all forms of radio and television.” Judge Tharp concluded: “Having published their recordings through decades of sales to the public, the [named plaintiffs] Sheridans surrendered their common law copyright protection under Illinois law to bar public performance of those recordings. Neither the [Illinois Uniform Deceptive Trade Practices Act] nor the Illinois common law tort of conversion provides a means of restoring that right. The former exempts broadcasters and the latter does not reach intangible property rights; neither provides a basis to regard as tortious the growth of broadcast radio over the past century. With no substantive counts remaining, the unjust enrichment claim must fail as well.”

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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.